‘Unfriendly briefs’ filed in National Day of Prayer appeal

Forty-one Religious Right groups — primarily evangelical Christian, along with 29 states and 67 members of Congress ­— have officially called on an appeals court to overturn the federal ruling in Freedom From Religion Foundation v. Obama declaring the National Day of Prayer unconstitutional.

U.S. District Judge Barbara Crabb of the Western District of Wisconsin ruled April 15 in the Foundation’s favor in its suit against the National Day of Prayer.

The government may no more enact a statute in support of the importance of prayer than it “may encourage citizens to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic,” Crabb ruled.

On July 1, the Obama administration filed a 59-page appeal, plus appendix, before the 7th Circuit U.S. Court of Appeals in Chicago. Many theocratic groups, plus more than half of state attorneys general, filed “friend of the court” briefs siding with the government.

States with attorneys general who joined an amicus brief by the state of Texas in favor of a government-ordained National Day of Prayer include:
Alabama, Arkansas, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Washington, Wisconsin and Wyoming.

Theocratic groups gunning to overturn FFRF’s historic victory include:

• The National Day of Prayer Task Force, in a brief written by the Allliance Defense Fund. The NDP Task Force, chaired by Shirley Dobson, was initially sued as a defendant, along with the president and press secretary, because, as the Foundation asserted, it works “hand-in-glove” with the government for an unconstitutional aim. The ADF is a Christian legal group with a $32 million-plus annual budget which has extensively used FFRF’s challenge of the National Day of Prayer to beg for donations.
• The American Center for Law and Justice, founded by Pat Robertson, whose father, U.S. Sen. Absalom Robertson, was one of the high-profile sponsors of the original 1952 NDP legislation. That legislation was suggested by Rev. Billy Graham to culminate his Capitol crusade, with the intention of seeing politicians “kneeling before Almighty God in prayer” and complaining the nation has “dropped our pilot, the Lord Jesus Christ.” (U.S. senators and representatives who signed the ACLJ amicus brief are listed at the end of this article.)
• Foundation for Moral Law, on behalf of ex-judge Roy S. Moore of Alabama fame, who was deposed as chief justice of the state Supreme Court for refusing to remove a huge Ten Commandments monument he deposited at the Supreme Court building.
• Wallbuilders, run by David Barton, whose Texas group ironically works to dismantle “the wall of separation between church and state” and is known for Barton’s “creative” quotations attributed to founding fathers.
• Dr. James Dobson, with Focus on the Family Action, the Family Research Council, American Civil Rights Union, Let Freedom Ring, Liberty Counsel and cosigned by numerous state groups affiliated with the Family Research Council or Focus on the Family. (The brief was written by attorneys representing the Liberty Institute and Family Research Council).
• The Justice and Freedom Fund, which essentially represents James L. Hirsen, law professor at Trinity Law School.

“We like to call these friend of the court briefs ‘unfriendly briefs,’ ” jokes Annie Laurie Gaylor, Foundation co-president. “Are those Religious Right groups ever panicking over the idea that they would lose this law they created explicitly to get government to endorse their beliefs and actions.”

“In general, these briefs prove our point that the National Day of Prayer is ‘owned’ by the Religious Right,” adds Foundation Co-President Dan Barker, also a named plaintiff in the federal lawsuit.
FFRF has until Sept. 16 to reply, and amicus briefs in its favor are due the week after, with at least six secular and interfaith groups on board.

Despite the Obama administration’s vigorous defense of a president-proclaimed day of prayer, the theocrats contend Obama is mounting an inadequate legal defense and have asked the court to permit them to participate in oral arguments.

“Having Obama defending the day of prayer is like Planned Parenthood defending the unborn!” was the comment at the end of Catholic News Agency’s report on the coalition’s participation request.

The government opposes the request, which would cut into precious time allocated to the government to make its case during the brief oral arguments.

Most of the groups involved say FFRF and its six officers and board members don’t have “standing” — in other words, do not demonstrate an injury that would give them the right to sue. If FFRF and its co-plaintiffs are found by the appeals court to lack standing, it can dismiss the lawsuit without hearing the merits.

FFRF’s litigation attorney Richard L. Bolton noted: “It is ironic that the amicus party complains that our suit should not be heard in court for lack of standing, but they believe that their interest should be personally argued instead of that of the government.

“The NDP apparently creates rights for the religious that they want protected, and they believe those rights should not be contestable by nonbelievers. In other words, the request to participate demonstrates that the National Day of Prayer really does endorse religion,” Bolton said. “That is what is at issue, as we have said all along. How else can they have such an interest that should be personally argued, but nonbelievers should not even be allowed in court?”

In related news, FFRF filed its final brief in July in a similar challenge of the National Day of Prayer proclamation by Gov. Bill Ritter of Colorado, which was filed in state court about the same time the Foundation filed its national challenge.

Major court documents in FFRF’s national case against the Day of Prayer and its challenge of the Colorado practice can be found online at the “legal” link at:

67 Congress members sign anti-FFRF brief

Names appears in order as listed in the amicus brief of the American Center for Law and Justice and the Committee to Protect the National Day of Prayer in support of the Obama administration’s appeal. Representatives are not so identified but senators are titled. Of the 67, three are Democrats and 64 are Republicans:

Randy Forbes, Sen. Sam Brownback, Sen. James Inhofe, Sen. Mike Johanns, Sen. Roger Wicker, Robert Aderholt, Todd Akin, Rodney Alexander, Michele Bachmann, Spencer Bachus, Gresham Barrett, Roscoe Bartlett, Rob Bishop, Marsha Blackburn, John Boehner, John Boozman, Kevin Brady, Paul Broun, Eric Cantor, Michael Conoway, Geoff Davis, Lincoln Davis, Mary Fallin, John Fleming, Jeff Fortenberry, Virginia Foxx, Trent Franks, Scott Garrett, Phil Gingrey, Louie Gohmert, Gregg Harper, Wally Herger, Pete Hoekstra, Bob Inglis, Walter Jones, Jim Jordan, Steve King, John Kline, Doug Lamborn, Robert Latta, Donald Manzullo, Kevin McCarthy, Michael McCaul, Thaddeus McCotter, Patrick McHenry, Mike McIntyre, Cathy McMorris Rodgers, Gary Miller, Jeff Miller, Jerry Moran, Sue Myrick, Randy Neugebauer, Pete Olson, Mike Pence, Joe Pitts, Ted Poe, Tom Price, Phil Roe, Jean Schmidt, Heath Shuler, Adrian Smith, Lamar Smith, Glenn Thompson, Todd Tiahrt, Lynn Westmoreland, Joe Wilson and Frank Wolf.

Freedom From Religion Foundation