The Freedom From Religion Foundation called it “highly disappointing” that the Arizona State Court of Appeals yesterday threw out its bid to declare unconstitutional annual Arizona Day of Prayer proclamations by Gov. Jan Brewer.
The case was not lost on its merits, but on “standing.” The court of appeals upheld a superior court ruling that FFRF and its Arizona members and chapter lack the right to sue over the violation.
“Can you imagine how the court would have ruled had Brewer issued a proclamation stating that prayer was futile and encouraged all citizens to take a day to refrain from prayer?” asks FFRF Co-President Annie Laurie Gaylor. “Slamming shut the courthouse door to prevent citizens from challenging government violations is the legal trend today, and it’s a trend everyone should decry. The Religious Right should take heed: The same rulings that bar atheists and nonbelievers from courthouse challenges will apply equally to aggrieved believers.”
Although the news release by the governor’s office dismissed FFRF as “an out-of-state, special interest group,” FFRF sued on behalf of its 500 state members, as well as its Valley of the Sun chapter, several named Arizona FFRF members and Maricopa County citizens of diverse religious beliefs. The state suit was filed in January 2012 against Brewer, challenging her annual Arizona Day of Prayer. The superior court threw it out on standing in August 2012.
The appeals court decision by Judge Donn Kessler, while confirming that psychological damage can provide standing for someone to sue, rejected FFRF’s claim of injury on the basis that nonbelievers are sent a message that they are not welcome to fully participate in government processes.
Gaylor noted that Brewer’s 2013 Day of Prayer press release (based on a New Testament verse, Matthew 12:21), as well as previous proclamations, directly refute the judge’s contention that the actions do not create outsider status for nonbelievers and non-Christians. Brewer invited “all Arizonians . . . to offer a prayer” and called prayer “one of our most unifying and universal traditions.”
On the contrary, prayer exhorted by government is tremendously divisive, FFRF maintains, and excludes the 17% of Arizona citizens who are nonreligious (and 20% overall who are non-Christian), according to the definitive American Religious Identification Survey.
Brewer has issued annual Arizona Day of Prayer proclamations coinciding with the Christian-based National Day of Prayer on the first Thursday in May. She also had issued a Day of Prayer for Arizona’s Economy and State Budget in 2010 encouraging “all citizens to pray for God’s blessings on our State and our Nation.”
“The ruling emphasizes an invented and heightened requirement for standing. It says that plaintiffs must demonstrate behavior of avoidance of the violative conduct, or ‘that the alleged violation is so pervasive and continuing that it of necessity affects on a practical level how the plaintiffs interact with government.’ Challenges in religion cases have not required such a high hurdle to protect constitutional rights,” added FFRF Staff Attorney Patrick Elliott.
“Courts have most often held that standing is available when there is direct and unwelcome contact with speech promoting or denigrating religion. With the court's view on standing, Arizona citizens are unable to challenge religious endorsements at the highest levels of state government,” Elliott said.
The challenge was brought by pro bono Arizona attorneys Richard Morris and Marc Victor.
FFRF won a historic federal court ruling in Obama v. FFRF in 2010, in which the court stated, “In this instance, the government has taken sides on a matter that must be left to individual conscience.” That ruling was thrown out on standing (not on the merits) by a federal appeals court.
The Colorado State Supreme Court has just announced it will hear the state’s appeal of FFRF’s strong victory there a year ago in which the Colorado State Appeals Court ruled in FFRF’s favor that the Colorado Day of Prayer gubernatorial proclamations are unconstitutional.