The Freedom From Religion Foundation, a national state/church watchdog based in Madison, Wis., filed a petition Friday seeking a rehearing of its National Day of Prayer challenge before the entire U.S. Court of Appeals for the 7th Circuit in Chicago.
An April 14 decision written by Judge Frank H. Easterbrook and signed by Judge Daniel A. Manion declared that FFRF and its plaintiffs did not have standing to challenge the National Day of Prayer law enacted by Congress in 1952. Amended in 1988, the law now names the first Thursday in May as the National Day of Prayer and requires the president to issue a National Day of Prayer proclamation. The law sets aside an entire day each year when citizens may “turn to God in prayer and meditation at churches, in groups, and as individuals.”
The appeals court panel did not rule on the merits of FFRF’s lawsuit, but said FFRF did not have the legal right to challenge the law and its enactment.
FFRF’s 15-page brief, seeking an en banc review (a review by the entire Court of Appeals), notes that the decision “fundamentally changes the standing requirements involving unwelcome exposure to government speech endorsing religion.” The panel majority claims “actual legal coercion” must take place before a citizen has a right to challenge unconstitutional endorsement of religion by the government.
Attorney Richard L. Bolton, litigating the case for FFRF, noted that “coercion is not a necessary element under the Establishment Clause,” and that the decision “is contrary to all known decisions by the Supreme Court and other circuit courts.” Judge Ann Claire Williams agreed with the majority panel, but pointed out this conflict in her concurring decision. Bolton said the decision will create “uncertainty, confusion and inconsistency for district courts when deciding Establishment Clause issues involving unwelcome exposure to government speech endorsing religion.”
Bolton also charged the panel decision does not differentiate between government speech and impermissible government speech endorsing religion. The decision dismissed the idea that feelings of exclusion arising from unwelcome exposure to government speech endorsing religion create legal injury.
Bolton noted that the panel had adopted the very rule of standing promoted by Easterbook in a dissenting opinion, in which he said “words do not coerce,” which has been consistently rejected by the 7th Circuit previously.
District Court Judge Barbara Crabb, who ruled in FFRF’s favor that the National Day of Prayer is unconstitutional, found undisputed evidence of the plaintiffs’ "sense of exclusion and unwelcomeness, even inferiority, which they feel as a result of what they view as the federal government's attempt to encourage them to pray through a statute and a presidential proclamation."
“It is chilling how quickly citizens are losing the right to challenge unconstitutional religious speech and actions by our government. The courthouse doors are being slammed shut,” said FFRF Co-President Annie Laurie Gaylor.
“Is the 7th Circuit suggesting that unless the government is forcing citizens to pray — say, at gunpoint on the National Day of Prayer — there is no violation of the constitutional separation between religion and government?” asked FFRF Co-President Dan Barker.
FFRF has two other court challenges of the National Day of the Prayer. In a second case brought by Bolton, FFRF is suing the Colorado governor in state court over his proclamations. In Arizona, FFRF and Arizona members are seeking a restraining order in federal court to bar Gov. Jan Brewer from issuing her annual Arizona Day of Prayer proclamation. That case is being brought by attorneys Richard Morris and Marc Victor.