Appeals Court Rules Against FFRF in National Day of Prayer Case

You knew it was too good to last.

Last year, the Freedom From Religion Foundation won a lawsuit which declared the National Day of Prayer unconstitutional. It was the correct decision, but a surprising one, nonetheless. U.S. District Judge Barbara Crabb wrote in her decision:

… the government has taken sides on a matter that must be left to individual conscience. When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship.

FFRF even paid for a full-page ad in the New York Times to highlight their reasons to declare the NDOP unconstitutional.

You knew the decision would be appealed. And yesterday, the U.S. 7th Circuit Court of Appeals said that FFRF lacked “standing to challenge either the constitutionality of the federal statute that creates a National Day of Prayer or the Presidential proclamations issued under that statute.”

In other words, FFRF and its members aren’t really “injured” by the president issuing a proclamation about the NDOP. The ruling by Judge Frank Easterbrook says (PDF):

The President’s 2010 proclamation includes this sentence: “I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God’s continued guidance, grace, and protection as we met the challenges before us.” But although this proclamation speaks to all citizens, no one is obliged to pray, any more than a person would be obliged to hand over his money if the President asked all citizens to support the Red Cross and other charities. It is not just that there are no penalties for noncompliance; it is that disdaining the President’s proclamation is not a “wrong.” The President has made a request; he has not issued a command…

For those keeping track, Michael Newdow lost his case to remove “Under God” from the Pledge of Allegiance because the Supreme Court said he also “lacked standing.” And the Appeals Court didn’t hesitate to point that out (emphasis theirs):

Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles. It is difficult to see how any reader of the 2010 proclamation would feel excluded or unwelcome. Here again is the proclamation’s only sentence that explicitly requests citizens to pray: “I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God’s continued guidance, grace, and protection as we meet the challenges before us.” But let us suppose that plaintiffs nonetheless feel slighted. Still, hurt feelings differ from legal injury. The “value interests of concerned bystanders”… do not support standing to sue.

If a perceived slight, or a feeling of exclusion, were enough, then Michael Newdow would have had standing to challenge the words “under God” in the Pledge of Allegiance, yet the Supreme Court held that he lacks standing.

Truth be told, the judges have a point — FFRF wasn’t injured directly. They were only suing on behalf of all of us who see the NDOP as as endorsement of religion… and the ruling had nothing to do with the merits of their arguments.

You have to wonder how the court would have ruled if “standing” wasn’t the issue.

FFRF plans to fight back, but it’s hard to see this ending in its favor. The decision against FFRF was made by a panel of three judges. FFRF now wants the entire Seventh Circuit to rehear the case (“en banc“) but the court can deny them that opportunity.

Foundation Co-President Annie Laurie Gaylor condemned the appeals court decision as cowardly. She said it is clear that had the appeals court panel ruled on the merits instead of throwing the case out on standing, FFRF would have won, as it did in federal district court.

“Our challenge is so strong, our claim is so correct. The First Amendment says, ‘Congress shall make no law respecting an establishment of religion.’ ‘No law’ should mean no law!” Gaylor said.

The American Humanist Association chimed in, supporting FFRF:

“This ruling threatens the foundation of church and state separation which this country thrives on,” said Roy Speckhardt, executive director of the American Humanist Association. “A government institution, let alone the President of the United States, has no business endorsing any form of prayer. To dismiss this challenge is to move the country a step further from the religious freedoms its citizens value.”

Americans United for Separation of Church and State agreed:

“This decision is part of an ominous trend in the federal courts to deny Americans the right to challenge church-state violations,” the Rev. Barry W. Lynn, executive director of [AU] said in a prepared statement. That group filed a brief in support of the case.

So the NDOP will go on as scheduled, the evangelicals will pretend like the NDOP is inclusive of all religions when they know it’s really only about Jesus, Obama will endorse it as all presidents do, and atheists will be excluded.

We always have the National Day of Reason, but the attention given to it pales in comparison to the NDOP.

(via Religion Clause)

  • TheBlackCat

    Is the lemon test dead?

    The three prongs of the lemon test:

    1. The government’s action must have a secular legislative purpose

    2. The government’s action must not have the primary effect of either advancing or inhibiting religion

    3. The government’s action must not result in an “excessive government entanglement” with religion.

    This blatanty violates all three prongs of the test. There is no secular purpose whatsoever. Not only is the primary effect advancing religion, the sole (pun intended) effect is advancing religion. And the government can’t get much more entangled in religion than telling people when to carry out religious services.

  • Don Pope

    “No Standing” = “I am too much of a coward to make the decision I know is right”

  • Rob

    no one is obliged to pray

    Nor are any British subjects, yet they have an official religion which was the primary inspiration for that part of the 1st Amendment.

  • http://ottodestruct.com Otto

    I wonder, who exactly would have standing in that Newdow case? Who is it that has the right to challenge Congress over that law?

    Was the SC basically saying that it is impossible to challenge such laws because they are essentially meaningless in the overall scheme of things?

    It seems to me that basically, they’re saying that passing resolutions for people to pray are not actually doing anything, so they can’t be challenged.

  • http://hoverfrog.wordpress.com hoverfrog

    I think that it will take someone trying to introduce a law that requires people to pray (but not to their god) to get the US to take notice.

  • Anton Kozlik

    Regarding the “In God We Trust” display on money and the walls of every court house in the land, its a simple matter of ADVERTISING!!! The US Treasury is permitting a cult’s message to adorn its money. I wonder if they would consider a message from another “group”. How much would they charge? Perhaps FFRF could demand “equal space”!

  • http://Yahoo.com Ed

    The more this Nation goes Republican theLess the non-religious have a voice .
    sometimes i feel ashamed I think for myself and don`t have the ability to believe in the imaginary ..I always feel left out or as an outsider ….

  • http://Yahoo.com Ed

    A law was signed to add the words ” Under god ” to our Pledge of allegance in 1954.
    Wasn`t that unconstitutional ?

  • http://Yahoo.com Ed

    A law was enacted in 1863 to add the motto ” In God we Trust ” to our coinage in 1864 .The 2 cent piece was the first coin .It was because of constant Yammering of a Baptis Minister ….From Pennsylvania .
    The best way to endorse a religion is to wipe out the competition …The Indians !!!
    Oh and lets not forget Christian values .Kill the indians and STEAL their land …..

  • http://leavingthequietroom.blogspot.com/ Joe Zamecki

    So picket. That’s what I’m going to do, with some other folks who care about state/church separation. Austin, Texas, Thursday, May 5 at 11am, at the Texas State Capitol Building on 11th Street at Congress Ave., near the NDOP event there. We’ll have signs, bottled water, video coverage, and big smiles on our faces. C’mon out! :)

  • http://twoangryvoices.blogspot.com Aegis

    Haven’t you heard, Joe? It’ll never get better if you picket.

    /pun

    Seriously, I’m all for that. More voices!

  • ckitching

    Haven’t you heard, Joe? It’ll never get better if you picket.

    *groan*

    How does one ‘lack standing’ when it comes to something like this? It seems to me that anyone who is a citizen of the country would have standing when it comes to this.

  • Rich Wilson

    Here’s another very important ruling where the court decided the plaintiffs lacked standing- Arizona school vouchers.

    http://www.au.org/media/press-releases/archives/2011/04/au-condemns-supreme-court.html

    This one is even more critical because rather than just some ceremonial thing in which nobody is obliged to participate, ‘Arizona’ involves real tax dollars.

    Read it!

    (I’ll be wearing my pledge protest shirt today)

  • Miko

    Truth be told, the judges have a point — FFRF wasn’t injured directly.

    Why should this matter? The notion of standing was invented for the sole purpose of making it easier for the government to do stuff that’s illegal. And not surprisingly, it was invented by the government.

    We should just acknowledge that they see themselves as a lawless gang of ruffians and not pretend that their machinations are solid jurisprudence.

  • JD

    It seems the “standing” requirement is overly strict, as if the technique is now being used to prevent anyone from ever suing. If no one has standing, then the legal recourse on the issue. Especially when a NDOP is treated as an isolated incident when it’s an annual event in reality.

  • Chas

    Based on this decision, I don’t understanding how you could established standing for any state separation issue short of compulsory religious observance. The test is “no penalties for non-compliance,” is a large hole.

    They also seem to be hiding behind prayer-or-thanks and belief-or-conscience language of the proclamation. I think the test should be if they removed the religious language would the proclamation still be meaningful and supported by its adherents.

  • Defiantnonbeliever

    Seems to me that any and all tax dollars spent on any of these violations give all Americans “standing”, and direct injury.

  • http://www.facebook.com/foss4us Matthew Foss

    Now there’s an interesting precedent to set – the government can pass laws that violate the Constitution in any way it wants, so long as no one can claim they are directly harmed by it. There’s no way that will come back to haunt them later…

    It really is a meaningless law, though. I’d be more concerned with fighting other battles for the time being, such as keeping creationist nonsense out of the science classroom, stopping the religious indoctrination within the military, and eliminating tax loopholes for religious leaders.

    I also think that increasing public visibility of atheism will result in more popular support for secularism – if the atheist movement continues gaining momentum, a generation or two from now silly things like the NDoP and the “In God We Trust” motto will seem like archaic relics and be repealed without much resistance.

  • Stephan

    The “no standing” argument needs addressed as soon as possible. The question should be asked, “who would have standing?” If a court can’t judge the laws constitutionality until someone is injured, it seems the court is saying it is okay to fire into a crowd until you hit someone.

    A law can be unconstitutional before it hurts someone, not just afterward. As someone else said in this discussion, what happened to the “lemon test?”

  • Heather

    So it includes more religions now, which I guess is enough to make it legal. But this-”.. in accordance with their own faiths and consciences..”- still doesn’t include everyone like they tried to make it sound.
    Maybe for the money they’ll wind up changing it to “god(s)” and noone should feel excluded because you HAVE to believe in SOMETHING.

  • Annie

    What about changing it to a national day of thanks? That way people can pray in thanks of their god or gods… and I can thank my dog for bringing in the newspaper.

  • Non-Litigious Atheist

    But this-”.. in accordance with their own faiths and consciences..”- still doesn’t include everyone like they tried to make it sound.

    I agree. It excludes sociopaths who have no conscience. And we just can’t have that.

    I also think that increasing public visibility of atheism will result in more popular support for secularism – if the atheist movement continues gaining momentum, a generation or two from now silly things like the NDoP and the “In God We Trust” motto will seem like archaic relics and be repealed without much resistance.

    I agree to a degree. If Americans become less religious, like Europe, all of this stuff will become a non-issue because the demand for cosmetic religious iconography in government will be low to begin with.

    Between now and then, we have no choice but to sit back and wait for Americans to become less religious.

    Until that happens, nothing will change. The reality will reflect the majority will. It’s the majority will that needs to change before anyone in power really gives a damn.

  • Rich Wilson

    As I mentioned above, I wore my “Pledge” shirt to a local Earth Day event. It has “One Nation” then a list of religious affiliations along with their percentages (from Pew), and finally “Indivisible”. It provoked three conversations:

    1) A table of Native Americans, one seemed a little annoyed, and said “it doesn’t include me”. The best I could do was “1.5% Other Faiths”. A lady at the table pointed out that the “One Nation” part wasn’t correct, since Native American tribes are Nations unto themselves. In any case, they felt that even my “include everybody” shirt didn’t include them- which I pointed out was kind of the point.

    2) A clown (an literal clown, not a figurative) read it over and said it was interesting. He first said it didn’t included atheists, until I pointed to that line and said I was one. We talked about the Native Americans a bit, and he was very certain in his understanding of Native spirituality. I didn’t agree with him, but I didn’t argue since that wasn’t my point.

    3) Lastly after talking about it a bit a person running a wildlife table said he used to be an army chaplain, and that they were no longer allowed to mention Jesus, and how in Turkey they also had an Imam and a Rabbi give services. I think he did get that just covering the Abrahamic religions still didn’t get everyone, and himself brought up that the last thing we want is a theocracy, and he appreciated the message on my shirt. I wished I’d thought to bring up Fort Bragg and ask his opinion.

    In any case, it was a great opening to discussing church state separation. I think the Native guy had his back up at first, but when he got the point of it he warmed up. If anyone didn’t like it, I didn’t hear from them.

    I plan to wear it to our very evangelical pre-July 4th event (a local mega-church took over the city’s fireworks show). Results there may be different :-)


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