Why Rebuffing the Legal Attack on the National Day of Prayer Matters...Especially at a Time Like This

Kevin Theriot
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Posted: May 05, 2011 12:01 AM

The timing of the National Day of Prayer with the events of this week couldn’t be more appropriate if one would have planned it that way. And recent court decisions rebuffing the ability of anti-religious groups to go to court to strike down the event also couldn’t come at a better time.

First, it was the U.S. Supreme Court’s 2007 ruling in Hein v. Freedom From Religion Foundation that anti-religionists had no legal standing to challenge President Bush’s speech because it contained religious references…

Then, just last month, the Supreme Court held in Arizona Christian School Tuition Organization v. Winn, that there was no standing to claim that Arizona’s tax credits for school choice unconstitutionally establish religion simply because some of the private donations go to religious schools…

Now the U.S. Court of Appeals for the 7th Circuit has ruled in Freedom From Religion Foundation v. Obama that the same anti-religious group from the Hein case has no standing to challenge the National Day of Prayer because the group hasn’t been harmed “one whit.”

This trend is a big deal. For years, individuals claiming the government violated the First Amendment’s Establishment Clause (meant to keep the government out the church’s business by prohibiting the establishment of a national religion) have received a free pass into court because all they had to do is say a particular public display of religion offended them in some way.

No other area of the law is so liberal in this regard. Normally, in order to sue, one has to actually be injured. For instance, if your neighbor has a problem with city workers trespassing on his property, he can go to court, but you can’t. The court would say your neighbor has “standing” to ask the court to intervene in the matter, but you don’t. This avoids overloading the court with lawsuits filed by folks who don’t even have a real legal interest in the matter, but are merely interested observers.

For some reason, this wise legal principle has been all but ignored in the area of Establishment Clause cases. If an anti-religious group is offended by a cross at a veteran’s memorial way out in the desert, they can sue to challenge it, even if they’ve never even been out to see it.

The practical effect of this easy access to courts—and the ability to collect large attorney fee awards in the event of a win—is that government officials have purged many of the references to our religious heritage that permeate public memorials, meetings, and ceremonies. Why take the risk of having to pay attorneys to defend our historical religious roots and then pay the opposing attorneys their fees if the judge rules against the government? Besides, it’s always easier to do nothing.

Praying together as a nation truly is part of our national heritage. As Chief Judge Frank Easterbrook of the 7th Circuit noted in the FFRF v. Obama opinion, “Since the founding of the Republic, Congress has requested Presidents to call on the citizens to pray. Every President except Thomas Jefferson…has complied.”

Governors in all 50 states have done the same, but they were hesitant to continue to do so after a federal district judge in Wisconsin struck down the statute establishing the first Thursday in May as the National Day of Prayer.

Upon hearing of the governors’ hesitancy, the Alliance Defense Fund distributed letters to them, pointing out that nothing in the judge’s decision prohibited members of the executive branch from continuing to issue prayer proclamations—and that we were confident the judge’s order would be reversed on appeal. Thankfully, Judge Easterbrook and two other judges did exactly that.

Hopefully, the 7th Circuit’s ruling is just one more case in the trend toward a more balanced view of standing in Establishment Clause cases. In every other area of law, the “psychological consequence presumably produced by observation of conduct with which one disagrees is not an ‘injury’ for the purpose of standing.” ADF will continue to make this argument in other cases across the country, in the hope that they will follow the Seventh Circuit’s lead.

Those bent on “freeing” our country of its religious heritage must be prevented from roaming the land and intimidating our government officials with the threat of litigation. If your town is being threatened by anti-religionists, you can get help by contacting ADF at www.telladf.org.