Kevin Theriot

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.

Kevin Theriot

Kevin Theriot is senior counsel with the Alliance Defense Fund.