A federal appeals court on Thursday ruled that the Madison-based Freedom From Religion Foundation cannot sue to block the annual National Day of Prayer proclamation by the president, overturning a decision a year ago by a federal judge in Madison who found it unconstitutional.
Frank Easterbrook, chief judge of the U.S. 7th Circuit Court of Appeals, wrote for a three-judge panel of the court that the Freedom From Religion Foundation has no standing to sue because it has not been injured by the proclamation, which doesn’t force anyone to pray.
“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,” Easterbrook wrote. “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. No one is injured by a request that can be declined.”
FFRF lawyer Rebecca Markert said the foundation is “troubled” by the court’s decision, which she said “virtually shuts down” any challenges to the Constitution’s Establishment Clause separating church and state. She said the foundation will immediately seek a ruling from the full court.
In April 2010, U.S. District Judge Barbara Crabb called the National Day of Prayer unconstitutional, saying the government may not use its authority to try to influence an individual’s decision whether and when to pray.
Congress established the National Day of Prayer in 1952 and in 1988 set the first Thursday in May as the day that presidents issue proclamations asking Americans to pray.
In her ruling, Crabb wrote that the National Day of Prayer goes beyond mere acknowledgment of religion “because its sole function is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience.”
In a statement, FFRF co-president Annie Laurie Gaylor called the appeals court decision “cowardly.” If the court had ruled on the merits of the case, she wrote, FFRF would have prevailed, as it did in Crabb’s 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. “Congress and the president of the United States have no business telling me or any other citizen to pray, ‘to turn to God in prayer at churches,’ much less setting aside an entire day for prayer every year and even telling me what to pray about.”
In the appeals court’s ruling, Easterbrook said the proclamation did not cause injury to FFRF, other than a feeling of alienation, which cannot suffice as injury.
“Plaintiffs contend 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,” he wrote. “It is difficult to see how any reader of the 2010 proclamation would feel excluded or unwelcome.”
In a concurring opinion, Judge Ann Claire Williams wrote that although she disagreed with the majority opinion on some points, she saw the decision as a closer call.
“At bottom, the plaintiffs’ allegations are too attenuated to confer standing,” she wrote.
Richard Bolton, another FFRF lawyer, said the courts are “eviscerating the Establishment Clause as unenforceable of any practical significance by making it unenforceable by anyone.”