On December 12, Judge Silver, a federal judge in Arizona, threw out a claim that Arizona Governor Jan Brewer violated the Establishment Clause by issuing day of prayer proclamations in observance of the National Day of Prayer. The court cited the Seventh Circuit’s recent ruling in FFRF v. Obama, saying “hurt feelings” don’t give someone standing to bring a federal case. The Court also said that no constitutional injury results from plaintiffs getting up to turn off the TV or avoiding conversations with people because they don’t want to hear about the prayer proclamations.

Judge Silver got it exactly right. The Establishment Clause doesn’t give anti-religionists license to roam the country or channel surf looking for things to be offended by, and then making a federal case out of them. There is no right not to be offended in America. This decision, like the Seventh Circuit’s decision in FFRF v. Obama in which ADF represented Mrs. Dobson and the National Day of Prayer Task Force, is another very important step in limiting the ability of anti-religion activist groups like FFRF to harass state and local government officials who simply want to acknowledge our nation’s religious heritage. These groups often use lawsuits and the attorney fees that come with them as a vehicle to intimidate government officials into silence about their own religious beliefs, as well as those of our Founding Fathers and the vast majority of present day Americans.

Certainly the government cannot tell people how, and to whom, to pray. But a long line of government officials like George Washington, Abraham Lincoln, Franklin Delano Roosevelt, and Ronald Reagan have encouraged people to pray because they believed it is helpful to our country and rightly acknowledges our religious heritage. Our Founders even had prayer at the Constitutional Convention. The Constitution was never meant to be used to censor this practice, and courts shouldn’t misinterpret it to do so now.

Kudos to Judge Silver for getting this one right, and to Governor Brewer for standing against special interest groups bent on silencing her and eradicating religion from all public acknowledgement.

It was exactly one year ago that a Wisconsin federal court incredibly ruled that our 200 year practice of praying together as a nation is unconstitutional by striking down the statute establishing the National Day of Prayer. But on April 14, 2011, the day before the anniversary of that troubling ruling, the Seventh Circuit Court of Appeals reversed it in a fantastic opinion holding that the anti-religious Freedom From Religion Foundation should not have been allowed past the courthouse gate because they suffered no legal injury.

Voting 3-0, the Seventh Circuit held that FFRF doesn’t have standing to even challenge the NDOP.  Chief Judge Easterbrook, a very prominent and nationally respected judge, wrote the opinion and said that “offense at the behavior of the government, and a desire to have public officials comply with (plantiffs’ view) of the Constitution, differs from a legal injury.”   Without a legal injury, plaintiffs can’t sue, and merely being offended isn’t enough.  The court went on to say, “the ‘psychological consequence presumably produced by observation of conduct with which one disagrees’ is not an ‘injury’ for the purpose of standing….  Plaintiffs have not altered their conduct one whit or incurred any cost in time or money.  All they have is disagreement with the President’s action.  But unless all limits on standing are to be abandoned, a feeling of alienation cannot suffice as injury in fact.”  Even the judge that was most sympathetic to the FFRF at oral argument said they didn’t have standing because  ”the observation of conduct with which [they] disagree …was insufficient to confer standing.”

So the only court to ever hold that the statute directing the president to issue a prayer proclamation on the first Thursday in May was unconstitutional has now been reversed.  Of course, the folks at FFRF have vowed to ask all of the judges at the Seventh Circuit to review this ruling in a petition for rehearing en banc. And they will likely petition the Supreme Court to hear the case if that fails.  But their chances of success are slim given the unanimous ruling and the seniority of Chief Judge Easterbrook.

This ruling adds to the list of recent setbacks for anti-religious forces in America in Establishment Clause cases.  It reflects a trend of restricting the requirements of standing in these cases as demonstrated in Hein v. Freedom From Religion Foundation  (no standing to challenge President Bush’s faith-based initiative), and ACSTO v. Winn (no standing to challenge tax credits for school choice).

What a great day for religious freedom and our nation’s heritage.

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My colleague David Cortman posted a blog about the recent Supreme Court victory in ACSTO v. Winn.  As he points out, there are many great things to celebrate about that case.  I thought I would highlight one other positive development from that case.  For decades, we have been witnesses to an unprecedented assault on religion in the public square, aided by the Supreme Court who has allowed the ACLU and its allies to file lawsuits against anything the government does that in any way touches religion.  These case have removed prayer, Bible reading, and the Ten Commandments from schools, removed the Ten Commandments from courthouses across the nation, struck down prayer at school football games, prohibited religious involvement in government programs, invalidated aid to certain private schools simply because they might be religious, held unconstitutional scholarships that may be used for religious education, and the list goes on and on.  Suffice it to say that religion in the public square has taken quite a beating in the last several decades thanks to the ACLU and its allies.

The ACLU has gotten away with this because the Supreme Court has relaxed the “standing” rules to bring lawsuits under the Establishment Clause.  Put simply, a person must normally prove they are specifically and uniquely injured in some way in order to seek redress from the courts.  If a person only suffers an injury that is shared by all of society, then they are not suffering a particular injury that the court can remedy.  As an example, normally a person cannot sue the government and claim that the taxes he or she pays are being used inappropriately. The courts recognize that such a claim of harm is speculative and that the proper remedy for that claim lies in the legislature, not the courts.

Yet the Supreme Court created a broad and expansive standing doctrine under the Establishment Clause that allowed for the ACLU and its allies to essentially roam the country and file lawsuits against anything they saw that offended them.  That’s why today we see lawsuits like those in Colorado and Wisconsin that challenge even our ability to engage in a National Day of Prayer.  It’s why the ACLU felt it could challenge Arizona’s school choice law.

The Supreme Court, though, in the ACSTO case seems to be saying that it has had enough of these kinds of frivolous and speculative lawsuits.  The ACLU and its allies in ACSTO were arguing that they were injured by the school choice program simply because some people in Arizona might choose to give money to a school tuition organization who would then possibly decide to give a scholarship to a student that might be used at a religious school; and then the people who originally gave the money might choose to avail themselves of a tax credit offered by the State of Arizona and, the people represented by the ACLU might have to pay more money in taxes as a result.  What a twisted, convoluted, and speculative logic!  But the Supreme Court thankfully saw just how twisted this line of reasoning was and held that there was no injury here and the ACLU and its allies had no standing to challenge the school choice law.

This was a positive development in the law.  Indeed, if we could step back and look at a possible developing trend, we would see that the Supreme Court seems to be cutting back on the ability of the ACLU and its allies to have standing to bring challenges under the Establishment Clause.  Just last year the Court decided a case called Hein v. Freedom From Religion Foundation where it held that the Freedom From Religion Foundation did not have standing to challenge expenditures by the Executive Branch of government that touch on religion.  The ACSTO case is another step in the right direction of limiting the ability of the ACLU and its allies to roam the country in search of what they perceive to be Establishment Clause violations and then file a lawsuit to have those invalidated.

The Supreme Court still has a long way to go to restore sanity to this area of the law.  For example, another way the Court has expanded the standing doctrine under the Establishment Clause is to allow people “offended observer” standing.  This allows groups like the ACLU to sue over Ten Commandment displays and the National Day of Prayer simply because they have to come into unwelcome contact with something that offends their religious (or agnostic) sensibilities.  The Court should do away with this doctrine like it seems to be doing away with taxpayer standing under the Establishment Clause.  ACSTO was a step in the right direction.  Let’s pray that the Supreme Court continues this trend of undoing the great damage caused in the courts by the ACLU and its allies.

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To read David Cortman’s blog about the ACSTO v. Winn ruling, click here.

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On October 28, 2010, Colorado District Judge Mullins rejected an atheist group’s attempt to relegate religious groups to second class status.  The National Day of Prayer Task Force (“NDPTF”), led by Shirley Dobson, has asked state governors for many years to issue a proclamation acknowledging the annual National Day of Prayer.  Colorado, like most states, allows any group to request such a proclamation from the governor, and suggest language for it.  For instance, the Colorado Governor has issued proclamations for groups supporting the Turks and Armenians.

But a radical athiest group from Wisconsin thinks groups like the NDPTF shouldn’t have the same access to this opportunity because they are religious.  So they sued Governor Ritter, and asked the Colorado District Court to enter an order prohibiting prayer proclamations in the future.  The plaintiffs claimed the prayer proclamations violated two provisions of the Colorado Constitution:  (1) “no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion,” and (2) “[n]or shall any preference be given by law to any religious denomination or mode of worship.”

Judge Mullins wisely rejected both of these claims.  First he held the plaintiffs’ claim that the prayer proclamation made them “feel like outsiders” was not a denial of any right or privilege.  The Colorado Constitution does not give citizens the right to “feel any particular way.”  Then the judge properly determined that allowing the NDPTF to have the same ability to request a proclamation as other groups does not give any preference to religion.  The Governor’s proclamation merely “acknowledges the right of individuals to pray and worship, the National Day of Prayer, and the events held by the National Day of Prayer Task Force at the capitol.”

No court has ever ruled that governors, presidents, mayors and other members of the executive branch cannot issue proclamations acknowledging the National Day of Prayer.  Judge Mullins rejected the atheists’ mischaracterization of a recent Wisconsin judge’s opinion as making such a holding. And he also concluded that refusing to issue proclamations by groups with religious motivation would actually violate the constitution because it would indicate hostility toward religion.  Of course, hostility to religion is exactly what this anti-religious group is all about.

Instead of just asking for their own proclamation, the atheist group tried to use the courts to further their own ignoble purpose of attacking religious people and treating them like second class citizens.  Thankfully, Judge Mullin saw through their ruse and upheld the rights of religious people and groups like the NDPTF to obtain proclamations just like anyone else.

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A federal district court rejected a lawsuit filed by Americans United for the Separation of Church and State, and in so doing, exposed their true anti-Christian agenda.   You see, Americans United likes to tout itself as being a watchdog group that seeks to keep religion and government strictly separate.  But their actions in this case have exposed their true agenda.

In Galloway v. Town of Greece, New York, Americans United, representing two local plaintiffs, sued the Town of Greece, New York, claiming that the Town’s policy of allowing local clergy to give the prayer before Town board meetings was unconstitutional.  The Town had permitted various local clergy to give the prayers before meetings, but refused to tell the clergy how, or to whom, to pray.  Consequently, some prayed in God’s name, and some prayed in Jesus’ name.  Even the plaintiffs themselves, one of whom was an atheist, were given the opportunity to pray before the Town Board meetings.

This did not sit well with this organization that supposedly wants a separation between church and state.  But did they sue to stop the prayers?  No.  They sued demanding that the Town Board tell local clergy how to pray!

Now this is true irony.  A group that calls itself “Americans United for the Separation of Church and State” wants the government to tell clergy how to pray.

Fortunately, the Court recognized this irony and refused to play along.  The Court noted “the policy requested by Plaintiffs would…impose a state-created orthodoxy” and dismissed the plaintiffs’ lawsuit.

Now why did Americans United not just ask that all prayers stop?  Because the United States Supreme Court has already decisively ruled that prayer before legislative sessions are constitutional.  In Marsh v. Chambers, the Supreme Court, after noting that legislative prayers have been going on in this country since its inception, ruled that such prayers do not violate the Constitution.

So knowing that they couldn’t stop the prayers, they then sought to challenge prayers “in Jesus’ name.”  This is really what bothers them.  Fortunately, the court rejected this attempt at prayer censorship.  If American’s United had stayed true to their identity, they would not be asking government officials to tell local clergy how and to whom to pray.  This is a matter best left to theologians, not courts of law or local governments.

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