Federal Judges: Let Us Pray!

National Day of Prayer survives federal court challenge.

Washington Archbishop Donald Wuerl offers the opening prayer at the National Day of Prayer service at the Cannon House Office Building in Washington last year.
Washington Archbishop Donald Wuerl offers the opening prayer at the National Day of Prayer service at the Cannon House Office Building in Washington last year. (photo: CNS photo/Rafael Crisostomo, El Pregonero)

WASHINGTON — Thursday, May 5, will mark the 60th annual National Day of Prayer. Designated by Congress as a day for people “to turn to God in prayer and meditation,” the observance has been challenged, but those opposed to it lost their latest battle, having their challenge thrown out by the 7th U.S. Circuit Court of Appeals.

Reversing a 2010 ruling by a U.S. District Court, the three-judge panel ruled on April 14 that the Freedom From Religion Foundation (the plaintiffs suing to abolish the law) had no legal standing to challenge it, since it only requires the president to proclaim the day of prayer and in doing so, he is only requesting that citizens observe it by praying.

Writing for the court, Judge Frank Easterbrook stated: “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. ... [However] offense at the behavior of the government, and a desire to have public officials comply with (plaintiffs’ view of) the Constitution, differs from a legal injury. The ‘psychological consequence presumably produced by observation of conduct with which one disagrees’ is not an ‘injury’ for the purpose of standing.”

Freedom From Religion Foundation co-founder Annie Laurie Gaylor couldn’t disagree more: “If this was the Catholic Church calling on its followers for a National Day of Prayer, that would be appropriate. But what’s not appropriate is the government calling for one.”

The Establishment clause in the First Amendment specifies, “Congress shall make no law respecting the establishment of a religion.  Gaylor insists that the Day of Prayer could violate the Free Establishment Clause, even though it does not endorse any particular religion.

“We put it in the court record and documented that the National Day of Prayer Task Force, which is a Christian evangelical group, was really behind the law making it the first Thursday in May,” she said. “It was suggested by Billy Graham and immediately adopted by Congress. He said he wanted to see members of Congress praying to Jesus Christ on their knee. That’s why they did it in 1952, and in 1988 the co-founder of Campus Crusade for Christ [Vonette Bright] lobbied Congress to make it the first Thursday in May. Bright was the first chair of the task force, and since then it’s been housed by Focus on the Family and the wife (Shirley) of its founder, James Dobson. And it’s been on their website for years that only evangelical Christians are allowed.”

“It’s not an interfaith event,” she continued. “We put into the record the divisiveness of how Muslims have been excluded, how sometimes Catholics have been excluded because they’re not evangelical Christians. They have 30 to 40 thousand of these (local Days of Prayer), and their goal is to get every governor to issue a proclamation — and they’ve met that goal recently. They pick the Scripture verse and the theme and they ghost write the proclamations.”

Long History of Prayer

Irrelevant, says Ken Klukowski, director of the Center for Religious Liberty at the Family Research Council. He was lead counsel in a friend-of-the-court brief filed by James Dobson, the American Civil Rights Union, Let Freedom Ring, The Liberty Institute, The Liberty Council and 29 state policy councils nationwide.

“First of all, the precedent of a president calling upon the whole nation, asking them to pray for some specific reason, began with George Washington,” Klukowski said. “Of the 44 U.S. presidents, 43 have done so. So when Congress passed this law back in 1952, it was just codifying a practice that had been recognized by every single president except one.”

He noted that because each president would set a national day of prayer for a different date, a 1988 law, signed by President Ronald Reagan, fixed it on the first Thursday of May.

Calling on Americans to pray “was even practiced by our colonial leaders and our Continental Congress leaders before the adoption of the Constitution,” Klukowski said. “James Madison, who authored the Bill of Rights, including the Establishment Clause, declared National Days of Prayer when he was president. This is an almost unbroken American tradition, going back throughout our history. It’s a bit of revisionist history to suggest anything different.”

He accused the Freedom From Religion Foundation of “talking out of both sides of their mouth. It would be unconstitutional for any court to weigh in on the merits of this case. So are they saying that it’s okay to violate the Constitution in terms of a court handing down an opinion that it constitutionally doesn’t have jurisdiction to hand down in order to find something else unconstitutional? Article 3 of the Constitution does not permit, under these circumstances, any federal court to weigh in on whether the National Day of Prayer is unconstitutional — at least not for a lawsuit brought by these people, because they’ve suffered no distinct personal injury. Without an injury, they don’t have standing, and without standing, this is not a case before a federal court.”

Positive for Catholics

Charles LiMandri, West Coast director for the Thomas More Law Center, sees the decision as positive for Catholics.

“This is a trend that we hope is going to be one that the U.S. Supreme Court will make a binding precedent for the entire country,” he said. “It will make it less likely for people to be harassing Catholics and other people of faith by trying to project and enforce their view of morality or the lack thereof on the rest of the country. Hurt feelings are not a basis (for a lawsuit), which is a very welcome statement on what the law should be. We have people suing at the drop of a hat when there is no injury, and it’s been going on for far too long. These are people who are choosing to live separate from God in most cases, and wish everybody did; this is their way of trying to make that a reality.”

Ave Maria Law School’s dean, Eugene Milhizer, also thinks that Catholics are better off with this decision: “The practical importance is that we will continue to have the National Day of Prayer, which is beneficial for the country. Prayer shouldn’t be just a private matter that’s taken out of the public square. Prayer and religious belief are things that ought to inform the decisions we make as a country. The actual decision itself was based on narrow grounds — standing. I think the court was correct in reaching the decision that it did. Their claims about hurt feelings and being excluded just didn’t rise to the level of legal standing.”

No Reason to Worry

Undeterred, Gaylor said the Freedom From Religion Foundation will apply for an en banc review, which requests that all 10 judges of the appeals court examine the case, rather than the panel of three who handed down the decision. She doesn’t think the U.S. Supreme Court would give the case a fair hearing because of its religious makeup.

“We have a Catholic majority (on the court) who are religious-right Catholic, not progressive Catholic,” she said. “[Justice Anthony] Kennedy is still the swing, but that’s disproportionate. This just shouldn’t have happened. The Catholic Church is, what — 25% of the population? It may have been done by happenstance, but it does make it a very hostile court. I mean, everybody’s afraid of the court, like progressives, the abortion-rights groups.”

Chuck Donovan, senior research fellow at the Heritage Foundation, believes that these kinds of cases will continue, but is also confident that the Constitution is on the side of religious groups.

“Judge Easterbrook essentially said that you have no more right to sue against this than you have the right to sue the president for advocating for people to contribute to Haitian relief. That may not elevate prayer, but at the end of the day, it’s a reminder that we litigate way too much and practices like the National Day of Prayer have substantial public support.”

Gaylor, however, warns that such abrupt dismissals at the courts may come back to bite the religious right: “The composition of the Supreme Court gives judges who are afraid of being overturned the green light to dismiss cases like ours. But they shouldn’t, because if they dismiss cases like ours, they forget that they are closing the courthouse doors to the opposite groups who may feel that the government isn’t doing enough to promote religion, and they won’t be able to bring suit either.”

Milhizer believes that the court would have ruled against Gaylor’s foundation, even if it had recognized their standing to sue. “If the court were to reach the substantive issue, the result should be the same,” he said. “The result should be that the National Day of Prayer could be held. To me, the proper way to view the First Amendment Establishment Clause is that the government has no business establishing a state religion or an official religion. It isn’t that the government can’t do things that promote religion generally. I think the country is better off if religion is part of the national discussion, and it certainly would be something that the framers of the Constitution would have understood and supported.”

Donovan says that there is no reason for any religion to worry about the National Day of Prayer, or the allegations of being exclusionary, because any organization or religion can establish itself to encourage prayer any way it sees fit: “I don’t think it’s a very substantive complaint that ‘somebody somewhere is having a National Prayer Day and not including me.’ I also don’t think that’s the real reason why the Freedom From Religion group is against this. They’re really bothered by the fact that there’s any public acknowledgement of prayer. Judge Easterbrook was pretty clear about that. You’d have to take a chisel to the Lincoln Memorial and dozens of other monuments that would probably be equally offensive to this group. I think it’s a bit of a straw issue.”

Register correspondent Robert Kumpel writes from Valdosta, Georgia.