This column by ACRU Senior Legal Analyst Ken Klukowski was published April 17, 2011 on The Washington Examiner website.
On April 14, a federal appeals court dismissed a challenge to the National Day of Prayer in a notable victory for religious liberty.
The first national call for prayer was from President George Washington in 1789. Since then, every U.S. president except one has issued such calls on various occasions, also routinely making such proclamations on Thanksgiving and Memorial Day.
In 1952, Congress passed a law creating a National Day of Prayer, the first of which President Truman proclaimed on July 4, 1952. The president selected any date of his choice until 1988, when Ronald Reagan signed a law designating the first Thursday of May as the National Day of Prayer.
Evidently terrified at the thought of people praying for divine blessing and peace, the militant atheist organization Freedom From Religion Foundation filed suit. Last April, a Wisconsin federal district judge struck down the National Day of Prayer as unconstitutional, holding it an endorsement of religion in violation of the First Amendment’s Establishment Clause.
On April 14, the U.S. Court of Appeals for the 7th Circuit in Chicago dismissed the lawsuit for lack of jurisdiction. In doing so, the appellate court agreed with various religious-liberty groups such as the Family Research Council and Liberty Institute and leaders such as James Dobson, who filed supporting briefs arguing that the plaintiffs lacked standing to bring this suit.
Article III of the Constitution only allows federal courts to consider cases where the plaintiffs have standing, which requires having suffered a personal injury distinct from a general grievance shared by the public at large.
The Supreme Court has repeatedly held that alleging the government is doing something unconstitutional does not confer standing, because it’s too abstract and theoretical of an “injury” to satisfy Article III.
If a plaintiff doesn’t have standing, then no federal court has jurisdiction to consider the merits of a claim. The lawsuit papers are not a court “case” as far as the Constitution is concerned, and the matter must be dismissed.
The only exception to this bar on “taxpayer standing” was invented out of thin air in the 1968 Supreme Court case Flast v. Cohen. Flast is an aberration from the most liberal year in Supreme Court history, holding that, when the government specifically spends money on religion, taxpayers can file suit.
But in the National Day of Prayer case, the 7th Circuit held that FFRF wasn’t even claiming taxpayer standing. Instead, FFRF claimed that since the president has issued his proclamation encouraging Americans to pray, that this call to prayer injured every single American, so anyone could sue to have this law declared unconstitutional.
The 7th Circuit rejected this argument. Writing for the majority of a three-judge panel, Chief Judge Frank Easterbrook wrote that the president’s proclamation is only a benign invitation for citizens to pray if they are so inclined, and in whatever manner they choose. A nationwide invitation that can freely be refused without consequence injures nobody, and so FFRF and its members lacked standing.
Whether the full 7th Circuit or the Supreme Court takes this case remains to be seen, but the result should be the same regardless. The Constitution is not a battering ram to destroy every vestige of faith in this nation, and this decision highlights the importance of federal judges who adhere the original meaning of the Constitution, instead of a fringe agenda to secularize America.