January 19, 2012
The National Day of Prayer, formalized by statute in 1952 by U.S. Congress, is a day (celebrated on the first Thursday of May) “on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.”
Many of you legal types, if you’re anything like me, may be wondering about any First Amendment issues under the Establishment Clause (i.e. “Congress shall make no law respecting an establishment of religion”).
It may have taken over half a century, but in 2008, someone challenged the National Day of Prayer on just those grounds.
The group behind the challenge, the Freedom From Religion Foundation (FFRF), claimed that Congress was effectively establishing a religion in instituting the Day.
The appeals court didn’t get to the merits of the challenge, but dismissed the case on standing grounds.
That defeat doesn’t seem to be deterring the group from taking similar action against individual states.
Earlier this month, FFRF sued Janet Brewer, the Governor of Arizona, over her previous proclamations of an “Arizona Day of Prayer,” and is asking for the court to enjoin such proclamations in the future.
There are a number of key differences in this lawsuit that will avert its being a complete repeat of the federal challenge.
Notably, FFRF is suing in Arizona state court under a theory of a violation of Arizona’s state constitution, instead of the U.S. Constitution.
The provision within Arizona’s constitution that FFRF claims is being violated reads as follows:
No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.
That’s a bit more specific than the First Amendment’s clause, but it still doesn’t solve the roadblock FFRF ran into on the federal challenge: standing (specifically, that the challengers hadn’t suffered sufficient injury).
Admittedly, I’m not particularly well-versed in Arizona case law on standing, but I would imagine that it doesn’t deviate much from federal case law.
In fact, if there’s a shortage of precedent on this particular issue, it’s likely that an Arizona court would borrow heavily from the appeals decision on FFRF’s federal challenge.
Unfortunately, since the appeals court didn’t really apply precedent on the matter that well (or, at times, correctly), it really isn’t the greatest case to cite (the concurring opinion, conversely, contains an excellently crafted legal discussion on standing).
Nevertheless, on emotionally-charged topics such as this, precedent and constitutional text are often less important than the deciding judge’s personal views.
That’s why these Establishment Clause cases are often decided on issues of standing (see Elk Grove U.S.D. v. Newdow – the “under God” in the Pledge of Allegiance case).
Courts rarely want to get to the actual merits of these challenges because, without some impressive mental gymnastics, it’s hard to conclude that something like a state-endorsed National Day of Prayer isn’t establishing religion.
In the face of this reality, you really have to give groups like FFRF points for tenacity.
However, until the issue becomes less emotionally-charged, the majority of these challenges aren’t going to see a lot of success.