Townhall...
Why Rebuffing the
Legal Attack on the National Day of Prayer Matters... Especially at a
Time Like This
by Kevin Theriot
The timing of the National Day of Prayer with the events of this week
couldn’t be more appropriate if one would have planned it that way. And
recent court decisions rebuffing the ability of anti-religious groups
to go to court to strike down the event also couldn’t come at a better
time.
First, it was the U.S. Supreme Court’s 2007 ruling in Hein v. Freedom
From Religion Foundation that anti-religionists had no legal standing
to challenge President Bush’s speech because it contained religious
references…
Then, just last month, the Supreme Court held in Arizona Christian
School Tuition Organization v. Winn, that there was no standing to
claim that Arizona’s tax credits for school choice unconstitutionally
establish religion simply because some of the private donations go to
religious schools…
Now the U.S. Court of Appeals for the 7th Circuit has ruled in Freedom
From Religion Foundation v. Obama that the same anti-religious group
from the Hein case has no standing to challenge the National Day of
Prayer because the group hasn’t been harmed “one whit.”
This trend is a big deal. For years, individuals claiming the
government violated the First Amendment’s Establishment Clause (meant
to keep the government out the church’s business by prohibiting the
establishment of a national religion) have received a free pass into
court because all they had to do is say a particular public display of
religion offended them in some way.
No other area of the law is so liberal in this regard. Normally, in
order to sue, one has to actually be injured. For instance, if your
neighbor has a problem with city workers trespassing on his property,
he can go to court, but you can’t. The court would say your neighbor
has “standing” to ask the court to intervene in the matter, but you
don’t. This avoids overloading the court with lawsuits filed by folks
who don’t even have a real legal interest in the matter, but are merely
interested observers.
For some reason, this wise legal principle has been all but ignored in
the area of Establishment Clause cases. If an anti-religious group is
offended by a cross at a veteran’s memorial way out in the desert, they
can sue to challenge it, even if they’ve never even been out to see it.
The practical effect of this easy access to courts—and the ability to
collect large attorney fee awards in the event of a win—is that
government officials have purged many of the references to our
religious heritage that permeate public memorials, meetings, and
ceremonies. Why take the risk of having to pay attorneys to defend our
historical religious roots and then pay the opposing attorneys their
fees if the judge rules against the government? Besides, it’s always
easier to do nothing.
Praying together as a nation truly is part of our national heritage. As
Chief Judge Frank Easterbrook of the 7th Circuit noted in the FFRF v.
Obama opinion, “Since the founding of the Republic, Congress has
requested Presidents to call on the citizens to pray. Every President
except Thomas Jefferson…has complied.”
Governors in all 50 states have done the same, but they were hesitant
to continue to do so after a federal district judge in Wisconsin struck
down the statute establishing the first Thursday in May as the National
Day of Prayer.
Upon hearing of the governors’ hesitancy, the Alliance Defense Fund
distributed letters to them, pointing out that nothing in the judge’s
decision prohibited members of the executive branch from continuing to
issue prayer proclamations—and that we were confident the judge’s order
would be reversed on appeal. Thankfully, Judge Easterbrook and two
other judges did exactly that.
Hopefully, the 7th Circuit’s ruling is just one more case in the trend
toward a more balanced view of standing in Establishment Clause cases.
In every other area of law, the “psychological consequence presumably
produced by observation of conduct with which one disagrees is not an
‘injury’ for the purpose of standing.” ADF will continue to make this
argument in other cases across the country, in the hope that they will
follow the Seventh Circuit’s lead.
Those bent on “freeing” our country of its religious heritage must be
prevented from roaming the land and intimidating our government
officials with the threat of litigation. If your town is being
threatened by anti-religionists, you can get help by contacting ADF at
www.telladf.org.
Read the story with links at Townhall
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