April 19, 2011 – Freedom From Religion Foundation Inc. (FFRF), based in Madison, recently lost its fight to stop President Barack Obama and future U.S. Presidents from issuing religious proclamations on the congressionally approved National Day of Prayer.
Congress enacted 36 U.S.C. section 119 in 1988 (amended slightly in 1998), which requires the U.S. President annually to proclaim the first Thursday in May as the National Day of Prayer. Obama’s 2010 proclamation called upon citizens to pray, and look to God for guidance.
The FFRF and others sued Obama in the U.S. District Court for the Western District of Wisconsin, asserting that section 119 violates the First Amendment’s Establishment Clause, which states that “Congress shall make no law respecting an establishment of religion.”
Obama moved to dismiss for lack of standing, but U.S. District Court Judge Barbara Crabb denied the motion and issued a declaratory judgment that section 119 is invalid. Judge Crabb also issued an injunction to stop the President from issuing proclamations under section 119.
In Freedom From Religion Foundation, Inc. et al., v. Obama, No. 10-1973 (April 14, 2011), a three-judge appeals panel for the U.S. Court of Appeals for the Seventh Circuit ruled that FFRF lacked standing and remanded the case for dismissal. Writing for the panel, Judge Frank Easterbrook explained that FFRF lacked standing because it did not suffer an injury and, therefore, no justiciable controversy existed.
“The President has made a request; he has not issued a command,” Judge Easterbrook wrote. “No one is injured by a request that can be declined.”
The panel rejected the argument that plaintiffs were injured when the President “asks them to engage in religious observance that is contrary to their own principles.”
“If a perceived feeling of slight, or a feeling of exclusion, were enough, then Michael Newdow would have standing to challenge the words ‘under God’ in the Pledge of Allegiance, yet the Supreme Court held that he lacks standing,” Judge Easterbrook noted, referring to Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).
It also leaned on Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982), in which the Supreme Court ruled that “psychological consequence presumably produced by observation with which one disagrees” is not an injury.
