Seventh Circuit Court of Appeals Rejects Law Suit to Strike down National Day of Prayer

  The Seventh Circuit Federal Court of Appeals recently rejected a law suit by secular progressive group "Freedom from Religion Foundation" and various individuals to have the National Day of Prayer declared "unconstitutional" as a violation of the "Establishment" clause of the Constitution, (see text of original complaint here).  The holiday-- recently celebrated by gatherings of millions on the first Thursday in May under a 1988 version of the law first passed by the Truman Administration in 1952-- focuses on national prayer and re-dedication to God as well as remembrance of the critical and historic role that the Christian faith has played in our nation's formation and public life.  Of course, the fact that setting aside a day for "national prayer and repentance" goes back to the earliest days of our nations's founding, (and even before, see here), didn't keep the atheist "public advocacy" group from filing a suit in 2008 that resulted in 2010 in a Federal District judge in Wisconsin ruling that the law was an "unconstitutional" violation of the oft-misunderstood concept of "Separation of Church and State" under the Constitution's "Establishment Clause."  That ruling was just vacated (thrown out) by the Seventh Circuit Court of Appeals in a ruling that the atheist Group lacked "standing" to bring the suit in the first place.  But the lower court's ruling would have come as a surprise to our nations first president George Washington, who on June 20, 1775 publicly proclaimed the following:

... Congress having recommended it to the United States to set apart Thursday the 6th of May next to be observed as a day of fasting, humiliation and prayer, to acknowledge the gracious interpositions of Providence; to deprecate [to pray or intreat that a present evil may be removed] deserved punishment for our Sins and Ingratitiude, to unitedly implore the Protection of Heaven; Success to our Arms and the Arms of our Ally: The Commander in Chief enjoins a religious observance of said day and directs the Chaplains to prepare discourses proper for the occasion; strictly forbidding all recreations and unnecessary labor.” —George Washington, First President of the United States.

  Indeed, the ruling by the Court of Appeals-- for what is essentially a "technical" reason-- means the appellate court has not reached the merits of the case, and leaves things as if the lower court never issued a decision. 

  While we don't agree with the lower court decision, we do think the ruling on "standing" by the Court of Appeals is erroneous, as the district court made a clear distinction in its decision between the lack of standing to attack Presidential proclamations, (which a citizen or citizen group generally doesn't have), and an attack on the constitutionality of a statute for purposes of "declaratory relief" which the citizenry generally does possess if it can show "harm" resulting to them from the law in question.

 The atheist foundation has vowed to seek reconsiderion by all the justices of the Seventh Circuit sitting simultaneously, (known as "En Banc" reconsideration).  Such motions ordinarily are rarely granted in all but the most important cases.  In this case however there are arguably important public policy reasons for such a motion to be granted, including a more substantive ruling on the merits of the foundation's claims, (something which could actually benefit a more 'traditional' understanding of the much ballyhooed "Separation of Church and State" doctrine that prevailed since our nation's founding and throughout the late 18th and 19th Centuries under the "Establishment Clause".)  That could happen if an 'En Banc' decision by the entire Seventh Circuit on the merits upholds the law and results in a strengthening of the nation's right to public expressions of its religious heritage.

 The ACLP doesn't believe that even if a rehearing 'En Banc" is granted it will, on balance, result in a change of the final outcome in the case, and for that reason believes reconsideration will most likely not be granted.  That does not mean however that the issue is cut and dried by any means for the above-mentioned public policy reasons. 

 Complicating the matter is the fact that however we may disagree with the District Court decision it cannot be denied it is a well reasoned-- and in many respects, arguably correct-- application of precedent re: "Establishment Clause" jurisprudence, (particularly regarding prior appellate cases attempting to apply the rulings of the U.S. Supreme Court on such matters, which are tortuously complex and even seemingly contradictory at times, especially when going back before the mid-twentieth century).  

 Indeed, it should not surprise us that the federal courts-- including the nation's highest court-- are likely to closely split on such issues of intense public debate, (a sad but not surprising commentary on the irreligious times in which we live and the poor job our public educational system is doing teaching American history and civics).

 Nevertheless, the fact that the present makeup of the nation's highest court-- with several new(er) members appointed by both the Obama and previous Bush Administrations-- may wish to take the opportunity to clarify its precedents in this area is a strong reason to believe that the whole Seventh Circuit may weigh in first before an ultimate determination of this issue before the high court, (if the high court even takes the case, which they usually don't).  In that regard, it is a perfect "test case" for how the Supreme Court may view such matters going forward, and we accordingly hope that the Seventh Circuit will in fact agree to reconsider this case "En Banc" as it raises significantly the chances the High Court will review it also, (with the end result hopefully bringing some clarity/ sanity to this conflicted area of the law in favor of the more traditional view). 

 We will keep you apprised of this case even as we are watching others of critical interest, most specifically the proceedings in the 11th Circuit Court of Appeals where an Obamacare appeal is pending and the government has until May 18th to file its reply brief to the State of Florida along with 25 other states and the National Federation of Independent Businesses, (NFIB), who are challenging this sweeping expansion of federal power.  You can read the initial brief of the various states in that momentous appeal winding its way to the Supreme Court here.  

 Like the Obamacare case(s), if in fact the Freedom from Religion Foundation's case gets to the Supreme Court, its importance cannot be overestimated, as it has the potential of completely turning on its head almost a half-century of what we feel are court decisions that have too far tipped the balance towards hostility to expressions of religious faith in the public square, often with lopsided or ridiculous results, (remember the case that said you could display a Menorah or Creche scene on public property as long as there were significant "secular" symbols of Frosty the Snowman and Rudolph?)

 Indeed, if the case is resolved 'En Banc' by the Court of Appeals on its merits-- rather than the technical grounds on which the Seventh Circuit has already reversed the District Court-- and subsequently appealed to the U.S. Supreme Court as it is most certain to be by the losing party, (assuming it ultimately gets accepted by the High Court for review, only about one percent do), it would be on par with the Obamacare cases to the extent it could be just as earthshaking but in the area of Religious Freedom/ First Amendment jurisprudence, (and much longer in coming!)  We say, about time!   jp