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A district judge’s decision that the National Day of Prayer is unconstitutional is being challenged on the argument, submitted in friend-of-the-court briefs to the 7th U.S. Circuit Court of Appeals, that never before has any court decided that “hurt feelings” are grounds for making a claim.

“The district court in this case embraced an entirely novel – and improper – basis for standing: hurt feelings,” said the brief submitted by the American Center for Law and Justice. “Never has the Supreme Court endorsed anything like such a wide-open concept of access to federal adjudication.

“Indeed, to the extent the Supreme Court has addressed the issue at all, it has firmly repudiated such limitless theories of Article III standing,” the brief continued.


U.S. District Judge Barbara B. Crabb

The arguments from the ACLJ came in an appeal pending before the 7th Circuit of a decision by U.S. District Judge Barbara B. Crabb of Wisconsin, who decided the National Day of Prayer is unconstitutional.

Crabb’s decision came in a case filed by the Freedom From Religion Foundation, a Wisconsin-based atheist and agnostic group that challenged the constitutionality of a 1988 federal law.

The law gives the president the authority to designate the first Thursday in May as a National Day of Prayer.

Crabb, appointed to the court in 1979 by President Carter, determined the statute violates the First Amendment’s establishment clause, which says, “Congress shall make no law respecting an establishment of religion.”

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In her opinion, Crabb wrote that in her view of case law, “government involvement in prayer may be consistent with the establishment clause when the government’s conduct serves a significant secular purpose and is not a ‘call for religious action on the part of citizens.’”

But she wrote that the National Day of Prayer law “cannot meet that test.”

“It goes beyond mere ‘acknowledgment’ of religion,” Crabb wrote, “because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience.”

The case was appealed by the government, since the U.S. was a defendant in the case, and a multitude of civil-rights organizations now have submitted friend-of-the-court briefs in the case.

According to a brief filed by the Alliance Defense Fund, “presidential prayer proclamations enjoy the same rich history in this country as legislative prayers. Both practices were common occurrences at the time the Constitution was drafted and ratified. Both practices have continued till today. Neither practice actually forces Americans to participate in a religious practice or believe in a certain way.

“They are simply tolerable acknowledgements of beliefs and practices widely held by Americans,” the documents explain.

The dispute was over the declaration of a National Day of Prayer that has been exercised for decades. It was codified first by Congress in 1952.

“Public officials should be able to participate in public prayer activities just as America’s founders did, and a recent federal judge’s ruling should not prevent America’s cities from lawfully observing the National Day of Prayer,” said ADF Senior Legal Counsel Joel Oster. “We are confident that the 7th Circuit will uphold the federal statute setting a day for the National Day of Prayer.”

Crabb’s decision came April 15. She stayed her ruling until appeals could be resolved, however.

The ADF said the tradition of designating an official day of prayer began with the Continental Congress in 1775, after which George Washington issued a National Day of Thanksgiving Proclamation. Ever since, American presidents have made similar proclamations and “appeals to the Almighty.”

ADF attorneys note that proclamations and appeals of state and local officials are no different. Historically, including 2010, all 50 governors, along with U.S. presidents, have issued proclamations in honor of the National Day of Prayer.

The ACLJ’s brief was filed on behalf of dozens of members of Congress.

“This is a case where the law and history are very clear in recognizing the fact that a day set aside to pray for our country is not only a time-honored tradition, but one that is consistent with the First Amendment,” said Jay Sekulow, chief counsel of the ACLJ. “Many members of Congress understand that the National Day of Prayer is a constitutional reflection of our history – our heritage. This tradition is supported by Supreme Court precedent and numerous acts of Congress. The 7th Circuit has an important opportunity to correct this badly flawed lower-court decision. We’re hopeful the appeals court will reverse the federal district court and protect a tradition that’s been part of our nation for centuries.”

The Freedom From Religion organization contends the statute violates the First Amendment because it endorses prayer and encourages citizens to engage in the practice. The White House has argued the statute is simply an “acknowledgment of the role of religion in American life” and is indistinguishable from government practices courts have upheld.

The ACLJ warned the use of “feelings” to determine a court-case outcome would produce results that would be alarming.

“Allowing ‘hurt feelings’ to suffice would render irrelevant the entire body of taxpayer standing. In that area of case law, the Supreme Court has recognized a narrow exception to the usual rule … that federal and state taxpayers cannot sue to challenge the use of tax money,” the brief said. “That exception … allows taxpayers to sue only to challenge specific, legislatively authorized expenditures of funds, in alleged violations of the Establishment Clause.

“‘Hurt feelings’ standing would cast that limit to the wind,” the brief said, arguing that the case should have been dismissed without even a hearing.

“Here, plaintiffs have sued over something they merely heard about.”

“‘Hurt feelings’ standing, while a boon for ’cause mongers,’ … is a bad idea whose time has not come. This court should vacate the district court’s judgment and remand for dismissal for lack of standing,” the brief argues.

Further, the history of the recognition day suggests it is “identified with our history and government.”

And the literal reading of the district court’s opinion could have ramifications across the country.

“Under the ‘endorsement’ guillotine, according to the district court’s logic, might come the numerous religious inscriptions and works of art in the Capitol building. In the rotunda of the Capitol building, for example, are paintings with religious themes such as ‘The Apotheosis of Washington,’ depicting the ascent of George Washington into heaven,” the ACLJ said.

“The First Amendment Religion Clauses, which themselves single out religion for favorable treatment, simply do not require such a ‘relentless extirpation’ of all religious expression and reference from public life,” the brief said.


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