Court to atheists: Gee, sorry about your 'hurt feelings'

A federal appeals court today tossed a challenge to the legality of the National Day of Prayer, saying that the plaintiffs apparently were complaining because they were observing "conduct with which they disagree," and that does not make a federal case.

The decision today from the U.S. Court 7th Circuit Court of Appeals, written by Chief Judge Frank Easterbrook, rejected arguments from the Freedom From Religion Foundation that the case was legitimate because members felt excluded by the day.

"Hurt feelings differ from legal injury," the court concluded.

The actual Day of Prayer is set by an annual proclamation from the president, but many of the activities arranged for Christians and their churches are handled by a private organization set up specifically to promote the day.

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"We're extremely pleased that the appeals court rejected a flawed decision and determined that while some may disagree with a presidential proclamation, they do not have the right to silence the speech they don't agree with," said Jay Sekulow, chief counsel for the American Center for Law and Justice.

"The appeals court correctly concluded that the plaintiffs lacked standing to challenge the National Day of Prayer. This decision represents a victory for our nation's heritage and history – protecting a long-standing tradition that's been a part of our country for centuries," he said.

"Public officials should be able to participate in public prayer activities just as America's founders did," said Kevin Theriot, senior counsel for the Alliance Defense Fund.

"The 7th Circuit has clearly understood that the Freedom From Religion Foundation simply had no legal standing to attack the federal statute setting a day for the National Day of Prayer simply because the group is offended by religion."

The ADF represented the private, nonprofit National Day of Prayer Task Force in the case and the ACLJ represented a long list of members of Congress.

The court found "the 'psychological consequences presumable produced by observation of conduct with which one disagrees' is not an 'injury' for the purpose of standing … Plaintiffs have not altered their conduct one whit or incurred any cost in time or money. All they have is disagreement with the president's action. But unless all limits on standing are to be abandoned, a feeling of alienation cannot suffice as injury in fact."

U.S. District Judge Barbara B. Crabb

It was U.S. District Judge B.B. Crabb who earlier took the opposite position.

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."

Nonsense, said the appeals court.

"Plaintiffs contend that they are injured because they
feel excluded, or made unwelcome, when the president
asks them to engage in a religious observance that is
contrary to their own principles. It is difficult to see
how any reader of the 2010 proclamation would feel
excluded or unwelcome. Here again is the proclamation's
only sentence that explicitly requests citizens to pray:
'I call upon the citizens of our nation to pray, or
otherwise give thanks, in accordance with their own faiths and
consciences, for our many freedoms and blessings, and
I invite all people of faith to join me in asking for God's
continued guidance, grace, and protection as we meet
the challenges before us.'"

Last month, the ADF authored a letter delivered to governors across the nation encouraging them to observe and participate in the 60th annual National Day of Prayer this year.

The founders recognized a day of prayer, as has nearly every president since. It was in 1952 when President Harry Truman signed into law a joint resolution by Congress to set aside an annual National Day of Prayer. Congress amended the law in 1988, which was signed by President Ronald Reagan, specifying that the annual event would be observed on "the first Thursday in May each year."

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.

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 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 had 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.

"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 argued.