It was exactly one year ago that a Wisconsin federal court incredibly ruled that our 200 year practice of praying together as a nation is unconstitutional by striking down the statute establishing the National Day of Prayer. But on April 14, 2011, the day before the anniversary of that troubling ruling, the Seventh Circuit Court of Appeals reversed it in a fantastic opinion holding that the anti-religious Freedom From Religion Foundation should not have been allowed past the courthouse gate because they suffered no legal injury.
Voting 3-0, the Seventh Circuit held that FFRF doesn't have standing to even challenge the NDOP. Chief Judge Easterbrook, a very prominent and nationally respected judge, wrote the opinion and said that "offense at the behavior of the government, and a desire to have public officials comply with (plantiffs' view) of the Constitution, differs from a legal injury." Without a legal injury, plaintiffs can't sue, and merely being offended isn't enough. The court went on to say, “the ‘psychological consequence presumably 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." Even the judge that was most sympathetic to the FFRF at oral argument said they didn’t have standing because "the observation of conduct with which [they] disagree ...was insufficient to confer standing."
So the only court to ever hold that the statute directing the president to issue a prayer proclamation on the first Thursday in May was unconstitutional has now been reversed. Of course, the folks at FFRF have vowed to ask all of the judges at the Seventh Circuit to review this ruling in a petition for rehearing en banc. And they will likely petition the Supreme Court to hear the case if that fails. But their chances of success are slim given the unanimous ruling and the seniority of Chief Judge Easterbrook.
This ruling adds to the list of recent setbacks for anti-religious forces in America in Establishment Clause cases. It reflects a trend of restricting the requirements of standing in these cases as demonstrated in Hein v. Freedom From Religion Foundation (no standing to challenge President Bush's faith-based initiative), and ACSTO v. Winn (no standing to challenge tax credits for school choice).
What a great day for religious freedom and our nation’s heritage.
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