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Plaintiffs Have Standing To Challenge Day of Prayer, But Not Prayer Proclamations

By Howard M. Friedman

In Freedom From Religion Foundation, Inc. v. Obama, (WD WI, March 2, 2010), a Wisconsin federal district court ruled on the standing of Freedom from Religion Foundation and some of its members in a lawsuit challenging the constitutionality of the National Day of Prayer statute (36 USC 119) and the issuance of prayer proclamations by the President. (See prior posting.) In addition to the President, Shirley Dobson, chairperson of the National Day of Prayer Task Force was also named as a defendant. The court held:

Although the answer is not free from doubt, I conclude that, under the unique circumstances of this case, plaintiffs have standing to challenge the constitutionality of the National Day of Prayer statute. The primary injury plaintiffs allege is the feeling of unwelcomeness and exclusion they experience as nonreligious persons because of what they view as a message from the government that it favors Americans who pray. That injury is intangible, but it is no less concrete than the injuries in the many cases in which courts have recognized the standing of persons subjected to unwelcome religious speech. The only difference between those cases and this one is that plaintiffs have not come into physical or visual contact with a religious display. However, that difference has little significance in a case like this one involving a national message intended to reach all Americans.

... With respect to plaintiffs' challenge to "prayer proclamations" issued by the President (other than one required by § 119), none of the plaintiffs has read or heard such a proclamation except when they expressly sought one out. Such a self-inflicted "injury" cannot establish standing. With respect to defendant Dobson, plaintiffs have failed completely to show that any of her actions has injured them.

Alliance Defense Fund issued a release on the decision.

Full post as published by Religion Clause on March 03, 2010 (boomark / email).