7th Circuit: No Standing To Challenge National Day of Prayer

In Freedom From Religion Foundation, Inc. v. Obama, (7th Cir., April 14, 2011), the U.S. 7th Circuit Court of Appeals held that Freedom from Religion Foundation and its members lack standing to challenge either the constitutionality of the federal statute that creates a National Day of Prayer or the Presidential proclamations issued under that statute. While all three judges concluded that plaintiffs lack standing, the opinion by Judge Easterbrook (joined by Judge Manion) swept more broadly in doing so that did the concurring opinion by Judge Williams.

As to the statute-- 36 USC Sec. 119-- which directs the President to issue a Proclamation each year declaring the first Thursday in May as a national day of prayer, Judge Easterbrook concluded that since it merely imposes a duty on the President, only the President is injured enough by the statute to have standing. Others cannot "object to a statute that imposes duties on strangers."  The President's proclamation, on the other hand, are addressed to plaintiffs, like all other citizens. However since the Proclamations merely make a request that citizens are free to deny, no one is injured by them. Judge Easterbrook continued:

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.... [However] offense at the behavior of the government, and a desire to have public officials comply with (plaintiffs’ view of) the Constitution, differs from a legal injury. The “psychological consequence presumably produced by observation of conduct with which one disagrees” is not an “injury” for the purpose of standing.

Judge Williams, concurring, found this case to be closer, and the Supreme Court precedent to be less clear, that Judge Easterbrook asserted.  Williams wrote:

The [Supreme] Court simply has not been clear as to what distinguishes the psychological injury produced by conduct with which one disagrees from an injury that suffices to give rise to an injury-in-fact in Establishment Clause cases.... [The Supreme] Court has decided cases in many contexts where the plaintiffs claimed that they were hurt by exposure to unwelcome religious messages from the government.... In all of those cases, the Court treated standing as sufficient, even though it appears that nothing was affected but the religious or irreligious sentiments of the plaintiffs..... 

In the case, the district court had found that plaintiffs had standing, and later concluded that the federal statute violates the Establishment Clause. (See prior posting.) AP reports on the decision. FFRF immediately issued a press release announcing that it will seek en banc review.