Appeals court overturns Day of Prayer ban

Judges say atheists suffered no harm

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A federal appeals court Thursday threw out a ruling that would have prohibited the president from declaring a National Day of Prayer, in a decision that cheered social conservatives and occasioned much wailing and gnashing of teeth by groups advocating a strict separation of church and state.

The Freedom From Religion Foundation announced that it would seek a rehearing by the full 7th U.S. Circuit Court of Appeals after a three-judge panel ruled against its challenge to the 1952 law, which instructs the president to issue a proclamation encouraging citizens to pray.

The Chicago-based court ruled that the organization lacked standing because it suffered no harm. It noted that the proclamation requires the president only to take action and does not compel any individual to pray “any more than a person would be obliged to hand over his money if the president asked all citizens to support the Red Cross or other charities.”

“All they have is a disagreement with the president’s action. But unless all limits on standing are to be abandoned, a feeling of alienation cannot suffice as injury,” Chief Judge Frank Easterbrook, a Reagan appointee, said in the opinion.

The decision overturns the April 2010 ruling of U.S. District Court Judge Barbara Crabb, a Carter appointee, who declared the law unconstitutional because it constituted a call to religious action. The appeal was filed by the Justice Department on behalf of President Obama.

**FILE** Debbie Johannes (right) and Luis Linares (second from right), a missionary from El Salvador, pray during the annual National Day of Prayer in the House Cannon building on Capitol Hill in 2006. (The Washington Times)

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**FILE** Debbie Johannes (right) and Luis Linares (second from right), a missionary ... more >

In her opinion, Judge Crabb wrote that declaring a National Day of Prayer was tantamount to encouraging citizens “to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic.”

Annie Laurie Gaylor, co-president of the FFRF, called the appeals court decision “cowardly” and said the foundation’s lawsuit would have been successful if it had been judged on the merits and not on the question of standing.

“Congress and the president of the United States have no business telling me or any other citizen to pray, to ‘turn to God in prayer and churches,’ much less setting aside an entire day for prayer every year and even telling me what to pray about,” Ms. Gaylor said in a statement.

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, called the decision “part of an ominous trend in the federal courts to deny Americans the right to challenge church-state violations.”

“Under the court’s logic, Congress could order the president to declare the United States a Christian nation — and no one could challenge it in court,” Mr. Lynn said. “That, to be blunt, makes a mockery of the First Amendment’s religious liberty protections.”

The Family Research Council, which submitted a brief in support of the administration’s position, commended the appeals court for rejecting a lawsuit that “demands this kind of religious expression be scrubbed from the public square.”

“Today’s ruling sends a message to Judge Barbara Crabb and any other activist judge who would rewrite the Constitution to advance a hostile treatment of religion in public life,” said Family Research Council President Tony Perkins. “This is a perfect example of a harassing lawsuit that should have been dismissed at the outset.”

Jay Sekulow, chief counsel of the American Center for Law and Justice, called the ruling “a victory for our nation’s heritage and history.”

“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,” Mr. Sekulow said.

The National Day of Prayer law was approved in 1952. Congress enacted a law in 1988 that reserves the first Thursday in May as the National Day of Prayer and requires the president to issue a proclamation.

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