MADISON, Wis. — A federal appeals court on Thursday threw out a ruling that the National Day of Prayer is unconstitutional and ordered that a lawsuit challenging President Barack Obama’s right to proclaim the day be dismissed.
A three-judge panel of the 7th U.S. Circuit Court of Appeals ruled the Madison, Wis.-based Freedom From Religion Foundation did not have standing to sue because while it disagrees with the president’s proclamation, it has not caused the foundation any harm.
“Hurt feelings differ from legal injury,” the appeals court said.
U.S. District Judge Barbara Crabb ruled in April 2010 that the national prayer day was unconstitutional because it amounts to a call for religious action. Crabb said the government can no more enact laws supporting a day of prayer than it can encourage citizens to fast during Ramadan, attend a synagogue or practice magic. The president appealed.
The Freedom From Religion Foundation issued a statement Thursday saying it would seek a review by the full appeals court. Foundation co-president Annie Laurie Gaylor called the decision cowardly.
“This decision is part of an ominous trend in the federal courts to deny Americans the right to challenge church-state violations,” the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said in a prepared statement. That group filed a brief in support of the case.
Obama spokesman Matt Lehrich had no immediate comment.
The American Center for Law and Justice, which represented 67 members of Congress in defense of the prayer day, praised the ruling.
“This decision represents a victory for our nation’s heritage and history,” the group’s attorney Jay Sekulow said in a statement.
The appeals court said in an opinion written by Chief Judge Frank Easterbrook that while the National Day of Prayer proclamation speaks to all citizens, no one is obliged 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.”
The proclamation is a request, not a demand, the appeals court said. The president frequently calls on citizens to do things they prefer not to do, possibly on religious or political grounds, the court said. However, the Republican Party would not have standing to bring a lawsuit against the president if he speaks to his supporters or tries to sway the undecided, Easterbrook wrote.
The opinion cites President Abraham Lincoln’s second inaugural address, which mentions God seven times and prayer three times.
“The address is chiseled in stone at the Lincoln Memorial on the National Mall,” Easterbrook wrote. “An argument that the prominence of these words injures every citizen, and that the Judicial Branch could order them to be blotted out, would be dismissed as preposterous.”
Congress established the day in 1952 and in 1988 set the first Thursday in May as the day for presidents to issue proclamations asking Americans to pray. The Freedom From Religion Foundation, a group of atheists and agnostics, filed a lawsuit against the federal government in 2008 arguing the day violated the separation of church and state.
Obama’s administration countered that the statute simply acknowledges the role of religion in the United States.