No National Day of Prayer? An Impartial Texas School Board? Yes, It Is Possible

March 4, 2010

On Tuesday, the U.S. District Court for the Western District of Wisconsin ruled that the Freedom from Religion Foundation (FFRF) had standing to challenge the statute that makes the first Thursday of May a "National Day of Prayer." Although the court did not rule on the merits of FFRF’s constitutional claim, the decision on standing was a critical, unexpected victory. To proceed with a lawsuit, a litigant must establish that she or he has been injured and this injury is distinct from a generalized grievance that many other people might share. Establishing standing has proven difficult in many Establishment Clause cases precisely because violations of church-state separation tend to affect many people. That is why those challenging religious symbols on public property typically have to show they have contact with the symbol that is different from the general population. For example, someone from Madison County probably could not sue over a Ten Commandments display in front of the courthouse in Moses County, absent a showing the person frequently had occasion to go to that particular courthouse.

The injury that the FFRF plaintiffs alleged was the sense of exclusion they experience as a result of government endorsement of a religious practice they do not accept. The court admitted that FFRF could not show actual contact with the National Day of Prayer — which is an intangible — but nonetheless decided that because plaintiffs are "confronted" with the government’s message of endorsement, this is sufficient.

If the district court’s decision is upheld on appeal, this could prove to be an important case. It definitely would be a very significant development if Americans concerned about church-state separation could finally test the constitutionality of the law that proclaims that a certain day will be officially commemorated as a National Day of Prayer. (The law has been on the books since 1952.) Unfortunately, given the composition of the current Supreme Court, it is unlikely that FFRF will prevail in the end. You may recall that a few years ago FFRF lost another standing battle before the Supreme Court when they were challenging certain aspects of Bush’s faith-based initiative. (In that case, FFRF claimed taxpayer standing.) Here’s hoping FFRF’s legal fortunes improve this time.

In another development that will bring joy to friends of the First Amendment, Texas fundamentalist Don McLeroy was apparently defeated in the Republican primary for a seat on the Texas Board of Education. McLeroy has become notorious in recent years for aggressively pushing the claim that the United States is a Christian nation, and for trying to get that bizarre view reflected in textbooks used in the public schools. The New York Times recently did an article on McLeroy and his allies emphasizing the progress they have made in recent years. His defeat is significant setback to the Religious Right.