Arizona Governor Sued Over Constitutionality of ‘Day of Prayer’

Last Tuesday, the Freedom From Religion Foundation sued (PDF) to prevent Arizona Governor Jan Brewer from holding another Day of Prayer:

FFRF claims that the Day of Prayer proclamation violates Article II, Section 12 in the Arizona Constitution…

No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.

… and Article XX, Section 1:

Perfect toleration of religious sentiment shall be secured to every inhabitant of this state, and noinhabitant of this state shall ever be molested inperson or property on account of his or her mode ofreligious worship, or lack of the same.

The complaint alleges breach of these sections but cites no relevant state case law, so I did a little looking of my own. (It also cites the Treaty of Tripoli and Thomas Jefferson’s “wall of separation” letter, but those are not likely to be very persuasive.)

You might think the fact that the FFRF goes after the Arizona Constitution should make this a more open-and-shut case, but it’s not as airtight as you might think. In spite of the fact that states are free to expand rights beyond the federal guarantees, many (if not most) states simply apply federal decisions to state issues and call it a day.

Arizona is no exception, based on my research. What that means for this most recent FFRF lawsuit is that the state court will probably not depart from the federal court’s decision on the last FFRF challenge to a Day of Prayer.

The Arizona District Court ruled then that FFRF didn’t have standing to challenge the proclamation, and so they turned to the state Constitution. However, the Seventh Circuit Court of Appeals (which encompasses Illinois, Indiana, and Wisconsin) overturned a district court there that ruled the National Day of Prayer unconstitutional.

So, even though it appears to be a clear establishment of religion (remember that advancement of religion prong of the Lemon test?), it seems unlikely that FFRF will prevail on this issue.

Not to say that they shouldn’t. Most defenders of the Day of Prayer contend that it’s a “request” to pray, not a command, and that lack of penalty for non-compliance negates any claim of injury. Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin disagrees.

She aptly pointed out back in 2010:

However, recognizing the importance of prayer to many people does not mean that the government may enact a statute in support of it, any more than the government may encourage citizens to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic.

(I particularly enjoy her comparison between praying and magic…)

At any rate, Governor Brewer exhibits a very poor understanding of the function of the courts in a democratic society. She says that lawsuit is “frivolous” and unfounded because “of course, it’s something that a majority of Americans, a majority of Arizonans, all support…”

Theocrats so frequently fail to grasp the meaning of the phrase “majority rule, minority rights” and the integral role it plays in our constitutional representative democracy.

Speaking of theocrats, an Alliance Defense Fund representative commented on the last challenge, dismissed in December of 2011, saying: “There is no right not to be offended in America.”

In sprite of ADF’s efforts, we do have a right to a secular government, and I’m glad that the FFRF is fighting the good fight.