FFRF Loses Challenge to Stop Arizona Day of Prayer August 15, 2012

FFRF Loses Challenge to Stop Arizona Day of Prayer

Back in January, FFRF sued Arizona Governor Jan Brewer to stop her from holding another Day of Prayer (PDF).

The problem with suing on principle — “It’s unconstitutional” — is that courts don’t always care. They want to know if you’ve been injured in some way. That’s why it’s so hard to get “Under God” removed from the Pledge of Allegiance — you need a child who’s felt wronged for having said it or punished for not saying it. You can also try to sue as a taxpayer, which FFRF tried to do against the government until the Supreme Court stopped them, but they didn’t attempt that approach in this case.

A court has now thrown out FFRF’s challenge (PDF) for those reasons:

The Court having considered all information presented and authorities cited, finds that Plaintiffs lack an injury sufficient to demonstrate that they have direct or representational standing. In the absence of a particularized and concrete injury suffered by Plaintiffs, their claims cannot go forward. Plaintiffs have not alleged that they filed their claims in their capacity as taxpayers, nor have they shown a direct injury, pecuniary or otherwise. No exceptional circumstances or fundamental questions of statutory construction or constitutionality of a statute or government action, moot due to passage of time, have been demonstrated to support the Court’s waiver of the standing requirement.

Governor Brewer, as you can imagine, is gloating (PDF):

Governor Jan Brewer today lauded a decision by Superior Court Judge Eileen Willett to dismiss a challenge to the constitutionality of gubernatorial proclamations designating an Arizona Day of Prayer.

“I applaud the Arizona Superior Court for rejecting this lawsuit, which was little more than another sad attempt to stifle an American tradition.

“Uniting in prayer is a custom as old as our nation itself. For centuries, millions of Americans of every race, creed and color have come together in voluntary prayer to seek strength and wisdom. This is an American right and tradition, and one that I’ve proudly marked each year I’ve been Governor by proclaiming an Arizona Day of Prayer.

“In these troubled times, it is more important than ever that we have opportunities such as this to freely and voluntarily come together in seeking courage and guidance from a higher power. I thank the court for dismissing this baseless suit, and will continue to vigorously defend our ability to commemorate an Arizona Day of Prayer.”

Another brick from the wall of separation has been taken down.

(via Religion Clause)

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  • Xeon2000

    “For centuries, millions of Americans of every race, creed and color have come together in voluntary prayer to seek strength and wisdom.”

    I don’t think the African slaves were allowed to keep their ancestral beliefs, and even after forced (i.e. not voluntary) christianisation they were still segregated and continued to be enslaved. The Native Americans had their ancestral beliefs suppressed and suffered racial genocide. There was no acceptance or “togetherness” for those outside Christianity over the centuries, and even different races and cultures were discriminated againsted and segregated. Even Catholicism up until the past century was an “outside faction”.

    There are so many disparate factions in the religious community my mind boggles at how the word “togetherness” can even be spoken. This person suffers from the worst cognitive dissonance.

  • Jeremy Mullins

    Can I sue the government under the premise that I am injured by the requirement to show direct injury?

  • Sad.

  • Tainda

    I’ve said this before here but I have a friend who honestly does not believe people were ever forced to convert to christianity.  That is how the hardcore thumpers think.  They think native peoples voluntarily changed to christianity because they finally “saw the light and salvation” (said in a televangelist voice)

  • advancedatheist

    FFRF, American Atheists and similar groups should lay off this legal harassment over trivial issues. I declined to renew my membership in these organizations because I didn’t want them to waste my money in that way. And I have somehow mysteriously stopped every political “day of prayer” from affecting me simply by not participating, without having to threaten to sue anyone. 

    Atheists in the U.S. have really cheapened the meaning of “persecution” when we live under conditions which look like an atheist utopia to atheists in backwards countries who face imprisonment, family disruption, confiscations of wealth and even capital punishment for their expressions of nonbelief. Atheists like the ones leading FFRF who engage in legal attention-whoring don’t deserve as much respect as they think they do, and I think their ill-advised attempts at do-goodism don’t help atheists’ reputations in the U.S.

  • Douglas Packard

    I think people need to go out there and protest these Days of Prayer then.

  • Ronlawhouston

    For getting paid to make decisions, judges sure do use standing an awful lot to avoid making tough decisions.  Oh well, as they say, the law is an ass.

  • vexorian

    Trivial issues?

    Cause a state using your money to promote prayer is very trivial.

    The failure here is that yeah, “this is almost paradise” for secularists because of the separation between church and state. But it is clear that the theocrats have noticed it and are doing the best they can to change it. They are tearing the wall between church and state one brick at a time. Which is clear when you see the gloating from the governor. Thanks to the theocrafts got away with this day of prayer, she can now claim that prayer is an “American tradition”, she is now allowed to revision history and say that prayer was always something American of all creed (except those atheist pariahs, obviously) did together.

  • sunburned

    ” In these troubled times, it is more important than ever that we have
    opportunities such as this to freely and voluntarily come together in
    seeking courage and guidance from a higher power.”

    WTF?  Like you don’t have the opportunity every single day?  Do you really need the government to set aside a specific day? 

    “I applaud the Arizona Superior Court for rejecting this
    lawsuit, which was little more than another sad attempt to stifle an
    American tradition.”Just a wild guess…. 1950s?

  •  Oppression Olympics?

  • Annie

    It really bothers me when politicians refer to “these troubled times”, as if this is a specific time when we really need to pray.  Regardless of what little snapshot of our country’s history you choose to look at, there will always be people who are in troubled times, and people who are most certainly not.  In the photo above, Governor Brewer does not give off the appearance that she is in the middle of any troubled times: she appears as all the other politicians do- well groomed, well fed, and if I had to venture a guess, has more than adequate health care available to her. 

    The “troubled times” phrase is a gimmick that politicians hope will open the door for them to do whatever they damn well please.  In this case, it’s being used as rationale to pray.

  • It’s sad to see how backwards the United States of America really is.

    Yet, from within it’s boarders, a faint cry of liberty can be heard!

  • you can never force people to change their beliefs…, they might say they have changed them, but only to avoid torture.

  • Pustulio

    Ask yourself this; Do you honestly think that if the situation were reversed and this was about a “Day of Meditation” or something that Christians would just let it slide and not go apeshit screaming about seperation of church and state?

  • But then their children, no longer being forced to avoid torture, were willingly brought up genuinely believing and thus, a country bursting at the seams with Christians.

  • edgar ayala

    Why does a governor have to designate a day of prayer which therefor alienates non believers? People have to right to pray everyday in public places, churches, temples and their homes. I can help but get this sinking feeling that governments prefer people that pray, over people that protest. 

  • Ken

    From a political party that holds the Constitution to be akin to another book of the Bible, they sure don’t mind wiping their butts with it when “the law” doesn’t agree with their belief of the moment.

  • If there is one defense of such things that tempts me to go along with it it is the notion that there is no real harm to some of these symbolic expressions. …and every time I feel that temptation, the  chorus of “this is a Christian nation” quickly drowns it out and shows me where the harm actually lies.

  • MegaZeusThor

    “…another sad attempt to stifle an American tradition.”

    Could they have said that about slavery at one time? What’s the point of a 
    constitution if it’s not followed?

  • Blacksheep

    You must be an advanced atheist – I was beginning to feel that the main agenda for atheists was to sue everyone in sight and then gloat over the victories.

  • Coyotenose

    Gosh, why would anyone EVER think that vocal Christians are often hypocritical liars with an example like yours?

    Bear more false witness because you think it’s okay when you don’t like the person, whiner.

  • Blacksheep

    The national Day of prayer is from 1952, however prayer is a strong part of American tradition. Beginning in 1744, The Continental Congress chose a paster to open its legislative sessions with prayer. Even now, each session of congress opens with prayer to “ask God’s blessing on the nation and the work of the House of Representatives.”

  • Coyotenose

     Of course politicians prefer them. People who pray are typically easier to control, because A) they are trained to defer to anyone who claims to have authority, B) they can be made to go along with any idea, no matter how horrendous, on the premise that it is some superior being’s will (nothing is better for getting a decent person to commit evil than to convince him that he isn’t the one responsible for it), and C) they are trained to have a knee-jerk martyr reaction that makes it easy to rile them on false grounds.

  • Blacksheep

    How did I bear false witness? 

  • Blacksheep

    The constitution calls for freedom to express one’s religion, and it also outlines the right of states to proclaim things like a day of prayer. They’re actually following the constitution. They’re not selecting one religion over the other, this is for “every creed.”

  • Skooly2

    Dude – this is atheist whiner central, you must be new here.

  •  It is a bit too faint tho. If you have a day of prayer, officiated and sanctioned by the government, and the word prayer in this case does specifically reference a christian prayer, and not any other type of prayer, then the government is indorsing that specific religion, and that type of prayer, to the exclusion of all other religions and types of prayer. I wouldn’t even dare to mention nonbelievers here. The slippery slope in this situation is obvious and very dangerous. The next you may see, is the closure of all restaurants and fast food outlets during lent, because good Christians as supposed to be fasting then. Islamic countries do that, and you would risk arrest and corporal punishment for public eating during Ramadan. But then again, these countries are theocracies, and they use and consider religion as the bases for government. So i suggest those atheists who withdraw support for these organizations that actively object to government sanctioned prayer and other religious symbols, please support them, lest you find yourself forced into a prayer or other religious activity. Slippery slope type activities, while seemingly harmless in the beginning, have the awful tendency to spiral downwards with great acceleration and are very hard to stop once they gain momentum. So too bad the FFRF lost this battle, but i am sure they will continue, as the should, their work is vital, and i can’t be thankful enough for it. 

  • Xuuths

    You should look at that particular decision in context — note who did it, who paid for it, any debate about it, etc.  That would be informative.

  • Alviesf

    Thank you!!! It is a constant battle, and one where we have to remain vigilant. Christians know that they are losing ground and will do everything in their power to, not only keep what they have, but also, get back what they have lost.

  • Blacksheep

    Not sure which decision you mean – this goes back to George Washington from day one. 

    Paid for it?

  • 3lemenope

    The constitution calls for freedom to express one’s religion…


    …and it also outlines the right of states to proclaim things like a day of prayer.

    No. Please be so kind as to point out where you think the Constitution “outlines the right of states” to proclaim a day of prayer.


    I always ask the advocates of prayer……how many prayers do you suppose were offered up during the holocaust, and how effective was it?


    Many slaves were actually Muslims and they certainly weren’t allowed to hold on to their religion.

  • Randomfactor

     “For centuries, millions of Americans of every race, creed and color
    have come together in voluntary prayer to seek strength and wisdom.”

    Or beaten until they did.

  • Rwlawoffice

    Correct decision by the Arizona court.  Same result here in Texas.  I applaud them.

    “Another brick from the wall of separation has been taken down” 

    Not exactly.  I rock thrown at constitutionally recognized religious liberty has been cast aside as it should have been.

  • Stev84

    And yet anti-gay groups are allowed to intervene all the time in cases despite never being able to show any injury (and I’m not just talking about Prop 8 here where they had a bit of a case). Typical Christian double standard.

  • Rwlawoffice

     It is not a Christian standard at all.  It is the jurisdictional requirement of standing that exists for all parties going to federal court. 

  • Blacksheep

    Sorry – I’m oversimplifying what I wrote which made it incorrect. I meant to express that the constitution’s promise of freedom of religious expression coupled with several lawsuits against national day of prayer being thrown out in court over the past few years are beginning to set a precedent. (in my opinion) Shouldn’t have said “outlined”, good point.

  • TCC

    You seriously missed the point of Stev84’s complaint: the standard is being applied unequally. As Martin Luther King correctly pointed out, a law that is just on its face can be unjust in its application.

  • Blacksheep

    In what way was I hypocritical? 

    And why would you think that I didn’t like someone? Since about 25% of my friends are atheists, chances are that I would strike up a friendship with many people on this forum in everyday life.

  • Rwlawoffice

    Maybe I did. If ther are cases that he is referring to maybe we could investigate it and find out if in fact the standard is being applied in a different fashion for Christian groups.

  • 3lemenope

    Cases dismissed for lack of standing have no precedental value under the law, as the merits of the case are never arrived at to be analyzed.

  • TCC

    Out of curiosity, on what principle of jurisprudence do you determine that this is “constitutionally recognize religious liberty”? By what logic is this not government speech but merely the private speech of a government official?

  • Baby_Raptor

    It’s sad to see how backwards the US really is, when people celebrate the violation of peoples’ rights as “a faint cry of liberty.”

  • ‘Out of curiosity, on what principle of jurisprudence do you determine that this is “constitutionally recognized religious liberty”?’

    Just a wild-assed guess here: “Because Christianity.”

  • Rwlawoffice

     The cases that uphold the day of prayer do not say that it is the government that is doing the praying.  It is not an endorsement of religion that is unconstitutional. Indeed there is a longstanding historical precedent of the government setting aside a day for prayer. It goes back to the time of the founding fathers.

  • Margaret Whitestone

    “In these troubled times, it is more important than ever that we have
    opportunities such as this to freely and voluntarily come together in
    seeking courage and guidance from a higher power.”

    If prayer was so effective we wouldn’t be in troubled times.  But let’s keep doing useless stuff, and even have our elected officials declare special holidays for it in violation of the Constitution, because it’s “tradition”, you know. Let’s bring back slavery and child labor while we’re at it because apparently it was wrong of those meddling bullies to take away those American “traditions”. 

  • Baby_Raptor

    The Constitution strictly forbids any act of the government setting up religion or religious activities. 

    Please read the thing before you go talking about it.

  • Baby_Raptor

    The Constitution does not give states religious liberty. It says, in plain English, that the government cannot make any religious laws or declarations. 

    All this is is more christian privilege stepping on the rights of others. It’s pathetic that you laud this as the “right” decision. 

  • Admit it, you’re not really a lawyer. You just put that in your screen name to joke with us.

  • There is a longstanding historical precedent for owning slaves. It goes back to the time of the founding fathers.

  • I think it is a great weakness in our legal system that “standing” or “injury” has to be demonstrated for any Constitutional complaint. Both should always be considered implicit in any Constitutional challenge. Courts always have the discretion to award damages or court costs to discourage frivolous suits. But with matters like this, the stakes are simply too great to disallow a hearing because of a supposed lack of standing or lack of apparent injury.

    When a complaint is thrown out for these reasons, there is no real resolution at all, no precedent, no clarification of the law.

  • Rwlawoffice

    Actually 26 years practicing and very successful thank you.

  • Rwlawoffice

    Actually the constitution doesn’t say that at all. You should probably go read it again.

  • 3lemenope

    That’s, uh, playing a little loose with the language of the Constitution, too. Much as I agree with the thrust of your argument, the actual text of the Constitution only says that:

    1.  Congress may not *establish* a religion as the nation’s official religion, establishment being a clear term of art for that state of affairs in many European nations at the time, such as the Church of England in England, or the Norges Folkekirke of Norway

    2. Congress may not impede the free exercise of religion (fairly self-explanatory)

    3. The Federal Government may not in any way use a religious test to sort for suitability of holding any position in the government (also pretty self-explanatory)

    The 14th Amendment then applied these to the states through incorporation.

    Now, the text doesn’t say exactly how Congress should go about guaranteeing freedom of religious exercise, and the courts have interpreted that clause together with the Establishment clause over the past seventy years or so to point to erecting a strict wall of separation (following the advice of Jefferson ad Madison) as the safest, least complicated way to ensure maximum freedom from government entanglement in religious affairs. The doctrine of separation does not exist in plain text in the Constitution, but is a perfectly reasonable way to enforce the existing textual passages regarding the subject of religion. 

  • One of the slightly weird things about the American legal system is the requirement to show standing.  Without an injury, inconvenience, or damages of some kind it seems you cannot bring a case before the courts – even where the legislation is clearly incorrect or unconstitutional.  This does not seem to be a win for them on the grounds of legality, but a technicality because there was no standing on behalf of the plaintiffs. 

  • TCC

    So what magically makes this endorsement of religion constitutional (assuming that you were saying that this is an endorsement but is still constitutional)? I’m asking for the underlying principle, not merely “We’ve done it for a while already.”

  • TCC

    If your #1 is supposed to be a paraphrase of the Establishment Clause, I think it is pretty inaccurate. The Establishment Clause says that “Congress shall make no law respecting an establishment of religion,” not “an establishment of a religion,” and courts have rightly interpreted that to mean that religious entanglement in general (these odd exceptions notwithstanding) violates this clause. If I proselytize in my classroom, I am not establishing a state religion, but I am in fact violating the Establishment Clause because my speech is considered to be government speech.

  • TCC

    Don’t get too caught up in “just world” thinking; there are plenty of ignorant lawyers out there. Just ask Andy Schlafly.

  • OregoniAn

     Keep on practicing then.. Who knows? Some day you might get better.

  • Gunstargreen

    Governor Brewer continues to be a deplorable human being. No surprise here.

  • 3lemenope

    As I said, establishment (and disestablishment, for that matter) is a legal term of art, at the time of writing would have been clearly understood to mean the establishment of a state religion; the issue leading to the amendment first became a political topic of concern immediately following the disestablishment of the Church of England from the Commonwealth of Virginia. 

    The modern reading of the clause follows Black’s holding in Everson v. Board of Education in 1947, which was the first time the clause was incorporated so as to apply to the states. Prior to that time, at least six states had had established churches (some for long periods) and the function of the Establishment clause in the 1st amendment was also understood so as to prevent interference by Congress in these establishments, a fact which Justice Brennan pointed out in his concurrence in Abington v. Schempp, even as he pointed out that there was nothing in the text of the clause itself that restricted the court to the narrow original reading. Justice Stewart in his dissent from the same case made mention of the uncomfortably numerous ways in which the government has since its inception made mention of and recourse to religious language and declarations in making the argument that Establishment was originally expansively intended to be unlikely to the point of ridiculousness. 

    Now, I think that reflexively relying upon the original meaning of a two-and-a-quarter centuries old text to guide policy today is foolish, and I am glad the court took the more expansive view it did in Everson. Still, I don’t think it can be legitimately claimed that the expansive reading tracks the original intent of the authors of the clause. The Separation doctrine is best understood as a (good) change of practice, rather than merely the fuller expression of existing practice.

  • TCC

    On what evidence do you suggest that “establishment” only referred to a state religion? I do understand that there were some official state churches, but I chalk that up to the same thing as Jefferson’s profession of human equality and his owning of slaves: an inability to live consistently by one’s own principles.

    At any rate, I don’t think we’re arguing over the originalist reading of the Establishment Clause; I just don’t see how a plain reading leads one to insist that the Establishment Clause only applies to a state religion.

  • 3lemenope

    Not to put too subtle a point on it, but when one wiki searches for Establishment (church) or Establishment of Religion, one gets redirected to the article “State Religion”. The history thereof makes it pretty clear this is what is meant by the term. It even yields what is famously known as the longest non-scientific word in the English language, “Antidisestablishmentarianism”, which is defined as the political position of being opposed to the disestablishment of the state religion. A state church is often referred to explicitly as an established church. 

    Often times, words have a specialized meaning in a discipline that differs from the general meaning of the word in ordinary discourse. Hence, plain language readings of such terms can lead one astray.  That’s why, for example, it’s generally a bad idea to assume a plain language reading when reading law. If a word has a settled specialized meaning, like establishment does, that weighs heavily into how it should be read.

    As I said, I have no particular affection for the original meaning of the clause; I think it very obviously entirely too narrow for the society we find ourselves living in. The Supreme Court, in Everson, narrowly agreed.  Even still, there has always been much less support from legal scholars for incorporation of the Establishment Clause than any other clause of the First Amendment for the simple reason that it is not like any of the other clauses in operation; it does not directly involve an individual right, and so the use of the 14th Amendment to incorporate it is a bit suspect, since it doesn’t seem to implicate the due process clause.

  • SecularHumanBN

     That’s why we atheists in Arizona call her the “Wicked Witch of the West”. I just wish someone would drop a house on her already!

  • TCC

    Sorry, but I’m not relying on a Wikipedia redirect as evidence that “establishment” has had that specific technical meaning and only that specific technical meaning. Establishment can refer to an establishment of a religion as an official religion, clearly, but I’m not convinced that that’s the only plausible reading.

  • 3lemenope

    It didn’t have any other meaning in American jurisprudence until 1947, with Everson, when it was changed to mean the more expansive meaning with which you are familiar and applied to the states for the first time. Not for nothing, but the wiki article I redirected you to had a ton of cites, so while I appreciate the “don’t want to take wiki’s word for it” you really don’t have to. If you can find a reference to establishment meaning anything other than state establishment of a religion through direct endorsement, anywhere, prior to 1947, I’d be honestly shocked. 

    For what it’s worth, the original proposed and submitted text by Madison of what would become the beginning of the 1st amendment is:

    The civil rights of none shall be abridged on account of religious belief  or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. (1 Annals of Congress 452.)

  • allein

    A lot of us would rather they just get to work.

  • I never understand why “it is illegal” is not considered enough. 

  • vexorian

     You are like the guy whose main hobby is to fill the streets with trash. And then complaints about the guys who keep trying to penalize you for littering, cause littering is a small thing.

  • vexorian

     If prayer is a such strong American tradition, why does the government need to promote it?

  • sunburned

     And the Continental Congress opening it’s session with prayer is germane how?

  • sunburned

     So George Washington pushed congress do declare a national day of prayer?  How informative:)

  • sunburned

     I’m pretty sure that the main agenda for atheists was not believing in supreme beings.  Huh.

  • amycas

     Also remember that little word there “respecting,” it’s important, and the founders used that word on purpose to make sure that the reading and interpretation would be broad so people wouldn’t make the mistake of thinking that it was only about establishing a state religion.

  • Blacksheep

    It only serves to inform the standing – how long it’s been practiced.

  • sunburned

    So George Washington pushed the Arizona state congress to declare a national day of prayer? 

    What is the *it* your talking about and how long has it been practised?

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