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Freedom From Religion v. Barack Obama

April 14, 2011

FREEDOM FROM RELIGION FOUNDATION, INC., ET AL., PLAINTIFFS-APPELLEES,
v.
BARACK OBAMA, PRESIDENT OF THE UNITED STATES, AND ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Western District of Wisconsin. No. 08-cv-588-bbc-Barbara B. Crabb, Judge.

The opinion of the court was delivered by: Easterbrook, Chief Judge.

ARGUED DECEMBER 2, 2010

Before EASTERBROOK, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

Since the founding of the Republic, Congress has requested Presidents to call on the citizens to pray. Every President except Thomas Jefferson, who deemed such proclamations inconsistent with the Constitution's first amendment, has complied. See Lynch v. Donnelly, 465 U.S. 668, 674--78 (1984). The first of these proclamations, establishing Thanksgiving Day, was issued by President Washington on October 3, 1789, shortly after Congress transmitted to the states the text of what is now the first amendment. We reproduce President Washington's proclamation as Appendix A to this opinion.

Presidential proclamations for both Memorial Day and Thanksgiving Day commonly include an invitation to pray. In 1952 the House and Senate adopted a joint resolution asking the President to establish a third such day annually, to be called a "national day of prayer." Pub. L. 324, 66 Stat. 64. President Truman proclaimed July 4, 1952, as the first National Day of Prayer. Proclamation 2978, 3 C.F.R. 160 (1949--53). Later presidents issued similar proclamations, though they designated different dates. In 1988 Congress enacted 36 U.S.C. §119, codifying the first Thursday in May as the appropriate day. As amended slightly in 1998, this statute reads:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

The most recent proclamation under this statute, issued by President Obama on April 30, 2010, appears as Appendix B to this opinion.

Plaintiffs in this suit (an organization and six of its members) contend that §119 violates the establishment clause of the first amendment. The district judge dismissed one defendant as a private actor outside the Constitution's reach; plaintiffs have not appealed that decision. The other two defendants-the President and his Press Secretary-moved to dismiss for want of standing. The district judge denied that motion. 691 F. Supp. 2d 890 (W.D. Wis. 2010). The judge later concluded that both the statute and all proclamations issued under it violate the establishment clause. 705 F. Supp. 2d 1039 (W.D. Wis. 2010). The judge issued a declaratory judgment that §119 is invalid, plus an injunction forbidding the President of the United States to issue any proclamation under §119. 705 F. Supp. 2d at 1070. The President and the Press Secretary have ap-pealed.

Standing is the first question because, unless the case presents a justiciable controversy, the judiciary must not address the merits. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998). Standing has three components: injury, causation, and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-- 62 (1992). We conclude that neither the statute nor the President's implementing proclamations injures plaintiffs, who therefore lack standing.

Section 119 imposes duties on the President alone. It does not require any private person to do anything-or for that matter to take any action in response to whatever the President proclaims. If anyone suffers injury, therefore, that person is the President, who is not com-plaining. No one has standing to object to a statute that imposes duties on strangers. See, e.g., Allen v. Wright, 468 U.S. 737 (1984). See also Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), which holds that a person who objects (on establishment clause grounds) to the words "under God" in the Pledge of Allegiance lacks standing to contest the Pledge's content, when the litigant has not been obliged to say the Pledge himself and does not have parental rights with respect to a pupil who is present when the Pledge is recited. It takes an invasion of one's own rights to create standing. (Plaintiffs do not contend that they come within the rare situation in which a statute's addressees cannot protect themselves and jus tertii litigation may be authorized. Nor do plaintiffs invoke taxpayer standing. See Arizona Christian School Tuition Organization v. Winn, No. 09--987 (U.S. Apr. 4, 2011); Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007).)

Unlike §119, the President's proclamations are addressed to plaintiffs, in common with all citizens. The President's 2010 proclamation includes this sentence: "I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God's continued guidance, grace, and protection as we meet the challenges before us." But although this 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 and other charities. It is not just that there are no penalties for noncompliance; it is that disdaining the President's proclamation is not a "wrong." The President has made a request; he has not issued a command. No one is injured by a request that can be declined. Cf. Florida v. Rodriguez, 469 U.S. 1, 5--6 (1984) (police are entitled to ask people to answer questions, or consent to search, even when they lack the authority to compel favorable action); United States v. Childs, 277 F.3d 947 (7th Cir. 2002) (en banc) (same).

A President frequently calls on citizens to do things that they prefer not to do-to which, indeed, they may be strongly opposed on political or religious grounds. Yet no one supposes that the Republican Party has standing to ask the judiciary to redress the "injury" inflicted when President Obama speaks to his own supporters and tries to influence the undecided. Nor would any (sensible) person suppose that a court could take a blue pencil to a President's inaugural address or State of the Union speech and remove statements that may offend some members of the audience. President Lincoln's second inaugural address, likely the greatest speech ever made by an American President, mentions God seven times and prayer three times, including the sentence: "Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away." The address is chiseled in stone at the Lincoln Memorial on the National Mall. 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.

The Judicial Branch does not censor a President's speech. Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005), holds that even persons who are taxed to pay for governmental speech are not entitled to relief from the message (or the obligation to pay for it). Those who do not agree with a President's statement may speak in opposition to it; they are not entitled to silence the speech of which they disapprove.

Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles. It is difficult to see how any reader of the 2010 proclamation would feel excluded or unwelcome. Here again is the proclamation's only sentence that explicitly requests citizens to pray: "I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God's continued guidance, grace, and protection as we meet the challenges before us." But let us suppose that plaintiffs nonetheless ...


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