By RUSSELL BLACKFORD - METAMAGICIAN AND THE HELLFIRE CLUB
Added: Fri, 23 Apr 2010 23:00:00 UTC

Original text

As I reported about a week ago , a federal District Court in the US recently struck down a statute providing for a "national day of prayer": Freedom from Religion Foundation v. Obama (15 April 2010). At the time, I said that I had no idea whether the administration would appeal, but it soon became obvious that an appeal would be lodged. Sure enough, this has now happened.

This case still strikes me as a no-brainer. An institution such as National Prayer Day clearly gives government endorsement to a form of religion, and any statute that underpins National Prayer Day is to that extent repugnant to the US Constitution - more specifically the First Amendment, which forbids any law concerning an establishment of religion.

Nonetheless, there is some room for the argument that certain relatively minor endorsements of religion by the government are constitutionally acceptable. Given that fact, and given that the administration is under political pressure to defend National Prayer day and other government-level endorsements of religious belief, it is not surprising that an appeal was filed. I'm not especially troubled by this - all litigants have a right to appeal and test the law - but there's one aspect that does worry me. The appeal does not merely dispute Judge Crabb's opinion on the merits. Much worse, it attempts to deny the Freedom from Religion Foundation's standing to pursue its a case against National Prayer Day in the first place.

This is an appalling development because it has the potential to render laws that breach the Constitution almost invulnerable to legal challenge whenever the breach is a mere endorsement of religion by the government and doesn't compel any conduct from citizens. While more tangibly oppressive laws might still be open to attack in the courts, in appropriate cases, an unconstitutional law whose forbidden effect is "only" government endorsement of a religious viewpoint, affecting all citizens in a relatively inchoate way, would not be. This would create injustice.
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