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Groups call Justice Department’s defense of Day of Prayer inadequate

WASHINGTON (BP)–A coalition of legal and pro-family groups says the Obama Justice Department is putting forward an inadequate legal defense of the National Day of Prayer, and they are asking a circuit court to allow them to participate in oral arguments.

At issue is an April ruling by U.S. District Court Judge Barbara Crabb that the National Day of Prayer is unconstitutional and tantamount to a government establishment of religion. The Justice Department appealed the case to the Seventh Circuit Court of Appeals and filed its brief in early July, but the groups say the government’s brief — while at 73 pages — is lacking in certain areas.

In short, the groups say the Justice Department failed to cite three specific Seventh Circuit cases, all from 2007 and 2008, that are binding precedent on the three-judge panel and would lead to a quick dismissal of the case. The Freedom from Religion Foundation, which filed the lawsuit, lacked standing to sue, the groups say.

Among the groups that signed the motion are the Family Research Council, Focus on the Family Action, and Liberty Institute. Focus on the Family Founder James Dobson’s name also is on the motion. Such motions are rarely granted.

“Even if we’re not allowed to participate [in oral arguments], we are hopeful that, with these cases being brought to the court’s attention, that they will quickly come to the conclusion that they lack jurisdiction to hear this case, and that the lower court lacked jurisdiction to hear it,” Ken Klukowski, director of the Family Research Council’s Center for Religious Liberty, told Baptist Press.

The groups’ argument focuses on a technical legal question at the heart of the three Seventh Circuit cases and a 2007 U.S. Supreme Court case, Hein v. Freedom from Religion Foundation. Those three Seventh Circuit cases — citing the Supreme Court decision — ruled that an Establishment Clause challenge could not be brought if Congress did not appropriate any funding in the challenged statute. Because Congress did not set aside any money for the National Day of Prayer when it passed the Day of Prayer statute, the lawsuit should be dismissed, the groups say. The Justice Department’s brief does not make that argument. Crabb’s decision overturned the Day of Prayer statute.

The three cases are Hinrichs v. Speaker of the House of Representatives (2007), Freedom from Religion Found., Inc. v. Nicholson (2008), and Laskowski v. Spellings (2008).

Asked if he thought the Justice Department’s failure to cite the cases was intentional or simply an oversight, Klukowski said, “At this point, I would want to give them the benefit of the doubt. They did present an argument that would result in a win in this case. But, nonetheless, the argument that we put forward in our brief would be a much broader and robust victory to protect the First Amendment rights of Christians and people of all faiths going forward.”

The Justice Department’s brief does argue that the lawsuit should be dismissed but for different reasons. The brief says the statute “requires no one to pray” and that the Freedom from Religion Foundation cannot cite any personal injury sustained from the statute. The government’s brief also points to the nation’s history in defending the statute.

“‘[I]t can hardly be thought’ that in the same week Members of the First Congress both urged President Washington to proclaim a national day of prayer and thanksgiving and also voted to approve the draft of the First Amendment for submission to the States, ‘they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable,'” the government’s brief states.
Michael Foust is an assistant editor of Baptist Press. Read the Justice Department’s brief at http://downloads.frc.org/EF/EF10G42.pdf. Read the pro-family groups’ brief at http://downloads.frc.org/EF/EF10G11.pdf. Read the groups’ motion at http://downloads.frc.org/EF/EF10G40.pdf.

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  • Michael Foust