This from the Colorado Springs Gazette:
January 31, 2011 3:23 PM
BILL VOGRIN
THE GAZETTE
Five Air Force Academy faculty — two civilians and three military — and a religious rights group sued the school’s superintendent on Monday to stop the school’s National Prayer Luncheon scheduled for Feb. 10.
The 10-page lawsuit accuses Lt. Gen. Michael Gould of “endorsing and promoting” religion in violation of the U.S. Constitution. The suit asks a federal judge in Denver to issue an injunction to prevent the luncheon and its keynote speaker, retired Marine 1st. Lt. Clebe McClary, a highly decorated Vietnam veteran, author and devoted Christian.
“This is an official event sponsored, sanctioned and organized by the command chain at the Air Force Academy,” said David A. Lane, the Denver attorney representing the five faculty and the Military Religious Freedom Foundation, founded by academy graduate Mikey Weinstein, a frequent critic of religious activities at the school.
“It is a clear violation of the First Amendment of the Constitution, which mandates the separation of church and state,” Lane said. “The command chain is sponsoring a religious event, promoting it and endorsing it. That’s the issue.”
Read more: http://www.gazette.com/articles/academy-112098-event-faculty.html#ixzz1Ci5CmvZ6
Back in April of last year a federal judge in Wisconsin declared a federal statute, mandating a National Day of Prayer to be unconstitutional:
Freedom from Religion Foundation v. Obama
705 F. Supp. 2d 1039
(W.D. Wis. 2010)
OPINION and ORDER
BARBARA B. CRABB, District Judge.
The role that prayer should play in public life has been a matter of intense debate in this country since its founding. When the Continental Congress met for its inaugural session in September 1774, delegate Thomas Cushing proposed to open the session with a prayer. Delegates John Jay and John Rutledge (two future Chief Justices of the Supreme Court) objected to the proposal on the ground that the Congress was “so divided in religious Sentiments ... that We could not join in the same Act of Worship.” Eventually, Samuel Adams convinced the other delegates to allow the reading of a psalm the following day. Letter from John Adams to Abigail Adams (Sept. 16, 1774), available at http:// www. masshist. org/ digitaladams. The debate continued during the Constitutional Convention (which did not include prayer) and the terms of Presidents such as George Washington, Thomas Jefferson and James Madison, each of whom held different views about public prayer under the establishment clause. It continues today. In recent decades, the Supreme Court has decided a number of cases regarding the constitutionality of public prayer in various contexts, often generating controversy regardless of the outcome.
This case explores one aspect of the line that separates government sponsored prayer practices that are constitutional from those that are not. Brought under 42 U.S.C. § 1983, the case raises the question whether the statute creating the “National Day of Prayer,” 36 U.S.C. § 119, violates the establishment clause of the United States Constitution. Plaintiff Freedom from Religion Foundation and several of its members contend that the statute is unconstitutional because it endorses prayer and encourages citizens to engage in that particular religious exercise.*1042 President Barack Obama, who is charged with enforcing the statute by issuing a proclamation each year, and his press secretary, Robert Gibbs, contend that the statute is simply an “acknowledgment of the role of religion in American life” and is indistinguishable from government practices that courts have upheld in the past.
The parties have filed cross motions for summary judgment. Dkt. # 82 and 103. The American Center for Law and Justice, representing some members of Congress, has filed an amicus brief in favor of defendants. Dkt. # 59. In a previous order, I concluded that plaintiffs have standing to challenge § 119, but not to challenge presidential prayer proclamations generally. In addition, I concluded that because plaintiffs had failed to show that Shirley Dobson, the chairperson for the National Day of Prayer Task Force, injured them, they had no standing to sue her. Accordingly, I dismissed the complaint as to Dobson. Dkt. # 131.
Plaintiffs' challenge to § 119 arises at the intersection of two different lines of Supreme Court jurisprudence. On one hand, the Court has held on many occasions that the government violates the establishment clause when it engages in conduct that a reasonable observer would view as an endorsement of a particular religious belief or practice, including prayer. On the other hand, the Court has held that some forms of “ceremonial deism,” such as legislative prayer, do not violate the establishment clause. In Van Orden v. Perry, 545 U.S. 677, 683, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (a case challenging the placement of a Ten Commandments monument on public property), a plurality of the Court stated that its establishment clause cases were “Januslike, point [ing] in two directions.”
[1] Headnote Citing References Although there is tension among these cases, I do not believe they are irreconcilable; they simply show that context is important when applying the establishment clause. In my view of the case law, government involvement in prayer may be consistent with the establishment clause when the government's conduct serves a significant secular purpose and is not a “call for religious action on the part of citizens.” McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 877, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005).
[2] Headnote Citing References Unfortunately, § 119 cannot meet that test. It goes beyond mere “acknowledgment” of religion because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience. “When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual's decision about whether and how to worship.” McCreary County, 545 U.S. at 883, 125 S.Ct. 2722 (O'Connor, J., concurring). Accordingly, I conclude that § 119 violates the establishment clause.
It bears emphasizing that a conclusion that the establishment clause prohibits the government from endorsing a religious exercise is not a judgment on the value of prayer or the millions of Americans who believe in its power. No one can doubt the important role that prayer plays in the spiritual life of a believer. In the best of times, people may pray as a way of expressing joy and thanks; during times of grief, many find that prayer provides comfort. Others may pray to give praise, seek forgiveness, ask for guidance or find the truth. “And perhaps it is not too much to say that since the beginning of th [e] history [of humans] many people have devoutly believed that ‘More things are wrought by *1043 prayer than this world dreams of.’ ” Engel v. Vitale, 370 U.S. 421, 433, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). 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. In fact, it is because the nature of prayer is so personal and can have such a powerful effect on a community that the government may not use its authority to try to influence an individual's decision whether and when to pray.
More on public prayer and the "Establishment Clause" of the First Amendment:
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