July 8, 2010

(Washington, DC) – The American Center for Law and Justice (ACLJ) today filed an amicus brief on behalf of nearly 70 members of Congress urging a federal appeals court to uphold the constitutionality of the National Day of Prayer.  In April, a federal district court in Wisconsin said the National Day of Prayer violated the Establishment Clause.  The ACLJ amicus brief urges the U.S. Court of Appeals for the Seventh Circuit to overturn the lower court decision.

"This is a case where the law and history are very clear in recognizing the fact the a day set aside to pray for our country is not only a time-honored tradition, but one that is consistent with the First Amendment," said Jay Sekulow, Chief Counsel of the ACLJ.  "Many members of Congress understand that the National Day of Prayer is a constitutional reflection of our history - our heritage.  This tradition is supported by Supreme Court precedent and numerous acts of Congress.  The 7th Circuit has an important opportunity to correct this badly flawed lower court decision.  We're hopeful the appeals court will reverse the federal district court and protect a tradition that's been part of our nation for centuries."

In its amicus brief, the ACLJ contends that the Freedom From Religion Foundation, which filed the lawsuit challenging the National Day of Prayer, lacked legal standing in the case.  Further, the brief argues that there are key Supreme Court decisions that point to the constitutionality of this day of prayer.  The ACLJ cites the 1983 decision in Marsh v. Chambers by the Supreme Court.

According to the brief:  "The historical record establishes that the National Day of Prayer 'is deeply embedded in the history and tradition of this country.' 463 U.S. at 786.  If calls for national prayer did not violate the Establishment Clause during the founding era, Marsh requires the conclusion that the National Day of Prayer is constitutional today."

"A proper understanding of the Court's Establishment Clause jurisprudence supports the conclusion that because of the historic pedigree of the National Day of Prayer, the federal statute in which it is codified is constitutional," the brief contends.

Since the founding era, nearly every president has issued proclamations calling the nation to pray for various purposes.  The brief outlines the robust history of prayer proclamations, including presidential proclamations dating back to George Washington.  It's also significant to note that James Madison, who authored the First Amendment that is at the center of this challenge, himself issued four similar proclamations of prayer.

The brief concludes:  "The First Amendment Religion Clauses, which themselves single out religion for favorable treatment, simply do not require such a 'relentless extirpation' of all religious expression and reference from public life."  Allegheny, 492 U.S. at 657 (1989) (Kennedy, J., concurring).

The ACLJ represents 67 members of the One Hundred Eleventh Congress (Republican and Democrat) - including Rep. Randy Forbes of Virginia, who worked with the ACLJ to line-up Congressional support, and who serves as co-chairman of the Congressional Prayer Caucus.

Here's a list of the 67 members of Congress represented in the brief:

United States Senators and Representatives, Randy Forbes, Senator Sam Brownback, Senator James Inhofe, Senator Mike Johanns, Senator Roger Wicker, Robert Aderholt, Todd Akin, Rodney Alexander, Michelle Bachmann, Spencer Bachus, Gresham Barrett, Roscoe Bartlett, Rob Bishop, Marsha Blackburn, John Boehner, John Boozman, Kevin Brady, Paul Broun, Eric Cantor, Michael Conoway, Geoff Davis, Lincoln Davis, Mary Fallin, John Fleming, Jeff Fortenberry, Virginia Foxx, Trent Franks, Scott Garrett, Phil Gingrey, Louie Gohmert, Gregg Harper, Wally Herger, Pete Hoekstra, Bob Inglis, Walter Jones, Jim Jordan, Steve King, John Kline, Doug Lamborn, Robert Latta, Donald Manzullo, Kevin McCarthy, Michael McCaul, Thaddeus McCotter, Patrick McHenry, Mike McIntyre, Cathy McMorris Rodgers, Gary Miller, Jeff Miller, Jerry Moran, Sue Myrick, Randy Neugebauer, Pete Olson, Mike Pence, Joe Pitts, Ted Poe, Tom Price, Phil Roe, Jean Schmidt, Heath Shuler, Adrian Smith, Lamar Smith, Glenn Thompson, Todd Tiahrt, Lynn Westmoreland, Joe Wilson, and Frank Wolf are currently serving in the One Hundred Eleventh Congress.

The ACLJ also represents the ACLJ's Committee to Protect the National Day of Prayer, which consists of concerned Americans who support the day of prayer.   You can read the ACLJ amicus brief here.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington, D.C.