In The United States Court of Appeals For The Seventh Circuit
In The United States Court of Appeals For The Seventh Circuit
No. 10-1973
ADDITIONAL COUNSEL
J. B. VAN HOLLEN
Attorney General of Wisconsin
TROY KING
Attorney General of Alabama
DUSTIN MCDANIEL
Attorney General of Arkansas
JOHN W. SUTHERS
Attorney General of Colorado
RICHARD BLUMENTHAL
Attorney General of Connecticut
BILL MCCOLLUM
Attorney General of Florida
MARK J. BENNETT
Attorney General of Hawaii
LAWRENCE G. WASDEN
Attorney General of Idaho
LISA MADIGAN
Attorney General of Illinois
GREGORY F. ZOELLER
Attorney General of Indiana
TOM MILLER
Attorney General of Iowa
MICHAEL A. COX
Attorney General of Michigan
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LORI SWANSON
Attorney General of Minnesota
JIM HOOD
Attorney General of Mississippi
CHRIS KOSTER
Attorney General of Missouri
JON BRUNING
Attorney General of Nebraska
GARY K. KING
Attorney General of New Mexico
ROY COOPER
Attorney General of North Carolina
WAYNE STENEHJEM
Attorney General of North Dakota
RICHARD CORDRAY
Attorney General of Ohio
HENRY D. MCMASTER
Attorney General of South Carolina
MARTY J. JACKLEY
Attorney General of South Dakota
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MARK L. SHURTLEFF
Attorney General of Utah
KENNETH T. CUCCINELLI, II
Attorney General of Virginia
ROBERT M. MCKENNA
Attorney General of Washington
BRUCE A. SALZBURG
Attorney General of Wyoming
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TABLE OF CONTENTS
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
III. The Judgment Below Casts Doubt on the Practices of the States . . . 8
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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TABLE OF AUTHORITIES
Cases
Lynch v. Donnelly,
465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3-6
Marsh v. Chambers,
463 U.S. 783 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4
Newdow v. Roberts,
603 F.3d 1002 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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Zorach v. Clauson,
343 U.S. 306 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
36 U.S.C. § 116(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Other Authorities
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Amici States file this brief pursuant to Federal Rule of Appellate Procedure
29(a). See FED. R. APP. P. 29(a) (“a State . . . may file an amicus-curiae brief without
Amici States have an interest in reversing the judgment below holding that the
federal law providing for a National Day of Prayer, 36 U.S.C. § 119, violates the
Establishment Clause. The ruling below casts doubt on state laws across the country
that similarly provide for a day of prayer. Even in States that have not enacted such
laws to date, proclamations providing for a day of prayer are traditionally issued by
state officials in conjunction with the National Day of Prayer. In addition, States
frequently issue proclamations acknowledging that their citizens may choose to pray
together during special times of difficulty in the State. The ruling below calls into
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ISSUE PRESENTED
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ARGUMENT
Prayer has played a significant role in public life in America since before the
Supreme Judge of the World for the Rectitude of our Intentions,” and pledged to
judicial proceedings throughout our Nation’s history. And government bodies and
officials have offered specific prayers both to celebrate times of national prosperity
Prayer has also frequently been the subject of presidential proclamations. The
First Congress urged President Washington “to proclaim a day of public thanksgiving
and prayer, to be observed by acknowledging with grateful hearts, the many and
signal favours of Almighty God.” Lynch v. Donnelly, 465 U.S. 668, 675 n. 2 (1984)
aside November 26, 1789, as a day “to offer our prayers and supplications.” Id. And
since that time, every president (except Thomas Jefferson) has followed
Supreme Court has noted, “[w]e are a religious people whose institutions presuppose
a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). The religion
clauses of the First Amendment have long been understood to permit the government
119, are entirely constitutional for one simple reason: Such laws do not require any
citizen to engage in any religious activity of any kind. Nor do such laws require any
governmental body to engage in any such activity. Such laws merely acknowledge
the role that prayer has played in our Nation’s religious heritage—and permit those
citizens who wish to do so to pray. Accordingly, both 36 U.S.C. § 119 and the
prayer, and these public prayers have been recognized as consistent with the
Establishment Clause. Federal and state legislative sessions open with prayers, often
given by chaplains who are paid government employees. Marsh v. Chambers, 463
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contained an opening prayer. See Newdow v. Roberts, 603 F.3d 1002, 1019-20
(2010) (Kavanaugh, J., concurring). And the United States Supreme Court and other
federal and state courts open each session with the traditional prayer “God save the
United States and this honorable court.” Lynch, 465 U.S. at 693 (O’Connor, J.,
offered prayers “serve, in the only ways reasonably possible in our culture, the
If public prayers opening sessions of the federal and state governments are
the private prayers contemplated by 36 U.S.C. § 119 also pass constitutional muster.
The National Day of Prayer serves to recognize the role that prayer has played in our
Nation’s religious heritage. To that end, it contemplates that those citizens who
choose to pray will do so, either individually or with like-minded citizens. No citizen
is directed to conduct any religious activity. Citizens who wish to exercise their First
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Amendment right to pray are permitted to do so, and those who wish to exercise their
acknowledges our Nation’s religious heritage, courts consider the “history and
ubiquity” of the practice, Lynch, 465 U.S. at 693 (O’Connor, J., concurring), because
Allegheny v. ACLU, 492 U.S. 573, 630-31 (1989) (O’Connor, J., concurring).
For example, in Marsh, the Supreme Court noted that legislative prayer had an
“unambiguous and unbroken history of more than 200 years.” 463 U.S. at 783.
monument on the grounds of the Texas Capitol, Justice Breyer’s controlling opinion
noted that the monument had stood without challenge for four decades. See Van
Orden v. Perry, 545 U.S. 677, 702 (2005) (explaining that “those 40 years suggest . . .
that few individuals, whatever their system of beliefs, are likely to have understood
effort to favor a particular religious sect [or] primarily to promote religion over
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nonreligion”). See also Lynch, 465 U.S. at 693 (O’Connor, J., concurring) (“It is
prior to the filing of this lawsuit, although Pawtucket had incorporated the creche in
Congress’s request, the first presidential proclamation setting aside a day for prayer
and thanksgiving. Lynch, 465 U.S. at 675, 675 n. 2. Nearly every subsequent
president has issued proclamations setting aside a day for the people to pray and give
pray for the country thus share a 200-year tradition, similar to the legislative prayers
upheld in Marsh.
The National Day of Prayer statute was enacted in 1952, and presidents have
issued proclamations each year since. Freedom From Religion Found., Inc. v.
Obama, No. 08-cv-588-bbc, 2010 WL 1499451, *3, *5 (W.D. Wis. April 15, 2010).
The National Day of Prayer statute thus pre-dates the Texas Ten Commandments
monument upheld in Van Orden. The National Day of Prayer also pre-dates the 1954
act of Congress adding the phrase “under God” to the Pledge of Allegiance. See Elk
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Given the history of the National Day of Prayer statute, and prayer
proclamations generally, it is unsurprising that the National Day of Prayer has been
treated favorably by both the Supreme Court and the Seventh Circuit. In Lynch, the
Supreme Court described the National Day of Prayer statute as one of the “countless
U.S. at 677. See also County of Allegheny, 492 U.S. at 672 (Kennedy, J., concurring)
(explaining that the National Day of Prayer statute “does not require anyone to pray,
prayer”) (internal quotation omitted). But see id. at 603 n. 52. By using the National
Day of Prayer as an example of what the Establishment Clause permits, the Supreme
Court has provided a strong signal that, if ever presented with the issue, it would
Accordingly, this Court has likewise indicated that the National Day of Prayer
v. Thompson, 839 F.2d 1215, 1221 (7th Cir. 1988). See also DeBoer v. Village of
Oak Park, 267 F.3d 558, 569, 570 (7th Cir. 2001); Books v. City of Elkhart, 235 F.3d
292, 323, 325 (2000) (Manion, J., concurring in part and dissenting in part); Am.
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Jewish Cong. v. City of Chicago, 827 F.2d 120, 133 (7th Cir. 1987) (Easterbrook, J.,
dissenting).
The district court erred when it departed from these rulings and struck down
the National Day of Prayer statute. As this Court once noted, “an inferior court had
best respect what the majority [of a higher court] says rather than read between the
lines. If the [Supreme] Court proclaims that a practice is consistent with the
establishment clause, we take its assurances seriously. If the Justices are just pulling
our leg, let them say so.” Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437, 448
What’s more, the ruling below not only condemns the federal Day of Prayer
law, it also casts doubt on the federal law that provides for the observance of
Memorial Day. That statute designates Memorial Day as the last Monday in May and
requests that the president issue a proclamation “calling on the people of the United
faith, for permanent peace.” 36 U.S.C. § 116(b)(1). If the district court is correct,
and Congress may not enact laws that require the president to issue a proclamation
inviting those who wish to pray to do so, then the statute providing for the observance
reverse the erroneous judgment below and reaffirm that statutes acknowledging the
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role that prayer has played in the religious traditions and heritage of this Nation are
III. THE JUDGMENT BELOW CASTS DOUBT ON THE PRACTICES OF THE STATES.
For example, in 2008, the governors of all fifty States issued proclamations
designating the day of prayer in their respective States. Freedom From Religion
Found., Inc., 2010 WL 1499451, at *5. In a number of States, the governors issued
these proclamations pursuant to state statute. See ALASKA STAT. § 44.12.072; 5 ILL.
COMP. STAT. 490/110; N.J. STAT. § 36:2-34; 44 PA. STAT. § 40.8; VA. CODE § 2.2-
3305.
No court has ever invalidated these provisions. But if plaintiffs are correct,
than these state statutes are presumably unconstitutional as well. Moreover, the
actions of the governors of all fifty States will likewise be called into doubt, for doing
nothing more than acknowledging our Nation’s religious heritage, consistent with our
What’s more, the National Day of Prayer is far from the only occasion on
which States issue prayer proclamations. For example, States often issue
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events through prayer. Just recently, Sunday, June 27, 2010, was designated a day
of prayer by officials in the States along the coast of the Gulf of Mexico due to the
recent oil spill. See, e.g., Gov. Riley Declares Sunday an Oil Spill Day of Prayer in
Declare Day of Prayer for Gulf Spill, HOUSTON CHRON., June 24, 2010 available at
http://www.chron.com/disp/story.mpl/ap/nation/7078431.html?utm_source=feedb
urner&utm_medium=feed&utm_campaign=Feed%3A+houstonchronicle%2Fapna
declared April 27, 2010, as a day of prayer in Mississippi to commemorate the oil
spill in the Gulf and Mississippi citizens killed in tornadoes the previous week. See
Barbour Declares Day of Prayer, JACKSON FREE PRESS, April 27, 2010 available at
http://www.jacksonfreepress.com/index.php/site/comments/barbour_declares_day
state practice.
CONCLUSION
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Respectfully submitted,
GREG ABBOTT
Attorney General of Texas
C. ANDREW WEBER
First Assistant Attorney General
DAVID S. MORALES
Deputy Attorney General for Civil Litigation
/s/ James C. Ho
JAMES C. HO
Solicitor General
ADAM W. ASTON
Assistant Solicitor General
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CERTIFICATE OF SERVICE
The undersigned counsel does hereby certify that two true and correct copies
of this document, along with a computer readable disk copy of the brief, was served
via FedEx Next Day Air Delivery on July 8, 2010 to:
Counsel also certifies that on July 8, 2010, 15 paper copies of the foregoing
instrument and one computer-readable disk copy of the brief in searchable Adobe
Portable Document Format, were dispatched via FedEx Next Day Air Delivery to:
Counsel further certifies that (1) required privacy redactions have been made
in compliance with FED. R. APP. P. 25(a)(5) and FED. R. CIV. P. 5.2; (2) the electronic
submission is an exact copy of the paper document in compliance with Seventh
Circuit Rule 25.2.1; and (3) the document has been scanned for viruses with the most
recent version of Symantec Endpoint Protection and is free of viruses.
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CERTIFICATE OF COMPLIANCE
With Type-Volume Limitation, Typeface Requirements,
and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R. App. P. 29(d)
and 32(a)(7)(B) because:
[X] this brief contains 2,155 words, excluding the parts of the brief exempted
by Fed. R. App. P. 32(a)(7)(B)(iii), or
[ ] this brief uses a monospaced typeface and contains [state the number of]
lines of text, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(6)
and the type style requirements of Fed. R. App. P. 32(a)(5) because:
[X] this brief has been prepared in a proportionally spaced typeface using
WordPerfect for Windows, version 9 in Times New Roman 14-point type face, or
[ ] this brief has been prepared in a monospaced typeface using [state name
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