There is a disturbing trend developing in First Amendment jurisprudence; especially in the area of church and state separation. Notwithstanding the fact that many state sponsored or endorsed religious actions appear to clearly violate the well established parameters of the First Amendment, courts are now routinely dismissing lawsuits for lack of standing. To be clear, these dismissals do not involve a rejection of the constitutional challenge on the merits of the claim. To the contrary, they are simply evasions of the issue altogether. They are technical dismissals resulting in the untenable position that these First Amendment violations are simply unchallengeable by any person. Rather than hear these challenges on the merits and reach the inescapable conclusion that such actions are indeed unconstitutional, many courts have agreed to side step the issue by construing the doctrine of standing so such unconstitutional acts remain safe from constitutional challenge. Courts should be bold enough to hear and decide these challenges on constitutional grounds. Constitutional protections are meaningless if courts construe the law such that no person can invoke those protections.
In an effort to attempt to have these matters heard on the merits and to validate the notion that constitutional violations can be challenged, our clients have decided to appeal the district court’s dismissal of the Day of Prayer lawsuit. We expect to file an appeal to the 9th Circuit Court of Appeal very soon. Additionally, another lawsuit will be filed in the state court alleging violations of the state constitution.
This lawsuit is about the role of government. Our clients remain committed to the notion that prayer is either a private matter or one that can be openly and loudly promoted by any private individual or private company on any private property for any length of time. Any effort by government to inhibit any private person’s right to pray on any non-governmental property would be opposed by all plaintiffs to this lawsuit. However, our clients, those religious and non-religious, remain equally committed to the well established notion that government should neither promote, inhibit nor endorse any religious view. Simply put, government should stay out of religious matters altogether; our constitution forbids it and it is both consistent and indispensible to notions of a free and open society.