40th anniversary: Memorable cases that got away . . .
Gaylor v. Reagan
FFRF sued when Congress proclaimed 1983 as ‘The Year of the Bible.’ The judge considered the case was not ripe until Reagan signed it, but moot after he signed it. The lawsuit commanded major headlines, TV talk shows and interviews for FFRF about what’s wrong with the bible being part of U.S. law. The lawsuit delayed the signing of the proclamation, whose wording was weaker than originally proposed.
‘FFRF v. Pat Robertson’
In 1986, FFRF, with Illinois member Steve Van Zandt, filed a federal lawsuit to stop the building of a chapel at the Illinois statehouse. The chapel had been suggested during a visit by TV evangelist Pat Robertson. In December 1986, FFRF won its lawsuit at the trial level, with a strong, eloquent decision. In January 1988, the appeals court inexplicably ruled that the prayer room had a ‘secular purpose.’ The silver lining: the chapel was never used.
La Crosse Ten Commandments
FFRF sued over a Ten Commandments monument in a park in La Crosse, Wis., donated by the Fraternal Order of Eagles, in a case garnering national exposure. FFRF’s attorney deposed the Eagles official behind the project, learning that these unconstitutional monuments were one giant advertising scheme for director Cecil B. DeMille and an Eagles member seeking to promote Minnesota granite. Even though Phyllis Grams, a lifelong resident and daughter of a former member of Congress, was found not to have standing in 1987, the case was successfully revisited by FFRF with 22 local plaintiffs. The city divested itself of the monument and land under it.
Grams, a schoolteacher, testified that when she received crank calls and death threats, she would fearlessly reply, ‘Tell me more!’
In a case filed in 2004, when Justice Sandra Day O’Connor was still on the court, FFRF challenged President Bush’s creation of the White House Office of Faith-based and Community Initiatives, as well as eight cabinet-level ‘offices of faith-based initiatives.’ FFRF asked the U.S. Court of Appeals for the 7th Circuit to reinstate its right to sue over the faith-based offices. In January 2006, in a 2-1 decision written by Judge Richard A. Posner, FFRF won the right to continue its suit. Posner compared the creation of the faith-based offices to the Secretary of Homeland Security hypothetically deciding ‘to build a mosque and pay an imam a salary to preach in it because the secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamist terrorism in the United States.’
Bush appealed FFRF’s win to the U.S. Supreme Court, by then lacking O’Connor. In a 5-4 plurality ruling on June 25, 2007, FFRF lost its right to sue the executive branch over the faith-based offices. FFRF did win the plurality opinion, with four justices solidly in our camp.
The dissent, written by Justice Souter and signed by Justices Ginsburg, Breyer and Stevens, noted: ‘If the executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away.’
National Day of Prayer
FFRF sued over a 1952 federal law, passed at the behest of Billy Graham, requiring the president to exhort citizens to ‘turn to God in prayer, at churches’ during an annual day of prayer. FFRF’s attorney Richard L. Bolton noted that the National Day of Prayer Taskforce, which was also named in the suit, was working hand in glove with the government and that evangelicals had essentially hijacked the event.