6/13/2013 7:46:00 AM Court tosses anti-prayer group's claim against Governor
GOV. Brewer said she hopes the appellate ruling "will be the final word on this issue.'
Howard Fischer Capitol Media Services
PHOENIX -- Saying they haven't shown any real harm, the state Court of Appeals on Tuesday tossed out a bid by the Freedom From Religion Foundation to bar Gov. Jan Brewer from declaring a state "Day of Prayer.'
In a unanimous ruling, the judges said the challengers cannot claim any financial loss from Brewer's annual declarations, as there is no evidence any of the individual plaintiffs is an Arizona taxpayer.
More significantly, the court rebuffed the contention that what the governor does has resulted in psychological damage to those who are non-believers by "sending a message ... that they are not welcome to fully participate in government processes.'
Judge Donn Kessler, writing for the court, said psychological damages can provide standing for someone to sue.
But he said there needs to be a "distinct and palpable injury.' And Kessler said nothing alleged by the challengers meets that standard.
Chandler attorney Marc Victor, who brought the lawsuit on behalf of various plaintiffs, religious and otherwise, said an appeal to the Arizona Supreme Court is being considered.
The lawsuit claims that Brewer acted on public time and on the public payroll in issuing her annual declaration each May.
Victor also said the state constitution says no Arizonans "shall ever be molested in person or property on account of his or her mode of religious worship, or lack of the same.' He said the governor's actions "molest' the beliefs of those who do not support a public call to prayer.
Kessler, however, said the claim falls short.
"The proclamations are not a direct attack on the (challengers') specific belief systems,' he wrote for the court. He said there is no allegation that anyone had to change behavior to avoid the proclamations and no claim that the governor's actions affected how challengers deal with state government.
"Indeed, there is no allegation regarding how the (challengers) even learned about the proclamations or that the alleged harm to them was anything more than a general feeling of second-class citizenship and outside status,' Kessler said. And he said simply quoting the "molesting' language of the Arizona Constitution is insufficient to bring a challenge.
"Appellants have offered no explanation why their feeling of offense is any greater than that of a large segment of the general public nor how such purported psychological harm amounted to a discrete and palpable injury,' the judge said.
Victor, however, said the claims are sufficient to show real harm. But he said the judges are sidestepping the issue.
"They don't want to reach the merits and they're not reaching the merits because I think that they know if they do reach the merits this is blatantly unconstitutional,' Victor said. So instead, he said, they "erect barriers' in the path of those who complain, saying they lack standing to sue, meaning they do not have to address the underlying complaint.
"It's a violation of long-standing concepts of separate of church and state,' Victor said of the Day of Prayer.
"I think it's un-American,' he continued. "And on top of it all, it's a horrible idea to be having people like the president and the governor stand up and start mixing around their official capacities in particular religion.'
Foes of the declaration have had a string of defeats. They were rebuffed in federal court and then sued in Maricopa County Superior Court. When the judge there tossed the case, they filed this appeal.
In a prepared statement, Brewer said she hopes the appellate ruling "will be the final word on this issue.'