The Freedom from Religion Foundation ("FFRF") brought an Establishment Clause challenge to the National Day of Prayer statute, which directs the President to proclaim the first Thursday of each May as a day on which Americans "may turn to God in prayer and meditation at churches, in groups, and as individuals." The parties cross-moved for summary judgment. A federal district court struck down the statute because it lacks a secular purpose, advances religion, and engenders divisiveness along religious lines. The defendants appealed to the U.S. Court of Appeals for the Seventh Circuit.
On October 8, 2010, Americans United, joined by other civil-liberties organizations, filed an amicus brief in suppamiort of the district court's decision. The brief contends that the statute lacks a secular purpose because it resorts to intrinsically religious means (exhorting individuals to engage in prayer) to accomplish its stated purpose of acknowledging the nation's religious heritage and culture. Because the statute encourages active participation in religious practices, its primary effect is to advance religion. Additionally, the divisiveness resulting from the National Day of Prayer is another factor weighing against the statute's constitutionality. Finally, the brief argues that the statute's constitutionality is properly analyzed under the purpose/effect test articulated in Lemon v. Kurtzman, not under the principles set forth in Marsh v. Chambers, a U.S. Supreme Court case which carved out a narrow exception to the Lemon test for legislative prayer. Alternatively, the brief maintains that the statute would not pass constitutional muster even under Marsh because day-of-prayer proclamations lack the unique historical pedigree of legislative prayer.
Oral argument took place on December 2, 2010.