In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1973
F REEDOM F ROM R ELIGION FOUNDATION, INC., et al.,
Plaintiffs-Appellees,
v.
B ARACK O BAMA, President of the United States, and
R OBERT G IBBS, White House Press Secretary,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-cv-588-bbc—Barbara B. Crabb, Judge.
A RGUED D ECEMBER 2, 2010—D ECIDED A PRIL 14, 2011
Before E ASTERBROOK, Chief Judge, and M ANION and
W ILLIAMS, Circuit Judges.
E ASTERBROOK, Chief Judge. Since the founding of the
Republic, Congress has requested Presidents to call on
the citizens to pray. Every President except Thomas
Jefferson, who deemed such proclamations inconsistent
2 No. 10-1973
with the Constitution’s first amendment, has complied.
See Lynch v. Donnelly, 465 U.S. 668, 674–78 (1984). The
first of these proclamations, establishing Thanksgiving
Day, was issued by President Washington on October 3,
1789, shortly after Congress transmitted to the states the
text of what is now the first amendment. We reproduce
President Washington’s proclamation as Appendix A
to this opinion.
Presidential proclamations for both Memorial Day
and Thanksgiving Day commonly include an invitation
to pray. In 1952 the House and Senate adopted a joint
resolution asking the President to establish a third such
day annually, to be called a “national day of prayer.” Pub.
L. 324, 66 Stat. 64. President Truman proclaimed July 4,
1952, as the first National Day of Prayer. Proclamation
2978, 3 C.F.R. 160 (1949–53). Later presidents issued
similar proclamations, though they designated different
dates. In 1988 Congress enacted 36 U.S.C. §119, codifying
the first Thursday in May as the appropriate day.
As amended slightly in 1998, this statute reads:
The President shall issue each year a proclama-
tion designating the first Thursday in May as a
National Day of Prayer on which the people of
the United States may turn to God in prayer
and meditation at churches, in groups, and as
individuals.
The most recent proclamation under this statute, issued
by President Obama on April 30, 2010, appears as
Appendix B to this opinion.
No. 10-1973 3
Plaintiffs in this suit (an organization and six of its
members) contend that §119 violates the establish-
ment clause of the first amendment. The district judge
dismissed one defendant as a private actor outside the
Constitution’s reach; plaintiffs have not appealed that
decision. The other two defendants—the President
and his Press Secretary—moved to dismiss for want of
standing. The district judge denied that motion. 691
F. Supp. 2d 890 (W.D. Wis. 2010). The judge later con-
cluded that both the statute and all proclamations
issued under it violate the establishment clause. 705
F. Supp. 2d 1039 (W.D. Wis. 2010). The judge issued a
declaratory judgment that §119 is invalid, plus an in-
junction forbidding the President of the United States
to issue any proclamation under §119. 705 F. Supp. 2d
at 1070. The President and the Press Secretary have ap-
pealed.
Standing is the first question because, unless the case
presents a justiciable controversy, the judiciary must
not address the merits. See Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83 (1998). Standing has
three components: injury, causation, and redressability.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–
62 (1992). We conclude that neither the statute nor
the President’s implementing proclamations injures
plaintiffs, who therefore lack standing.
Section 119 imposes duties on the President alone. It
does not require any private person to do anything—or
for that matter to take any action in response to what-
ever the President proclaims. If anyone suffers injury,
4 No. 10-1973
therefore, that person is the President, who is not com-
plaining. No one has standing to object to a statute that
imposes duties on strangers. See, e.g., Allen v. Wright, 468
U.S. 737 (1984). See also Elk Grove Unified School District
v. Newdow, 542 U.S. 1 (2004), which holds that a person
who objects (on establishment clause grounds) to the
words “under God” in the Pledge of Allegiance lacks
standing to contest the Pledge’s content, when the
litigant has not been obliged to say the Pledge himself
and does not have parental rights with respect to a
pupil who is present when the Pledge is recited. It
takes an invasion of one’s own rights to create standing.
(Plaintiffs do not contend that they come within the rare
situation in which a statute’s addressees cannot protect
themselves and jus tertii litigation may be authorized.
Nor do plaintiffs invoke taxpayer standing. See Arizona
Christian School Tuition Organization v. Winn, No. 09–987
(U.S. Apr. 4, 2011); Hein v. Freedom From Religion Founda-
tion, Inc., 551 U.S. 587 (2007).)
Unlike §119, the President’s proclamations are
addressed to plaintiffs, in common with all citizens. The
President’s 2010 proclamation includes this sentence:
“I call upon the citizens of our Nation to pray, or other-
wise give thanks, in accordance with their own faiths
and consciences, for our many freedoms and blessings,
and I invite all people of faith to join me in asking for
God’s continued guidance, grace, and protection as
we meet the challenges before us.” But although this
proclamation speaks to all citizens, no one is obliged to
pray, any more than a person would be obliged to hand
over his money if the President asked all citizens to
No. 10-1973 5
support the Red Cross and other charities. It is not just
that there are no penalties for noncompliance; it is that
disdaining the President’s proclamation is not a “wrong.”
The President has made a request; he has not issued
a command. No one is injured by a request that can be
declined. Cf. Florida v. Rodriguez, 469 U.S. 1, 5–6 (1984)
(police are entitled to ask people to answer questions, or
consent to search, even when they lack the authority
to compel favorable action); United States v. Childs, 277
F.3d 947 (7th Cir. 2002) (en banc) (same).
A President frequently calls on citizens to do things
that they prefer not to do—to which, indeed, they may
be strongly opposed on political or religious grounds. Yet
no one supposes that the Republican Party has standing
to ask the judiciary to redress the “injury” inflicted
when President Obama speaks to his own supporters
and tries to influence the undecided. Nor would any
(sensible) person suppose that a court could take a blue
pencil to a President’s inaugural address or State of the
Union speech and remove statements that may offend
some members of the audience. President Lincoln’s
second inaugural address, likely the greatest speech ever
made by an American President, mentions God seven
times and prayer three times, including the sentence:
“Fondly do we hope, fervently do we pray, that this
mighty scourge of war may speedily pass away.” The
address is chiseled in stone at the Lincoln Memorial on
the National Mall. An argument that the prominence
of these words injures every citizen, and that the
Judicial Branch could order them to be blotted out,
would be dismissed as preposterous.
6 No. 10-1973
The Judicial Branch does not censor a President’s
speech. Johanns v. Livestock Marketing Association, 544
U.S. 550 (2005), holds that even persons who are taxed to
pay for governmental speech are not entitled to relief
from the message (or the obligation to pay for it). Those
who do not agree with a President’s statement may
speak in opposition to it; they are not entitled to silence
the speech of which they disapprove.
Plaintiffs contend that they are injured because they
feel excluded, or made unwelcome, when the President
asks them to engage in a religious observance that is
contrary to their own principles. It is difficult to see
how any reader of the 2010 proclamation would feel
excluded or unwelcome. Here again is the proclamation’s
only sentence that explicitly requests citizens to pray:
“I call upon the citizens of our Nation to pray, or
otherwise give thanks, in accordance with their own faiths and
consciences, for our many freedoms and blessings, and
I invite all people of faith to join me in asking for God’s
continued guidance, grace, and protection as we meet
the challenges before us.” But let us suppose that
plaintiffs nonetheless feel slighted. Still, hurt feelings
differ from legal injury. The “value interests of concerned
bystanders” (United States v. SCRAP, 412 U.S. 669, 687
(1973)) do not support standing to sue.
If a perceived slight, or a feeling of exclusion, were
enough, then Michael Newdow would have had standing
to challenge the words “under God” in the Pledge of
Allegiance, yet the Supreme Court held that he lacks
standing. Similarly, if offense at a public official’s sup-
No. 10-1973 7
port of religion were enough, the plaintiffs would have
had standing in Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S.
464 (1982). A federal agency donated surplus property
to an educational institution that was supervised by a
religious order. The Court held that persons who
objected to the transfer lacked standing, because the
transfer did not injure them. Everything that plaintiffs
say in support of their own claim of injury either was, or
could have been, said in Valley Forge as well. If plaintiffs
have standing to challenge the President’s proclamation,
then Newdow and Valley Forge are dead letters.
Plaintiffs rely principally on a series of decisions in
which this circuit has held that persons who are obliged
to view religious displays in order to access public
services, or reach their jobs, have standing to contest the
displays’ contents. See, e.g., American Civil Liberties
Union v. St. Charles, 794 F.2d 265 (7th Cir. 1986); Gonzales
v. North Township, 4 F.3d 1412 (7th Cir. 1993); Books
v. City of Elkhart, 235 F.3d 292, 299–301 (7th Cir. 2000)
(Books I); Books v. Elkhart County, 401 F.3d 857 (7th
Cir. 2005) (Books II). Three of these decisions predate
Newdow, and in the only post-Newdow decision (Books II)
the litigants did not ask the court to revisit Books I; the
panel in Books II did not tackle the standing question
independently or mention Newdow. Only one of the
four decisions discusses Valley Forge, and none attempts
to reconcile its holding with Freedom From Religion Founda-
tion, Inc. v. Zielke, 845 F.2d 1463 (7th Cir. 1988), which
holds that viewers of an unwelcome religious display
lack standing.
8 No. 10-1973
Eventually we may need to revisit the subject of ob-
servers’ standing in order to reconcile this circuit’s deci-
sions, but today is not the time. We observed in St. Charles
that, as a result of Valley Forge, “[t]he fact that the plain-
tiffs do not like a cross to be displayed on public prop-
erty—even that they are deeply offended by such a
display—does not confer standing”. 794 F.2d at 268.
What did provide standing, we held, is that the plaintiffs
had altered their daily commute, thus incurring costs
in both time and money, to avoid the unwelcome
religious display.
Our plaintiffs are covered by the rule of Valley Forge
and St. Charles that offense at the behavior of the gov-
ernment, and a desire to have public officials comply
with (plaintiffs’ view of) the Constitution, differs from
a legal injury. The “psychological consequence pre-
sumably produced by observation of conduct with
which one disagrees” is not an “injury” for the purpose
of standing. Valley Forge, 454 U.S. at 485. Plaintiffs have
not altered their conduct one whit or incurred any cost
in time or money. All they have is disagreement with
the President’s action. But unless all limits on standing
are to be abandoned, a feeling of alienation cannot
suffice as injury in fact.
If this means that no one has standing, that does not
change the outcome. The Supreme Court has concluded
that “the abstract injury in nonobservance of the Con-
stitution asserted by . . . citizens” in general is not a
species of “injury in fact,” even if the upshot is that no
one can sue. Schlesinger v. Reservists Committee to Stop
No. 10-1973 9
the War, 418 U.S. 208, 223 n.13 (1974). See also Hein and
United States v. Richardson, 418 U.S. 166 (1974). Any
other approach “would convert standing into a require-
ment that must be observed only when it is met.” Valley
Forge, 454 U.S. at 489.
The judgment of the district court is vacated, and the
case is remanded with instructions to dismiss for want
of a justiciable controversy.
10 No. 10-1973
A PPENDIX A
WHEREAS it is the duty of all nations to acknowledge
the providence of Almighty God, to obey His will, to be
grateful for His benefits, and humbly to implore His
protection and favor; and
WHEREAS both Houses of Congress have, by their
joint committee, requested me “to recommend to the
people of the United States a day of public thanksgiving
and prayer, to be observed by acknowledging with
grateful hearts the many and signal favors of Almighty
God, especially by affording them an opportunity peace-
ably to establish a form of government for their safety
and happiness:”
NOW, THEREFORE, I do recommend and assign
Thursday, the 26th day of November next, to be devoted
by the people of these States to the service of that
great and glorious Being who is the beneficent author of
all the good that was, that is, or that will be; that we
may then all unite in rendering unto Him our sincere
and humble thanks for His kind care and protection of
the people of this country previous to their becoming
a nation; for the signal and manifold mercies and the
favorable interpositions of His providence in the course
and conclusion of the late war; for the great degree of
tranquillity, union, and plenty which we have since
enjoyed; for the peaceable and rational manner in which
we have been enabled to establish constitutions of gov-
ernment for our safety and happiness, and particularly
the national one now lately instituted; for the civil and
religious liberty with which we are blessed, and the
No. 10-1973 11
means we have of acquiring and diffusing useful knowl-
edge; and, in general, for all the great and various favors
which He has been pleased to confer upon us.
And also that we may then unite in most humbly
offering our prayers and supplications to the great Lord
and Ruler of Nations, and beseech Him to pardon our
national and other transgressions; to enable us all,
whether in public or private stations, to perform our
several and relative duties properly and punctually; to
render our National Government a blessing to all the
people by constantly being a Government of wise, just,
and constitutional laws, discreetly and faithfully executed
and obeyed; to protect and guide all sovereigns and
nations (especially such as have shown kindness to us),
and to bless them with good governments, peace, and
concord; to promote the knowledge and practice of true
religion and virtue, and the increase of science among
them and us; and, generally, to grant unto all mankind
such a degree of temporal prosperity as He alone knows
to be best.
GIVEN under my hand, at the city of New-York,
the third day of October, in the year of our Lord, one
thousand seven hundred and eighty-nine.
GEORGE WASHINGTON.
12 No. 10-1973
A PPENDIX B
Throughout our history, whether in times of great joy
and thanksgiving, or in times of great challenge and
uncertainty, Americans have turned to prayer. In prayer,
we have expressed gratitude and humility, sought guid-
ance and forgiveness, and received inspiration and assis-
tance, both in good times and in bad.
On this day, let us give thanks for the many blessings
God has bestowed upon our Nation. Let us rejoice for
the blessing of freedom both to believe and to live our
beliefs, and for the many other freedoms and oppor-
tunities that bring us together as one Nation. Let us ask
for wisdom, compassion, and discernment of justice as
we address the great challenges of our time.
We are blessed to live in a Nation that counts freedom
of conscience and free exercise of religion among its
most fundamental principles, thereby ensuring that all
people of goodwill may hold and practice their beliefs
according to the dictates of their consciences. Prayer has
been a sustaining way for many Americans of diverse
faiths to express their most cherished beliefs, and thus
we have long deemed it fitting and proper to publicly
recognize the importance of prayer on this day across
the Nation.
Let us remember in our thoughts and prayers those
suffering from natural disasters in Haiti, Chile, and
elsewhere, and the people from those countries and from
around the world who have worked tirelessly and self-
lessly to render aid. Let us pray for the families of the
West Virginia miners, and the people of Poland who so
No. 10-1973 13
recently and unexpectedly lost many of their beloved
leaders. Let us pray for the safety and success of those
who have left home to serve in our Armed Forces,
putting their lives at risk in order to make the world a
safer place. As we remember them, let us not forget their
families and the substantial sacrifices that they make
every day. Let us remember the unsung heroes who
struggle to build their communities, raise their families,
and help their neighbors, for they are the wellspring of
our greatness. Finally, let us remember in our thoughts
and prayers those people everywhere who join us in the
aspiration for a world that is just, peaceful, free, and
respectful of the dignity of every human being.
NOW, THEREFORE, I, BARACK OBAMA, President of
the United States of America, by virtue of the authority
vested in me by the Constitution and laws of the United
States of America, do hereby proclaim May 6, 2010, as a
National Day of Prayer. I call upon the citizens of our
Nation to pray, or otherwise give thanks, in accordance
with their own faiths and consciences, for our many
freedoms and blessings, and I invite all people of faith to
join me in asking for God’s continued guidance, grace,
and protection as we meet the challenges before us.
IN WITNESS WHEREOF, I have hereunto set my hand
this thirtieth day of April, in the year of our Lord two
thousand ten, and of the Independence of the United
States of America the two hundred and thirty-fourth.
BARACK OBAMA
14 No. 10-1973
W ILLIAMS, Circuit Judge, concurring. Although I ulti-
mately agree that the plaintiffs in this case lack
standing, I write separately to note some concerns
I have with the majority’s reasoning and the uncertainty
of the Supreme Court’s precedent in this area.
The majority looks to Elk Grove Unified School Dis-
trict v. Newdow, 542 U.S. 1 (2004) and relies on it for
the proposition that a feeling of exclusion is not enough
to confer Article III standing. If it were, the majority
reasons, then Newdow would have had standing
to challenge the words “under God” in the Pledge of
Allegiance.
Newdow does not support the majority’s conclu-
sion. The only standing-related issue before the Court
in Newdow was whether Newdow had standing as
a parent even though he lacked the right to litigate as
his daughter’s “next friend.” Id. at 15. The Court granted
certiorari on two questions only: (1) whether Newdow
had standing as a noncustodial parent to challenge the
school district’s policy; and (2) if so, whether the policy
offended the First Amendment. Id. at 10. The Court con-
cluded only that Newdow lacked prudential stand-
ing—not that he lacked Article III standing. Id. at 17-18.
In fact, Chief Justice Rehnquist’s concurrence explicitly
states, “To be clear, the Court does not dispute that
respondent Newdow . . . satisfies the requisites of Article
III standing.” Id. at 20 (Rehnquist, J., concurring).
The Supreme Court has cautioned against drawing
conclusions based on jurisdictional issues that have not
been decided. See Pennhurst State Sch. and Hosp. v.
Halderman, 465 U.S. 89, 119 (1984). I do not agree that
No. 10-1973 15
Newdow supports the proposition that the plaintiffs here
do not have Article III standing because the Court
could have, but did not, consider whether Newdow had
standing separate and apart from his status as a parent.
In fact, in footnote 8 of the Court’s opinion, the Court
went so far as to assume that Newdow could satisfy
Article III standing on his own:
Newdow’s complaint and brief cite several addi-
tional bases for standing: that Newdow “at times
has himself attended—and will in the future at-
tend—class with his daughter;” that he “has con-
sidered teaching elementary school students in
[the School District];” that he has “attended and
will continue to attend” school board meetings
at which the Pledge is “routinely recited,” and that
the School District uses his tax dollars to imple-
ment its Pledge policy. Even if these arguments
suffice to establish Article III standing, they do not
respond to our prudential standing concerns. . . .
Newdow, 542 U.S. at 18 n.8 (emphasis added). Newdow
did not argue that he was required to recite the
Pledge himself, as the majority suggests would have
been necessary for him to have standing. Rather, he
alleged that he would attend the classroom and board
meetings where the Pledge was recited, and would there-
fore be directly exposed to the government’s unwelcome
religious message. See id. The Court was willing to
assume that these allegations would have sufficed to
confer Article III standing. See id.
16 No. 10-1973
Nor, as the majority suggests, must the plaintiffs alter
their behavior in order to have a cognizable injury. In
Doe v. County of Montgomery, 41 F.3d 1156, 1161-62 (7th
Cir. 1994), we held that whether a plaintiff has altered
his behavior is not controlling. We stated that a plaintiff
can also satisfy the standing requirement by establishing
that he is subject to direct and unwelcome exposure
to religious messages. Id. The majority calls into ques-
tion our precedent in Books v. City of Elkhart, 235 F.3d
292, 299-301 (7th Cir. 2000) (hereinafter “Books I”), and
Books v. Elkhart County, 401 F.3d 857, 861-62 (7th Cir.
2005) (hereinafter “Books II”), which reaffirmed the princi-
ple that a plaintiff need not allege a change in behavior
to have standing, because those cases were decided
before Newdow or did not mention Newdow. But Newdow
would not have changed the analyses because it did not
address Article III standing.
I also do not see a need to call into question those cases
on the grounds that they did not address Valley Forge
Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 472 (1982) or attempt
to reconcile their holdings with Freedom From Religion
Foundation, Inc. v. Zielke, 845 F.2d 1463 (7th Cir. 1988). Books
I and Books II both rely heavily on Doe, which addressed
both Valley Forge and Zielke. Doe harmonized the holding
that an allegation of direct exposure to unwelcome reli-
gious conduct satisfies the injury-in-fact requirement
with Zielke’s holding that the plaintiffs in that case
did not have standing to object to a Ten Commandments
display in a park. Doe, 41 F.3d at 1161. In Doe, we
explained that the plaintiffs in Zielke did not alter their
No. 10-1973 17
behavior “and [they] failed to demonstrate that they
were exposed to the monument during their normal
routines or in the course of their usual driving or
walking routes.” Doe, 41 F.3d at 1161.
The rule in every other circuit that has considered the
question is that while an allegation of a change in
behavior is sufficient to confer standing, it is not re-
quired. Suhre v. Haywood County, 131 F.3d 1083, 1087-88
(4th Cir. 1997) (plaintiff need not allege a change in be-
havior to challenge religious display); Am. Civil Liberties
Union of Ky. v. Grayson County, 591 F.3d 837, 843 (6th
Cir. 2010) (standing satisfied by allegations of direct
and unwelcome contact with government-sponsored
religious object); Vasquez v. Los Angeles County, 487 F.3d
1246, 1251-52 (9th Cir. 2007) (psychological harm
resulting from direct contact with religious symbol is
sufficient to confer standing and a change in behavior
is not required); Foremaster v. City of St. George, 882 F.2d
1485, 1490-91 (10th Cir. 1989) (no change in behavior
required to challenge religious display); Saladin v. City
of Milledgeville, 812 F.2d 687, 692-93 (11th Cir. 1987)
(same). I see no need to diverge from this rule.
Notwithstanding my concerns with the majority’s
reasoning, and my belief that this is a close case, I agree
that ultimately the plaintiffs do not have standing. In
Valley Forge, the Supreme Court held that a “psychological
consequence” does not suffice as concrete harm when
it is produced merely by “observation of conduct with
which one disagrees.” 454 U.S. at 485-86. The plaintiffs
in that case complained that the government had con-
18 No. 10-1973
veyed surplus property to a religious college for free
in violation of the Establishment Clause. Id. at 486-87.
The Court found that the plaintiffs did not have
standing, but it also reiterated that, “[i]n reaching
this conclusion, we do not retreat from our earlier
holdings that standing may be predicated on noneco-
nomic injury.” Id. at 486.
The Court simply has not been clear as to what distin-
guishes the psychological injury produced by conduct
with which one disagrees from an injury that suffices to
give rise to an injury-in-fact in Establishment Clause
cases. As the Ninth Circuit recently noted, the Court has
decided cases in many contexts where the plaintiffs
claimed that they were hurt by exposure to unwelcome
religious messages from the government, including
cases involving a creche in a county courthouse, a creche
in a public park, the Ten Commandments displayed on
the grounds of a state capitol, the Ten Commandments
displayed at a courthouse, a cross displayed in a
national park, prayer in a football game, school prayer, a
moment of silence at school, Bible reading at a public
school, and a religious invocation at graduation. Catholic
League for Religious and Civil Rights v. City of San
Francisco, 624 F.3d 1043, 1049-50 (9th Cir. 2009) (citing
Supreme Court cases). In all of those cases, the Court
treated standing as sufficient, even though it appears
that nothing was affected but the religious or irreligious
sentiments of the plaintiffs. Id. “To ignore the import of
those cases for the standing analysis, one would have
to believe the Supreme Court repeatedly overlooked
a major standing problem and decided a plethora of
No. 10-1973 19
highly controversial cases unnecessarily and inappro-
priately.” Newdow v. Roberts, 603 F.3d 1002, 1014 (D.C.
Cir. 2010) (Kavanaugh, J., concurring). Yet, as recently as
last week, the Court stated in Arizona Christian School
Tuition Organization v. Winn that even though it had
decided a number of Establishment Clause cases on the
merits that appeared to be in tension with its decision to
find no standing in the case before it, those cases were
not dispositive because they did not address the
threshold standing question. Ariz. Christian Sch. Tuition
Org., Nos. 09-987 & 09-991 (U.S. Apr. 4, 2011).
The plaintiffs in this case allege that they feel “excluded”
when the President issues a proclamation to com-
memorate the National Day of Prayer, which pursuant
to § 119 directs the President to proclaim that people
“may” turn to God in prayer. The plaintiffs state that
they learned about the National Day of Prayer through
the media, through their friends, and by visiting the
White House website. Although the reach of Valley Forge
is unclear and a plaintiff need not change his or her
behavior to have standing, the plaintiffs’ allegations
here seem to amount to nothing more than “the observa-
tion of conduct with which [they] disagree,” which Valley
Forge held was insufficient to confer standing. At bot-
tom, the plaintiffs’ allegations are too attenuated to
confer standing. I therefore concur that the plaintiffs
do not have standing and therefore do not reach whether
§ 119 violates the Establishment Clause.
4-14-11