PHOENIX -- A group of Arizona atheists has gone to court to block Jan Brewer from doing something she has done at least twice before: Declare the first Thursday in May as a day of prayer.
Legal papers filed on behalf of the Freedom From Religion Foundation contend such declarations violate the First Amendment which precludes Congress from approving any law "respecting an establishment of religion.' Attorney Richard Morris said an official declaration by Brewer creating an "Arizona Day of Prayer' is directly contrary to that amendment.
"You cannot have government in any way advocating religion,' he said. "There has to be a separation of church and state.'
But gubernatorial press aide Matthew Benson said his boss is on firm legal ground.
"Public call to prayer is an honored American tradition dating back to George Washington,' he said. "We invite Americans of every race, background and creed to voluntarily come together, if they choose, to pray for guidance, wisdom and courage.'
But Morris said even a call like this creates harm.
"People who do not believe are considered outsiders,' he said. "The proclamations make that fairly clear.'
That's also the position of two organizations who have been involved in either crafting legislation or going to court over the right of people to pray in public situations.
"The First Amendment says you can't prohibit the free exercise of religion,' said Cathi Herrod, president of the Center for Arizona Policy. And Herrod, who also is an attorney, called the concept of a separation of church and state "a fallacy.'
Brett Harvey, senior legal counsel to the Scottsdale-based Alliance Defense Fund, said what Brewer -- and others -- have done with these declaration is legal.
"It is perfectly acceptable for politicians and for public officials to recognize the religious heritage of this country,' he said. And Harvey said the U.S. Supreme Court has even upheld things like prayers to open meetings and swear in public officials.
Attorney Marc Victor, the co-counsel in the lawsuit against Brewer, said his Chandler firm, which he described as a "pro-freedom law firm,' is not anti religion or even trying to stop people from praying.
"We are absolutely as strongly an advocate of the right of people to pray if they want, as we also advocate the right of people to pray if they do not want to pray,' Victor said. "But we believe that the government should just simply stay out of it.'
Victor said the fact that these declarations don't urge a specific prayer or endorse a specific religious belief does not make it legal.
"It sort of assumes that everybody prays,' he said, noting that the lawsuit includes not just the Freedom From Religion Foundation but four Arizonans who each are listed as "a nonbeliever in religion or in one or more gods. "But everybody doesn't pray.'
And that, said Victor, is what makes the proclamation both wrong and illegal.
"It's unfair for the governor, who represents everybody, to be out there urging people to pray or not to pray,' he said, saying he would similarly oppose any gubernatorial proclamation that people not pray. "It's just not the role of government.'
There is little chance that U.S. District Court Judge Roslyn Silver will have a hearing on the matter before this year's proclamation is issued.