In his unanimous ruling (pdf) delivered yesterday, Judge Easterbrook argues that the reason no American may challenge the constitutionality of the law directing the President to declare a National Day of Prayer is that no American is injured by the action.
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 the President proclaims.
Adding, in a bit of a light touch:
If anyone suffers injury, therefore, that person is the President, who is not complaining.
As for the proclamation itself, the court ruled there is likewise no burden placed on Americans.
[A]lthough this proclamation speaks to all citizens, no one is obliged to pray, any more than a person is obliged to hand over his money if the President asked all citizens to 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 request 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.
As for how this differs from the type of injury – one rooted in personal offense – courts have regularly allowed in determining the constitutionality of government displays featuring religious messages, Easterbrook says that's not all it takes to bring a legal challenge:
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.
…
Our plaintiffs are covered by the rule… that offense at the behavior of the government, and a desire to have public officials comply with (plaintiffs' view of) the Constitution, differs from a legal injury, The "psychological consequence presumably produced by observation of conduct with which one disagrees" is not an "injury" for the purpose of standing. 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.
The judge notes that: "Eventually, we may need to revisit the subject of observers' standing in order to reconcile this circuit's decisions, but today is not the time."
