Cases to Watch: Freedom from Religion Foundation v. Saccone

This is the first of a series of articles keeping you posted on lawsuits affecting the secular community. To premise: I generally have no clue what I’m talking about. I’m a law student who takes the little legal knowledge I have, then parrots people much smarter than me. Expect mistakes and omissions. I’ll try to make this as reader friendly as possible and save the legal analysis for one section. If you have suggestions, email

What happened? The Pennsylvania House of Representatives passed a resolution declaring 2012 the “Year of the Bible.” [PDF] The language of the resolution closely mirrored a 1983 resolution Congress sent to President Reagan. The Freedom from Religion Foundation brought a lawsuit asking for a declaratory judgment, claiming the resolution violated the Establishment Clause.

What did the court decide? A federal district court judge dismissed the lawsuit finding that the lawmakers had legislative immunity (meaning that legislators cannot be held legally responsible for anything they say as a part of the legislative process).

Why does it matter? (WARNING: Citations incoming.) Understanding the importance of this decision first requires an understanding of legal realism. Many laymen think of the law as a mechanical, blind process. They think judges take the law and apply it; everything is either legal or illegal. This couldn’t be farther from the truth. “The law” is a flexible thing. Rules are made, broken, or even ignored when the court wants a case to come out a certain way.

This is especially relevant in the context of the Establishment Clause. There are things the court is just not going to do. It’s not going to find the Pledge of Allegiance unconstitutional (Elk Grove Unified School Dist. v. Newdow); it’s not going to find that the Chief Justice can’t say “so help me god” (Newdow v. Roberts); it’s not going to say the National Day of Prayer is unconstitutional (Freedom from Religion Foundation v. Obama). And it’s certainly not going to say we have to take “in god we trust” off of our money. We’ll call these sorts of unsympathetic cases “Sacred Cows” for short.

The most important test in Establishment Clause cases is known as the “Lemon Test.” If something violates it, the court typically finds the action to be in violation of the Establishment Clause. So, what does the court do when one of its Sacred Cows violates the Lemon Test? Typically one of two things. Either it (1) makes a special exception for that type (see Marsh v. Chambers: finding a “legislative prayer” exception to the Lemon Test to allow legislatures to start meetings with prayer), or it (2) finds a procedural reason to defeat the suit without ever considering the merits (see Newdow v. Roberts: finding the suit lacked “standing,” ie the plaintiff failed to show that he was actually harmed by the Establishment Clause violation. When a plaintiff lacks standing, the suit is immediately dismissed).

I think this case is a Sacred Cow. No court is going to find this resolution unconstitutional.

Why do I care? Well, this case is going to lose. And next time a secular group brings a lawsuit with much more sympathetic facts, it’s going to have to deal with the defendant citing this case. This isn’t just conjecture and hypothesizing. It’s actually happening. The “standing” doctrine established by failed lawsuits against Sacred Cows has become one the biggest hurdles in fighting Establishment Clause violations in the courts.

And this isn’t just me talking. See CFI’s former general counsel talk about it here.

We’re very lucky that the court found FFRF had standing in this case. Legislative immunity is a much less important restriction on our suits. Let’s hope an appeal doesn’t overturn that.

What’s next? The FFRF could appeal this decision to the Third Circuit Court of Appeals. I have not heard if they will, but I’ll keep you posted.