On Easter Sunday, Governor Doug Ducey posted to his “official” Facebook page a Gospel verse accompanied by the statement, “He is risen! Have a happy and blessed Easter!” The predicable outrage by the perpetually offended ensued, with some declaring the post an unconstitutional endorsement of religion and calling for its immediate deletion. In our view, however, a legal challenge to the governor’s Facebook statement would face long odds.
Courts exist to remedy concrete harms inflicted on specific individuals – and, in the words of the U.S. Supreme Court, “the psychological consequence presumably produced by observation of conduct with which one disagrees” is not a legal injury. For this reason, individuals have standing to pursue alleged violations of the Establishment Clause in two narrow circumstances.
First, a taxpayer may contest expenditures of public funds that impermissibly advance religious purposes. Even this concept, though, has its limits. In 2011, for example, the U.S. Supreme Court held that Arizona taxpayers lacked standing to challenge the state law that provides tax credits for contributions to school tuition organizations, which in turn provide scholarships to students attending private schools. The court observed that the state itself did not directly transfer funds to religious institutions, and noted more generally that it is not the role of the judiciary “to invalidate laws at the behest of anyone who disagrees with them.”
Second, courts have permitted Establishment Clause claims by individuals who are uniquely impacted by an allegedly unconstitutional practice – for example, students enrolled in public schools that conduct officially sanctioned prayers.
Governor Ducey’s post does not appear to fit within either of these categories. That the post appeared on his “official” Facebook page has no intrinsic legal significance. The Facebook platform is owned and maintained by a private company, not the state government. More importantly, there is no evidence that state employees were tasked with composing religious messages or that the governor otherwise used taxpayer resources to promote his religious convictions.
Similarly, the notion that an individual who voluntarily reads the governor’s Facebook feed suffers a legal injury by stumbling upon a message that offends his or her sensibilities is dubious, at best. The post simply expressed the governor’s personal sentiments and holiday greetings – it does not carry the force of law, deprive any person of his legal rights, or compel anyone to do anything. For that reason, the Arizona Court of Appeals rebuffed a constitutional challenge to a prayer proclamation issued by then-Governor Jan Brewer, and the federal 7th Circuit similarly rejected a legal attack on President Obama’s National Day of Prayer Proclamation. Indeed, the very absence of any articulable harm emanating from the governor’s post undermines the argument that his benign Easter greeting somehow violated a reader’s constitutional rights.
Even if an individual has standing to pursue a claim against the governor, any such lawsuit would find itself on tenuous legal ground. The Supreme Court has consistently held that the Establishment Clause permits governmental practices that acknowledge and honor the role of religion in our national history and traditions. Accordingly, legislative prayers have been repeatedly sustained as constitutional – even when the invocation is explicitly sectarian. Religiously oriented monuments, such as plaques of the Ten Commandments, likewise have been deemed permissible. While Establishment Clause cases are fact-sensitive and the Supreme Court’s jurisprudence is somewhat muddled, any sweeping assertion that the governor’s Facebook post transgressed constitutional boundaries oversimplifies a nuanced area of the law, and overlooks courts’ recent solicitude for the integral place of religion in our nation’s historical and cultural fabric.
Further, the Establishment Clause is only half of the legal equation. Like every other American, Governor Ducey enjoys a First Amendment right to freely express his religious views, even if they overlap with his official position or public persona. Recognizing this principle, the 9th Circuit has held that public employees are constitutionally entitled (at least in some circumstances) to share religious advocacy messages in government workspaces. The 7th Circuit likewise pointedly commented that “the Judicial Branch does not censor a President’s speech” in dismissing a challenge to a presidential prayer proclamation.
Governor Ducey’s Facebook post did not coerce any reader into sharing his religious convictions, or disparage those who espouse other faiths (or no faith at all); although more overtly religious than most public statements by elected officials, it was nonetheless a customary greeting on a widely celebrated holiday. Reasonable people can of course differ on whether or in what manner our officials should acknowledge religious holidays and traditions in their public comments. But not every political dispute is a constitutional question, and such disagreements are best addressed through the democratic means of discussion and debate – not unilaterally settled by unelected judges.
Thomas Basile is a partner with Statecraft PLLC and Kory Langhofer is the firm’s managing partner.