PHOENIX - The state Court of Appeals on Tuesday tossed out a bid by the Freedom From Religion Foundation to bar Gov. Jan Brewer from declaring a state Day of Prayer, saying the declarations haven't shown any real harm.
In a unanimous ruling, the judges said the challengers cannot claim any financial loss from Brewer's annual declarations, as there is no evidence any of the individual plaintiffs is an Arizona taxpayer.
Further, the court rebuffed the contention that what the governor does has resulted in psychological damage to those who are nonbelievers by "sending a message ... that they are not welcome to fully participate in government processes."
Judge Donn Kessler, writing for the court, said psychological damage can provide standing for someone to sue.
But he said there needs to be a "distinct and palpable injury." And Kessler said nothing alleged by the challengers meets that standard.
Chandler attorney Marc Victor, who brought the lawsuit on behalf of various plaintiffs, religious and otherwise, said an appeal to the Arizona Supreme Court is being considered.
The lawsuit says Brewer acts on public time and on the public payroll in issuing her annual declaration each May.
Victor also said the state constitution says no Arizonans "shall ever be molested in person or property on account of his or her mode of religious worship, or lack of the same."
He said the governor's actions "molest" the beliefs of those who do not support a public call to prayer.
Kessler, however, said the claim falls short.
"The proclamations are not a direct attack on the (challengers') specific belief systems," he wrote for the court. He said there is no allegation anyone had to change behavior to avoid the proclamations, and no claim that the governor's actions affected how challengers deal with state government.
"Appellants have offered no explanation why their feeling of offense is any greater than that of a large segment of the general public, nor how such purported psychological harm amounted to a discrete and palpable injury," the judge said.
Victor said the judges are sidestepping the issue.
The Day of Prayer is "a violation of long-standing concepts of separation of church and state," Victor said.
In a prepared statement, Brewer said she hopes the appellate ruling "will be the final word on this issue."
Day of Prayer is "a violation of long-standing concepts of separation of church and state."
Marc Victor, Chandler attorney