Freedom From Religion Foundation Incorporated et al v. Brewer

Filing 1

COMPLAINT. Filing fee received: $350.00, receipt number PHX 0970-5029927, filed by Mike Wasdin, Freedom From Religion Foundation Incorporated, John S Compere, Michael Renzulli, Justin Grant (submitted by Richard Morris). (Attachments: # 1 Civil Cover Sheet)(REK)

MORRIS LAW FIRM, pllc
Richard W. Morris, J.D., Ph.D. -- AzBar 002009
13951 West Grand Ave., Ste 203
Surprise, AZ 85374-2436
Tel [phone]
Marc J. Victor, P.C.
Marc J. Victor, Esq. -- AzBar 016064
3920 South Alma School Road, Ste 5
Chandler, Arizona 85248
Tel [phone]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
FREEDOM FROM RELIGION
FOUNDATION, Inc.,
a Wisconsin non-profit corporation,
MIKE WASDIN, an individual,
JOHN S. COMPERE, an individual,
MICHAEL RENZULLI,
an individual,
JUSTIN GRANT, an individual,
Plaintiffs,
v
Janice K. Brewer,
Governor of the State of Arizona,
Defendant.

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Freedom From Religion Foundation v. Brewer

Civil Case No.

COMPLAINT
FOR
DECLARATORY RELIEF
and
INJUNCTION

Complaint
Page 1

Plaintiffs FREEDOM FROM RELIGION FOUNDATION, Inc.
(hereinafter referred to as “FFRF”), MIKE WASDIN, an individual, JOHN S.
COMPERE, an individual, MICHAEL RENZULLI, an individual, JUSTIN
GRANT, an individual, for their claim, (sometimes hereinafter collectively
referred to as “Plaintiff”) allege:
1. Plaintiff FFRF is a Wisconsin non-stock corporation whose principal
office is in Madison, Wisconsin; FFRF is a national membership organization
whose purposes are to promote the fundamental constitutional principle of
separation of church and state and to educate on matters relating to
nontheism.
2. FFRF has more than 16,000 members in the United States, including
more than 400 members in Arizona, and a chapter in Maricopa County, who
are opposed to government endorsement of religion in violation of the
Establishment Clause of the First Amendment to the United States
Constitution.
3. Plaintiff Michael Wasdin resides in Maricopa County, Arizona, is a
member of FFRF, and a nonbeliever in religion or in one or more gods.
4. Plaintiff John S. Compere resides in Maricopa County, Arizona, is a
member of FFRF, and a nonbeliever in religion or in one or more gods.
5. Plaintiff Michael Renzulli resides in Maricopa County, Arizona, is a
Freedom From Religion Foundation v. Brewer

Complaint
Page 2

member of FFRF, and a nonbeliever in religion or in one or more gods.
6. Plaintiff Justin Grant resides in Maricopa County, Arizona, is a
member of FFRF, and a nonbeliever in religion or in one or more gods.
7. Defendant Governor Janice K. Brewer is the Governor of the State
of Arizona.
8. Governor Brewer is sued in her official capacity as the Governor of
the State of Arizona.
9. Governor Brewer’s actions in issuing prayer proclamations of any
sort are taken in her official capacity and under color of law.
10. This court has federal question jurisdiction pursuant to 28 U.S.C.
§ 1331.
11. Venue is appropriate in the District Court for the District of
Arizona pursuant to 28 U.S.C. § 1391(e).
12. In 1791, affirming a wall of separation between the church and
state, the “Establishment Clause” of the First Amendment to the United
States Constitution came into effect as part of the Bill of Rights.
13. In 1797 the United States declared itself not to be a Christian
nation and entered into the Treaty of Tripoli, Article XI of which specifically
states the United States is not founded on the Christian religion and provides:

Freedom From Religion Foundation v. Brewer

Complaint
Page 3

As the government of the United States of America is
not in any sense founded on the Christian
religion—as it has in itself no character of enmity
against the laws, religion or tranquillity of
Musselmen—and as the said states never have
entered into any war or act of hostility against any
Mahometan nation, it is declared by the parties, that
no pretext arising from religious opinions shall ever
produce an interruption of the harmony existing
between the two countries.
(Exhibit 1)
14. In 1802, Thomas Jefferson, reiterating the thoughts of the Founding
Fathers, wrote a letter to the Danbury Baptists in Connecticut, emphasizing
the purpose of the Establishment Clause, saying:
I contemplate with sovereign reverence that act of
the whole American people which declared that their
legislature should “make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof,” thus building a wall of separation
between Church & State.
(Exhibit 2. Emphasis added.)
15. Recent history reveals many governors of the State of Arizona have
proclaimed one day each year to be an “Arizona Day of Prayer.”
16. Governor Brewer proclaimed an Arizona Day of Prayer during the
two years she held the office of governor in 2009 and 2010. Both days
coincided with the Christian-based National Day of Prayer proclaimed by
Freedom From Religion Foundation v. Brewer

Complaint
Page 4

President Barack Obama, and as promoted by the National Day of Prayer
Task Force. (Exhibit 4, April 23, 2010 Proclamation.)
17. In addition, Governor Brewer proclaimed a Day of Prayer for the
Budget on January 17, 2010. (Exhibit 6.)
18. Public Law 100-307, the law which mandates the presidential
National Day of Prayer proclamation, was declared unconstitutional by the
United States District Court, Western District of Wisconsin, on April 20, 2010,
in FFRF v. Bush, Case No. 08-CV-588.1 (See Exhibit 3.)
19. Governor Brewer also exhorted citizens to pray on January 17,
2010, when she proclaimed a Day of Prayer for the Arizona Economy and
State Budget. (See Exhibit 6.)
20. In 1971, The United States Supreme Court, in Lemon v. Kurtzman,
403 U.S. 602, 612-613, set forth the test which details the requirements
concerning religion, known as the “Lemon Test.” The Lemon Test consists of
three prongs:
1.

The government's action must have a secular

purpose;

1

Case is now on appeal.

Freedom From Religion Foundation v. Brewer

Complaint
Page 5

2.

The government's action must not have the

primary effect of either advancing or inhibiting
religion; and
3.

The government’s action must not result in an

“excessive government entanglement” with religion.

21. If any of one of these 3 prongs are violated, the government's action
is deemed unconstitutional under the Establishment Clause of the First
Amendment to the United States Constitution.
22. Prayer is inherently a religious activity.
23. Prayer has no secular purpose.
24. An Arizona Day of Prayer has no secular purpose, thus violating the
first prong of the Lemon Test.
25. Exhortations to pray in official gubernatorial proclamations,
directed at all the citizens of the State of Arizona, including these plaintiffs,
promote and endorse religion, thus advancing religion in violation of the
second prong of the Lemon Test.
26. Governor Brewer’s previous proclamations exhorting the citizens of
Arizona to pray resulted in an excessive government entanglement with
religion because the proclamations gave the appearance of an official
Freedom From Religion Foundation v. Brewer

Complaint
Page 6

endorsement of religion by the State of Arizona, thus violating the third
prong of the Lemon Test.
27. Official government prayer proclamations exhorting citizens to
engage in prayer, including calls for the celebration of religion, create an
unconstitutional bond between church and state.
28. The designation of an Arizona Day of Prayer has the intent and
effect of giving official government recognition to the endorsement of
religion.
29. Article II, Section 12, of the Arizona Constitution, in pertinent part
provides:
No public money or property shall be appropriated
for or applied to any religious worship, exercise, or
instruction, or to the support of any religious
establishment.
30. Governor Brewer’s 2010 proclamation of a Day of Prayer (Exhibit 4)
violated Article II, Section 12, of the Arizona Constitution when she used her
government position to appropriate and apply public money and property by
endorsing religious worship, exercise or instruction, and supported religious
establishment.
31. The Arizona Constitution, Article XX, Section 1, in pertinent part,
provides:

Freedom From Religion Foundation v. Brewer

Complaint
Page 7

Perfect toleration of religious sentiment shall be
secured to every inhabitant of this state, and no
inhabitant of this state shall ever be molested in
person or property on account of his or her mode of
religious worship, or lack of the same.
32. Prayer proclamations by government officials, including
proclamations by Governor Brewer, convey to nonreligious Arizona citizens
the message that the Arizona state government expects them to believe in a
god.
33. Such government proclamations reflect the official policy of the
government of the State of Arizona, giving institutional support to the
endorsement of religion in preference to non-religion by the government of
Arizona.
34. Governor Brewer’s 2010 proclamation was an affirmative
encouragement to the citizens of Arizona to pray. The proclamation attacked
the protected right of these plaintiffs, and of each Arizona citizen, under the
Arizona Constitution, Article XX, Paragraph 1, from molestation in person or
property on account of his or her mode of religious worship, or lack of same.
35. The Arizona government prayer proclamation turns believers in
religion into political insiders — and makes non-believers political outsiders,
unable fully to take part in governmental processes.

Freedom From Religion Foundation v. Brewer

Complaint
Page 8

36. The Arizona government prayer proclamation is intended to be,
and is received by citizens of Arizona, including the plaintiffs, as exhortations
to pray, regardless of their creed or non-belief; such proclamations create a
culture of government-sanctioned religiosity in violation of the Constitution
of the State of Arizona.
37. Designation of an Arizona Day of Prayer by Governor Brewer
encourages celebration of prayer and creates a hostile environment for nonbelievers, who are made to feel as if they are second class citizens.
38. Unless enjoined, Governor Brewer is expected to issue a similar
proclamation for an Arizona Day of Prayer in 2011, again based upon the
National Day of Prayer preference for the Christian religion.
39. The Arizona government proclamations of prayer in the public
realm further call forth and encourage other public officials to engage in
public ceremonies endorsing religion, including the quintessential religious
act of prayer, for example the prayer proclamation by the mayor of the City of
Phoenix in 2010. (Exhibit 5.) This proclamation references the biblical theme
pre-selected by the National Day of Prayer Task Force, a Christian
evangelical organization, thus removing all doubt as to the Christian
preference of the official proclamation.
40. The individual plaintiffs in this lawsuit, as well as Arizona FFRF
Freedom From Religion Foundation v. Brewer

Complaint
Page 9

members and other non-believers in Arizona, are molested by and subjected
to these unwanted exhortations to pray and the resulting governmentsanctioned celebrations of religion in the public realm.
41. FFRF, as an organization, has the mission and purpose to promote
the Constitutional principle of separation of church and state and to educate
on matters relating to nontheism, as well as to advocate on behalf of its
members.
42. The ability of FFRF to carry out its organizational mission in the
State of Arizona to keep church and state separate is adversely affected by
prayer proclamations and designations by local governments of days of
prayer because the exhortations to pray precipitate and give official sanction
to governmental endorsement of religion, as well as requiring the dedication
of corrective resources and time, thus frustrating FFRF’s mission to keep
separate church and state.
43. The actions of Governor Brewer in issuing prayer proclamations
and dedicating other days of prayer are injurious to the interests of the
plaintiffs individually, and to FFRF in its representative and organizational
capacity.
44. The above-named actions violate the fundamental principle of the
separation of church and state embodied in the Establishment Clause of the
Freedom From Religion Foundation v. Brewer

Complaint
Page 10

First Amendment to the U.S. Constitution, as well as Articles II and XX of the
Arizona Constitution, by actively endorsing religion, giving the appearance of
the government’s official support for and advocacy of religion through the
medium of prayer, and molesting the interests of the plaintiffs and other nonbelieving citizens of Arizona, thus interfering with their rights of personal
conscience.
45. Governor Brewer’s actions, under color of state law, violate the
constitutional rights of the plaintiffs and other citizens of Arizona as
protected by Section 1983 of Title 42 of the United States Code.
46. To be clear, plaintiffs are not requesting an injunction to prevent
people from private prayer, but only to separate religion from the state.
WHEREFORE, the plaintiffs demand judgment as follows:
A. For declaratory judgment declaring the 2010 Day of Prayer
proclamations by Governor Brewer violated the Establishment Clause of the
First Amendment to the United States Constitution;
B. For declaratory judgment declaring the 2010 prayer proclamations
by Governor Brewer violated Article II, Section 12 of the Arizona
Constitution;
C. For declaratory judgment declaring the 2010 prayer proclamations
by Governor Brewer violated Article XX, Section 1 of the Arizona
Freedom From Religion Foundation v. Brewer

Complaint
Page 11

Constitution;
D. For declaratory judgment declaring the actions of Governor Brewer
violate 42 U.S.C. § 1983;
E. For an injunction enjoining Governor Brewer from proclaiming any
days of prayer in 2011 and thereafter.
F. For judgment awarding the plaintiffs their reasonable costs,
disbursements and attorneys fees, as allowed by law, from Governor Brewer
pursuant to 42 U.S.C. § 1988; and
G. For such other and further relief as the court shall deem just.
Date: March 15, 2011.
Morris Law Firm, pllc
/s/ Richard W. Morris
By: Richard W. Morris, J.D., Ph.D.
Attorneys for Plaintiffs
Marc J. Victor, P.C.
/s/ Marc J. Victor
By: Marc J. Victor, Esq.
Attorneys for Plaintiffs

Freedom From Religion Foundation v. Brewer

Complaint
Page 12

Exhibit 1
1797 Treaty of Tripoli

8 Stat 154, 1796 WL 843 (U.S. Treaty)

Page 1

8 Stat 154, 1796 WL 843 (U.S. Treaty)
UNITED STATES OF AMERICA
Tripoli
Treaty of Peace and Friendship Between the United States of America, and the Bey and Subjects of Tripoli, of
Barbary.
[FN1]
FN1. The treaties between the United States and Tripoli have been:
FNThe treaty of November 4, 1796.
FNThe treaty of June 4, 1805, post, 214.
Nov. 4, 1796.
ARTICLE I.
ARTICLE II.
ARTICLE III.
ARTICLE IV.
ARTICLE V.
ARTICLE VI
ARTICLE VII.
ARTICLE VIII.
ARTICLE IX.
ARTICLE X.
ARTICLE XI.
ARTICLE XII.
ARTICLE I.
*1 THERE is a firm and perpetual peace and friendship between the United States of America and the Bey and
Subjects of Tripoli of Barbary, made by the free consent of both parties, and guaranteed by the Most Potent Dey
and Regency of Algiers.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

8 Stat 154, 1796 WL 843 (U.S. Treaty)

Page 2

ARTICLE II.
If any goods belonging to any nation with which either of the parties is at war, shall be loaded on board of vessels belonging to the other party, they shall pass free, and no attempt shall be made to take or detain them.
ARTICLE III.
If any Citizens, Subjects of Effects belonging to either party, shall be found on board a prize-vessel taken from
an enemy by the other party, such Citizens or Subjects shall be set at liberty, and the effects restored to the owners.
ARTICLE IV.
Proper passports are to be given to all vessels of both parties, by which they are to be known. And considering
the distance between the two countries, eighteen months from the date of this treaty shall be allowed for procuring such passports. During this interval, the other papers belonging to such vessels shall be sufficient for their
protection.
ARTICLE V.
A Citizen or Subject of either party having bought a prize-vessel condemned by the party or by any other nation,
the certificate of condemnation and bill of sale shall be a sufficient passport for such vessel for one year; this being a reasonable time for her to procure a proper passport.
ARTICLE VI
Vessels of either party putting into the ports of the other, and having need of provisions or other supplies, they
shall be furnished at the market price. And if any such vessel shall so put in from a disaster at sea, and have occasion to repair, she shall be at liberty to land and reimbark her cargo, without paying any duties. But in no case
shall she be compelled to land her cargo.
ARTICLE VII.
Should a vessel of either party be cast on the shore of the other, all proper assistance shall be given to her and
her people-No pillage shall be allowed; the property shall remain at the disposition of the owners, and the crew
protected and succoured till they can be sent to their country.
ARTICLE VIII.
If a vessel of either party should be attacked by an enemy within gun shot of the forts of the other, she shall be
defended as much as possible. If she be in port, she shall not be seized or attacked, when it is in the power of the
other party to protect her; and when she proceeds to sea, no enemy shall be allowed to pursue her from the same
port within twenty-four hours after her departure.
ARTICLE IX.
The commerce between the United States and Tripoli-the protection to be given to merchants, masters of vessels
and seamen-the reciprocal right of establishing consuls in each country, and the privileges, immunities, and jurisdictions to be enjoyed by such consuls, are declared to be on the same footing with those of the most favoured

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

8 Stat 154, 1796 WL 843 (U.S. Treaty)

Page 3

nations respectively.
ARTICLE X.
*2 The money and presents demanded by the Bey of Tripoli, as a full and satisfactory consideration on his part,
and on the part of his subjects, for this treaty of perpetual peace and friendship, are acknowledged to have been
received by him previous to his signing the same, according to a receipt which is hereto annexed; except such
part as is promised on the part of the United States, to be delivered and paid by them on the arrival of their consul in Tripoli, of which part a notice is likewise hereto annexed. ______ And no pretence of any periodical tribute or farther payment is ever to be made by either party.
ARTICLE XI.
As the government of the United States of America is not in any sense founded on the Christian religion-as it
has in itself no character of emnity against the laws, religion or tranquillity of Musselmen-and as the said states
never have entered into any war or act of hostility against any Mahometan nation, it is declared by the parties,
that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing
between the two countries.
ARTICLE XII.
In case of any dispute arising from the violation of any of the articles of this treaty, no appeal shall be made to
arms, nor shall war be declared on any pretext whatever. But if the consul residing at the place where the dispute
shall happen, shall not be able to settle the same, an amicable reference shall be made to the mutual friend of the
parties, the Dey of Algiers, the parties hereby engaging to abide by his decision. And he by virtue of his signature to this treaty, engages for himself and his successors, to declare the justice of the case according to the true
interpretation of the treaty, and to use all the means in his power to enforce the observance of the same.
Signed and Sealed at Tripoli of Barbary, the 3d day of Jumad, in the year of the Higera, 1211, corresponding with the 4th day of November, 1796, by
JUSSUF BASHAW MAHOMET,
Bey.
(L. S.)
MAMET,
Treasurer.
(L. S.)
AMET,
Minister of Marine.
(L. S.)
AMET,
Chamberlain.
(L. S.)
ALLY,
Chief of the Divan.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

8 Stat 154, 1796 WL 843 (U.S. Treaty)

Page 4

(L. S.)
SOLIMAN KAYA.
(L. S.)
GALIL,
General of the Troops.
(L. S.)
MAHOMET,
Cmdt. of the City.
(L. S.)
MAMET,
Secretary.
(L. S.)
Signed and sealed at Algiers, the 4th day of Argil, 1211, corresponding with the 3d day of January, 1797, by
HASSAN BASHAW,
Dey.
(L. S.)
And by the Agent Plenipotentiary of the United States of America,
JOEL BARLOW.
(L. S.)
I, Joel Barlow, Agent and Consul General of the United States of America, for the City and Kingdom of Algiers,
certify and attest that the foregoing is a true copy of the treaty, concluded between the said United States and the
Bey and Subjects of Tripoli of Barbary, of which the original is to be transmitted by me to the Minister of the
said United States, in Lisbon.
*3 In testimony whereof, I sign these presents with my hand, and affix thereto the seal of the Consulate of
the United States, at Algiers, this 4th day of January, 1797.
JOEL BARLOW.
(L. S.)
To all to whom these presents shall come or be made known:
WHEREAS the under-written David Humphreys, hath been duly appointed Commissioner Plenipotentiary, by
Letters Patent under the signature of the President and seal of the United States of America, dated the 30th of
March, 1795, for negociating and concluding a treaty of peace with the most illustrious the Bashaw, Lords and
Governors of the City and Kingdom of Tripoli: WHEREAS, by a writing under his hand and seal, dated the 10th
of February, 1796, he did, (in conformity to the authority committed me therefor) constitute and appoint Joel
Barlow, and Joseph Donaldson, Junior, agents, jointly and separately in the business aforesaid: WHEREAS the
annexed Treaty of Peace and Friendship, was agreed upon, signed and sealed at Tripoli of Barbary, on the 4th of
November, 1796, in virtue of the powers aforesaid, and guaranteed by the Most Potent Dey and Regency of Al-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

8 Stat 154, 1796 WL 843 (U.S. Treaty)

Page 5

giers: AND WHEREAS the same was certified at Algiers on the 3d of January, 1797, with the signature and seal
of Hassan Bashaw, Dey, and of Joel Barlow, one of the agents aforesaid, in the absence of the other.
Now, know ye, that I, David Humphreys, commissioner plenipotentiary aforesaid, do approve and conclude the
said treaty, and every article and clause therein contained, reserving the same nevertheless for the final ratification of the President of the United States of America, by and with the advice and consent of the Senate of the
said United States.
In testimony whereof, I have signed the same with my name and seal, at the city of Lisbon, this 10th of February, 1797.
DAVID HUMPHREYS.
(L. S.)
8 Stat 154, 1796 WL 843 (U.S. Treaty)
END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Exhibit 2
1802 Letter of Thomas Jefferson

The Library of Congress > Information Bulletin > June 1998

Jefferson's Letter to the Danbury Baptists
The Final Letter, as Sent
To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a
committee of the Danbury Baptist a s s o c ia tio n in th e s ta te o C o n n e c ticu t.
G e n t le m e n
T h e a f f e ctio n a te s e n tim e n ts o f e s te em a n d a p p r o b a t io n w h ic h y o u
a r e s o g o o d a s to e x p r e s s to w a r d s m e , o n b e h a l f o f th e D a n b u r y
B a p tis t a s s o c ia tio n , g iv e m e th e h ig h e s t s a tis fa c tio n , m y d u tie s
d ic ta te a fa ith f u l a n d z e a lo u s p u r s u it o f th e in te r e s ts o f m y
c o n s titu e n ts . & in p r o p o r tio n a s th e y a r e p e r s u a d e d o f m y fid e lity to
th o s e d u tie s , th e d is c h a r g e o f th e m b e c o m e s m o r e a n d m o r e
p l ea s in g .
B e lie v in g w ith y o u th a t r e lig io n is a m a tte r w h ic h lie s s o le ly b e tw e e n
M a n & h is G o d , th a t h e o w e s a c c o u n t to n o n e o th e r fo r h is f a ith o r
h is w o r s h ip , th a t th e le g itim a te p o w e r s o f g o v e r n m e n t r e a ch a ctio n s
o n ly , & n o t o p in io n s , I c o n te m p la te w ith s o v e r e ig n r e ve r e n c e th a t
a c t o f th e w h o le A m e r ica n p e o p le w h ich d e c la r e d th a t th e ir
le g i s la tu r e s h ou ld “ m a k e n o la w re sp e ctin g a n es ta b lis h m e n t o f
r e lig ion , o r p ro h ib itin g th e fr ee exer cis e ther eof,” thu s bu ildin g a w a ll
o f s e p a r a tio n b e tw e en C h u r ch & S ta te . A d h e r in g to th is e x p r e s s io n
o f th e s u p re m e w il l o f t h e n a tio n in b eh a lf o f the r ights of con s cien ce ,
I sh a ll see w ith sin cere sa tisfa ction th e p ro gress of th o se sen tim en ts
w h ich te n d to re sto re to m a n a ll h is n a tu r a l rig h ts , co n v in c ed h e h a s
n o n a tu r a l rig h t in o p p o sition to his s ocial du ties .
I re cip r oca te y ou r k in d p r a ye rs fo r th e p r ote ctio n & b le ss in g of th e
c om m o n fa th er a n d crea to r of m an , an d tend er you f or your s elves &
yo u r religio u s a sso cia tio n , a ssu ra n ces of m y h igh resp ect & esteem ,
T h Jefferso n
J a n . 1 . 1 80 2 .

Exhibit 3
Judgment, U.S. District Court
Western District of Wisconsin

Case: 3:08-cv-00588-bbc

Document #: 133

Filed: 04/20/2010

Page 1 of 2

Case: 3:08-cv-00588-bbc

Document #: 133

Filed: 04/20/2010

Page 2 of 2

Exhibit 4
Governor Brewer’s April 23, 2010 Proclamation

Exhibit 5
Mayor of Phoenix 2010 Proclamation

Exhibit 6
Governor Brewer’s Proclamation for
Day of Prayer for the Arizona Economy and State Budget.
January 17, 2010.

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