Federal Court rules that the “National Day of Prayer” violates the First Amendment Establishment Clause

April 16, 2010 | By | 2 Replies More

Yesterday, I received an email from the Center For Inquiry indicating that, in 2008, Freedom From Religion Foundation had filed a lawsuit (Freedom from Religion Foundation, Inc v. Obama) to prevent the federal government from declaring a “National Day of Prayer.”   The U.S. District Court, Judge Barbara B. Crabb of the Western District of Wisconsin, struck down 36 U.S.C. §119, which establishes a yearly National Day of Prayer. Here’s the text of the statute:

The President shall issue each year a proclamation designating the first Thursday in May as National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

Image by hpebley3 at Flicker (creative commons)

Image by hpebley3 at Flicker (creative commons)

As discussed in the Court’s Opinion, the National Day of Prayer was established in part, due to the efforts of Reverend Billy Graham in 1952.   One of Graham’s speeches included the following:

We have dropped our pilot, the Lord Jesus Christ, and are sailing blindly on without divine chart or compass, hoping somehow to find our desired haven. We have certain leaders who are rank materialists; they do not recognize God nor care for Him; they spend their time in one round of parties after another. The Capital City of our Nation can have a great spiritual awakening, thousands coming to Jesus Christ, but certain leaders have not lifted an eyebrow, nor raised a finger, nor showed the slightest bit of concern. Ladies and gentlemen, I warn you, if this state of affairs continues, the end of the course is national shipwreck and ruin.

Congress then took the reins, lead by [appropriately named] Representative Percy Priest, who introduced a bill to establish a National Day of Prayer. Here is the Court’s description:

In addressing the House of Representatives, he noted that the country had been “challenged yesterday by the suggestion made on the east steps of the Capitol by Billy Graham that the Congress call on the President for the proclamation of a day of prayer.” In support of the bill, Representative Brooks stated that “the national interest would be much better served if we turn aside for a full day of prayer for spiritual help and guidance from the Almighty during these troublous times. I hope that all denominations, Catholics, Jewish and Protestants, will join us in this day of prayer.” Representative Peter W. Rodino, Jr., stated that “it is fitting and timely that the people of America, in approaching the Easter season, as God-fearing men and women, devote themselves to a day of prayer in the interest of peace.”

[The Court added a footnote:  “This part of the report is not accurate. 1 Marsh v. Chambers, 463 U.S. 783, 787(1983) (“[P]rayers were not offered during the Constitutional Convention.”]

I downloaded the entire ruling from the federal district court in pdf format and I’m making it available here.

The Plaintiff argued that Plaintiff the statute is unconstitutional “because it endorses prayer and encourages citizens to engage in that particular religious exercise.” President Obama, who is charged with enforcing the statute by issuing a proclamation each year and his press secretary, “contend that the statute is simply an ‘acknowledgment of the role of religion in American life’ and is indistinguishable from government practices that courts have upheld in the past.”

On its face, the National Day of Prayer statute promotes A) a belief in God and B) an encouragement to pray. That’s how it seems to me and that’s how it seems to the federal judge hearing the case, Hon. Barbara Crabb. CFI summed it up as follows:

In her ruling, Judge Crabb acknowledged that under legal precedent, “some forms of ‘ceremonial deism,’ such as legislative prayer, do not violate the establishment clause.” She said that the National Day of Prayer, however, is different. “It goes beyond mere acknowledgment of religion because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience.”

At page 33, the Court ruled that the statute went well beyond “acknowledging” religion and, in fact, endorsed religious beliefs. Unlike other religiously-tinged government-sponsored activities, there is nothing secular about the National Day of Prayer:

Because the National Day of Prayer does not have a secular purpose or effect, it cannot survive scrutiny under Lemon and the endorsement test. Under these circumstances, the National Day of Prayer is indistinguishable from the Good Friday holiday the court of appeals struck down in Metzl, 57 F.3d 618. Like Good Friday and unlike Christmas and Thanksgiving, one could say about the National Day of Prayer that it “has accreted no secular rituals. . . . It is a day of . . . religious observance, and nothing else, for believ[ers] . . . [T]here is nothing in [the National Day of Prayer] for [non-believers], as there is in the other holidays [such as Christmas and Thanksgiving] despite the Christian origin of those holidays.” Id. at 620-21. And unlike the defendant government in Bridenbaugh, which permitted a day off for state employees on Good Friday because it made logistical sense, defendants have identified no purpose that § 119 serves other than to encourage and facilitate prayer.

Nor was the Court convinced that the National Day of Prayer was an exercise of “ceremonial deism,” such as the common practice of opening legislative sessions with a prayer. (at page 42). I found this example to be troublesome—encouraging prayer to inspire the legislators clearly seems to be a government endorsement of prayer. I was not convinced by the Court’s attempts to save legislative session prayers as being allegedly different (page 43) in that there is a “unique history” of legislative prayer–she was citing Supreme Court precedent at this point.

What follows are, once again, the word of Justice O’Connor (p. 45):

Those government acknowledgments of religion [prayers to open legislative sessions] serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.

Contrary to other government invocations of religion, the Wisconsin District Court held that the statute establishing the National Day of Prayer “endorses prayer for its own sake.”

In her opinion, Judge Crabb went out of her way to make it clear that the Court was not taking an anti-prayer position:

It bears emphasizing that a conclusion that the establishment clause prohibits the government from endorsing a religious exercise is not a judgment on the value of prayer or the millions of Americans who believe in its power. No one can doubt the important role that prayer plays in the spiritual life of a believer. In the best of times, people may pray as a way of expressing joy and thanks; during times of grief, many find that prayer provides comfort. Others may pray to give praise, seek forgiveness, ask for guidance or find the truth. “And perhaps it is not too much to say that since the beginning of th[e] history [of humans] many people have devoutly believed that ‘More things are wrought by prayer than this world dreams of.’” Engel v. Vitale, 370 U.S. 421, 433 (1962). However, recognizing the importance of prayer to many people does not mean that the government may enact a statute in support of it, any more than the government may encourage citizens to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic. In fact, it is because the nature of prayer is so personal and can have such a powerful effect on a community that the government may not use its authority to try to influence an individual’s decision whether and when to pray.

In her opinion, she further cites to Justice O’Connor’s concurring opinion in the U.S. Supreme Court case of McCreary County, Kentucky v.American Civil Liberties Union of Kentucky, 545 U.S. 844, 877 (2005):

“When the government associates one set of religious beliefs with the state and identifies
nonadherents as outsiders, it encroaches upon the individual’s decision about whether and
how to worship.”

CFI provides this bit of history regarding the National Day of Prayer:

Congress established the National Day of Prayer in 1952 and in 1988 designated the first Thursday in May as the day for presidents to issue proclamations urging Americans to pray. The supporting statute stated that “The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.” This year’s National Day of Prayer falls on May 6.

The government position reminds one of the arguments made by the government in two recent Pledge of Allegiance cases, where the respective courts claimed that discussing “God” was not a personal affirmation of the speaker’s belief in God and that reciting the Pledge day-after-day was a method of teaching the children history.

I disagree with those Pledge decisions, because I would leave all decisions as to whether to recognize supernatural beings or to acknowledge “God,” strictly speaking, to the complete discretion of individuals. It’s not the job of the federal government to further (or impede) religious beliefs—In fact, it’s clearly written into the First Amendment

I suspect that the Pledge decisions were highly influenced by the concern about inciting large-scale social discord among large vocal segment of the U.S. population that appears to prefer that the Separation Clause be deleted from the U.S. Constitution. I suspect that the many other government-religious practices that have been allowed were also pragmatic compromises. Be that as it may, I applaud this opinion by Judge Crabb, because encouraging prayer to God is about as religious as one can possibly get. Certainly can you imagine a preacher getting any more religious than encouraging a group of people to pray to God?

Judge Crabb’s decision  can be appealed to the U.S. Court of Appeals, and then that ruling could conceivably be considered by the United States Supreme Court.  I suspect we haven’t yet heard the last word on this dispute . . .


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Category: American Culture, Civil Rights, Court Decisions, Current Events, Law, Politics, Religion, Science, Uncategorized

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

Comments (2)

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  1. Erich Vieth says:

    Ebonmuse weighs in on Judge Crabb's decision at Daylight Atheism: http://www.daylightatheism.org/2010/04/victory-fo

  2. Erich Vieth says:

    "Despite the fact that this thoughtful decision is based on sound reasoning and long-standing Supreme Court precedent, President Barack Obama has announced that he will appeal. Hopefully, when the case reaches the Supreme Court it will adhere to the wisdom of its own warning almost 50 years ago, that the first and most immediate purpose of the Establishment Clause "rested on the belief that a union of government and religion tends to destroy government and to degrade religion."


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