National Day of Prayer Ruled Unconstitutional

A United States District Court in Wisconsin has ruled that the Federal Statute calling for a National Day of Prayer violates the Establishment Clause of the First Amendment. Here is the statute (36 U.S. 119):

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.

Now I confess that I find that language odd. Presumably, Americans may also turn to God in prayer on the other three hundred and sixty four days of the year. But the language is intended to avoid "encouraging" religious faith or practice. Interestingly, President Obama's proclamation does exactly that.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim May 7, 2009, as a National Day of Prayer. I call upon Americans to pray in thanksgiving for our freedoms and blessings and to ask for God's continued guidance, grace, and protection for this land that we love.

But it is the statute, not the proclamation, which was overturned. Here is how the Wisconsin Court puts the issue:

On one hand, the Court has held on many occasions that the government violates the establishment clause when it engages in conduct that a reasonable observer would view as an endorsement of a particular religious belief or practice, including prayer.

On the other hand, the Court has held that some forms of "ceremonial deism," such as legislative prayer, do not violate the establishment clause.

The Wisconsin District Court went with the first hand and not the second. Eugene Volokh thinks that this decision is inconsistent with Court precedent.

I find this hard to reconcile with the logic of Marsh v. Chambers (1983), which upheld legislative prayers on the grounds that they go back to the founding of the nation; official proclamations of days of prayer, thanksgiving, and even fasting are just as firmly rooted.

Volokh guesses that the decision will be appealed and that, if Second Circuit Court affirms, the Supreme Court will hear the case and reverse. I am guessing he is right and that the statute will ultimately be upheld.

Applying a little common sense in lieu of judicial reasoning, I see no good reason for the Courts to strike down § 119. It is one of those countless resolutions to proclaim something that are intended to honor or recognize someone or something without doing anything meaningful. For that reason it can do no harm.

Under § 119 no one is less free to believe or practice or not believe and not practice any religion as he or she pleases. So it doesn't violate the Free Exercise Clause. Nor is anyone compelled to contribute monies toward any religious institution or explicitly or implicitly agree with any religious doctrine.

The standard that the Wisconsin Court seems to apply, that "that a reasonable observer would view [§ 119] as an endorsement of a particular religious belief or practice," gives way too much power to mere opinion. Reasonable observers can come to any number of irreconcilable conclusions; there are no grounds for giving one kind of opinion a veto power over the laws.

Suppose Congress should declare a national day to honor Charles Darwin. I would not be opposed to that. A reasonable observer might well view that as taking sides in a contest between Biblical faith and secular humanism. The observer has every right to his or her views, but that doesn't imply a veto power over Congress.

The Freedom from Religion Foundation is one of those outfits that fights the silliest battles over the silliest things. This isn't about protecting anyone's freedoms. It's about making sure that the public sphere is purified of any hint of religious imagery or influence. But that is just an article of a peculiar faith, and it does more to politicize religion in this country than anything else.

Comments

[William]

Funny how those institutions purporting to be based on freedom and tolerance (Freedom from Religion Foundation) are the most intolerant and destructive.

I wonder if only a nation that has afforded such freedom, opportunity and wealth to so many can afford itself this degree of absurdity in its politics. I think that people less fortunate would find the seriousness we allow such trivialities to be bizarre.

Poverty, slavery, prejudice and hardship as understood by most of the world's population are inconceivable by most Americans.

Hobbes described the natural state of mankind as a "war of every man against every man".

My fear is that too many Americans don't realize that we risk losing the "city on the hill", the beacon of freedom and liberty to the WORLD through our own self indulgence.

[A Christian]

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.

[KB]

A.C.: I see no reason why government cannot recognize and honor prayer by a national day of prayer. Even if may be said to "encourage" prayer, so what? This neither prevents nor compels religious acts. Whatever damage it might do in speculation, striking it down does as much to politicize religion than any mere proclamation.

[Lois]

President Obama has decided that there will no longer be a "National day of prayer" held in May. He doesn't want to offend anybody. Where was his concern about offending Christians last January when he allowed Muslims to hold a day of prayer on the Capitol grounds. As a Christian American "I am offended." If you agree copy/paste no matter what religion u r this country was built on freedom of religion!