By Frank James
Because her legal opinion is likely to be a subject of discussion for a while, it's well worth taking some time to read U.S. District Judge Barbara Crabb's controversial decision Thursday that holds that it is unconstitutional for the president to proclaim, under Congress' direction, a National Day of Prayer.
Her essential point: the Constitution's Establishment Clause makes it illegal for the government to urge citizens to pray, regardless of how they pray, since the act of prayer is a religious practice and government is barred from encouraging or discouraging such behavior. Thus Section 119 of the U.S. Code is unconstitutional, she ruled:
In my view of the case law, government involvement in prayer may be consistent with the establishment clause when the government's conduct serves a significant secular purpose and is not a "call for religious action on the part of citizens." McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 877 (2005). Unfortunately, (section) 119 cannot meet that test. 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. "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." McCreary County, 545 U.S. at 883 (O'Connor, J., concurring). Accordingly, I conclude that (section) 119 violates the establishment clause.
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.
Her decision also provides anyone who's interested a useful history of how the National Day of Prayer came to be. A member of Congress with the good, appropriately Old Testament name of Absalom Robertson introduced the legislation in 1952, explaining in part a national day of prayer would be a good bulwark against those godless communists.
Crabb also kicks the legs out from under some of the prayer day supporters' arguments in ways that may be hard for them to counter.
For instance, she writes:
One might argue that the National Day of Prayer does not violate the establishment clause because it does not endorse any one religion. Unfortunately, that does not cure the problem. Although adherents of many religions "turn to God in prayer," not all of them do.
McCreary, 545 U.S. at 879-81 (rejecting view that establishment clause allows government to prefer monotheistic faiths to other religions). Further, the statute seems to contemplate a specifically Christian form of prayer with its reference to "churches" but no other places of worship and the limitation in the 1952 version of the statute that the National Day of Prayer may not be on a Sunday. Even some who believe in the form of prayer contemplated by the statute may object to encouragements to pray in such a public manner. E.g., Matthew 6:5 ("You, however, when you pray, go into your private room and, after shutting your door, pray to your Father who is in secret; then your Father who looks on in secret will repay you.").
Prayer day supporters are using Crabb's opinion as a rallying point and vow to take the case all the way to the Supreme Court. For instance, Allan Sears, president of the Alliance Defense Fund, on a video on the NPD's official website, urges those outraged by the judge's decision to send up prayers and send in money.
"We must appeal this case. We must see victory on the appeal and if necessary this case must go to the U.S. Supreme Court and we must see the court uphold America's history and heritage."
"To do this, we're going to need your help. First of all, we need your prayers. We need your participation. And we need your contributions."
Worth noting is how Sears seems to confirm Crabb's suspicion that the National Day of Prayer is less ecumenical than many of its supporters claim.
"Remember these things take a long time. And the other side depends on Christians failing to persevere."
Something else worth noting: as Sears mentions, the decision has appeared to revive the false Internet rumor that President Barack Obama has canceled National Prayer Day, an untruth that first appeared last year.
Obama did last year cancel a White House service that took place on NPD, but not the day itself. May 6 is when it will be observed.