Federal trial judge Barbara Crabb handed down a major decision this week that found the National Day of Prayer to be unconstitutional.

Judge Crabb found that a National Day of Prayer violates the establishment clause as an endorsement of religion. What is different in her analysis is the grouping of religions generally as opposed to the endorsement of a particular religion.

Her 66-page opinion is well-written and compelling at points, but it is likely to be overturned. Courts have generally found nondominational traditions like the opening prayer before Congress to be constitutional. The National Day of Prayer has been recognized since 1952.

Judge Crabb foresees the controversy that would be triggered by her ruling:

“I understand that many may disagree with that conclusion and some may even view it as a criticism of prayer or those who pray,” Crabb said in her opinion. “That is unfortunate. A determination that the government may not endorse a religious message is not a determination that the message itself is harmful, unimportant or undeserving of dissemination.”

The key to the appellate review will be the nondominational character of the day. Judge Cragg wrote:

“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. … 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.”

The problem with this analysis is that all of those examples are endorsements of a particular religious faith with the possible exception of the sweat lodge.

Judge Crabb’s decision is principled and bold, but the Supreme Court has shown little interest in the claim that the First Amendment protects both the free exercise and freedom from religion. No one less than liberal icon William Brennan dismissed challenges to religious references in past challenges:

..I would suggest that such practices as the designation of “In God We Trust” as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow’s apt phrase, as a form a “ceremonial deism,” protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content.

This theme was picked up by former Justice Sandra Day O’Connor in Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004):

“There are no de minimis violations of the Constitution – no constitutional harms so slight that the courts are obliged to ignore them. Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as The Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.”

The Seventh Circuit has also followed this line of analysis. For example, in Aronow v. United States, 432 F.2d 242 (9th Cir. 1970), the Court upheld the constitutionality of “In God We Trust.” The Court ruled that “It is quite obvious that the national motto and the slogan on coinage and currency ‘In God We Trust’ has nothing whatsoever to do with the establishment of religion. Its use is of patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.”

Of course, this is more than a reference on a dollar bill. It is a direct endorsement of a religious act, which is the distinction drawn by the Court. This will make for an interesting appellate review.

Judge Crabb was appointed by President Jimmy Carter in 1979 and took senior status in 2009.

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