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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What religion is being established by a day of prayer?
A really short video on Christianity:
[youtube=http://www.youtube.com/watch?v=n16PpvdpMXo&hl=en_US&fs=1&]
Gyges–
“Can anyone tell me if there’s a National Day of Divination in our future?”
I’ll check with Pat Robertson and get back to you. 🙂
[youtube=http://www.youtube.com/watch?v=7irKcPBa7ic&hl=en_US&fs=1&]
Can anyone tell me if there’s a National Day of Divination in our future?
“In God we trust” and “National Day of Prayer” are endorsements of monotheistic religions with a tradition of personal prayer (i.e. the Abrahamic religions).
It excludes religions which don’t follow this mold (e.g. Hinduism and Buddhism) and Atheism/Agnosticism/Irreligiosity.
It is different from an encouragement of “citizens to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic” only in the _scope_ of exclusion, not in its segregative nature.
“How can what is prohibited in the specific be permitted in aggregate?” – mespo
I’m going to hazard that the answer is either a composition fallacy, just plain stupidity and/or an inability to understand the plain language of the Establishment Clause. If none of those are correct, I’ll withdraw my petition to change my name to “Captain Obvious”.
“Thats funny how you worded that because Sharia Law is coming.”
BDaman, I have to guess that by Sharia Law, you mean extreme right-wing fundamentalist Christian interpretations of so-called Biblical law. The US has about as much chance of adopting actual (or any version of) Sharia Law, as, well, I can’t think of anything more ridiculous.
On the other hand, extremist Christians see it as their duty to enact their “god-given” purpose to impose their views and interpretations on the rest of us.
This is the nose of the camel under the tent, and it won’t stop until they have turned this country into the theocracy they think it should be.
Thats funny how you worded that because Sharia Law is coming.
Paul–
Sharlet’s book was very interesting. The C-Street “Family” isn’t just looking to turn this country into a theocracy–its tentacles reach around the world.
I’m in agreement with you about “scrapping” the whole thing.
Given that the National Day of Prayer has as its origin, the infamous C-Street Family (see Jeff Sharlet’s,”The Family”), that is enough reason to scrap this whole thing.
This is the nose of the camel under the tent, and it won’t stop until they have turned this country into the theocracy they think it should be.
If an incoming president is REQUIRED
Understood, and there is no requirement for that.
If the president of the United States is an atheist is he required to hold a National Day of Prayer? and as citizens of the United States, on that day, are we required to pray seeing how it’s national.
This is beyond belief…..
Bdaman,
“Would you agree that placing your hand on the bible being sworn in as president would also be an endorsement of religion or Christianity, specifically.”
If an incoming president is REQUIRED to take his/her oath on a Bible that includes the New Testament that would be endorsing Christianity.
Is it freedom of or freedom from religion. What is, is ?
The biggest question for me is, How does a National Day of Prayer effect me personally if there is or isn’t one.
For me, it doesn’t. How bout you?
Elaine I would agree that it does endorse it.
Would you agree that placing your hand on the bible being sworn in as president would also be an endorsement of religion or Christianity, specifically.
But doesn’t holding a National Day of Prayer endorse religion?
I think it works from the top down. One must look where it starts.
Although there is no requirement for a president elect to place his hand on a bible while being sworn in all but two have done it. Start there if you want to remove prayer from government.
Simply because the Congress acted in a knee jerk manner in the 1950’s (National Prayer Day, insertion of “under God” in the Pledge) in a purely political effort to distinquish the US from the dreaded “godless” Soviets does not make these things Constitutional.
To my mind it takes some pretty twisted logic and painful rationalization for the Seventh Court to state “It is quite obvious… ‘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.”
It’s pretty obvious these phrases are deliberate attempts to instill and establish a religious character to our secular nation and reflect NOTHING of a patriotic nature.
Why does someone want to insist on a National Day of Prayer anyway, except to further establish religion as part of our democracy? Othrwise… people can just as easily have a non-governmentally recognized day of prayer. Um, isn’t that called Sunday or somesuch?
I am fairly sure that “be nice to lawyers day” earlier this week is not a government recognized thing, but it was still celebrated by those who cared. Those who didn’t still made all the same lawyer jokes and whatever.
It seems to be the intent in establishing the day as a governmentally-recognized day is as highly relevant as the effect it will have.
For that matter, how does the fact that Christmas is a federally recognized holiday play into all of this?
How can what is prohibited in the specific be permitted in aggregate?