Day of Prayer violates Establishment Clause: Stephen Rohde

This op-ed by FFRF member Stephen Rohde, an attorney, appeared May 6 in the Los Angeles Daily Journal and is reprinted with the permission of Daily Journal Corp.

In 1952, evangelist Billy Graham led a six-week religious campaign in Washington, D.C., holding events in the National Guard Armory and on the Capitol steps, in which he called for a national day of prayer. Claiming “our nation was founded upon God, religion and the church,” Graham envisioned “[w]hat a thrilling, glorious thing it would be to see the leaders of our country today kneeling before Almighty God in prayer.”

Promptly after Graham’s speech, a bill was introduced to establish a National Day of Prayer. In April 1952, Congress passed, and President Harry Truman signed, a law providing that “The President shall set aside and proclaim a suitable day each year, other than a Sunday, 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.”

In 1988, the Campus Crusade for Christ lobbied Congress to amend the law to specify a particular day each year when Americans would once again “humble themselves, and pray, and seek God’s face, and turn from [our] wicked ways so that God in heaven will hear and forgive our sins and heal our land.”

In May 1988, Congress approved, and President Ronald Reagan signed, an amendment that provided 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.”

Congress enacted the National Day of Prayer despite warnings from the founders that religion could easily divide, not unite, the country. When the Continental Congress met for its inaugural session in September 1774, a delegate proposed to begin with a prayer. But delegates John Jay and John Rutledge (two future Supreme Court chief justices) objected to the proposal because Congress was “so divided in religious Sentiments . . . that We could not join in the same Act of Worship.”

In practice, the worst fears of the Founders have been borne out. In 2008, a national Jewish organization complained that the National Day of Prayer has been “hijacked by Christian conservatives,” who are “excluding and dividing us on religious lines.” In Plano, Texas, two groups held “dueling prayer services” after fighting over the right to hold their events at the city council building. In Memphis, Tenn., local groups complained that the National Day of Prayer “mak[es] members of minority religions feel that unless they adhere to Christianity they are unpatriotic.” In Victorville, local residents complained that “Hindus, Buddhists, Muslims and Sikhs are being excluded” from the National Day of Prayer event at the town hall. An organizer responded, “this entire nation was founded on Christian faith. The reason we are a great county is because we’re Christian. In the Muslim countries, you can get shot if you’re Christian.”

In Springfield, Ill., organizers at the State Capitol declared that the event is “only about Jesus and Jesus the Savior alone.” In Salt Lake City, Mormons were excluded from National Day of Prayer events because their beliefs are not “in accordance with the evangelical principles [of] the task force,” including the “Holy Trinity” and that the bible is the “only written word of God.”

These divisive National Days of Prayer may soon be a thing of the past. On April 15, U.S. District Judge Barbara B. Crabb in Wisconsin, in a comprehensive 66-page opinion, declared the laws creating the National Day of Prayer unconstitutional — a violation of the First Amendment’s Establishment Clause. (Freedom From Religion Foundation v. Obama, 08-cv-588-bbc)

Judge Crabb began by observing that decisions under the Establishment Clause “are controversial and difficult in part because of the competing values at stake in each case. Religious freedom under the First Amendment contains two components: the right to practice one’s religion without undue interference under the free exercise clause and the right to be free from disfavor or disparagement on account of religion under the [E]stablishment [C]lause.”

The Supreme Court has noted that when the government takes sides on questions of religious belief, “a dangerous situation may be created, both for the favored and the disfavored groups.” The court has long held that “the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause” and that “government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution’s affairs.”

Judge Crabb pointed out that “religious expression by the government that is inspirational and comforting to a believer may seem exclusionary or even threatening to someone who does not share those beliefs.” As Justice Sandra Day O’Connor wrote in McCreary County, Kentucky v. ACLU of Kentucky, 545 U.S. 844, 883 (2005),

“[w]hen 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. In the marketplace of ideas, the government has vast resources and special status. Government religious expression therefore risks crowding out private observance and distorting the natural interplay between competing beliefs. Allowing government to be a potential mouthpiece for competing religious ideas risks the sort of division that might easily spill over into suppression of rival beliefs. Tying secular and religious authority together poses risks to both.”

There is no doubt that prayer is an inherently religious exercise. The statute itself defines prayer as a way to “turn to God.” In previous cases, the Supreme Court has held that a statute providing a “moment of silence or voluntary prayer” in Alabama schools was unconstitutional because it “convey[ed] a message of state endorsement and promotion of prayer” and “the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”

What about the national observan­ces of Christmas and Thanksgiving? Judge Crabb found that although these holidays have religious origins, their celebration by the government does not connote endorsement in the eyes of the reasonable observer because of the significant secular meaning the holidays now have. The Supreme Court has held that the “government may acknowledge Christmas as a cultural phenomenon, but under the First Amendment it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus.”

Defenders of the National Day of Prayer argue that its purpose and effect is simply to”acknowledge” the role of religion in American life, which is not constitutionally objectionable. But Judge Crabb found that the
“[E]stablishment [C]lause values would be significantly eroded if the government could promote any longstanding religious practice of the majority under the guise of ‘acknowledgment.’ ”

Any religious conduct by the government could be framed as mere “acknowledgment” of religion, including the public prayers and religious displays already declared unconstitutional. The Supreme Court has stated that the government crosses the line between acknowledgment and endorsement when it “manifest[s] [the] objective of subjecting individual lives to religious influence,” “insistently call[s] for religious action on the part of citizens” or “express[es] a purpose to urge citizens to act in prescribed ways as a personal response to divine authority.”

For Judge Crabb, this is “exactly what [the law] does by encouraging all citizens to pray every first Thursday in May. If the government were interested only in acknowledging the role of religion in America, it could have designated a ‘National Day of Religious Freedom’ rather than promote a particular religious practice.”
Judge Crabb concluded by acknowledging that some may view her decision “as a criticism of prayer or those who pray.” She called that “unfortunate” and explained that 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. Rather, it is part of the effort to ‘carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society.’“ The “same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy.”

Despite the fact that this thoughtful decision is based on sound reasoning and longstanding 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.”

Freedom From Religion Foundation