The appeal of the Freedom From Religion Foundation’s newsmaking legal victory, in which a federal court declared the National Day of Prayer unconstitutional, is on a fast track.
FFRF filed its 51-page response brief on Sept. 30 before the 7th U.S. Circuit Court of Appeals. Several friend-of-the-court briefs are expected to be filed by mid-October. A decision is likely in the spring.
Federal Judge Barbara Crabb’s historic April 15 ruling declared the National Day of Prayer unconstitutional and enjoined the president from issuing a prayer proclamation, pending appeal.
Crabb wrote that the National Day of Prayer’s 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.”
She rejected the notion that the government prayer day is “ceremonial deism,” calling it “a straightforward endorsement of the concept of turning to God in prayer.”
Notes the FFRF brief: “The Presidential Proclamation is as much a summons to pray as the Adhan that calls Muslims to prayer five times a day — and more powerful, because it comes from the highest executive office.”
The brief recaps the religious history and purpose of the National Day of Prayer.
On April 17, 1952, following Rev. Billy Graham’s lobbying for an annual presidential prayer proclamation during his Christian crusade at the Capitol, Congress passed Public Law 82-324:
“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.”
Congress’ open religious motives included “instill[ing] faith in almighty God” and “reaffirming in a dramatic manner the deep religious conviction which has prevailed throughout the history of the United States.”
On May 5, 1988, following lobbying by Campus Crusade for Christ co-founder Vonette Bright — and other members of the National Prayer Committee who urged a fixed date to make their organizing around the date more successful — Congress passed Public Law 100-307:
“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.”
Pat Boone testified that a “definite date will allow millions of citizens . . . who have explicit faith in a prayer-hearing God to be informed about this significant date in our history.”
FFRF’s brief, submitted by litigation attorney Richard L. Bolton, notes: “The rationale for adoption of this unprecedented National Day of Prayer, compelling the executive power to beseech his constituents to pray in contradiction of the dictates of the Establishment Clause of the First Amendment, is based on a historic myth recited in the Senate record of the 1952 bill: That assertion that the nation’s founders prayed at the Constitutional Convention which adopted the U.S. Constitution. In fact, there was no prayer at the Constitutional Convention. That lack of religious ritual reflected the deliberate intent of the founders to invent a new and secular government which separated the emotion of theology from the reason of government. That revolutionary and visionary act by the founders made the United States the first nation in the world to adopt a godless Constitution, which invested sovereignty not in a deity, but in ‘We, the People’ and whose only references to religion in government are exclusionary.”
The brief argues that the presidential proclamations unconstitutionally involve government exhortation of citizens to pray. The brief highlights the involvement of the National Day of Prayer Task Force, a Christian evangelical group run by Shirley Dobson and housed at Focus on the Family headquarters in Colorado Springs, Colo. The task force is an offshoot of the National Prayer Committee. The task force uses the National Day of Prayer to mobilize prayer activities with governmental help. Presidential proclamations are integral to the tens of thousands of prayer rallies limited to evangelical Christians taking place around the nation. The prayer date is highly divisive, due to its exclusionary practices, and nonreligious citizens are particularly excluded by the National Day of Prayer.
“The plaintiffs are not obligated to meekly avert their eyes and cover their ears when the government broadcasts unconstitutional speech promoting religion,” the brief maintains. “The expectation that nonbelievers should merely ignore or avoid objectionable governmental speech does not prevent the offense. On the contrary, this compounds the offense by emphasizing that religious believers are favored, while nonbelievers are political outsiders.”
The federal government argues that the Supreme Court decision, Marsh v. Chambers, 1983, which approved legislative prayer under narrow circumstances (nonsectarian, not directed at citizens), is a “test,” which would find the National Day of Prayer constitutional.
The Foundation rejects the idea that Marsh is a test, or applies to the case. Marsh defended as “unambiguous and unbroken” a history of government prayer for 200 years.
Countered FFRF: “The National Day of Prayer has neither an ‘unambiguous’ nor ‘unbroken’ history of more than 200 years.”
In the Supreme Court’s Allegheny v. ACLU decision, the high court noted, “just because Marsh sustained the validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional. Legislative prayer does not urge citizens to engage in religious practices, and on that basis could well be distinguishable from an exhortation from government to the people that they engage in religious conduct.”
Marsh called legislative prayer “tolerable acknowledgment of beliefs widely held among the people of this country.” FFRF, in its brief, noted these “assumed beliefs” are not as “widely held” today.
Pointing out that less than 70% of Americans believe in the traditional concept of a personal god, and that 15% of Americans — the fastest-growing segment of the population, by religious identification, are nonreligious, the Foundation quoted retired Justice Sandra Day O’Connor: “We do not count heads before enforcing the Establishment Clause.” (McCreary v. ACLU of Kentucky)
Although the Obama administration repeatedly insists there have been an “unbroken” line of prayer proclamations dating to the nation’s inception, the Foundation points not only to history, but to President Ronald Reagan’s 1983 proclamation, in which he noted that a day for prayer was forgotten for “almost half a century, and then again for nearly a century until it was revived as an annual observance by Congress in 1952.”
The Foundation put into evidence the refusal of President Thomas Jefferson to issue any days of prayer, since “civil powers alone have been given to the President of the United States, and no authority to direct the religious exercises of his constituents.”
At the end of his life, James Madison, principal architect of the Constitution, delineated five reasons why he opposed governmental days of prayer. President Andrew Jackson also refused to issue them. And John Adams attributed being “turned out of office” as president because of his “unpopular” call for a national day of fasting. He wrote: “Nothing is more dreaded than a national government meddling with religion.”
The Foundation countered a much-quoted line by former Justice William O. Douglas in Zorach v. Clauson, in which he said, “We are a religious people whose institutions presuppose a Supreme Being.” In a later case, Douglas greatly clarified his remark and sided with support of a strict separation: “If a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government. This necessarily means, first, that the dogma, creed, scruples or practices of no religious group or sect are to be preferred over those of any others.”
The brief distinguished the National Day of Prayer from Thanskgiving and Memorial Day because they are “marked by secular purposes” and “not occasion for organized religious proselytizing.”
The administration’s attempt to color the prayer day as merely “acknowledging” prayer does not wash, FFRF wrote: “Using the defendants’ loose reasoning, a Congressional call to partake of Holy Communion would qualify as an ‘acknowledgment of the history of Catholicism.’ ”
Finally, FFRF argued, “The proof is in the pudding. The proclamation demanded by Congress is used as a rallying tool by religious groups to blatantly proselytize and promote religion for its own sake.”
