It's not every day that the president of the United States gets enjoined — prohibited by judicial order from a certain action — but it happened on April 15, 2010.
U.S. District Judge Barbara Crabb decided in favor of the Freedom From Religion Foundation in a ruling that the federal law designating a National Day of Prayer and requiring a National Day of Prayer proclamation by the president violates the establishment clause of the Constitution's First Amendment.
In her ruling, Judge Crabb wrote: "The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy."
The Foundation filed its groundbreaking suit in October 2008. Plaintiffs besides the Foundation are Anne Nicol Gaylor, Annie Laurie Gaylor, Dan Barker, Paul Gaylor, Phyllis Rose and Jill Dean, who are all Foundation officers or board members. Defendants are President Barack Obama and Robert Gibbs, his press secretary. Original defendants were President George Bush and Dana Perino, his press secretary at the time.
All presidents since 1952 have issued proclamations designating the National Day of Prayer each year. Since 1988, the National Day of Prayer has been held on the first Thursday in May. The president’s proclamations are released by the Office of the Press Secretary.
Judge Crabb enjoined Obama from enforcing the National Day of Prayer law, but stayed the injunction until the appeals process is completed. The law setting the first Thursday in May as a National Day of Prayer passed Congress in 1952 after an intensive campaign led by Rev. Billy Graham.
A Twitter from the White House went out Thursday afternoon soon after the decision was announced: "As he did last year, President Obama intends to recognize a National Day of Prayer." The Twitter links to the 2009 presidential NDP proclamation.
Foundation Co-President Annie Laurie Gaylor expressed surprise and disappointment at the White House's response to "tweet" over a constitutional issue of this magnitude: "President Obama is a constitutional scholar, and knows the issues at stake. He couldn't possibly have read the 66-page historic ruling by Judge Crabb at the time of this Tweet," Gaylor said.
In 1952, religious leaders like Graham lobbied Congress heavily to pass the law. Graham's culminating speech included this: "We have dropped our pilot, the Lord Jesus Christ, and are sailing blindly on without divine chart or compass, hoping somehow to find our desired haven. We have certain leaders who are rank materialists; they do not recognize God nor care for Him; they spend their time in one round of parties after another. The Capital City of our Nation can have a great spiritual awakening, thousands coming to Jesus Christ, but certain leaders have not lifted an eyebrow, nor raised a finger, nor showed the slightest bit of concern. Ladies and gentlemen, I warn you, if this state of affairs continues, the end of the course is national shipwreck and ruin."
Sen. Absalom Robertson of Virginia — Rev. Pat Robertson's father — introduced the bill in the Senate, stating that it was a measure against "the corrosive forces of communism which seek simultaneously to destroy our democratic way of life and the faith in an Almighty God on which it is based."
Signed into law by President Truman, the law said: "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, an amended statute was approved setting a specific day for national prayer. Vonette Bright, founder of the Campus Crusade for Christ and the National Day of Prayer Committee, lobbied Congress to amend the law because Bright "believed that we should have a day in this country where we cover this nation in prayer and the leaders." Singer Pat Boone, co-chair of the prayer committee, testified, and Sen. Strom Thurmond of South Carolina introduced the bill in the Senate, noting the floating date made it "difficult for religious groups." Sen. Jesse Helms sermonized on behalf of the bill that "God in heaven will hear and forgive our sins and heal our land."
As signed into law by President Reagan, the law said: "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."
The National Day of Prayer Task Force, created in 1989, offers a "draft" proclamation to the president and chooses a theme each year with supporting scripture from the bible.
Judge Crabb took pains in several passages of her 66-page decision to point out 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."
She rejected the Obama administration's argument that the NDP is a longstanding tradition: "No tradition existed in 1789 of Congress requiring an annual National Day of Prayer on a particular date. It was not until 1952 that Congress established a legislatively mandated National Day of Prayer; it was not until 1988 that Congress made the National Day of Prayer a fixed, annual event." She pointed out that presidents Thomas Jefferson, James Madison and Andrew Jackson did not believe presidents should issue prayer proclamations.
Major political divisions have been created by the NDP, such as complaints by a national Jewish group in 2008 that the event had been "hijacked by Christian conservatives," Judge Crabb noted.
In her ruling, Judge Crabb said that the NDP "serves no purpose but to encourage a religious exercise, making it difficult for a reasonable observer to see the statute as anything other than a religious endorsement." Judge Crabb also wrote: "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. . . . 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."
Judge Crabb also ruled that the law "does not have a secular purpose or effect" and does not "survive scrutiny under Lemon and the endorsement test. . . . The statute does not use prayer to further a secular purpose; it endorses prayer for its own sake."
Foundation Attorney Richard Bolton said the decision says the government shouldn't take sides on religious issues. "For those who think this decision means the sky is falling, it's not. Judge Crabb is simply saying 'Do these things privately if you want to, but do not expect the president to lend the credibility or prestige of the office to the effort.' "
Judge Crabb cited former U.S. Supreme Court Justice Sandra Day O'Connor's "concise" framing of the issue in another case: "Government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community."
Dan Barker, Foundation co-president, said: "It's nice to see that the judge agrees with us the government should be neutral about religion and should not be taking sides — which is an issue of fairness."
Annie Laurie Gaylor said she was "euphoric" over the decision. "It is such a profound violation of conscience for Congress to direct our president to tell all citizens to pray, and that they in fact must set aside an entire day for prayer once a year. We are so gratified and delighted that Judge Crabb in her solid decision rejected revisionist history and decided this case on the merits."
Gaylor said the victory was particularly sweet, because this case has been the most time-consuming and difficult of the Foundation's cases. "The 1952 law was predicated on bad history — the lie that our founders prayed at the Constitutional Convention — and defending our lawsuit involved a major debunking of bad history presented by the Obama administration."
EXCERPTS FROM THE RULING:
"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.”
"The Supreme Court has noted often that the establishment clause is the result of the lesson learned from history 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.
"To those whose beliefs comport with the message sent by the government, it is difficult to understand why anyone would object to the message.
"However, 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. This is not simply a matter of being “too sensitive” or wanting to suppress the religious expression of others. Rather, . . . it is a consequence of the unique danger that religious conduct by the government poses for creating 'in' groups and 'out' groups."
"A reasonable observer of the statute or a proclamation designating the National Day of Prayer would conclude that the federal government is encouraging her to pray."
"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. 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.')"
"[T]he 1988 amendment does not serve any purpose for the government or the country as a whole, but simply facilitates the religious activities of particular religious groups. Although those groups undoubtedly appreciate that assistance, they are not entitled to it. [T]he Establishment Clause prohibits precisely what occurred here: the government's lending its support to the
communication of a religious organization's religious message.”
"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."
"With or without a statute, private citizens are free to pray at any time. Private citizens are also free to join together to hold celebrations of their faith, including by proclaiming their own day of prayer."
"That is not an accommodation under Supreme Court precedent; it is taking sides on a matter of religious belief. Because supporters of the National Day of Prayer have no need for the machinery of the State to affirm their beliefs, the government's sponsorship of that day in § 119 is most reasonably understood as an official endorsement of religion and, in this instance, of theistic religion."
Read Judge Crabb's Ruling (pdf)
