U.S. Judge Rules National Day of Prayer Unconstitutional

Written by Warren Mass on April 17 2010.

National Day of PrayerJudge Barbara Crabb, of the U. S. District Court, Western District of Wisconsin, declared on April 15 that the U.S. law authorizing a National Day of Prayer is unconstitutional. Judge Crabb’s 66-page decision enjoined President Obama from issuing an executive order calling for the celebration of a National Day of Prayer.

The act was signed into law in 1952 by President Harry Truman and amended by Congress in 1988 to designate 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." (Emphasis added.)

The Christian Science Monitor reported, however, that the judge stayed her own injunction pending the resolution of any appeals.

“I understand that many may disagree with [my] conclusion and some may even view it as critical of prayer or those who pray. That is unfortunate,” Judge Crabb wrote. Crabb was appointed to the court in 1979 by President Jimmy Carter.

Obama administration spokesman Matt Lehrich said in an e-mail to The Associated Press that the ruling will not prevent the president from issuing a proclamation for the next prayer day, noting: "As he did last year, President Obama intends to recognize a National Day of Prayer."

The Monitor cited Judge Crabb’s opinion that the law establishing a National Day of Prayer cannot meet that test of whether the government’s action “serves a significant secular purpose and is not a call for religious action on the part of citizens.”

“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,” Crabb wrote, adding: “In this instance, the government has taken sides on a matter that must be left to individual conscience.”

Judge Crabb said her ruling is not a “judgment on the value of prayer or the millions of Americans who believe in its power.”

Jay Sekulow, chief counsel of the American CEnter for Law and Justice (ACLJ), called the decision flawed and expressed confidence that it will be overturned.

"It is unfortunate that this court failed to understand that a day set aside for prayer for the country represents a time-honored tradition that embraces the First Amendment, not violates it," said Sekulow.

The ACLJ filed a friend-of-the-court brief in Crabb's district court on behalf of itself and 31 members of the 111th Congress that states in part: "the historical evidence establishing a National Day of Prayer as deeply embedded in the tradition and history of this country is indisputable."

As with similar cases, such as the banning of prayer in our nation’s government schools,  Judge Crabb stated that the statute establishing the National Day of Prayer violates the First Amendment's establishment clause, which says, "Congress shall make no law respecting an establishment of religion." As such, this is but another case in which a federal court has grossly misinterpreted the language of the First Amendment, which begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....”

The obvious intent of the authors of that amendment, readily understood until modern times, was that the “establishment clause” of the First Amendment prohibits the establishment of a national religion by the Congress or the preference of one religion over another. Since all of the Founding Fathers had lived most of their lives as English citizens prior to U.S. independence, the clause was obviously intended to prevent an American equivalent of the Church of England, established as the official church of England and some of the colonies, during the colonial era.

In the 1947 decision of Everson v. Board of Education (in which the Supreme Court upheld a New Jersey statute funding student transportation to schools, whether government or church-operated) Justice Hugo Black stated, in  part:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

Black, however, did cite Jefferson’s oft-quoted — but much misunderstood — phrase about "a wall of separation between church and State" that has been used by many to advocate that government institutions should remain totally aloof from anything remotely spiritual, even if that spirituality has no connection with a particular church or creed. The famous quotation is from a letter Jefferson wrote in 1802 to the Baptists of Danbury, Connecticut.

Misinterpretation of the intent of Jefferson and our other Founders led to a series of Supreme Court rulings that have effectively banned prayer from any institution receiving government funds. These ruling included:

  • Abington Township v. Schempp (1963), which struck down a school district’s requirement that the Lord’s Prayer be recited in classrooms, and
  • Wallace v Jaffree (1985), which struck down an Alabama law under which students in public schools observed daily a period of silence for the purpose of private prayer.

Taken in its proper context, Jefferson’s letter to the Danbury Baptists did not advocate the prohibition of religious expression, but on the contrary, the prohibition of allowing government to prohibit individual freedom of such expression, by establishing a state religion. Jefferson wrote:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof thus building a wall of separation between church and State.

A proper understanding of Jefferson’s words reveals that the purpose of such a metaphoric wall was to protect the church from the state, not the state from the church.

However, so persistent was the misunderstanding of this phrase that Supreme Court Chief Justice William Rehnquist would write: “The metaphor of a wall of separation is bad history and worse law. It has made a positive chaos out of court rulings. It should be explicitly abandoned.”

The idea that the authors of our Constitution would have objected to having a National Day of Prayer is rendered ridiculous when we consider the following statements made by some of our Founders:

  • “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” — John Adams
  • "Do not let any one claim to be a true American if they ever attempt to remove religion from politics." — George Washington
  • “[Y]ou are to protect and support the free exercise of religion of the country, and the undisturbed enjoyment of the rights of conscience in religious matters, with your utmost influence and authority.” — George Washington to Benedict Arnold, September 14, 1775.
  • ”I therefore beg leave to move-that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the Clergy of this City be requested to officiate in that Service.” — Benjamin Franklin,  during the constitutional convention, July 28, 1787.

Warren MassWarren Mass is editor of the Bulletin of The John Birch Society.


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