The decision handed down last week by the U.S. District Court in Madison, Wisconsin, in which Judge Barbara Crabb ruled that the National Day of Prayer is an unconstitutional violation of the Establishment Clause, is a perfect example of the kind of judicial restraint and fealty to the text of the Constitution that the Republican Party claims to hold so dear. Which, of course, is why the outrage on the right over Judge Crabb’s ruling is so hugely amusing.
Here is the gist of the ruling, from the pdf:
Plaintiffs’ challenge to § 119 [the statute that establishes the National Day of Prayer] arises at the intersection of two different lines of Supreme Court jurisprudence. On one hand, the Court has held on many occasions that the government violates the establishment clause when it engages in conduct that a reasonable observer would view as an endorsement of a particular religious belief or practice, including prayer. On the other hand, the Court has held that some forms of “ceremonial deism,” such as legislative prayer, do not violate the establishment clause. …
Although there is tension among these cases, I do not believe they are irreconcilable;
they simply show that context is important when applying the establishment clause. In my view of the case law, government involvement in prayer may be consistent with the establishment clause when the government’s conduct serves a significant secular purpose and is not a “call for religious action on the part of citizens.” […]Unfortunately, § 119 cannot meet that test. 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. …
Judge Crabb used the so-called “Lemon test” to determine whether the National Day of Prayer violated the Establishment Clause. This test, which comes out of the 1971 case Lemon v. Kurtzman, is the one that courts usually employ to decide how the Establishment Clause applies to a particular set of facts.
Under Lemon, government action violates the establishment clause if (1) it has no secular purpose; (2) its primary effect advances or inhibits religion; or (3) it fosters an excessive entanglement with religion.”
Clearly, the statute that establishes the National Day of Prayer fails that test since its only purpose is to promote religious practice (i.e., prayer) — and in actual practice only Christian religious practice, and at that. only a very narrow segment of Christian religious belief. If you don’t believe that, read the transcript of the opinion — it’s replete with examples of non-Christian individuals and religious groups being barred from planning or participating in observances, and/or being required to affirm particular religious beliefs in order to participate.
Many of the events that require these religious tests are organized by the National Day of Prayer Task Force, a private organization that was founded in 1989 “with a mission to ‘communicate with every individual the need for personal repentance and prayer, mobilizing the Christian community to intercede for America and its leadership in the seven centers of power: Government, Military, Media, Business, Education, Church and Family.’ ”
Although private, the National Day of Prayer Task Force works closely and directly with the President to plan the official White House observances:
It offers “draft” proclamations for the President to consider and it chooses a theme each year with supporting scripture from the Bible. In 2001, the President incorporated the task force’s theme of “One Nation under God”; in 2008 he
adopted the task force’s theme of “Prayer! America’s Strength and Shield.” The chairperson for the task force has spoken at eight White House prayer services on the National Day of Prayer.The task force organizes between 30,000 and 40,000 prayer gatherings across the
country in conjunction with the National Day of Prayer. Events sponsored by the task force are “specifically limited to the Judeo-Christian heritage and those who share that conviction as expressed in the Lausanne Covenant,” which includes beliefs that the Bible is “the only written word of God, without error in all that it affirms” and that “there is only one Savior and only one gospel.” Coordinators, volunteers and speakers at task force events must share these views in order to participate.
Judge Crabb also make the point that not all Christians — and certainly not all religions in general — believe that prayer should take place under the aegis of government. Some people who are deeply devout in their religious beliefs actually feel that prayer is private and personal, and “may object to encouragements to pray in such a public manner.” And she quotes from 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.” …
For my money, though, the best line in the written opinion referred to the claim made by Robert Gibbs (and others), that the National Day of Prayer is intended only to acknowledge the importance of religion in Americans’ lives. Judge Crabb lobbed back this tart response: “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.”
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