National day of prayer confusion

The idea behind the Day of Prayer is simple. Consider President Reagan's proclamation in 1983:

Revived as an annual observance by Congress in 1952, the National Day of Prayer has become a great unifying force for our citizens who come from all the great religions of the world. Prayer unites people. This common expression of reverence heals and brings us together as a Nation and we pray it may one day bring renewed respect for God to all the peoples of the world.

Note the very liberal recognition of people of many faiths--the proclamation doesn't distinguish between or privilege Christians, Muslims, Jews, Hindus, and Buddhists (even if some may not fully correlate their beliefs in terms of "prayer" to "a God"). Note the non-sectarian nature of the proclamation--The Day of Prayer is supposed to be a big tent that most religious observers can fit under (of course, not so easily for those citizens who don't observe a religious practice or belief--more on that later). That's the good natured intent, at least: unity through voluntary but coordinated reflective observance in spite of doctrinal differences and a wide range of beliefs and expressions.

There's anything but unity this year. The deep fissures of opinion around the role of religion in our society have come into sharp focus as the official day has approached.

At the trite level, the suspicions by some citizens about President Obama's "leftist radicalism," "secularist humanism," and his status as a "sleeper-agent Muslim" are clearly behind some of the rampant internet rumors. When it was announced last year that President Obama would not hold an official White House gathering, as only President George W. Bush had done in recent history (President Reagan appears to have hosted only one event, in the Rose Garden, in 1982--here is the speech), many interpreted Obama's choice to mean that the Day of Prayer was cancelled. That rumor re-emerged this year when I saw a few Facebook status updates over the past few days with this statement:

President Obama has decided that there will no longer be a "National Day of Prayer" held in May. He doesn't want to offend anybody. Where was his concern about offending Christians last January when he allowed the Muslims to hold a day of prayer on the capitol grounds. As a Christian American "I am offended." if you agree... copy and paste no matter what religion you are, this country was built on Freedom!!

How unfortunate, and how patently false. To sort through this thicket of confusion, first some facts.

The National Day of Prayer was created by an act of Congress in 1952. President Truman signed the law in the midst of the rising threat of communism; Senator A. Robertson introduced the bill as one way to stymie "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." In 1988, Congress modified the statute, 36 U.S.C. § 119, to fix the date of observance:

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.

That's all the bill says. All Presidents since have issued proclamations and some have publicly marked the occasion in various ways.

Part of the confusion arises from the various entities who plan the events of the Day of Prayer. The National Day of Prayer Task Force, the visible and vocal public face of much of the organizing efforts, is a non-profit organization, currently headed by Shirley Dobson (wife of Focus on the Family's James Dobson). The Task Force grew out of a private committee, the National Prayer Committee, which was an organizing force for the observances in the 1970s and 1980s. The Task Force is a sectarian group:

Our Task Force is a privately funded organization whose purpose is to encourage participation on the National Day of Prayer. It exists to communicate with every individual the need for personal repentance and prayer, to create appropriate materials, and to mobilize the Christian community to intercede for America's leaders and its families.

Part of the tension over the event in the past is that the Task Force has been the most visible organization in public ceremonies (featured prominently in George W. Bush's East Room National Day of Prayer observances). This has led numerous groups to feel excluded from their overtly Christian theme for the observances (although they purport to observe a more inclusive vision of "Judeo-Christian" values).

It is understandable to me that President Obama would be uncomfortable with an observance so closely aligned and controlled by a task force of sectarian Evangelical Christians--some in that group are aligned with vocal critics who deem him to be somewhere between an unfaithful humanist and a forerunner of the anti-Christ.

But President Obama didn't attempt to unilaterally declare that there would be no Day of Prayer, as the rumors assert. Nor could he--the separation of powers between coordinate branches means that no President can simply declare void an act of Congress (only the Judicial branch can void a statute because it violates a Constitutional requirement!)

Nor did Obama "allow" the Muslim gathering on the National Mall, as the Facebook rumor asserts, because he somehow prefers Muslims over the majority of citizens who are Christians. That event was a non-sanctioned gathering of citizens, as I previously outlined:

a group of citizens went through the proper channels to get the necessary permits to hold a gathering on land the National Park Service has set aside as a public forum. As such, it's open to everyone who agrees to abide by rules necessary to ensure the public safety. There can be no viewpoint discrimination in deciding between which groups gain access.

Sadly, these falsehoods are only the foreshadowing of the storm that just got unleashed. On Thursday, a Federal District judge in Wisconsin ruled that the Congressional statute underlying the National Day of Prayer is unconstitutional.

The main problem Judge Crabb found with the law is that it "endorses" a particular view of religion:

[The] legislative history [of the law] supports the view that the purpose of the National Day of Prayer was to encourage all citizens to engage in prayer, and in particular the Judeo-Christian view of prayer. One might argue that members of Congress voiced secular purposes: to protect against "the corrosive forces of communism" and promote peace. That is true, but the references to these purposes do nothing to diminish the message of endorsement.

The Supreme Court in Marsh v. Chambers, 463 U.S. 783 (1983) has held that some references to religion that are historically based and relatively muted (so-called "ceremonial deism") can be acceptable under the Establishment Clause: "In light of the history, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."

In other places, like County of Allegheny v. ACLU, 492 U.S. 573 (1989), the Court has used an "endorsement" test to uncover whether official pronouncement or official action by the government has the effect to endorse a particular religious precept and thereby exclude some citizens from participation: "The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from 'making adherence to a religion relevant in any way to a person's standing in the political community.'"

In this instance, Judge Crabb found that the law creating the National Day of Prayer violates the Establishment Clause. The law:

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.

There's a lot to untangle in this opinion, a task I'll turn to in my next column. A few preliminaries:

1) Mark my words: this will be overruled on appeal, and if it goes up to the Supreme Court, a fair number of justices are on record vociferously objecting to the endorsement test. The current makeup of the Court will not let this ruling stand.

2) I'm going to bet that this ruling will be blamed on President Obama. That will happen in spite of the fact that President Obama was the named defendant and Justice Department attorneys defended the President by asserting that the National Day of Prayer legislation was constitutional!

3) There are good reasons--based on Court precedent--that will lead an appellate court to overturn this ruling.

4) I will assert overturning the ruling should happen, even though I think religious freedom would be better protected if no President acted like the Rector-in-Chief leading us all in prayer.