National Day of Prayer w/ Caution

By: Michael Kessler

April 24, 2010

Advocates of religious freedom should be skeptical of Judge Crabb's ruling that the National Day of Prayer is unconstitutional. If you are rightfully concerned about preventing "establishments of religion," attacking this particular statute was not, in my estimation, the one to worry about. That said, if you're religious and want prayer recognized nationally, having the government do it is a really bad idea.

Last week I laid out the background of the National Day of Prayer. Now I want to decipher the relatively straightforward ruling of Judge Crabb in Freedom From Religion Foundation, Inc. v. Obama, (WD WI, April 15, 2010).

The main doctrinal move Judge Crabb makes is to subject the National Day of Prayer statute enacted by Congress, 36 USC Sec. 119, to the "endorsement test" following Lemon v. Kurtzman, 403 U.S. 602 (1971).

The endorsement test arises from two prongs of the three-pronged Lemon test. Judge Crabb interprets the Court's doctrine to mean that "Lemon's inquiry as to the purpose and effect of a statute requires courts to examine whether government's purpose is to endorse religion and whether the statute actually conveys a message of endorsement." Thus, Crabb proceeds to investigate whether the purpose of the legislation is primarily secular or is intended to promote and endorse a religion. Likewise, Judge Crabb investigates whether the effect of the legislation actually implies that the government favors a particular religious message.

Judge Crabb begins with the "effects" test as a way to judge "whether a 'reasonable observer' would view the government's conduct as endorsing religion." She holds that there is indeed, endorsement: "the very nature of having a statute involving a 'national day' in recognition of a particular act connotes endorsement and encouragement." Such governmental calls to prayer have been ruled unconstitutional before:

In Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000), the Court was even more on point: "the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer." These statements, found in the majority opinions of the Court, seem to leave little room to argue that an official day of prayer sponsored by the federal government can survive a challenge under the establishment clause.

When analyzing the "purpose," the legislation appears to be on even shakier ground. Judge Crabb asserted that this "legislative history 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." Indeed, many individual legislators spoke of the legislation as a way to promote spiritual renewal. Take, for example, Sen. Jesse Helms:

America must return to the spiritual source of her greatness and reclaim her religious heritage. Our prayer should be that—like the Old Testament nation of Israel—Americans would once again 'humble themselves, and pray, and seek God's face, and turn from [our] wicked ways' so that God in heaven will hear and forgive our sins and heal our land.

The concern, rightly so, that the Court has seen with governmental action that tries to appeal to and promote sectarian doctrines is that they create outsiders and insiders: "A fair inference that may be drawn from these statements is that 'Americans' pray; if you do not believe in the power of prayer, you are not a true American. Identifying good citizenship with a particular religious belief is precisely the type of message prohibited by the establishment clause."

But this step reveals one problem with appealing to legislative purpose as somehow disposing of the issue. Sure Jesse Helms intended for the National Day of Prayer to be a united appeal to God as he understood God to be—Christian. However, the law doesn't require this, as it was worded. The law is rather banal, indeed it is doctrinally empty, bearing no resemblance to Senator Helms' more sectarian interests.

Moreover, the statute requires only one thing: the President to issue a proclamation. Importantly, there is no other specification of belief, practice, or requirement on citizen or government agency.

This suggests that the purpose test is problematic, but has even more profound implications for the "effects" test. Recognizing a day of prayer and meditation, acts significant for a substantial majority of citizens, is all the statute sets out. There is no attempt in the legislation to mandate any actual practice or belief. The law is so abstract as to be meaningless. What is involved in "prayer and meditation?" Directed to what entity? Appealing for what? The law doesn't include the legislative history that contextualizes the meaning. If the law had incorporated Senator Helms' vision, or any other, then it would be facially unconstitutional, because it would then actually have endorsed a particular belief, rather than a mere practice at the most abstract level.

As such, the law should have been analyzed according to the standard set out in Marsh v. Chambers, 463 U.S. 783 (1983), a case about the constitutional legitimacy of prayer at the opening of legislative sessions (note: it's okay). The Marsh standard allows for so-called ceremonial deism. As the Court wrote: "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 . . . simply a tolerable acknowledgment of beliefs widely held among the people of this country."

Judge Crabb disagrees—wrongly—holding that under Marsh, the key question, following Justice O'Connor's concurrence in Lynch v. Donnelly, 465 U.S. 668 (1984), is whether those "government acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society." Thus Judge Crabb thinks that at root of Marsh is another type of Lemon-ized secular purpose test.

Surely, however, that's not the point of Marsh. The acts of reverence the Court spoke of as permissible are those that are firmly rooted in longstanding practice. As Judge Crabb detailed, past Presidents treated Day of Prayer proclamations in different ways, but they are part of the longstanding tradition and, most importantly, operate at a sufficient degree of "deistic" abstraction that they cannot be identified with any particular creed.

Caution, however, should be taken. While I assert that the Marsh standard would probably allow the National Day of Prayer, that very fact suggests that religious believers should hesitate to want the government too involved in doctrinal specifics. I really do not want any government agent suggesting any particular way that prayer should be conducted, to whom, are about any specific matter. Having an official day proclaimed is acceptable. Having the government conduct the day of prayer with official pomp and circumstance runs significant risks of trudging all over religious freedoms.

This is why Obama's choice to distance himself from the overly sectarian National Day of Prayer Task Force was a very wise move. They are free to engage in robust activities and I applaud some of their efforts. To the extent that they attempt to run the National Day of Prayer and act as the official sponsor, then they very much confuse the proper line between free religious practice and government establishment.

As such, President Obama was right to shield himself from appearing to be Rector-in-Chief and pray on his own as he says he does every day. We the people—religious or otherwise—shouldn't want the Executive leading us in prayer.

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