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National day of prayer w/ caution
JUST LAW AND RELIGION
By Michael Kessler
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.
By Michael Kessler |
April 23, 2010; 3:06 PM ET
| Category:
Just Law and Religion
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Posted by: FarnazMansouri | April 25, 2010 9:42 PM
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Michael Kessler writes,
"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."
Mr. Kessler writes this, I guess, because he is part of the comfortable majority that prays, or pretends to pray, or professes belief in the "power of prayer"? What about the rest of us, who don't see any rational or empirical basis for belief in imaginary beings and forces, and who would rather label our expressions of solemn social solidarity with some other word?
So it's fine, according to Mr. Kessler, for the government to encourage citizens to pray, and to pray or meditate with specific reference to "God," but it's not OK to suggest "any particular way"? Why should I even concede the first point, that government should encourage prayer at all? Just because it has a long tradition? Slavery, and Jim Crow segregation, and the denial of voting rights to women, and compulsory Bible reading in public schools, all had a long tradition in the U.S.
I've read Judge Crabb's decision, and I've read Marsh v. Chambers, and Hein, and Flast v. Cohen, and the 9th Circuit's recent opinion in Newdow, and the 7th Circuit's 2007 opinion in Hinrichs v. Bosma, which reversed a District Court victory for the plaintiffs on the grounds that the plaintiffs lacked standing. In this benighted, religion-soaked country, it will always be easy for appellate judges to take the cowardly way out, to refuse to acknowledge that the Emperor is naked, and to throw secularist or atheist plaintiffs out of court because they lack "standing." I guess that is a more palatable course than for federal officials -- even judges who know better --- to acknowledge what should be obvious to a bright sixth-grader: A federal law enacted on the basis of overtly religious and sectarian motives, that mandates an annual proclamation to encourage Americans to pray, is an unconstitutional endorsement of religion.
Posted by: JeffD1 | April 25, 2010 5:58 PM
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The rich man in the story of Lazarus must have hated a Day of Prayer. I think there is no time in his life now that he is not praying. Praying to pull him out of hell.
The idiots could be living the rest of their lives in eternity wailing and praying. Endless Days of Prayer for those who hate just a day of prayer.
Posted by: spidermean2 | April 25, 2010 12:02 PM
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FDR's D-Day of prayer
http://www.youtube.com/watch?v=IUy1ejRq9RE
WW3 is coming and if you happen to see nukes coming down at you, don't pray.
Reserve it in the Day of Judgment.
Posted by: spidermean2 | April 25, 2010 11:55 AM
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http://www.ocregister.com/news/ordered-245722-abuse-oregon.html
"A jury in Oregon ordered the Boy Scouts of America to pay $18.5 million to a former Scout who suffered sexual abuse as a child at the hands of his troop leader — the largest such award levied against the organization, reports The Oregonian.
Attorneys for 38-year-old Kerry Lewis said the verdict exposed the organization’s “dark history with pedophiles and its unwillingness to come to terms with the problem.” They waved “perversion files“ around the courtroom – secret files kept by the Scouts documenting claims of sexual abuse by troop leaders and volunteers over a 70 year-period."
Obviously ordination in any religion is not assurance of good behavior !!!!!
Neither is coronation!!! e.g. Henry VIII, King David.
Neither is marriage as 50% of those men convicted of pedophilia are married.
Neither is being elected president of the USA!! e.g. Billy "I did not have sex with that girl" Clinton, John "Marilyn Monroe" Kennedy"
Neither is possessing super athletic skill!!! e.g. Tiger "I am so sorry for getting caught" Woods
Neither is being a Boy Scout leader, an atheist or a pagan since pedophilia is present in all walks of life
Posted by: YEAL9 | April 25, 2010 11:23 AM
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America recognizes a day of Thanksgiving, which implies that all Americans should be thankful and that if you are not thankful then you are not a good American. Non-establishment read the way it is interpreted above means no government establishment of moral value... because to recognize a widely held moral value establishes it as a state sponsored religion.
America recognizes a day for Presidents, for Martin Luther King, Jr., for Christopher Columbus, for Veterans, for those killed in war, for Labor (whatever that is), and for the New Year. These many holidays don't promote or establish a particular religion. They supplant the religion of the people with the religion of the state. If government establishes moral value to the people through holidays, then all holidays violate the establishment clause.
Religion has been around a far lot longer than any government, and the most popular form of government on earth has always been theocracy. Even today, 90 percent of everyone alive espouses a religious faith. Religion is natural to a human as sex.
Folks wrongly contort freedom of religion to mean no religion in the lives of Americans. That doesn't cause people to become less human or less religious. It simply causes them supplant the government's values and its leaders in place of traditional religious values and symbols.
New Year's Day (Jan. 1)violates the establishment clause because it is valued by the government, while the Feast of the Epiphany (Jan. 6) is not.
Posted by: blasmaic | April 25, 2010 10:31 AM
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Why should our goverment push any religion or religion actions of any sort? We have a nation under GOD but of no religion what so ever. You have the right to believe in what ever relegion you want just so that you do not force it on another. Freedom!
Posted by: usapdx | April 25, 2010 10:31 AM
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Meanwhile,
BUIZINGEN, Belgium (AP)-- A retired priest said Saturday that he told church authorities years ago about allegations that Belgium's longest-serving bishop had abused a boy but he was stonewalled until the bishop was forced to resign.
Retired priest Rik Deville told The Associated Press that he transmitted the allegations to then-Archbishop Godfried Danneels between 15 and 17 years ago after learning of them from a confidant of the victim's family.
Danneels said he had no recollections of Deville's allegations at the time.
Roger Vangheluwe, the bishop of the Belgian city of Bruges, 73, resigned Friday and expressed sorrow for having sexually abused the boy.
Posted by: areyousaying | April 25, 2010 9:33 AM
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The comments to this entry are closed.
There is an establishment clause in the Constitution. This suggests not only that there should be no National Prayer Day, but that the topic should not come up.
OTher violations of the Establishment Clause include religious organizations lobbying Congress and actually legislating without portfolio and tax exempt status for religious institutions.
This is particularly egregious given in light of the current economic situation, and the largest group currently on the dole are the Protestants. Time to get off and start paying your own way, and that goes for all religious institutions currently designated nonprofit.
Conscience clauses should be eliminated immediately. Those hospitals unwilling to comply should be closed or taken over by the state. Uncooperative physicians and pharmacists should be given the names of theocracies in which they might set up shop.
As well, there should be an elimination of "waivers" for those Protestant institutions currently hiring only those who adhere to their sects. Mr. Kessler, I'd like to hear your views on this issue.
The RCC is illegally enjoying the statuses of (1) foreign nation (2) tax exempt religious institution and (3) unregistered foreign lobbyist. The ending of this bizarre trio of privilege is long, long overdue.