Judge Declares National Day of Prayer Unconstitutional

A year-old, incorrect story about Barack Obama "canceling" the National Day of Prayer made the rounds today. Meanwhile, in reality, Obama's Justice Department was defending the Day of Prayer to a U.S. District Court that just ruled it unconstitutional.

U.S. District Judge Barbara Crabb declared section 119 of US Code 36—establishing an annual National Day of Prayer—to be unconstitutional. Her decision is available here. We certainly agree with everything she writes, and we're sure there will be no major controversy over any of this.

The Freedom from Religion foundation brought the suit, claiming that the statute calling on the president to proclaim a National Day of Prayer each year is a violation of the Establishment Clause. Crabb found that the plaintiffs had the standing to challenge section 119 itself, but not presidential proclamations generally.

In Crabb's reading of the case law, the government can encourage prayer when it has "a significant secular purpose," but the National Day of Prayer has no point beyond encouraging everyone to pray.

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. "When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual's decision about whether and how to worship." McCreary County, 545 U.S. at 883 (O'Connor, J., concurring). Accordingly, I conclude that § 119 violates the establishment clause.

The National Day of Prayer came out of the anti-Communist hysteria of the early 1950s, after Billy Graham popularized the idea. In 1988, the religious right lobbied for the bill to be amended to say that the day fell on the first Thursday in May each year.

Crabb, who was appointed by Jimmy Carter and is retiring, also has a great idea for a day to replace Prayer Day:

I understand that many may disagree with that conclusion and some may even view it as a criticism of prayer or those who pray. That is unfortunate. A determination that the government may not endorse a religious message is not a determination that the message itself is harmful, unimportant or undeserving of dissemination. Rather, it is part of the effort to 'carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society.' McCreary County, 545 U.S. at 882 (O'Connor, J., concurring). The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy.

National Day of Blasphemy would be so cool. Make it happen, Secret Muslim President!

(Crabb is careful to note that no law ever prevents a citizen from praying, the decision does not stop religious groups from organizing their own days of prayer, and the President himself is free to "discuss his own views on prayer," but this will soon be called an "activist judge" "banning prayer" etc. etc. Ugh.)