National Day of Prayer Declared Unconstitutional

By Howard M. Friedman

In an important decision yesterday, a Wisconsin federal district court held that the federal statute which designates the first Thursday in May as a National Day of Prayer violates the Establishment Clause. In Freedom From Religion Foundation, Inc. v. Obama, (WD WI, April 15, 2010), the court, in a 66-page opinion, concluded that 36 USC Sec. 119 goes beyond mere acknowledgement of religion. It endorses and encourages citizens to engage in prayer. Examining the legislative history of the law, the court said:


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. 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. If anything, they contribute to a sense of disparagement by associating communism with people who do not pray. 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.

Conceding that much of the controversy had resulted from activities of the private National Day of Prayer Task Force, the court said that "government officials, including former Presidents, have sometimes aligned themselves so closely with those exclusionary groups that it becomes difficult to tell the difference between the government's message and that of the private group."

The court concluded with this explanation of its holding:
Although the law does not always point in the same direction on matters related to the establishment clause, my review of that law requires a conclusion that 36 U.S.C. §119 is unconstitutional.

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." .... The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy.

It is important to clarify what this decision does not prohibit. Of course, "[n]o law prevents a [citizen] who is so inclined from praying" at any time.... And religious groups remain free to "organize a privately sponsored [prayer event] if they desire the company of likeminded" citizens.... The President too remains free to discuss his own views on prayer.... The only issue decided in this case is that the federal government may not endorse prayer in a statute as it has in §119.

AP reporting on the decision quotes a White House spokesman as saying that the President still plans to issue a proclamation to recognize a National Day of Prayer next month. The court in its decision stayed its injunction for the 30-day period during which an appeal may be filed, and for the peridod during which any appeal is pending. (See prior related posting.) [Thanks to Paul Ballard and Ira "Chip" Lupu for the leads.]