Pray Today for the National Day of Prayer

I am a conservative, born again Christian, but when I look at political issues, I like to keep an open mind and not always take the “Christian side” (Alliance Defense Fund, American Center for Law and Justice, etc.) of every issue. Sometimes I take the other side, but for different reasons than the ACLU, Americans United for the Separation of Church and State, and other such organizations.

This being the National Day of Prayer, and the fact that it has recently been held unconstitutional by a Federal District judge, I decided to research this issue. At first I thought maybe the whole issue was just a big fight over nothing. After all, no one is being put in jail (or could be potentially deprived of rights in any way) by the proclamation of a day prayer. And on the other hand, why do we need the President to make such a proclamation? Couldn’t we just observe the Day without it? Like any other issue, I tried to wipe away my presuppositions and look first to the Bible and then the Constitution, and then to history (mostly Wikipedia) for answers.

While it is clear from Scripture that the religious and civil authority should not be combined into a single institution, the Bible makes it plain that there is nothing wrong with civil leaders giving proclamations to pray or fast. See II Chronicles 20:1-4, 30:1, Jeremiah 36:9, Daniel 6:25-27, and Jonah 3:6-10. Despite the fact that the concept of a civil proclamation of a day of prayer seems so symbolic (as opposed to issues of more substance like abortion and war), the Bible does seem to indicate in these passages that it is important.

It is also clear that the Founders had no problem with proclamations being issued for this purpose. The Second Continental Congress called for, at various times, special days to be set aside for prayer specifically calling on the name of Christ. [1] George Washington, while acting as President of the Constitutional Convention, begged that prayer be held at the beginning of each of its assemblies. [2] During the Quasi-War with France, President Adams declared May 9, 1798 as "a day of solemn humiliation, fasting, and prayer," during which citizens of all faiths were asked to pray "that our country may be protected from all the dangers which threaten it". [3] On March 30, 1863, President Abraham Lincoln issued a proclamation that designated the day of April 30, 1863 as a day of "national humiliation, fasting and prayer."[4] Woodrow Wilson called for a day of prayer during World War I, as did Franklin Roosevelt during World War II, George H.W. Bush during the Gulf War, and George W. Bush during the Iraq War. In all 34 of 44 U.S. presidents have called for days of prayer during times of crisis.

The idea of an annual National Day of Prayer was introduced by the Rev. Billy Graham, who suggested it in the midst of a several-weeks crusade in the nation’s capitol. Members of the House and Senate introduced a joint resolution for an annual National Day of Prayer.

On April 17, 1952, President Harry S. Truman signed a bill proclaiming that a National Day of Prayer must be declared by each following president at an appropriate date of his choice. In 1982 a National Prayer Committee formed to coordinate and implement a fixed commemorated day of prayer. In 1988, the law was amended so that the National Day of Prayer would be held on the first Thursday of May. It now reads:

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.

-36 U.S.C. § 119 [5]

On October 3, 2008, the Freedom From Religion Foundation sued President George W. Bush, Jim Doyle, Shirley Dobson (chair of the National Day of Prayer Task Force), and White House Press Secretary Dana Perino at a Madison, Wisconsin federal court, challenging the federal law designating the National Day of Prayer. The Alliance Defense Fund (ADF) is defending Shirley Dobson and the National Day of Prayer Task Force. The Obama administration asked U.S. District Judge Barbara Crabb to dismiss the case in March 2009. The administration argued the group has no legal standing to sue and that the tradition of the National Day of Prayer dated back to 1775. The suit was then amended to include President Obama and Press Secretary Gibbs.

On March 1, 2010 U.S. District Judge Barbara Crabb stated that FFRF's lawsuit can proceed forward because the plaintiffs had shown that they suffered "concrete injury" that can potentially be remedied by judicial action. Justice Crabb stated about those supporting the federal law designating the National Day of Prayer, "adopting [the] defendants' view of standing would allow the government to have unrestrained authority to demean members of any religious group without legal consequence. The federal government could declare the 'National Day of Anti-Semitism' or even declare Christianity the official religion of the United States, but no one would have standing to sue because no one would have to 'pass by' those declarations." [6] This was in regards to the defendants' position that the plaintiffs did not have standing to engage in the lawsuit. Mr. Bolton, legal counsel of the Freedom From Religion Foundation stated, "The Foundation has never been opposed to nongovernment parties designating and participating in their own Day of Prayer activities. Here, however, government officials have too often adopted the religious perspective of Mrs. Dobson and the National Day of Prayer Task Force as the official public statement and position of the government. To the extent that Mrs. Dobson and the Task Force, operating from the Focus on the Family campus in Colorado Springs, concentrate on the private sphere, that is their prerogative. FFRF is concerned about the government's respect for the separation of church and state, which the court intends to address."[7]

On April 15, 2010, Judge Crabb ruled that the statute establishing the National Day of Prayer was unconstitutional as it is "an inherently religious exercise that serves no secular function".[8][4][9] However, Crabb stayed her ruling pending the completion of appeals.[10] In her ruling Judge Crabb stated the following:

In my view of the case law, government involvement in prayer may be consistent with the establishment clause* when the government's conduct serves a significant secular purpose and is not a "call for religious action on the part of citizens." McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 877 (2005). Unfortunately, (section) 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 (section) 119 violates the establishment clause.

It bears emphasizing that a conclusion that the establishment clause prohibits the government from endorsing a religious exercise is not a judgment on the value of prayer or the millions of Americans who believe in its power. No one can doubt the important role that prayer plays in the spiritual life of a believer. In the best of times, people may pray as a way of expressing joy and thanks; during times of grief, many find that prayer provides comfort. Others may pray to give praise, seek forgiveness, ask for guidance or find the truth. "And perhaps it is not too much to say that since the beginning of th[e] history [of humans] many people have devoutly believed that 'More things are wrought by prayer than this world dreams of.'" Engel v. Vitale, 370 U.S. 421, 433 (1962). However, recognizing the importance of prayer to many people does not mean that the government may enact a statute in support of it, any more than the government may encourage citizens to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic. In fact, it is because the nature of prayer is so personal and can have such a powerful effect on a community that the government may not use its authority to try to influence an individual's decision whether and when to pray.[8]

*“Congress shall make no law respecting an establishment of religion…”

Of course, Judge Crabb’s judgment is way off, the simple issuance of a proclamation of a day of prayer cannot be unconstitutional because it doesn’t come close to establishing a religion and the Founders would never have put something in the Constitution which would disallow something that is held to be of such great importance in the Scriptures. There obviously shouldn’t be a “National Day of Anti-Semitism”, but there is nothing in the Constitution which would prevent this from happening--no document, not even the Constitution, could ever prevent (even if it were always enforced) every wrong thing from happening, especially since no powers are really being exercised here (but see the next paragraph).

What would bother me, if anything does, about the legislation is that it is an (apparently binding) command given to the President by the Congress where no explicit authority to do so is mentioned in the Constitution (thus, an apparent violation of the 10th amendment). In the past, such proclamations were made at the discretion of the President. I do not believe that these proclamations themselves are a violation of the 10th amendment because they are not binding on anyone, i.e. it is not an exercise of power. The Congress could instead pass a non-binding resolution that a Day of Prayer be proclaimed.

Another thing that bothers me is one of the defenses being used against the judge’s decision. The argument that such proclamations go back to 1775 is fine, but to say that the plaintiffs have no standing would be to reinforce a dangerous precedent. (But it seems hypocritical of the courts to apply this when someone is legitimately trying to hold the government accountable to the constitution and not apply it to frivolous cases like this.) I hope that none of the attorneys fighting for this will resort to using arguments that the NDP is immune from the Establishment Clause because it serves “a secular purpose”. A law for a religious purpose doesn’t violate the 1st Amendment as long as it does not exercise powers (or effect them in any way) which are solely and rightfully within the jurisdiction of the Church or prohibit religious exercise.

References (mostly from Wikipedia)

1. http://www.constitution.org/brief/historical_test_brief.htm

2. www.constitution.org/dfc/dfc-1787.txt

3. John Adams, "A Proclamation," March 23, 1798; printed in thePhiladelphia Weekly Magazine, March 31, 1798.

4. Richmond, Todd (15 April 2010). "Federal judge rules Day of Prayer unconstitutional". Associated Press. Retrieved 18 April 2010.

5. http://codes.lp.findlaw.com/uscode/36/I/A/1/119

6. http://www.ffrf.org/uploads/legal/dayofprayer_standing.PDF^

7. http://www.ffrf.org/news/releases/court-ffrf-suit-against-national-day-of-prayer-can-proceed

8.http://www.wiwd.uscourts.gov/assets/pdf/FFRF_v_Obama_Order.pdf

9. Gilgoff, Dan (16 April 2010). "Federal judge strikes down National Day of Prayer statute". CNN. Retrieved 16 April 2010.

10. Richey, Warren (15 April 2010). "Federal judge: National Day of Prayer is unconstitutional". Christian Science Monitor. Retrieved 17 April 2010.