I Got My Own Hands to Pray

The National Day of Prayer is unconstitutional, says a Federal judge in Wisconsin.


The National Day of Prayer statute says:

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.

The First Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

I will let the judge explain her reasoning:

This case explores the line that separates government sponsored prayer practices that are constitutional from those that are not. The case raises the question whether the statute creating the "National Day of Prayer" violates the establishment clause of the United States Constitution. The challenge to the National Day of Prayer statute arises at the intersection of two different lines of Supreme Court jurisprudence. On one hand, the Court has held on many occasions that the government violates the establishment clause when it engages in conduct that a reasonable observer would view as an endorsement of a particular religious belief or practice, including prayer. On the other hand, the Court has held that some forms of "ceremonial deism," such as legislative prayer, do not violate the establishment clause. Although there is tension among these cases, I do not believe they are irreconcilable; they simply show that context is important when applying the establishment clause.

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." Unfortunately, the National Day of Prayer statute 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.

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. 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.

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.

I trimmed legal citations and edited for flow, but believe I kept correct context. If this is something you are interested in, I highly recommend reading Judge Crabb's entire opinion. It's a thoughtful and encompassing review of the First Amendment as it's been applied to the establishment of religion. In its 66 pages, she discusses everything from the disagreement over legislative prayers in the Continental Congress to today's practice of Christmas as a Federal holiday.

For years I have believed that this statute is unconstitutional. The judge quoted above pretty much sums up what I believe the Consutitution requires in this area. But this is hardly the final word on the consitutionality of the National Day of Prayer. It will be appealed next to the US Court of Appeals for the Seventh Circuit (presided over by Frank Easterbrook, a legal rock star).

If this ruling stands, I believe it is legally correct and I also believe it is morally honorable. My personal beliefs about prayer shouldn't matter in whether I believe the Constitution protects us from a government declared day of recognizing prayer. I enjoy incredible religious freedom, and so does my neighbor...

Into the Arms of America

Presidents from Ronald Reagan to Barack Obama have each taken steps to restrict nuclear weapons. Today, the United States and Russia sign a new START (Strategic Arms Reduction Treaty). The new treaty makes a few important advances like restricting the number of warheads on a missile and restricting the number of warhead delivery options that can exist and can be deployed, but mostly the new START continues the trend of drastic reduction in the number of nuclear weapons held by the US and Russia.

As important as the new START, this week President Obama issued his Nuclear Posture Review, "a legislatively-mandated review that establishes U.S. nuclear policy, strategy, capabilities and force posture for the next five to ten years." It's most important elements are declaring that the US will not conduct any nuclear weapons tests and will not develop any new warheads or weapons. The NPR also declares a further limitation on the actual use of nuclear weapons, stating that the US will not use or threaten to use nuclear weapons against a country if that country does not have nuclear weapons and is in compliance with the nonproliferation treaty.

This all sounds like good news, and I certainly celebrate the progress. We've gone from limiting ourselves to 6,000 (!) nuclear warheads in START I, to 1,550 warheads in this latest treaty. But we still have over 1,500 nuclear warheads and the willingness to use them. I'm glad we're stepping back, even a little, from the implicit threat of incinerating millions of innocent people. I agree with Reagan, however, that the only value in possessing nuclear weapons is to make sure they will never be used, so it would be better to do away with them entirely. So YES, let's do away with them entirely! Must we wait or should we lead? As Obama said a year ago, "As the only nuclear power to have used a nuclear weapon, the United States has a moral responsibility to act. We cannot succeed in this endeavor alone, but we can lead it, we can start it."

I'm glad we're leading. A long way still to go. I look forward to the voluntary dismantling of our last nuclear weapon...