In a case of “Wow, it took you that long to figure it out?”, the National Day of Prayer was finally ruled unconstitutional in a federal court:
Congress established the day in 1952 and in 1988 set the first Thursday in May as the day for presidents to issue proclamations asking Americans to pray. The Freedom From Religion Foundation, a Madison-based group of atheists and agnostics, filed a lawsuit against the federal government in 2008 arguing the day violated the separation of church and state.
President Barack Obama’s administration has countered that the statute simply acknowledges the role of religion in the United States. Obama issued a proclamation last year but did not hold public events with religious leaders as former President George W. Bush had done.
Government involvement in prayer is constitutional only as long as it does not call for religious action, which the prayer day does, U.S. District Judge Barbara Crabb wrote in her ruling.
“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,” Crabb wrote. “In this instance, the government has taken sides on a matter that must be left to individual conscience.”
Good work, Freedom from Religion Foundation!
Now, I wonder how this will pan out when it almost assuredly goes to the Supreme Court… Any political science people want to weigh in?
Oh, this’ll be fun. :)
This ruling will be overturned 5-4 in the Supreme Court, using the O’Connor language from that case about “In God We Trust” saying that it has a specific cultural benefit that somehow outweighs the First Amendment.
I did a video about this almost a year ago now.
As a side note, I did not like I sounded in the video.
It excites me that it happened at all! I figure what Veritas does: it will be overturned by the religiously biased (imo) Supreme Court.
Depends on who the new Supreme Court justice member is and if the Supreme Court even decides to take on the case (which they most likely will).
I. The short answer: in the event that this case reaches the Supreme Court, the National Day of Prayer will be upheld on at least a 5-4, if not 6-3 basis. In similar cases, Roberts, Scalia, Alito, Thomas, and Kennedy have all voted to permit government action that advances religion to a greater degree than does the National Day of Prayer.Sotomayor is a complete blank slate on church/state issues and is a Catholic. Religious identification correlates strongly with establishment clause jurisprudence.II. Here’s the long answer, which holds out a ray of hope:First, this case comes from the U.S. District Court in Wisconsin (I believe the Eastern District), so it will be appealed to the 7th Circuit Court of Appeals. The 7th Circuit is generally regarded as a very conservative appellate court. I cannot imagine this ruling will survive the 7th Circuit unless the FFRF gets *really* lucky in terms of the 3-judge panel it draws. (Off the top of my head, the only judge on the 7th Circuit who’s solid on church-state separation issues is Diane Wood, who might be on the Supremes by the time the case is heard.)Second, the test for church-state separation comes from a line of precedent deriving from the Supreme Court’s decision in Lemon v. Kurtzman (so it’s called the “Lemon” test”). Essentially, governmental action must meet ALL THREE of the following prongs in order to pass the First Amendment:1. It must have “:a secular legislative purpose;”2. It must not “have the primary effect of either advancing or inhibiting religion;” and3. It must not result in an “excessive government entanglement” with religion.Here, the trial court’s decision focused only on the first prong of the Lemon test, effectively conceding that the National Day of Prayer meets the second and third prongs.This means that to overturn the decision, all a court need do is dispute the court’s (mostly legal) application of the first prong; namely, whether a National Day of Prayer serves a secular purpose.Now, that might seem a no-brainer: how can encouraging people to pray possibly be “secular”? Unfortunately, judicial precedent doesn’t always mesh with common sense, and here, there is a rich vein of case law that says if people don’t really take a religious exhortation all that seriously (e.g., “In God We Trust” on our money), then the religious content becomes de minimis, and the “real purpose” is civil, ceremonial, whatever.In short: if you want to save the National Day of Prayer — and the Seventh Circuit almost certainly will — then you can find a sufficient judicial fig leaf by which to do so.Third, then we have to imagine what the Supreme Court would do with this imaginary future Seventh Circuit opinion. The Supreme Court takes cases based on a “rule of 4” (of the nine justices); you don’t need a majority of the court to take a case.The Court breaks down like this:A) Scalia, Thomas, Alito, Roberts: all four are committed judicial activists who believe in an “accomodationist” view of separation of church and state — that is, that the state can even directly aid religion without running afoul of the First Amendment. These four justices will vote to preserve the National Day of Prayer regardless of what the law says; Scalia, for example, has already railed at some length that the Lemon test is too restrictive of government efforts to promote religion.B) Anthony Kennedy is *slightly* more open to be persuaded than those four; however, he too has been vocal in his criticism of the Lemon test, and in County of Allegany v. ACLU (492 US 573 (1989)), Kennedy dissented, arguing that a courthouse can display a creche at Christmas without violating the establishment clause.As said at the outset, I think there’s almost no chance someone with Kennedy’s views will vote to uphold Crabb’s rulings, although the other side is that Kennedy has moved slightly to the left in the past 11 years.C) Ginsburg and Breyer are committed strict separationists who would almost certainly vote to uphold Judge Crabb’s ruling.D) Sotomayor is a blank slate and a Catholic. I don’t have the cite here, but there’s a law review article that persuasively argues that religious orientation of the justice is strongly correlated with outcomes in terms of votes on free exercise and establishment cases. I think she’s *likely* to vote with Ginsburg and Breyer, but is a possible defection as well.E) Stevens is the strictest strict separationist on the Court but will be retired; most of the candidates Obama is looking at to replace Stevens are strict separationists as well, but there’s also the possibility he picks someone not on the radar right now.So to summarize:-If the Seventh Circuit somehow affirms, I would expect the Supreme Court to take the case (on a vote of the 4 most conservative justices) and reverse (by at least 5-4, including Kennedy, and possibly as much as 7-3).-If the Seventh Circuit reverses, I would say it’s pretty unlikely that the Supreme Court takes the case. The Seventh Circuit has a lot of smart judges, and if the opinion is narrow and well-written, I suspect that Breyer and Ginsburg would not want to tilt at windmills by taking a case just to have the majority affirm — turning it into the law of the land. They will probably vote not to take the case and leave the fight for another day when the court may have a different composition.On the other hand, if the Seventh Circuit overreaches in its reversal — that can happen — then I would say it would be more likely that the liberal justices vote to take the case, and an outside — VERY outside — case that they somehow persuade Kennedy to reverse. I do not assess this as a very likely possibility, as you’ve probably guessed.
I was wondering if I could get some guidance from someone here. I am surrounded by people who seem to think that Obama is the reason why the National Day of Prayer was given the boot. Please forgive my ignorance, but I really don’t know anything about this. From what I have read above and through the links you provided, it seems to me that it was out of his control. I will admit that I am very poorly educated about politics but I would like to take this opportunity to learn and be able to give an intelligent reply to the next person who brings this topic up to me. Any help or insight would be very appreciated.