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The Religious Right versus Judge Crabb’s Strict Constructionism

April 17, 2010

On Thursday of this past week, U.S. District Judge Barbara Crabb of the Western District of Wisconsin ruled that 36 USC § 119 is unconstitutional.

The irony of a Carter appointee interpreting the Constitution strictly and the Religious Right (and some who aren’t) disagreeing is kind of amusing. Detractors say and write that she’s “banned the National Day of Prayer” when all she’s done is rule that the congressional mandate of a proclamation of such a thing by the president is unconstitutional. And she is absolutely correct.

For those who won’t bother to look at the links, Section 119 of 36 USC 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.

Some of the proponents of this measure suggest historical antecedents dating back to 1775. That would pre-date the Constitution, and our government is defined by and our civil liberties are protected by the Constitution rather than tradition.

The first codified version of the National Day of Prayer goes to 1952, during the national freak-out over communism just before the height of the McCarthy hearings. Senator Absalom Willis Robertson introduced legislation calling for a day of prayer as a bulwark against communists. Robertson was one of 19 senators (and 82 US representatives) to sign the Southern Manifesto, a rebuke of the Supreme Court’s Brown versus Board of Education ruling.

By the way, Robertson’s son Pat is a famous televangelist.

In its current form, the National Day of Prayer as required by Section 119 traces its history all the way back to 1988. It was pushed by the Religious Right. The “National Prayer Committee,” which sets up public events for the National Day of Prayer, is a fundamentalist group. So, too, is the “National Day of Prayer Task Force” — it’s an arm of Focus on the Family and is chaired by the wife of James Dobson.

Why do I bring these aspects of “councils” and “task forces” in relation to the current law’s origin? Because this whole thing has been orchestrated as a sectarian event, not as some kind of civil or even ecumenical exercise.

That wasn’t lost in Judge Crabb’s ruling:

…the statute seems to contemplate a specifically Christian form of prayer with its reference to “churches” but no other places of worship and the limitation in the 1952 version of the statute that the National Day of Prayer may not be on a Sunday.

The First Amendment is patently clear:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The courts have ruled repeatedly that “establishment” extends beyond setting up a national church. It includes anything government might do that coerces religious exercise or expression. Section 119 of USC 36 certainly does that by requiring the president, the nation’s highest executive office, to declare one specific day a national day of prayer. Prayer is religious exercise, not a secular matter, and Congress may not make such laws. Plain and simple.

Let me also point out that Judge Crabb’s decision in no way is a slap against religious exercise in general or prayer in particular. She wrote in her decision,

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.”

And,

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.

So why did she rule against Section 119 if she concedes prayer is important to so many people for so many reasons? Because Congress is prohibited from influencing private expressions of faith. This, she writes, goes beyond national days of prayer to encompass other activities which government, left unrestrained by the Constitution, could enact:

…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.

That hasn’t stopped her detractors from calling her godless or anti-Christian. Some have claimed she isn’t following the Constitution or (more laughably) that her ruling makes the Constitution unconstitutional. Oh yeah, on what grounds?

I’ve read the entire decision and find it both convincing and within the mainstream of judicial thought. Moreover, given the fact that the Justice Department is reviewing the ruling and could very well challenge it, I think it would be upheld by the Supreme Court. Even in recent years, the Supreme Court has ruled in such ways that the precedents in Lemon versus Kurtzman, including the “Lemon Test“to which Crabb deferred in her decision, have been upheld. That three-question test remains the measure the Surpreme Court has continued to use in these kinds of cases, even though Justice Scalia (in his dissent to Lee versus Weisman) argued that the Lemon Test shouldn’t be used on grounds that it “if applied consistently it would invalidate longstanding traditions.”

Well, slavery was a longstanding tradition. And so was only giving land-owning white males the right to vote. We’re a nation founded on laws — on the Constitution — not on tradition.

Yet this whole National Day of Prayer movement, rooted in fundamentalist sectarianism, is predicated on a false view of history peddled by people like David Barton. They claim all kinds of religious antecedents in the founding of the nation, and, of course, for the national day of prayer. This has become a day which they use to spread their revisionist history and their peculiarly fundamentalist brand of Christianity. They don’t deserve the imprimatur of government when they do it. And that’s what the National Day of Prayer has become, which is why it was unconstitutional in the first place.

Speaking of tradition and the Constitution, it’s true James Madison proclaimed days of prayer. He later wrote in regret, “They seem to imply and certainly nourish the erroneous idea of a national religion.” Thomas Jefferson likewise wrote, “Fasting and prayer are religious exercises; the enjoining them an act of discipline. Every religious society has a right to determine for itself the time for these exercises, and the objects proper for them, according to  their own particular tenets; and right can never be safer than in their hands, where the Constitution has deposited it.”

That’s where we, too, should leave the matter. Judge Crabb reached the right decision for the right reasons. Nobody is prohibiting individuals or groups from praying for the country or anything else. It’s just that “Congress shall make no law respecting establishment of religion.” That’s what the founders wanted. That’s how Judge Crabb ruled.

Those who oppose this ruling oppose the founders and, in order to prevail upon appeal, will need a bit of judicial activism to expand or alter the original intent of Madison, Jefferson, et al., when they wrote and ratified the First Amendment. Politics makes strange bedfellows. Unfortunately, that opposing group presently includes President Obama who will go ahead with the proclamation despite the ruling. That won’t stop his critics from lying that he’s banned the day of prayer, or that he’s not properly observing it.

The best way to observe it is to follow this ruling and let private citizens — individually or in voluntary groups — set aside their own day for prayer without state intervention establishing, endorsing, or prohibiting it.

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