National Prayer Day

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>Expect National Prayer Day to be distinguished by particularly splashy displays of piety this year, thanks to a recent federal district court decision declaring congressional designation of an official prayer day unconstitutional -- a violation of First Amendment prohibitions on establishing religion.  In a lengthy, carefully reasoned decision (in Freedom from Religion Foundation v Obama), Judge Barbara Crabb stressed that this particular government endorsement of a particular religious practice has absolutely no secular purpose, but she stayed an injunction of Prayer Day pending the predictable appeal of her decision.  So, religious people who think they need government permission and participation to pray, or those who simply seek government applause for praying, can still look forward to this year's official celebrations of prayer on May 6th.
   
I suspect they can probably look forward to the same celebration next year and in many years to follow.  The Justice Department quickly announced its intent to appeal, to higher judicial powers at least, and should this case eventually make its way to the Supreme Court (as it might if the Court of Appeals upholds the lower court), it seems likely to result in a final ruling affirming congressional power to declare a national day of prayer.  Or so secularists might hope: a final Supreme Court ruling invalidating Prayer Day would sorely tempt Congress and the states to pass a constitutional amendment qualifying the First Amendment ban on establishing religion.   

In offering this prediction, I am not criticizing the District Court decision, which I found persuasive, legally sound, and sensitive to the danger of National Prayer Day generating precisely the sort of sectarian religious strife that the Founders sought to avoid when they barred state established religions.  Judge Crabb cited numerous complaints from members of minority faiths about the "hi-jacking" of Prayer Day by conservative Christians.  Joel Oster, Senior Legal Counsel of the Alliance Defense Fund (ADF), disputes the prevalence of these complaints, suggesting that they are isolated incidents instigated by "special interest groups that create their own devisiveness."  But it is indisputable that the conservative National Day of Prayer Task Force, chaired by Shirley Dobson, (wife of Focus on the Family Founder James Dobson) has played a leading role in recent Prayer Days.  (Dobson was initially named in the Prayer Day challenge; ADF represented her and won dismissal of all claims against her.)

Why was Dobson, a private citizen, ever included in this challenge to government power?  President George W. Bush allowed Dobson's task force to take charge of National Prayer Day, as Steven Waldman writes, which greatly undermined any pretense that it was a non-sectarian celebration of religiosity: the Task Force's mission includes commitments to "Foster unity within the Christian Church" and "Publicize and preserve America's Christian Heritage."  It pays rhetorical tribute to unspecified "Judeo-Christian" principles (which still exclude many religious and irreligious minorities,) but the Task Force's volunteer application form makes its rigid sectarianism quite clear:  prospective volunteers are asked to affirm that "the Holy Bible is the inerrant word of the Living God" and that "Jesus Christ is the Son of God and the only One by which I can achieve salvation."

It's not surprising that the ecumenically inclined President Obama has a much more attenuated relationship with this most un-ecumenical Task Force and equally unsurprising that the Task Force has attacked him for not holding formal Prayer Day events (in which it might be featured).  Last year, Obama compounded this insult, or injury, by issuing a National Prayer Day Proclamation deemed "secular in nature" by Brent Bozell's CNS.news.com, which stressed that the president only mentioned God once, "refers to people who don't believe in God," and "does not refer to the Bible but to the "Golden Rule" -- or the 'ethic of reciprocity' sometimes linked to verses in the Bible and other religious books."  But, underscoring the divisiveness occasioned by an official prayer day, the Interfaith Alliance has praised Obama's 2009 proclamation for its "inclusiveness," lamenting that in "past years the National Day of Prayer was taken over by a group of religious exclusivists led by Shirley Dobson of Focus on the Family.  In past years Mrs. Dobson's group, the National Day of Prayer Task Force has represented itself in a way that led many to believe that they were the government sanctioned National Day of Prayer organizers."

This was the political battle into which the Freedom From Religion Foundation tossed the grenade of a lawsuit challenging the constitutionality of a 1952 federal law requiring the President to designate a National Day of Prayer.  (In 1988, Congress named the first Thursday in May as Prayer Day.)  Judge Crabb dismissed the predictable justifications for Prayer Day:  it is not simply an innocuous act of ceremonial deism; encouraging Americans to pray is qualitatively different from printing in God We Trust on our dollar bills.  It is not clearly supported by historical precedent (the various Thanksgiving Day proclamations dating back to 1789 served a "secular purpose of giving thanks" and did not actively encourage all citizens to pray or "help particular religious groups organize"); and it is not saved by an appearance of non-sectarianism.  Putting aside the virtual impossibility of a non-sectarian prayer proclamation (diverse religions do not have a unified theory of prayer) and assuming the non-denominationalism of National Prayer Day, "the government's religious conduct cannot survive scrutiny under the establishment clause simply because it endorses multiple religions instead of one," Judge Crabb observed.  

What's the harm of National Prayer Day?  It equates prayerfulness and patriotism, as its congressional history makes clear; it sends a "message of exclusion" to religious minorities and other heretics, and, again, it threatens sectarian divisiveness.  What's the harm of invalidating Prayer Day?  National Prayer Day Task Force leader Shirley Dobson hysterically characterized the District Court decision as an "an attack upon our religious freedoms," but Dobson would remain free to pray the first Thursday in May and every other day of the year in the absence of an official prayer day.  The Alliance Defense Fund claims that "National Prayer Day provides an opportunity for all Americans to pray voluntarily according to their own faith."  Not exactly.  The First Amendment provides all Americans with the freedom to pray "according to their own faiths" and the freedom to create their own opportunities for prayer without government interference; and these fundamental freedoms are more likely to be threatened than enhanced by government sponsorship of prayer.  When some Americans seek congressional or presidential approval of their prayers, they're not seeking religious liberty but religious power, or influence at least, over other Americans of different faiths.

Shirley Dobson may believe her own rhetoric and may even feel oppressed by the absence of an invitation to pray with the president, but Alliance Defense Fund lawyers seem smart enough to know (and politic enough not to concede) that religious liberty is not contingent on an official prayer day.  So what is at stake in this litigation?  National Prayer Day is important because "it's part of our history," ADF lawyer Joel Oster stresses.  An attack on Prayer Day "is an attack on history."  Oster scoffs at Judge Crabb's efforts to distinguish presidential Thanksgiving Day proclamations by denying that they constituted calls to pray, and he points out that the Judge herself did not rely on her interpretation of these proclamations or other historic examples of official religious exercises. "She hit the nail on the head when she said she didn't care about history," he asserts, and he's right that this case is partly about history and its role in constitutional interpretation.  

The view of America as a Christian nation, founded on Christian principles is quite controversial, to say the least, and reflects some unsupportable revisionist history (exemplified by the Texas Board of Education textbook standards that delete Thomas Jefferson from a list of influential political thinkers).  But putting that controversy aside, or even conceding for the sake of argument the presumptive Christianity of a few Founders, the hard question remains: what difference should it make to judges interpreting the Constitution today? Are historical customs and ideals reference points, or mandates?

Judge Crabb unequivocally rejected the proposition that "religious conduct that would otherwise violate the establishment clause may be upheld for the sole reason that the practice has a long history...If one were to read the establishment clause as permitting any practice in existence around the time of the framers, this would likely mean that the government would be free to discriminate against all non-Christians."  So, while "early Congress's political actions" are "relevant," she observes (quoting Justice Souter,) they are not "determinative ... of constitutional meaning."  This view is countered by the originalist approach to constitutional jurisprudence, articulated most famously by Justice Scalia and shared by ADF's Joel Oster.  In his view, the First Amendment's ban on established religion was "only intended to prohibit a state church," not official religious exercises, like prayer or Ten Commandment displays.  

Oster and other advocates of official religiosity (and official Christianity in particular) aim to reverse the "last fifty years or so" of establishment clause rulings, which they regard as "inconsistent" with the Founder's intent.  In this view, the Supreme Court's 1962 decision invalidating the New York State school prayer marked the beginning of a radical departure from the path of constitutional righteousness.  (I recited this prayer resentfully every day, throughout elementary school, although I can't say I was harmed, much less indoctrinated by it (which didn't make it right). Instead, compulsory recitation of the prayer, followed by the Pledge of Allegiance, only increased my sense of alienation from religion and nurtured a healthy distrust of nationalism and other collectivisms.)

Official school prayers seem unlikely to be reinstated, thanks partly to the difficulty of fashioning one prayer that satisfies all prayerful and politically influential religionists.  But the Supreme Court is gradually adopting a more permissive view of government sponsored religious activities.  It's progress, or regress, is fitful -- in 2005, the Court ruled for and against two respective official Ten Commandment displays -- but the trend seems clear.  Just this week, in Salazar v Buono, the Court upheld a controversial congressional land transfer designed to allow a large cross to remain on display in the Mojave National Preserve.  In 2007, in Hein v Freedom from Religion Foundation, the Court struck down FFRF's challenge to executive branch expenditures in support of the Bush Administration's "faith-based" initiatives.

The Hein case was instructive, but its lessons may have been lost on FFRF when it challenged the National Day of Prayer.  The decision to initiate a constitutional challenge like this should be strategic as well as principled, involving political calculations as well as legal analysis and focusing partly on the consequences of winning or losing.  The Supreme Court is not entirely sympathetic to secularism or enthusiastic about separating church and state.  An important legal victory for secularists in a lower federal court can be transformed into a costly legal defeat by the Supremes.  In Hein, FFRF won a round in the 7th Circuit Court of Appeals, but ultimately it succeeded only in advancing the aims of its religious opponents, when the Supreme Court reversed on appeal and used the occasion to limit the rights of FFRF and taxpayers, in general, to challenge presidential violations of the establishment clause.  The court didn't reach the merits of FFRF's claim; it simply shut the courthouse door in its face.

I'd be pleased to be proven wrong in predicting a similar outcome in FFRF v Obama, the National Prayer Day case, which, in my view, was rightly decided by the District Court.  But the legal principles and precedents governing establishment clause cases are contested, and judges tend to apply them according to their own religious and civic values, as well as their views of history and constitutional jurisprudence.

Justice Scalia, for example, believes that "governmental invocation of God is not an establishment;" he is sympathetic to "the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people," and he is utterly unconcerned with the feelings of exclusion claimed by non-believers and members of religious minorities in establishment clause challenges:  the First Amendment "permits (the) disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists."  (It's tempting to attribute Scalia's disdain for the feelings of atheists and other minorities to his own religiosity, but he is generally impatient with "touch-feely" claims of harm, Dahlia Lithwick points out.)
   
What's wrong with Scalia's approach? He is not proposing to deny religious minorities the right to practice their religions, and while he is quite dismissive of irreligious people, he is not proposing official campaigns to convert them.  He is demanding that people of minority faiths and no faiths learn to tolerate their feelings of alienation and exclusion occasioned by official alignment with the religious majority.  He values the majority's desire for civic expressions of faith and the comfort derived from them over the minority's desire for inclusion; (so he does value some feelings after all).

Should the majority rule in cases involving official religious displays, invocations, or a congressionally mandated day of prayer? General references to God on our currency don't have much practical effect on the exercise of anyone's liberty, although they do irritate some secularists.  I'd agree with Justice Scalia that we don't have a constitutional right not to be irritated; nor should we expect the government to protect us from feeling alienated.  But we do have a right to be free of official orthodoxies.  Where does an irritation or a "feeling of exclusion" end and the imposition of orthodoxies begin?  The Supreme Court could find an opportunity to consider that question again in FFRF v Obama; and if, by some miracle, the Court eventually strikes down National Prayer Day, it might just make a believer out of me.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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