National Day of Prayer Unconstitutional

U.S. District Judge Barbara B. Crabb of the Western District of Wisconsin ruled that the National Day of Prayer is a violation of the Establishment Clause. (source). The case was a no-brainer. I haven’t seen the decision yet, but if it followed any precedent at all, I am sure that I can predict its content.

Under Lemon v. Kurtzman, a government action is a violation if it fails the following test:

1. The government’s action must have a secular legislative purpose;
2. The government’s action must not have the primary effect of either advancing or inhibiting religion;
3. The government’s action must not result in an “excessive government entanglement” with religion.

If any of these three conditions are violated, then the action is an Establishment Clause violation. Additionally, in Lynch v. Donnelly, Sandra Day O’Connor wrote (in a concurrence):

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions …The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. (source)

I can’t see how the National Day of Prayer doesn’t scream out that it is an Establishment Clause violation. And the judge agreed. In her ruling she seemed to fully understand that the uneducated and unwashed would find this to be an objectionable ruling:

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.” McCreary County, 545 U.S. at 882 (O’Connor, J., concurring). The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy.

It is important to clarify what this decision does not prohibit. Of course, “[n]o law prevents a [citizen] who is so inclined from praying” at any time. Wallace, 472 U.S. at 83-84 (O’Connor, J., concurring in the judgment). And religious groups remain free to “organize a privately sponsored [prayer event] if they desire the company of “likeminded” citizens. Lee, 505 U.S. at 629 (Souter, J., concurring). The President too remains free to discuss his own views on prayer. Van Orden, 545 U.S. at 723 (Stevens, J., dissenting). The only issue decided in this case is that the federal government may not endorse prayer in a statute as it has in § 119. (Op. at 65-66)

On a side note, I would like to give a shout-out to Rev. Dr. Janis J. Kinens of Advent Lutheran Church in Cedarburg., WI. When he was asked about how he felt about the decision, he said:

“I find it both troubling and dangerous that so many zealous believers in any religion want to legislate their particular understanding of faith and God for everyone else.” (source).

I have only met a few clergy members that I truly respected. There was an old Catholic Priest, Father Licata, whose “parish” was a maximum security prison – and he spent a lot of time with death row inmates. I asked him how he could deal with “those people,” and he explained that it is very easy to love children and nice people — but the true proof of the strength of his faith was that even those on Death Row were entitled to the same degree of love. You don’t have to believe in magic space zombies to say “right on” to that kind of thing.

Another is a Lutheran pastor who blesses my family’s wine every year. She and Father Licata would probably be good friends. Talk about an awesome woman. She’s the only clergy member who says “let us pray,” and I respectfully, and proudly, bow my head and pray along with her.

Naturally, there are a couple of others… but lets add Rev. Kinens to that very short list.