36 U.S.C. section 119 reads:
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.
And this, as should have been obvious to even the casual observer, violates the Establishment Clause of the First Amendment to the United States Constitution. A U.S. District Court in Wisconsin has found that the National Day of Prayer is unconstitutional. The statute’s “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.” Importantly, that court applied the “endorsement” test rather than the Lemon test:
This legislative history supports the view that the purpose of the National Day of Prayer was to encourage all citizens to engage in prayer, and in particular the Judeo-Christian view of prayer. One might argue that members of Congress voiced secular purposes: to protect against “the corrosive forces of communism” and promote peace. That is true, but the references to these purposes do nothing to diminish the message of endorsement. If anything, they contribute to a sense of disparagement by associating communism with people who do not pray. A fair inference that may be drawn from these statements is that “Americans” pray; if you do not believe in the power of prayer, you are not a true American. Identifying good citizenship with a particular religious belief is precisely the type of message prohibited by the establishment clause.
The decision will of course be appealed and is sexy enough for consideration by the Supreme Court. In the meantime, the National Day of Prayer will go forward on May 6 as originally scheduled. The judge issued an injunction against President Obama from complying with the unconstitutional law, but stayed enforcement for thirty days to allow the government to appeal. May 6 falls within the stay period, and President Obama has indicated that he intends to issue the proclamation.
I said in several places before Obama took office that secular Americans should not consider him an ally. He has, at least, acknowledged our existence and our citizenship, which is a step up from his predecessor. But he continues to issue, under his own authority as President, generous subsidies to churches under the auspices of the White House Office of Faith-Based and Neighborhood Partnerships, and despite a finding from a court of competent jurisdiction that the issuance of a national day of prayer violates the Constitution, he intends to go ahead and do it anyway during the stay. While he isn’t violating the exact wording of the court’s order, I question whether it is principled for him to do it at all, given the opinion — and particularly given that he has not opined as to whether the opinion is right or wrong, which debatably he has the power to do as a co-equal branch of government.
Nevertheless, the opinion is a cause for celebration. Whether the celebration is long-lived or not will be up to the Seventh Circuit and, eventually, the Supreme Court — and the deciding vote may well be held by a Justice to be named later.