Today marks the annual Congressionally-mandated ritual of disrespecting the Constitution in the name of pleasing the pious.
As has been done every year for my entire adult life, the President has proclaimed a National Day of Prayer, politically-motivated and blatantly false urban legends to the contrary notwithstanding. The proclamation is authorized by 36 U.S.C. § 119, which reads in full as follows:
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.
The Establishment Clause of the First Amendment says “Congress shall make no law respecting an Establishment of religion.”
One way to look at this ritual is to ask what is an “Establishment,” notice that the law here only encourages and does not mandate prayer, and that it does not specify any particular kind of prayer nor even the identity of any particular god. An “Establishment” is a designation of a national church, the argument goes, and this law doesn’t do that. It’s just encouraging people to pray. There’s nothing mandatory about it; it uses the word “may” and not “shall.” No one is required to respond to the President’s proclamation in any particular way. So there’s no compulsion, no Establishment of an official national church. But this method of analysis isn’t the way the law has been interpreted or evaluated.
We’ve two principal ways in contemporary Constitutional law to look at this issue. The first is the Lemon test: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.” Seems to me that 36 U.S.C. § 119 flunks the first and second prongs. I can identify no secular purpose to this law. I can see no effect to this law other than that it advances religion.
Second is the endorsement test: “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…[by] 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. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.” Seems to me 36 U.S.C. § 119 flunks this test. This statute is nothing other than governmental endorsement of religion.
But it’s doubtful that anyone has standing to challenge the law. Hein v. Freedom From Religion Foundation, Inc. (2007) 551 U.S. 587. As far as I can tell, no taxpayer money is spent in compliance with it. The proclamation is an executive act despite its mandate by Congress. As I read it, there is no person or entity who can present a live case or controversy with which to challenge this law. So despite what seems to me to be the obvious Establishment Clause violation, the Courts have simply shut their doors to hearing any challenges to it.
That doesn’t sit right with me. Even if we were to use the deliberately narrow construction of the concept of “Establishment” to craft the clearly-deferential definitional test I described above, there still ought to be some meaningful way someone can have that test applied. If Congress and the President are not susceptible to review of whether their actions exceed the limits of the exercise of power placed upon them by the Constitution, then the Constitution as a practical matter is an empty, toothless, meaningless, and superfluous thing, and not the supreme law of the land in any way that matters to anyone. At a minimum, someone should be able to test the Constitutionality of this law.
If people want to pray, by all means let them. They need no encouragement from the government to do so, and it’s not the business of the government to be telling people to pray, any more than it would be the business of the government to tell people not to pray. The First Amendment mandates silence and neutrality by the government as to matters of personal faith. 36 U.S.C. § 119 is the opposite of that and it is repugnant to the Constitution.
No one has to tell me that as a nation we confront much more immediate and serious issues. We grapple with war and peace, with staggering governmental debt and abdication of the government’s obligation to provide for the general welfare. Something is deeply rotten within our collective political dynamic. So in one sense, this isn’t all that important. But in another sense, it is a symptom that as a nation what we claim to be our highest law, what we claim to revere as our highest cultural ideals, are things that we are ready to set aside when it simply pleases us to do so and that is something we should take seriously. Every year this continues is another year that our government and our political process engages in cognitive dissonance that an obvious violation of our fundamental law is somehow not only harmless but permissible.
Count me among the number who pray for standing to demand that the government remain silent.