No, Virginia, I’m afraid the National Day of Prayer ain’t constitutional, at least if you take the Supreme Court’s Establishment Clause jurisprudence at all seriously. Last week’s decision by U.S. District Court Judge Barbara Crabb in Freedom from Religion Foundation v. Obama is one of those clear, reasonable, precedent-based judicial exercises that drives experienced church-state separationists nuts.
The decision is not short, but its argument is simple. The National Day of Prayer was established by act of Congress in 1952 to encourage Americans to engage in religious activity. As such, it promotes and endorses religion. The Constitution’s ban on laws “respecting an Establishment of religion” has long been held by the Supreme Court to bar acts of Congress that endorse religion without serving some overriding secular purpose. Ergo, the law establishing the National Day of Prayer is unconstitutional.
And yet, should the Supreme Court sustain the decision, all hell could break loose–in the form of a constitutional amendment to alter the Establishment Clause. Do experienced church-state separationists want to go there? Of course not. And so, as they did in the late, unlamented Pledge of Allegiance case, the progressives on the Supreme Court can be expected to find some way to avoid letting Judge Crabb’s well-founded decision stand. In so finding, they will have the support of the Obama Justice Department, which yesterday announced that it would be appealing. It would be fun to have Con Law prof Obama, as the named defendant, do the oral argument himself. (After all, Michael Newdow represented himself in the Pledge case.) I’m not holding my breath.
At the end of the day, then, the National Day of Prayer will survive, along with the other modest (if dubiously constitutional) religious establishments that encrust the U.S. polity. It’s the American Civil Religion, Virginia, and yes, it exists, for better or worse. To make it better, Obama regularly tips his hat to Americans of no faith. He also declined last year to engage in any of the National Day of Prayer’s public festivities, managed as they are by the National Day of Prayer Task Force, a pedal-to-the-metal evangelical outfit run by James Dobson’s wife Shirley–and which naturally has now mounted a campaign to Save the Day.
Meanwhile, the Army has disinvited from its National Day of Prayer Pentagon prayer service Franklin Graham, son of the Day’s progenitor and a guy who once called Islam “a very evil and wicked religion.” Can you imagine inviting to a federally sponsored religious event (oops, there’s that pesky Establishment Clause again) a preacher who once called, say, Judaism an evil and wicked religion? Enough said. The point is that if you’re going to do civil religion, you need to do it as civilly and inclusively as possible. And if that irks the NDP Task Force, so much the better.