The first national day of prayer was declared in 1775 when the Continental Congress “designated a time for prayer in forming a new nation.” But in 2010, American judges apparently have a better understanding of the Constitution than the men who founded this country:
A federal judge in Wisconsin declared Thursday that the US law authorizing a National Day of Prayer is unconstitutional.
US District Judge Barbara Crabb said the federal statute violates the First Amendment’s prohibition on government endorsement of religion.
She issued a 66-page decision and enjoined President Obama from issuing an executive order calling for the celebration of a National Day of Prayer.
The National Day of Prayer was first authorized by Congress in 1952. Since 1988, the date has been set as the first Thursday in May.
The judge stayed her own injunction pending the resolution of any appeals.
“I understand that many may disagree with [my] conclusion and some may even view it as critical of prayer or those who pray. That is unfortunate,” Judge Crabb wrote.
What is unfortunate is the shoddy legal reasoning of the opinion, which acknowledges the history of national calls to prayer and yet still attempts to claim that the decrees by George Washington, Abraham Lincoln, and other presidents have always been unconstitutional.
As law professor Eugene Volokh says, “I find this hard to reconcile with the logic of Marsh v. Chambers (1983), which upheld legislative prayers on the grounds that they go back to the founding of the nation; official proclamations of days of prayer, thanksgiving, and even fasting are just as firmly rooted. The opinion tries to distinguish those proclamations from the National Day of Prayer, but I don’t see the distinctions as having constitutional significance.”
April 16th, 2010 | 12:41 pm
Since this article is about the decision of one single Federal judge, it seems odd to indict American judges (plural)….
April 16th, 2010 | 12:57 pm
Cliff Since this article is about the decision of one single Federal judge, it seems odd to indict American judges (plural)….
I wish I could say that I believed this was a peculiar decision by a single judge. But I suspect that many others in the federal judiciary would have made the same call.
April 16th, 2010 | 2:00 pm
I just love the fact that her name is Judge Crabb. Right out of a movie script.
April 16th, 2010 | 3:07 pm
“I find this hard to reconcile with the logic of Marsh v. Chambers (1983), which upheld legislative prayers on the grounds that they go back to the founding of the nation; official proclamations of days of prayer, thanksgiving, and even fasting are just as firmly rooted.
I wish that atheists would just get over the fact that this country is largely religious, and agree to live and let live. But what is the logic of the passage above, that the Founding Fathers couldn’t act counter to the Constitution because they wrote the Constitution? I don’t think that makes any sense.
Barry Lynn is quotes as saying that
“Congress has no business telling Americans when or how to pray.”.
But the proclamations don’t tell anyone when or how to do anything; they only encourage prayer. It’s unlikely Barry Lynn is going to feel coerced!
April 16th, 2010 | 3:20 pm
This judge is yet another example of someone rising to their level of incompetence.
April 16th, 2010 | 4:48 pm
The National Day of Prayer was made official by the US Government in 1952, during the McCarthy era when the God phrases were introduced into the Pledge of Allegiance and the countries motto was changed to “In god we trust”. All of these new religious references were created to counter communism during the Cold War.
These recent events ignore the secular nature of our country. Our founding fathers were very clear that the US is secular and Jefferson was extremely clear about the nature of the Establishment Clause. There must be no state sponsored religion that promotes any religion above another, instructs citizens to participate in religion or coerces citizens into religious acts.
This judgment is sound and right. Read the courts justification, it makes a lot of sense. The religious do not need a state sponsored day of prayer – our government is secular. The religious can declare their own day or prayer without involving our secular government.
April 16th, 2010 | 5:26 pm
@ Dirk Gently
That’s not very holistic of you.
April 16th, 2010 | 5:33 pm
Why should Congress or the President be responsible for instituting a National Prayer Day? This should be (should have been) the product of a coalition of Churches across the nation.
April 16th, 2010 | 6:13 pm
1. Who would have standing to seek such an injunction?
2. What kind of a knucklehead would bother?
3. Why would it take 66 pages of text, or 40,000 words to elaborate upon this point of law?
4. Why does this stupid judge fancy her decision is anything but a blast of wind? What is she going to do if the President issues a proclamation anyway?
April 16th, 2010 | 7:28 pm
How did this issue come before her court? Who was the plaintiff? Sounds like an ambitious judge trying to become famous. Very transgressive!
April 16th, 2010 | 10:03 pm
4. Why does this stupid judge fancy her decision is anything but a blast of wind?
I imagine she thinks her opinion will percolate slowly.
April 16th, 2010 | 10:46 pm
To borrow from Andrew Jackson: Crabb has made her decision. Let her try to enforce it.
April 16th, 2010 | 11:11 pm
Nice post, Joe. What is interesting about Crabb’s opinion is that it treats anti-establishment as a highly abstract principle about which history has no bearing. It would be like interpreting the public park prohibition–”No vehicles allowed”–as including Big Wheels and baby carriages without any reference to common practice or the meaning understood by the city council that passed the ordinance.
Ahistorical jurisprudence is an oxymoron.
April 17th, 2010 | 10:02 am
Dirk Gently – Jefferson did not write the Establishment Clause, nor was he part of the Congress that passed the Amendment. So it really doesn’t matter what Jefferson thought it should mean.
April 17th, 2010 | 12:19 pm
To follow-up on Francis Beckwith’s observation about abstraction, consider the similarity:
Judges and lawyers as (frustrated) computer programmers.
If it holds at all, it’s an increasingly common misbehavior in law. And it’s also immoral, to profess outside of one’s profession.
April 17th, 2010 | 1:57 pm
To respond to the very estimable Dr. Beckwith, let me first note I don’t agree with this decision.
However, the idea of constitutional jurisprudence being frozen in the context of late 18th Century historical tradition is problematic in its own right.
I don’t agree with much of what Harry V. Jaffa has argued in general; but in this one respect, I think he’s right.
The broadly abstracted ideals of liberty and equality sometimes have to trump historical tradition as understood by late 18th Cen. historical context.
April 17th, 2010 | 2:30 pm
This is a bizarre ruling. Not so much the interpretation of the establishment clause but the notion that a judge can prevent a president from issuing a proclamation. Judges are called upon to determine what the law is in order to apply it. In the course of determining what the law is, they take into account the Constitution. Each branch of the government must take the Constitution into account as it legislates (Congress) or as it executes the laws (the President). But this judge is overstepping the bounds of her office. The president may proclaim whatever he wants. She should have told the petitioners to address their concerns to the president directly. There does not seem to be a case on which she needs to apply the law.
The president should just ignore the whole ruling.
April 17th, 2010 | 3:04 pm
This is the drip, drip, drip of Leftist water wearing away the republican foundations of our country. We may argue politely about it, but the fact remains they are trying to anihilate us.
April 18th, 2010 | 12:55 am
Let me echo others and say thanks Joe for bringing this out at FT. I agree with Beckwith on this matter. It is an ahistorical reading that fails to see the founding fathers as wanting a non-sectarian government as opposed to a “secular” one. Indeed, as so many others have noted, the promotion of secularism is not a value-free enterprise.
As to Jefferson, shortly after composing the letter to the Danbury Baptist Association in which he echoed Roger Williams’ insistence on a “wall” of separation, he went to a public prayer. In addition, when explaining himself both publicly and privately as to why he did not continue the practice of George Washington and John Adams of proclaiming fasts and times of thanksgiving, Jefferson said that the matter rested with the States and Churches. In other words, he did not see separation in quite the same way as those who wish to cloak themselves with his authority do.
Finally, as to Mr. Rowe’s claim about abstract ideas trumping tradition, I would only suggest that there is no such animal as an idea abstracted from history; one simply opts for a different tradition. I might add that I agree about the need for traditions to be flexible enough to handle the challenges of subsequent generations, but all interpretive moves to deal with such challenges out to be grounded in the tradition itself. Thus to my original point about claiming the need for a “secular” govt. as opposed to the founders’ idea of a non-sectarian govt. Secularism is not nor ever has been a value-neutral stance, and to claim that the American govt should be secular is to ask it to endorse a system that impacts civic life by way of moral values. it is to import an alternative tradition that is deeply foreign to most of U.S. history. This, I would suggest, is why the founders, including Jefferson, wanted to maintain a vigorous religious life within American culture. They knew that a republic could not survive without a moral center, and religion was a critical component in maintaining that center.
April 18th, 2010 | 10:01 am
Dale,
The specific examples I had in mind were, according to historical tradition, “all men are created equal,” could mean all white propertied Protestant males.
That is, if you look at what they did and who were given equal rights in 1776 – 1791.
Or you could reason things like 1) if blacks are human then they are “men” created equal; 2) “men” means “mankind” and women are part of “mankind”; 3) likewise there is a lot of rhetoric from the Founding era that suggests all religions are protected under the unalienable rights of conscience.
These are the results we want because that gives the American Founding the moral high ground. Observing that America was, in practice, founded on the equality of white propertied Protestant males poisons the moral well of the American Founding.
But you can ONLY get out of that dilemma with some abstracting ideals of liberty and equality and reading the rules through that abstracted lens to sometimes trump historical tradition.
April 18th, 2010 | 3:37 pm
Dear Mr. Rowe,
I suppose that if you mean by abstracted lens that we need to employ logical argumentation as a way of sifting through competing traditions in order to discover the truth, then sure I would agree.
I would suggest that political reality of white propertied Protestant males was already being challenged even at the time of the founding both in terms of gender and ethnicity. For example, the sometime Baptist and founder of Rhode Island, Roger Williams had been banned from the Mass. Bay colony. As early as 1774 Rhode Island prohibited new slaves from being brought into the colony. The same is true of Connecticut thanks in part to the descents of Jonathan Edwards as for example Jonathan Edwards Jr. who was writing against slavery in 1791. I could also cite the Revolutionary Benjamin Rush who thought at the time that the desire to abolish slavery was everywhere (obviously he did not quite understand how deep the cancer went).
One could also mention the Quakers and Freewill Baptists who formed alternative traditions that were anti-slavery and then the abolitionist impulse that picked up in the early 1800s as a result of the second great awakening.
My point is that there already was an alternative tradition to the morally suspect–to put it mildly–compromise made under the historical circumstances of the late 1700s.
In addition, ironically enough, these positions spread not simply through the sheer intellectual gravity of argument, but popular preaching and revivalism. While folks like Jefferson with his overly optimistic view of humans thought that an innate moral consciousness would cause certain positions to prevail, revivalist types were busy encouraging moral conversions. Thus religion and morality were going together to stir the consciences that had their liberty guaranteed by the Constitution.
So to my mind the founding was already involved in competing traditions some of which won out because of historical circumstances and, we might say, a lack of moral courage or an overly optimistic moralism on the part of many at the time. There was no historical tradition per se if by that you mean a sole line of argumentation that upheld slavery and men who owned property. Instead, the colonies had competing traditions that had to be sifted all the while maintaining some national identity. That was the challenge.
Yes, rational argumentation had its place, as it always does, but what generally counts as “abstracted” from my perspective simply means borrowing from one tradition to critique another, or possibly recovering some important feature of one tradition as a form of self-criticism.
April 18th, 2010 | 4:58 pm
Jon,
There is another way out of that dilemma: amendments. The Constitution of 1787 permitted slavery, and in Dred Scott the Supreme Court ruled that blacks were not citizens under the Constitution and thus had no standing to sue for rights. This injustice stood until it after the Civil War with the passage of Amendments XIII-XV.
Our judges need not turn to “abstracting ideals” when the plain language of the 14th Amendment defines citizens as “all persons born or naturalized in the United States and subject to the jurisdiction thereof.” No wiggle room for restricting rights to “white propertied Protestant males” there.
Jurisprudence should not be “frozen in the context of late 18th Century” because the Constitution itself is not frozen then. The founders were not perfect, and they did not write a perfect document, and they knew it. That’s why they included Article V. Where they made mistakes, later generations could and did correct them. But when they got things right, things like the 1st Amendment that have stood the test of the time and have not needed revision in 200 years, judges should interpret those clauses the way the founders intended.
April 18th, 2010 | 7:24 pm
Joseph,
Perhaps. But 1) that still gets you a Founding that is hard to look fondly on and a Constitution that is not laudable until after the 13th-14th, etc. Amendments. And 2) without ideals abstracted from the Founding, it’s hard to make the case that Lincoln was right and the post Civil War Amendments are themselves valid.
April 18th, 2010 | 7:44 pm
“Instead, the colonies had competing traditions that had to be sifted all the while maintaining some national identity. That was the challenge.”
In other words, slavery was left to the states, just like religion.
I don’t mean that to be a glib dismissal of the argument. But there is an oft-repeated argument that “religion was left to the states,” and there were, as with slavery, competing traditions.
There was the more narrow tradition of extending religious liberty and equality rights to certain types of believers and the broader one, Roger Williams’, whom you have invoked numerous times, of extending religious rights universally.
The Michael Newdow types, it seems to me, haven’t just come in from outer space. They argue in the latter tradition, saying “hey we atheists are citizens too, entitled to equal respect.”
And I agree with them in that regard. However, I just don’t agree that government words really harm them in such a tangible way that it necessarily rises to the level of an individual constitutional right to be free from hearing or seeing government messages that make them feel like unequal citizens.
But I certainly see where Newdow is coming from and what aspects of Founding era rhetoric resonate with his position.
April 18th, 2010 | 11:15 pm
Well, I guess I would have to disagree with the first part of your response as a little over simplified. I’m not sure what to make of the silence over my point about abstracted ideas, but it does not matter in the end. Ultimately, I agree with the desire to honor the consciences of atheists, as I’m sure many posting here would.
I would simply add a caveat:
It seems to me that the best way to respect the atheist and also preserve the liberties of conscience for religious persons is not to endorse a “secular” govt. that removes religion from the public square (and here I track with Fr. Neuhaus), but to recover the founders’ notion of government not endorsing any sectarian position. I would simply argue that socially speaking atheism is sectarian, as many others have done, and thus is no different than any other sectarian approach to religion and morality. It’s funny that you invoke Newdow since he does hold some credentials in a religious organization ironically enough. So, he qualifies as espousing a sectarian form of national life, which he can do, but he should not ask the courts to endorse his sectarianism in the name of preserving separation of church and state.
In bringing these lawsuits that seek to vacate religious language from all govt. activities or entities, Atheism unfairly, in my view, pits itself against all religious positions and then screams for equality as though the Muslim is not just as uncomfortable with a Baptist prayer as an atheist would be with any religious prayer. Or, even more, some Baptists cannot be in the same room as a Catholic when prayers are being said.
At their best, the founders conceived of a separation in which no sectarian position gained the upper hand, and that is what has resulted. In a living, breathing body politic this means that all sectarian positions must have their say. The govt. does not endorse any single one because it implicitly endorses all of them, including the atheist, precisely by endorsing religious liberty or liberty of conscience, and grounding that liberty in human nature itself, which precedes any social compact. The atheist has to make room for a Muslim in the same way that a Baptist has to make room for a Catholic, etc. This means that the atheist must put up with religious language or activities as part of govt. events in the same way that Catholics have to put up with Baptists praying the inaugural prayer, etc., etc.
Thanks for the exchange, it’s been fun.
April 19th, 2010 | 1:26 am
Jon,
Amendments are legally valid if they pass according to the procedures of Article V. I don’t see the need to justify them by “ideals abstracted from the Founding” when the explicit purpose is to change or override the founders. The Constitution permitted slavery until the 13th, and did not allow the federal government to collect income taxes until the 16th, etc. As a self-governing republic we are not bound for all time by the decisions of a convention held in 1787, we are free to overturn their ideas when there is sufficient national consensus to pass an amemdment. But by the same token the original meaning of the Constitution can only change by amendment, NOT by judicial fiat.
I would make the moral case that Lincoln was right by appealing to Natural Law principles independent of any founding tradition. Slavery is wrong, pure and simple. Whether the founders realized this or not is immaterial to the discussion.
As for the founding, there is much to look fondly on despite the glaring defects. For one, the system of checks and balances has worked far better than any of the founders could have hoped. For another, the 1st amendment was quite extraordinary at a time when every major European power was either officially Catholic or else had an established state church. The history of American is a history of expanding rights over time: first to all religions, then to all races, then to women, and I hope and pray in the near future to all persons from conception until natural death.
April 19th, 2010 | 10:06 am
Gives new meaning to the phrase “crabbed reading” of the Constitution.
April 19th, 2010 | 12:42 pm
Joseph,
When it comes to Lincoln he didn’t just appeal to general natural law (I don’t want to get too complicated here) but rather what was written in America’s DOI. That’s what I mean with abstracting ideals to supplement the original meaning of the Constitution’s text, that sometimes control and trump dominant historical tradition.
Without the DOI, I don’t think one can make the case that Lincoln was right. Though I’ve see some try.
And if Lincoln were not right, then the post Civil War Amendments are not valid.
April 19th, 2010 | 12:45 pm
Dale,
It is my pleasure. And FYI I plan on incorporating some of your last comment in a blog post.
My two group blogs (one with a libertarian theme, and the other with an American Founding & religion theme) may well discuss it in comment threads, if you are interested.
April 19th, 2010 | 5:21 pm
[...] of divinity at Regent University. Yet, I have a hard time finding anything to disagree with in the following assertion of his: At their best, the founders conceived of a separation in which no sectarian position gained the [...]
April 20th, 2010 | 10:39 pm
Look, this isn’t about free religious language by elected officials, its about a law that mandates the president proclaim a national day of prayer every year. That is sectarian, it is government endorsing and promoting a particular practice which 1) all religions do not share and 2) is not shared by the non-religious. A future president could be 1) or 2), so this law is coercing speech favoring a religious viewpoint by presidents that the president may not share. All this stuff about history is interesting, but that law is clearly government sanctioned religion that is biased against nontheism and non-belief and as such should be declared a voided establishment of theism by Congress.
The notion that by declaring the National Day of Prayer unconstitutional the government is favoring atheism is total nonsense. If the government had a National Day Against Prayer Act that required the president to proclaim the futility of prayer to non-existing deities then that would be an establishment of atheism and striking down that law would not favor theism. People like Professor Coulter are so unbalanced in their perspective that they consider government silence in place or government adoption and promotion of their own monotheistic beliefs to be biased against their beliefs. What Newdow is pursuing is a balanced and correct view of non-establishment that includes everyone and favors no one. The notion that Newdow is seeking to favor his own views is inside out, upside down, backwards. Newdow is working against government favoritism, both for his minority atheism and for the majority monotheism and for all other such viewpoints. And all of his lawsuits demonstrate that his position is the balanced one here.
April 21st, 2010 | 12:27 am
Jon,
Sorry I have not returned to this blog in a couple of days, but, in any case, be my guest to use it.
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