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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, April 17, 2010

National Day of Prayer Unconstitutional?

In passing during the Liu hearing (well, two parts, one day, so it's a "hearing" right?), a federal district judge's ruling holding the National Day of Prayer unconstitutional was cited. Liu begged off saying religious jurisprudence was not his forte. [More believable than him not really being familiar with Judge Reinhardt, the liberal lion of the Ninth Circuit -- hmm, vaguely heard of him ... not sure of any of his opinions ... kinda obscure, isn't he?]. So, it was let go, but hey, that's too easy for us, right?

Some good articles on the ruling though for some reason they don't seem to want to cite the case and provide a link as this blog shows is quite easily done. Talking about blogs, this hits home:
Kelly, unembarrassed about her role as an anchor/activist, pushed back to defend the National Day of Prayer. "[W]hy can't it be a day where we take a moment and we stop and we acknowledge the role that God has played in the formation of this country and its laws," Kelly asked incredulously. "What's so promotional about religion there?"

I have talked about this issue before, including last year when Obama tried a somewhat lower key approach to things. All the same, pursuant to a federal statute, he put out a "call upon Americans to pray in thanksgiving for our freedoms and blessings and to ask for God's continued guidance, grace, and protection for this land that we love." This is not a mere "acknowledgment of the role of religion in American life." As the excellent ruling here argues:
Unfortunately, § 119 cannot meet that test. It goes beyond mere “acknowledgment” of religion because its 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. “When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual's decision about whether and how to worship.” McCreary County, 545 U.S. at 883 (O’Connor, J., concurring). Accordingly, I conclude that § 119 violates the establishment clause.

Apparently, introduction of the bill in 1952 by "Representative Percy Priest" is not enough, though I think "red flag," don't you? Seriously, as the ruling notes:
religious expression by the government that is inspirational and comforting to a believer may seem exclusionary or even threatening to someone who does not share those beliefs. This is not simply a matter of being "too sensitive" or wanting to suppress the religious expression of others.

As I noted before, realistically, absolutism in this area is not the state of the law, if it ever could be. But, accepting violations as a pragmatic thing is not the same thing as a federal judge finding a way to do so. Sometimes, it is, as shown by rulings upholding "under God" in the Pledge of Allegiance. Still, this is a problematic enterprise. What is the law?
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.

This is not a mere honoring of religious freedom or practice. It is a specific instruction to the President* (which is different from a congressional resolution or the President doing this on his own) to selectively honor those who "turn to God in prayer and mediation." The way this is done is even cited with "churches" (a nice neutral word that applies to mosques and synagogues, surely?) listed first. As noted by the ruling, this comes out in how the day is honored, including the religious favoritism and controversy that pops up. This sort of thing is divisive, probably violating even Justice Breyer's somewhat weaker test for violations in this area.

It is understood that minor violations of the First Amendment of this sort (to the degree they are violations, if we use that term to mean violations under current understandings of the law) are likely to continue. Other examples in other areas can be cited. But, it does not erase the problems, and it is appreciated that judges as well from time to time provide such eloquent and well written overall explanations of why. This applies to the Supreme Court as well:
It is worth noting that, just because Marsh sustained the validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional. See post at 672-673. Legislative prayer does not urge citizens to engage in religious practices, and, on that basis, could well be distinguishable from an exhortation from government to the people that they engage in religious conduct. But, as this practice is not before us, we express no judgment about its constitutionality.

A ruling upholding passive Ten Commandments displays, especially those one of many monuments at some public park, really doesn't negate that.


* The ruling notes that all Presidents did not have similar views as to proclamations that advanced religion, including the lesser known separation of church and state supporter, Andrew Jackson. This sort of thing, along with the debate over Sunday mail service, deserves more coverage. History can be our friend here. See also, Thanksgiving Proclamations.