Prayer day vi­o­lates U.S. law, judge rules

The Washington Times Weekly - - Politics - BY BEN CONERY

A fed­eral judge in Wis­con­sin ruled April 15 that the coun­try’s Na­tional Day of Prayer is un­con­sti­tu­tional be­cause it calls on cit­i­zens to take part in re­li­gious ac­tiv­ity.

Se­nior U.S. District Court Judge Bar­bara B. Crabb said the statute that cre­ated the Na­tional Day of Prayer vi­o­lates the Con­sti­tu­tion’s pro­hi­bi­tion against the gov­ern­ment es­tab­lish­ment of re­li­gion.

Judge Crabb, a 1979 ap­pointee of Pres­i­dent Carter, wrote in her de­ci­sion that “some forms of ‘cer­e­mo­nial deism,’ such as leg­isla­tive prayer, do not vi­o­late the es­tab­lish­ment clause.” But she said the Na­tional Day of Prayer goes too far.

“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,” she said. “In this in­stance, the gov­ern­ment has taken sides on a mat­ter that must be left to in­di­vid­ual con­science.”

In her rul­ing, the judge said she un­der­stood that many might dis­agree with her con­clu­sion and some could view it as a crit­i­cism of prayer or those who pray.

“That is un­for­tu­nate,” she said. “A determinat­ion that the gov­ern­ment may not en­dorse a re­li­gious mes­sage is not a determinat­ion that the mes­sage it­self is harm­ful, unim­por­tant or un­de­serv­ing of dis­sem­i­na­tion. Rather, it is part of the ef­fort ‘to carry out the Founders’ plan of pre­serv­ing re­li­gious lib­erty to the fullest ex­tent pos­si­bly in a plu­ral­is­tic so­ci­ety.’ ”

The rul­ing will not stop Pres­i­dent Obama from rec­og­niz­ing, as he did last year, a na­tional day of prayer, said White House spokesman Ben LaBolt. Judge Crabb de­layed the im­po­si­tion of her rul­ing pend­ing an ap­peal.

“We have re­viewed the court’s de­ci­sion, and it does not pre­vent the pres­i­dent from is­su­ing a procla­ma­tion,” Mr. LaBolt said.

The judge’s rul­ing came in a law­suit orig­i­nally filed in 2008 by the Wis­con­sin-based Free­dom From Re­li­gion Foun­da­tion. The athe­ist, ag­nos­tic and non­the­ist group said they were sur­prised and dis­ap­pointed that the pres­i­dent in­tended to is­sue the procla­ma­tion.

“Pres­i­dent Obama is a con­sti­tu­tional scholar, and knows the is­sues at stake,” said the foun­da­tion Co-Pres­i­dent An­nie Lau­rie Gay­lor.

The Amer­i­can Cen­ter for Law and Jus­tice, a con­ser­va­tive or­ga­ni­za­tion that filed briefs in the case on be­half of 31 mem­bers of Congress, called Judge Crabb’s rul­ing “flawed” and vowed to file an ap­peal.

“It is un­for­tu­nate that this court failed to un­der­stand that a day set aside for prayer for the coun­try rep­re­sents a time-hon­ored tra­di­tion that em­braces the First Amend­ment, not vi­o­lates it,” said Jay Seku­low, chief coun­sel of the ACLJ.

“If the ap­peals court fails to re­verse this de­ci­sion, we are con­fi­dent the Supreme Court will hear the case and ul­ti­mately de­ter­mine that such procla­ma­tions

Rep. La­mar Smith, a Texas Repub­li­can who is among the mem­bers of Congress for whom the am­i­cus brief was filed, said “it is re­gret­table that a fed­eral judge has called the sim­ple na­tional recog­ni­tion of prayer — which im­poses no du­ties or bur­dens on any Amer­i­can — un­con­sti­tu­tional. “The de­ci­sion un­der­mines the val­ues of re­li­gious free­dom that Amer­ica was founded upon,” he said. “What’s next? Declar­ing the fed­eral hol­i­day for Christ­mas un­con­sti­tu­tional?”

and ob­ser­vances like the Na­tional Day of Prayer not only re­flect our na­tion’s rich his­tory, but are in­deed con­sis­tent with the Es­tab­lish­ment Clause of the First Amend­ment,” Mr. Seku­low said.

Rep. La­mar Smith, a Texas Repub­li­can who is among the mem­bers of Congress for whom the am­i­cus brief was filed, said “it is re­gret­table that a fed­eral judge has called the sim­ple na­tional recog­ni­tion of prayer — which im­poses no du­ties or bur­dens on any Amer­i­can — un­con­sti­tu­tional.

“The de­ci­sion un­der­mines the val­ues of re­li­gious free­dom that Amer­ica was founded upon,” he said. “What’s next? Declar­ing the fed­eral hol­i­day for Christ­mas un­con­sti­tu­tional?”

The law­suit orig­i­nally tar­geted then-Pres­i­dent Ge­orge W. Bush and mem­bers of his ad­min­is­tra­tion, but Mr. Obama is now listed as the de­fen­dant be­cause the pres­i­dent en­forces the statute in ques­tion by is­su­ing a procla­ma­tion each year declar­ing Na­tional Day of Prayer.

Be­cause procla­ma­tions for Na­tional Day of Prayer are re­leased through the White House press of­fice, Mr. Bush’s for­mer press sec­re­tary, Dana Perino, was orig­i­nally listed as a de­fen­dant, but has since been re­placed as a de­fen­dant by Robert Gibbs, Mr. Obama’s press sec­re­tary.

The Jus­tice Depart­ment, which rep­re­sents the pres­i­dent and Mr. Gibbs in the case, would say only that it is “re­view­ing the judge’s de­ci­sion.”

Ev­ery pres­i­dent beginning with Pres­i­dent Tru­man in 1952 has is­sued a procla­ma­tion for the Na­tional Day of Prayer, which, since 1988, has been held on the first Thurs­day in May.

Last year, Mr. Obama is­sued a procla­ma­tion; Mr. Bush held a Na­tional Day of Prayer event at the White House in 2008.

This year’s Na­tional Day of Prayer is sched­uled for May 6.

The Amer­i­cans United for Sep­a­ra­tion of Church and State, a re­li­gious watch­dog group based in Wash­ing­ton, D.C., praised the rul­ing, call­ing it a “tremendous victory” for re­li­gious lib­erty. In a state­ment, it said Congress has no busi­ness telling Amer­i­cans when or how to pray.

“The Con­sti­tu­tion for­bids the gov­ern­ment to med­dle in re­li­gious mat­ters,” said the Rev. Barry W. Lynn, the or­ga­ni­za­tion’s ex­ec­u­tive di­rec­tor. “De­ci­sions about wor­ship should be made by in­di­vid­u­als without di­rec­tion from elected of­fi­cials. That’s what free­dom is all about.”

AS­SO­CI­ATED PRESS

The face of the new Amer­ica? Free­dom From Re­li­gion Foun­da­tion co-pres­i­dent An­nie Lau­rie Gay­lor stands in front of the door at the foun­da­tion head­quar ters in Madi­son, Wis.

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