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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Saturday, April 24, 2010

More on the National Prayer Day case

As I reported about a week ago , a federal District Court in the US recently struck down a statute providing for a "national day of prayer": Freedom from Religion Foundation v. Obama (15 April 2010). At the time, I said that I had no idea whether the administration would appeal, but it soon became obvious that an appeal would be lodged. Sure enough, this has now happened.

This case still strikes me as a no-brainer. An institution such as National Prayer Day clearly gives government endorsement to a form of religion, and any statute that underpins National Prayer Day is to that extent repugnant to the US Constitution - more specifically the First Amendment, which forbids any law concerning an establishment of religion.

Nonetheless, there is some room for the argument that certain relatively minor endorsements of religion by the government are constitutionally acceptable. Given that fact, and given that the administration is under political pressure to defend National Prayer day and other government-level endorsements of religious belief, it is not surprising that an appeal was filed. I'm not especially troubled by this - all litigants have a right to appeal and test the law - but there's one aspect that does worry me. The appeal does not merely dispute Judge Crabb's opinion on the merits. Much worse, it attempts to deny the Freedom from Religion Foundation's standing to pursue its case against National Prayer Day in the first place.

This is an appalling development because it has the potential to render laws that breach the Constitution almost invulnerable to legal challenge whenever the breach is a mere endorsement of religion by the government and doesn't compel any conduct from citizens. While more tangibly oppressive laws might still be open to attack in the courts, in appropriate cases, an unconstitutional law whose forbidden effect is "only" government endorsement of a religious viewpoint, affecting all citizens in a relatively inchoate way, would not be. This would create injustice.

A law with broad effect on everybody in the society, but not damaging anyone in particular, should be open to challenge from any concerned citizen. Otherwise, the legislature is free to enact whatever unconstitutional laws of this kind it wishes, and no one will have standing to do anything about it in the courts. Surely that can't be right.

My fear, however, is that the courts might be tempted to go along with such an approach, since it would enable them to dodge the merits of many unconstitutional but popular laws. That temptation should be resisted. The constitution is the consitution, the legislatures of the US have no business in enacting laws that contravene it, and the courts should face up squarely to cases where contraventions are alleged. A law whose unconstitutionality affects every citizen, rather than altering the rights of some particular category of persons, must not be saved by the contrivance that there is no class of people with standing to challenge.

As the current batch of cases works its way through the courts, some American laws that endorse religion may end up surviving on the basis that they do not "really" endorse religion at all. Rather, goes the argument, they merely use high-blown traditional rhetoric: they make reference to an unspecified god in order to provide a ceremonial aura of solemnity. This argument can be applied to the expression "In God we trust" on the legal tender of the United States of America, to the words "under God" in the Pledge of Allegiance, and to the use of religious language and ritual in various formal settings, such as prayers and invocations of God in legislative chambers and courtrooms. The courts are not willing to say that any constitutional breach is de minimis (trivial) so they prefer to find a doctrine to support the claim that there's no breach at all. Hence, they have been developing a doctrine of "ceremonial deism" to cover some of these situations.

At the moment, we don't know which words and practices (if any) will be saved on the basis that they merely use the language of ceremonial deism to impart a sense of solemnity. The idea of ceremonial deism is still at an early stage and has not been fully thought through; we'll need to see more decisions from the courts, especially the US Supreme Court. Clearly, many religious people will not be happy if cherished words such as "under God" in the pledge survive only as ceremonial deism, because such words do have religious, not merely ceremonial, significance for many Americans. If the courts save some words and practices on the basis that they are ceremonial and don't literally mean what they say, that's a somewhat Pyrrhic victory for the religious. Nonetheless, it is likely that this doctrine will be developed and applied to various factual situations, if only because it provides the courts with a pragmatic way to save some laws that are too popular to strike down without risking social unrest.

Be that as it may, the present case is not one where the law can be saved on the basis that it is merely ceremonial. National Prayer Day and its supporting legislation don't provide a case where flowery traditional language is attached to something of independent seriousness and importance, such as a pledge of allegiance to the nation, or the nation's legal currency, or the functioning of organs of government such as courts and legislatures. Rather, National Prayer Day stands alone as a call to the citizens to engage in acts of prayer, presumably to a deity that answers prayers or takes some gratification in hearing them. While there is always a modicum of doubt available, particularly when the relevant legal doctrine is so undercooked, National Prayer Day seems more straightforward than the other obvious cases. As Judge Crabb said in her opinion:

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.

Exactly so, and the government should not be doing that. The impugned law has no plausible secular purpose whatsoever, not even a ceremonial one. On its face, easily confirmed by the legislative history, it clearly amounts to government urging of citizens to engage in a distinctively religious practice. If the courts can save National Prayer Day, they can save almost anything, since this is such a weak case for the ceremonial deism theory or anything like it.

Judge Crabb was right to find that the National Prayer Day legislation is unconstitutional. The appeal court - and the Supreme Court if the case ends up there - should have the integrity and courage to reject the administration's appeal.


DM said...
This comment has been removed by the author.
tomh said...

Unfortunately, there is almost no chance this ruling will stand. The standing question gives the Seventh Circuit an easy way out, but if it somehow survives that, (unlikely but possible), there are five virtually certain votes against it in the Supreme Court, the four usual suspects plus Kennedy. As Eugene Volokh points out , Kennedy is already on the record, with his County of Allegheny dissent (1989) which expressly pointed to the National Day of Prayer as something that should be upheld. Judge Crabb wrote a reasonable, accurate opinion but it is doomed.

Russell Blackford said...

Sandra Day O'Connor is a great loss to the court.

tomh said...

Considering that she was replaced by Alito it was a disaster.

Russell Blackford said...

Yeah, exactly.

Anonymous said...

Russell, I see your biggest fan has found your blog. He likes to delete his posts, I guess when the "Crystal Night Tonight" prediction fails to be fulfilled yet again.
Highlights illustrating the prodigious intelligence behind his remarks:

DM said...


When I see your UGLY FACE I understand why you are an atheist






Repent and turn to God or be destroyed..

Threaten much?

Russell, I enjoy your posts and blog. Keep up the good work.

Russell Blackford said...

Hi Steve: I have no idea what "Crystal Night" is, outside it's reference to the notorious Nazi rampage against the Jews back in 1938. Just ignore DM, please.

Russell Blackford said...

Ugh- that should be "its", not "it's".

chuckgoecke said...

It would seem to me that this idea of no specific harm - no standing could come back to bite the religious right, gun-toting "heartlanders" in the ass. If a liberal state like say Massachusetts, created a law that forbid ALL guns, and the NRA tried to get it declared unconstitutional, they could be denied because they have no standing; no specific individuals are harmed by the law, it just affects all equally.

Anonymous said...

This just goes to show how toothless the vaunted "Constitution" of the United States is.

tomh said...

Because a few justices have interpreted standing in a particular way, the whole American Constitution is toothless? That seems a bit extreme.

Sean P said...

Great post Russell. I agree that the reasoning behind the ruling is sound and I hope the courts have the political courage to uphold it.

Christian Poppycock said...

Maybe it's time to get ahead of the issue and get behind the campaign to establish a National Day of Reason, led by the American Humanist association.

Personally, I also like to see a "National Day of Virgin Sacrifice", along with a "National Day of Rubbing A Rabbit's Foot."