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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 17, 2010

National Prayer Day to go ahead in the US

National Prayer Day, on 6 May 2010, will go ahead in the US despite the court ruling that its supporting legislation is unconstitutional.

Nothing much should be read into this, however, since the court issued an injunction that will only come into effect after appeals from its judgment are exhausted (assuming that the judgment survives appeal). The case is headed to the next level of the court system, so the government is legally able to go ahead this year.

I'll get to the full opinion of Judge Crabb as soon as possible.


NewEnglandBob said...

Slowly the world is building up to realize that there is no god and that religion is a crutch for the ignorant, fearful and mentally imbalanced.

Russell Blackford said...

Not sure why it's telling me there are no comments.

Zachary Voch said...

From the conclusion of the judgment:

"Although the law does not always point in the same direction on matters related to the establishment clause, my review of that law requires a conclusion that 36 U.S.C. [section] 119 is unconstitutional."

And later,

"The only issue decided in this case is that the federal government may not endorse prayer in a statute as it has in [section] 119." (emphasis in original)

Judge Crabb also specifically mentions certain items not ruled unconstitutional in her judgment, including privately practiced prayer as organized individually or in groups as well as the right of the President to openly discuss prayer.

Of course, we've already seen a little bit of confusion on this matter with the Hitchens vs. Perkins moment on CNN, but that's to be expected. The constant whine from the various `family' associations takes a familiar tone: days of prayer are a tradition, this activist district judge overextended the law, etc. The confusion is also part of this familiar tone; no such tradition was ruled unconstitutional, only the proclamation of a specified national day of prayer as given by U.S.C. 36 section 119.

Judge Crabb does not disregard the traditional view, actually, as given by the introduction of the decision. She continues, comparing what the statute demanded with items previously ruled constitutional (or not) by other courts. In other words, this decision is in no way a break with tradition. The statute itself is a 1988 modification of a 1952 law, hardly a tradition dating back to the founders. As much of the motivation can be found from `anti-Communism' with `tradition.'

Further, the traditionalists are forgetting the usual item yet again, the tradition. In practice, the day of prayer is more of an evangelical circus than a nonspecific christian, much less ceremoniously deistic, event. This is also a fairly recent phenomenon, beginning like most such `national traditions' held dear by the modern religious right... with the religious right. The origins of the modern event go back not to the founders but to Billy Graham in 1952, urging such an event with a speech including some key points of the religious rights' mythic history and doom prophecy: 'our Nation was founded on God, religion, and the church', 'We have dropped our pilot, the Lord Jesus Christ, and are sailing blindly on without divine chart or compass....,' 'if this state of affairs continues, the end of the course is national shipwreck and ruin.'

As Crabb notes, this speech motivated the formation of a national day of prayer:

"After Graham's speech, Representative Percy Priest introduced a bill to establish a National Day of Prayer. In addressing the House of Representatives, he noted that the country had been `challenged yesterday by the suggestion made on the east steps of the Capitol by Billy Graham that the Congress call on the President for the proclamation of a day of prayer'."

And as to be expected, even from here, the emphasis lay overwhelmingly on not nonspecific calls of guidance, but the Judeochristian tradition in particular.

Zachary Voch said...


On page 10, Crabb addresses what I regard as the most important item, the day of prayer in practice. It is the role of the judicial system to examine constitutionality of laws not only on the `technical' and `definitional' questions but also on the effects of the laws in practice. This is why `separate but equal' can be struck down as unconstitutional, as in practice, `separate' was essentially unequal. Here too, questions of the practice of the national day of prayer are important. Even if we assume that the technical aspect of the question is not an issue, does the national day of prayer really take a neutral stance with regards to `Religion A' vs. `Religion B' and `Religion' vs. `non-Religion'? Certainly, the largest private organizations surrounding the national day of prayer are Christian. An example of such an organization given by Crabb is the `National Day of Prayer Task Force', a group which demands that "Coordinators, volunteers and speakers at task force events must share [Lausanne covenant, biblical inerrancy and uniqueness as word of God] in order to participate."

As an addition to Crabb's decision, we can also pinpoint ideological specifics surrounding the National Day of Prayer quite easily. The organization behind the `National Prayer Breakfast' is `The Family'. When Obama did not attend this breakfast in 2009, he caught the expected flak from the expected media quarters: http://www.foxnews.com/politics/2009/05/06/obamas-decision-observe-national-day-prayer-privately-draws-public-criticism/

Did this flak come from the equally represented Muslim, Hindu, and deist public? Or was it any particular religious group who disliked Obama not attending a breakfast put on by a legally and ethically dubious Christian interest group? That the day of prayer is almost entirely intended in a specifically religious (and more specifically Christian) way barely needs commenting to an educated audience. Unfortunately, we won't be seeing that from the press.

What can we expect the see? Headlines like `Prayer in schools outlawed' as opposed to `faculty-led prayer in schools unconstitutional', we can expect to see `days of prayer outlawed' as opposed to `congressionally determined, specific national days of prayer ruled unconstitutional'. As few people read much further than the headline, we can expect, even given the questionable assumption that the rest of the article will sort it out, that much of the anger will be vented at a loosely similar but imaginary ruling as opposed to the actual decision.

On television media, the `both sides' story will play out repeatedly, featuring some ACLU/Hitchens type and some Dobson/Donohue type. The dialogue will be boring, full of interruption, and largely incoherent. The Dobson type will cry about tradition, the ACLU type will go to the law and try to clarify what it said and what the tradition actually is, followed by the ACLU type being interrupted with some other reflexive cliche which restarts the cycle. That's before we get to the nightmarish world of the commentators on Fox and elsewhere. There are a few bright spots (even on Fox) where I have mixed hopes (I've seen Megyn Kelly get establishment issues correct before), but it'll largely be silliness. Back to my original point, it will almost all (if not all) entirely based on the Christian (and mostly evangelical) reaction.

Zachary Voch said...


(See the decision pages 57-59 for other specific examples of unconstitutionality in practice/christian nature of the day).

Lastly, Crabb applies the Lemon Test (which also got a (mis)-mention from Perkins). The question of whether or not the statue fails the Lemon Test is, as far as has I have seen, unanimously a `yes'. The only objections then lie mostly with the `inapplicability' of the Lemon Test, but each `prong' of the test as applied was tested by case law most relevant to the current case. It was not applied, as claimed by Perkins, in a way distinct from any intended purpose of the Lemon test. That said, the Lemon test has three criteria for a law to be constitutional: secular purpose, primary purpose other than advancing or inhibiting religion, and avoiding `excessive entanglement of church and state'. The first two parts are together described as the `endorsement test' (pg 17). The next several pages are spent on the reasons for and applicability of the endorsement test in general and as particularly relevant to this case. The only argument used by the defense against the application of the Lemon Test is addressed on page 21. The argument being that the test isn't `universal' as it wasn't found `useful' by a previous case. Agreeing with this, Crabb still nevertheless found the Lemon test `useful' in this case and proceeds to apply it. The obvious end of which was the failure of the statute.

Sorry for the rather longish rant on the topic. Just thought I'd give a solid American reaction to the decision with citations from the most interesting areas in anticipation of your next post.

Russell Blackford said...

I don't look on it as a rant. That was interesting.

Blake Stacey said...

That was a well-informed and nicely written "rant"! :-)

"Ceremonial deism" makes no sense to me. If the "In God We Trust" business were really just a rhetorical flourish, nobody would mind that much if it went away. But no, folks take it seriously indeed — and the ones who do are not, by any stretch of the imagination, deists.

It is the role of the judicial system to examine constitutionality of laws not only on the `technical' and `definitional' questions but also on the effects of the laws in practice.

Quite so.

Russell Blackford said...

It's going to be very interesting to see how the religious react if some of these things, such as "under God" and "in God we trust" survive as ceremonial deism - as just traditional language mentioning God to impart a sense of solemnity. (The court needs to use this theory because it can't come out and say that some examples are de minimis which is probably the truth. The idea is that the constitution is so important that no breach can be considered de minimis, so the courts will want to say that there's no breach at all.)

I expect that some of the language floating around will survive on that basis, because the SCOTUS, when it finally gets hold of one these cases properly, doesn't want to cause riots in the street. And I think it's pretty clear that "ceremonial deism" is the line the government will take. Maybe if I were on the bench I'd go along with it, because the function of the courts is to resolve disputes, not to stir up war in the streets, and we all know that the courts are pragmatic: they will not take legal doctrine to its logical conclusions, but will have an eye to the social implications.

But Blake is right: the religious won't be happy because they insist that this language is not just ceremonial. And the irreligious will take comfort that the language has been declared not to mean anything. The court will be happy, though, that it least there won't be riots, just low-level resentment on both sides.

That said, the present case is not one that can be saved easily on the ceremonial deism theory. National Prayer Day is not some kind of ceremony that has survived as a tradition over the centuries. It's a relatively recent innovation and it's freestanding ... it's not high-falutin' language attached to something else. It's not like someone saying at the start of court proceedings, "God bless this honourable court" as they've been doing for 250 years (which may, for all I know, be a true situation with some state courts in the US; I'm making up the example, but it's a possible one). If this case gets to SCOTUS, the current judgment should survive, even under the ceremonial deism theory.

The "under God" thing in the pledge of allegiance might continue to survive, even though the history of it is against it, as is the original meaning ("God is on our side against the Godless commies"). But the context of the words is such that they could be interpreted as ceremonial.

I suppose the words on the currency could also be seen as sort of "ceremonial", given that this is the official legal tender of the nation and all.

But National Prayer Day looks like a particularly weak case even if you buy into the ceremonial deism theory.

If the SCOTUS is shrewd, it will deal first with "under God" (which is going to get to it first, so this is a no-brainer so far) and save it on ceremonial deism grounds. That gives a qualified win to the religious and averts the worst riots, assassinations of judges, etc.

It will then deal with the case we're discussing, which will have gone through the appeal court by then, and continue to strike down National Prayer Day, which gives a win to us. The religious will be very unhappy, but they'll know that they thing which seems most important to them ("under God" in the pledge) survived and that some other things are likely to survive.

I don't know whether that will take the heat out of the whole thing or whether each example will have to be adjudicated one by one. But if "under God" does survive, quite a few other things will. If the above scenario works out, I'd then concentrate on other issues if I were the FFRF. Even the application of ceremonial deism theory is a sort of victory if the big-picture aim is to disestablish religion.

Russell Blackford said...

Dammit, I should have made that my post du jour. ;)

Blake Stacey said...

the SCOTUS, when it finally gets hold of one these cases properly, doesn't want to cause riots in the street.

One more reason I'll never be qualified to be a SCOTUS judge. :-P

Dammit, I should have made that my post du jour.

Well, I won't stop you; I'm a noted content-reuser myself.

Russell Blackford said...

Well, I've done plenty to make sure I'll never be a judge of any sort, even though I do meet the minimum qualifications for appointment. :(

Ronald A. Lindsay said...

Russell: Your analysis of how this case might be decided if an appellate court reaches the merits of the dispute may well prove correct. Given the current composition of the judiciary in the United States, it is unlikely the National Day of Prayer will be found unconstitutional. It will be somewhat difficult to force the NDP into the “ceremonial deism” mold, because, among other things, the NDP does not reflect a long-standing tradition and a call to prayer carries more weight than a passing reference to God, but to provide themselves with the maximum amount of wiggle room, courts in recent years have emphasized every case must be decided based on its special “context.” I can easily envision a court reasoning that the statute is not unconstitutional because it merely acknowledges the (supposed) fact that the majority of Americans pray and the statute places no compulsion on anyone to engage in prayer.

However, I am fairly confident the case will not be decided on the merits. The biggest obstacle Establishment Clause plaintiffs have had to overcome in recent decades is the requirement that they have standing, that is, a right to bring suit. Federal courts have limited jurisdiction, and to have a case heard on the merits, a plaintiff must show that she has suffered an injury that is distinct from a generalized grievance that many other people might share. This is difficult to do when one is challenging what is essentially a symbolic endorsement of religion. (In cases involving religious monuments on public land, invariably the successful plaintiffs are individuals who can show that they have significantly more contact with the monument than the general population.) Courts wanting to avoid a controversial ruling are quick to embrace any means of dodging a decision on the merits of dispute, as confirmed by the history of the Pledge of Allegiance litigation. So my prediction is that, sadly, the court of appeals will conclude that FFRF lacks standing to sue and will dismiss that case on that basis.

tomh said...

Russell wrote:
It will then deal with the case we're discussing, which will have gone through the appeal court by then, and continue to strike down National Prayer Day, which gives a win to us.

This is far too optimistic, as Ronald A. Lindsay points out. Just as with "In God We Trust" on currency, there is no doubt that the Day of Prayer violates the 1st Amendment, but that will mean very little when the case gets to the Court of Appeals, let alone the Supreme Court. Whether on standing, history, or some other pretext it is just about certain that it will be brushed off as "no big deal and therefore OK."

Zachary Voch said...

Ah, who would've seen this kind of coverage coming, particularly of O'Reilly?