Counterculture Con HQ

April 23, 2010

Judge: National Day of Prayer Unconstitutional

Sec Prog lawyer in black robes rules National Day of Prayer unconscionably unconstitutional based on– get a load of this– “the feeling of unwelcomeness and exclusion they experience as nonreligious persons”.  It hurts his feelings.  The judge, or course, knows more about the First Amendment than the very Founding Fathers who hired chaplains for both houses of Congress, and prayed daily while deliberating that amendment.

In a decision released Thursday, U.S. District Judge Barbara B. Crabb declared the National Day of Prayer unconstitutional. The decision comes in the case filed by The Freedom From Religion Foundation (FFRF), a Wisconsin-based organization, which challenged the constitutionality of a 1988 federal law giving the president the authority to designate the first Thursday in May as a National Day of Prayer.

The day of prayer “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,” Crabb wrote. “In this instance, the government has taken sides on a matter that must be left to individual conscience.”

The American Center for Law and Justice (ACLJ) which represented 31 members of Congress in an amicus brief defending the National Day of Prayer, said that the decision is flawed and expressed confidence that it will be overturned.  “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.

The ACLJ brief noted that the country has a long history of recognizing a national day of prayer dating back to the late 1700’s with the Continental Congress recommending that the states set apart a day for prayer and thanksgiving.  The brief states that “the historical evidence establishing a National Day of Prayer as deeply embedded in the tradition and history of this country is indisputable.”


The Obama Administration– to their credit– are condemning the decision, arguing the National Day of Prayer simply acknowledges the role of religion in the United States.  The Justice Department has filed an appeal, and will fight the ruling, not only on the merits, but also on the plaintiff’s standing to bring the suit.  Many are already snarkily and not so snarkily second-guessing their motives, but CCHQ won’t do so as long as I agree with their actions.

Jay Sekulow (ACLJ), meanwhile, says the case will go all the way to the U.S. Supreme Court, and that it will have an immediate impact on President Obama’s Supreme Court nomination to replace the retiring Justice Stevens.

“This issue could very well be decided by the next appointee to the high court. An issue like this underscores the importance of why it’s so critical for the nominee to answer direct questions about their judicial philosophy, how they view the role of judges, and their view of the rule of law.”

“Every time…in the last at least 15 to 20 years when there’s been a Supreme Court vacancy, it seems that there’s one case that arises that gets the interest of the United States Senate and the confirmation process,” he observes.  “And that may well be this case because it’s a unique case. It’s a federal statute; it’s the National Day of Prayer passed by Congress.”

“The reason I think it goes to the Supreme Court is because, who knows what’s going to happen at the Seventh Circuit (Court of Appeals),” Sekulow said. “That is a circuit that has been difficult at times on religion cases. I think it is very likely that this case ends up in the Supreme Court of the United States, and I think we will carry the day, but it is going to be a close case.”


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