National No-Prayer Day

The first national day of prayer was declared in 1775. The Founders at the national convention which became the Continental Congress asked itself and its fellow Americans to pray for the beginning of a new nation which had not yet declared its full independence from England. Each year since, it has been observed in some form since the founding of the republic. Sometimes there was a presidential decree, sometimes a Congressional session, but it was always there.

Still, it was mid-twentieth century before Congress passed formal legislation regarding a national day of prayer and authorizing the president to declare such a day each year. Ever since, liberal judges have been attempting to ban all references to religion from the public forum, to greater or lesser success. But this year we've encountered a genuine first. US District Judge Barbara Crabb, of the Seventh Circuit, issued a 60 page opinion finding the practice unconstitutional and ordering President Obama not to issue an executive order proclaiming the celebration.

I am not someone who needs a presidential proclamation or an act of Congress to lead me to prayer. But I always found the proclamation a reaffirmation of America's recognition of the role of religion in the founding and perpetuation of the republic. And though I could have continued my religious practice quite nicely without it, I now take great umbrage at an activist judge issuing a poorly-reasoned opinion which reverses 235 years of tradition and 60 years of law based solely on her own twisted version of freedom of religion. I particularly take issue with her crazed idea of what the Founders meant about freedom to worship when those very same Founders began the practice themselves.

To her minimal credit, the judge stayed her injunction against President Obama issuing the order pending probable appeal. But Obama's religious beliefs are unknown and unknowable, and about as deep as morning dew on a rose. He is certainly no Andrew Jackson willing to say "the court has made its decision, now let it enforce it." Had she not stayed the injunction, Obama would have obeyed. Not because he believes in the Constitution or has any genuine religious belief, but rather because he believes in judges who make up the Constitution and its meaning as they go along. Since 1988, the date of the celebration has been the first Thursday in May. We shall see what Obama actually does.

In 1983, in the case of Marsh v Chambers, the Supreme Court upheld legislative prayers on the grounds that they originated at the founding of the nation and with the men who wrote the Constitution (including the First Amendment). The judge in the current case strained mightily to find some distinction between the Congressionally-sanctioned presidential proclamation of National Prayer Day from longstanding federal proclamations of days of prayer, Thanksgiving, and fasting. After all, to whom were people giving thanks on Thanksgiving? And even if the answer is the currently-popular Gaia, so what? They're free to pray to any deity they wish--or to none at all. Still, the judge's decision is at least consistent with multiple other liberal decisions relating to crossing the line between observance and endorsement. Yet that is not the same thing as Supreme Court precedent.

Four of the five current Supreme Court Justices (Stevens not among them) appear to wish to severely limit the meaning of "endorsement" for constitutional purposes. The fifth, Justice Kennedy, takes a somewhat broader view of what constitutes endorsement, but his paper trail is already on record. In the 1989 case of County of Allegheny v American Civil Liberties Union, Kennedy specifically pointed out the National Day of Prayer as the type of practice which is well outside the arena of endorsement, and as a practice which ought to be upheld.

Though the Obama administration's heart won't be in it, it seems very likely that the government will appeal the case. First, because it's an election year with an angry electorate sick of being treated like ignorant hicks because of their religion, and second because the decision strikes down a federal statute and narrows the power of the chief executive. This is somewhat of a reversal of fortune for liberals. An activist liberal judge declaring that Congress actually has limited power and the chief executive can't be in cahoots with them.

But this liberal judge has picked the wrong issue. Liberal judges are supposed to tell the states they don't have the power to enact any meaningful legislation, that Congress has plenary power over every facet of what citizens say, think and do, and limit the executive's power to pursue a war successfully while supporting any executive action domestically so long as it "serves the public good (which public good is defined solely by the courts)."

Unlike the far left Ninth Circuit Court of Appeals, the Seventh Circuit is neither reliably liberal nor conservative. It would be unlikely to uphold the judge's decision if the appeals court sticks to Supreme Court precedent. But if it can carve out some small deviation from high court norms in the act that produced the National Day of Prayer, it could conceivably uphold the judge. Unless Obama gets an opportunity to appoint a third Supreme Court justice, it is nearly a certainty that the high court will reverse the judge (and the Seventh Circuit, if necessary). In which case, this will all have turned out to be another failed attempt of the religion-haters to ban religion in any form from the public forum. But don't worry--they'll keep trying.