Tuesday, April 20, 2010

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.

20 comments:

Joel Farnham said...

LawHawk,

The justice with the unfortunate name, "Babs" Crabb, really reached for this decision, didn't she?

I don't doubt it will be reversed if it gets to the Supreme Court. Will the Supremes take it up?

Another question is What other fantastical, phantasmagorical and any other 'cal has this justice bestowed on the teeming populai? ;-)

Patti said...

law: you guys are such a valuable resource for me, as i have no knowledge of the legal aspects of such things. when you break issues down within the confines of the law it allows me to grasp them in a deeper way. i'm sure i'm not the only one that is grateful. thanky sir. (i swear, this is NOT the drugs talking...)

AndrewPrice said...

On the one hand, I thoroughly agree that the government should not be in the religion game -- that's bad for the country and the public (see Middle East) and bad for the religion (see Europe). BUT that doesn't mean that the government needs to eradicate religion or pretend it doesn't exist.

There is nothing wrong with a day of prayer, because (1) it's not compulsory (heck, I didn't even know we had one -- that's how not-compulsory it is), (2) this in no way establishes a religion -- it endorses nothing other than "if you are religious, practice it today", and (3) if we're going to have other days, then it's simply discrimination to say that the government can advocate other views but not religious views.

Legally speaking, the precedents on this are clear and this judge is an idiot. But that's what happens when you substitute your own view for following the law.

Joel Farnham said...

LawHawk,

I just had a thought. Could it be that Babs is Auditioning for the Supreme Court spot for Obama? I mean it. She fits the profile.

Stupid. Check.
Liberal leaning. Check.
Activist. Check.

What more could a socialist president want?

LawHawkSF said...

Joel: If the Seventh Circuit upholds the judge, the Supreme Court will take up the case. I'm sure that they well find the proclamation perfectly OK. It doesn't require anybody to do anything, and it doesn't specify any religion. At least if the Supreme Court does take it up and rules favorably on the proclamation, we in the Ninth Circuit won't have to go through the same thing. Once the high court rules, it becomes the rule for all the federal circuits.

I'd have to do some research on this judge. Never heard of her before. Maybe she just wanted her fifteen minutes of fame.

LawHawkSF said...

Patti: Thanks, and I'll say a little prayer for you. That's OK, isn't it? LOL

LawHawkSF said...

Andrew: I think you feel the same way as the vast majority of Americans. There's a National Day of Prayer? It's so repressive and so onerous that even many lawyers didn't know it existed. It took her 60 pages of bad reasoning, mis-cited precedent, and total misunderstanding of the legal issues to conclude that she doesn't like praying, and either should you.

I know it has become cliche to say this, but that doesn't make it any less true: the Constitution does not require freedom from religion.

LawHawkSF said...

Joel: She may want that to happen, but even Obama wouldn't appoint her. The decision was so badly reasoned that it makes Sotomayor's decision in the Newark Firefighters case look positively brilliant. This judge would have problems answering basic questions at the Senate hearings, such as "what is your name?"

HamiltonsGhost said...

Lawhawk--That was definitely a Crabby decision. It seems like the liberals won't rest until they have stamped out religion in America entirely.

BevfromNYC said...

Andrew - You are absolutely right on. No one is being forced to pray. This is one of those topics that makes me boil! Even having grown up as the only Jew in a school full of Born Again Baptists, I will never understand the intolerance of the Separations people. Trust me, I was a target who in their minds, was ripe for conversion. Bless them all for trying, but it never ever offended me that they tried. Is the lack of faith of the Separations crowd so tenuous that knowing someone might pray near them could shatter their lack of faith? I will never understand these people that call themselves so "inclusive" continue to exclude a entire group of people from exercising their legal and Constitutional right.

When are we going to tear down the Supreme Court building and paint over the murals in Congress. Why is the President sworn in again on a Bible? Shouldn't that be banned? Why are the courts closed on weekends or Christmas or Thanksgiving or Good Friday or Yom Kippur? We should demand that if there is a separation, that all judges must be required to hold court dates on Saturday, Sunday and all religious holidays. Because if they really wanted a separation they would be doing that already...

LawHawkSF said...

HamiltonsGhost: Oh, they'll never give up. But I also think they'll never succeed. We're never going to have a national religion, and most religious people wouldn't want it anyway, even if the First Amendment allowed it. An established church is by its very nature oppressive, however benign it may seem (see the Church of England). It contains the seeds of its own destruction.

We've discussed religion in American as part of American exceptionalism, and this decision completely miscomprehends that entire concept. We are a religious people and a free people, and that means we won't have religion forced on us, but we won't have it taken from us either. Crabb understands neither the concept nor the long line of law which supports that concept.

LawHawkSF said...

Bev: You put your finger right on it. The Baptists were free to try to convert you, and you were equally free to choose not to be converted and continue with your own beliefs. That's the true nature of the dual concept of freedom of religion and free exercise thereof.

They had the right to believe you were going to hell without conversion, and you were free to tell them to go to hell. Only Islamists believe they have the right to send you to hell if you don't convert. But somehow our politicians and liberal judges seem to cut them a lot more slack.

Just as a small clarification, the swearing in on the Bible and the words "so help me God" are long and honorable tradition, but they are not written into the law or the Constitution. The important part is that under the First Amendment, they are allowed, and judges like Crabb and militant atheists like Newdow don't even want to allow that.

AndrewPrice said...

Lawhawk, That's what it sounds like. And you're right that "no establishment" does not mean "freedom from religion," it just means freedom from the government forcing religion on you.

Bev, I don't understand it either. What does it matter if someone is religious so long as I'm not forced to participate in their practices or pay for them to do it, and so long as I have the right to tell them to f** off?

We have a free country and if your beliefs can't withstand others who disagree with you having the right to speak freely, then the problem lies with you -- not them.

LawHawkSF said...

Andrew: That's one of the reasons I don't like the idea of jamming religion down anyone's throat. The religion itself should be sufficient unto itself, and if teaching it isn't enough to convince, then coercion certainly isn't going to do it either.

The other side of coercion is "you shall know the truth, and the truth shall make you free." The militant anti-religionists hope that they can guarantee you'll never even hear the truth. If you can't hear the truth, you can't know it. Odd how religious zealots and militant anti-religionists share one view in common. They both say "here's the truth, and if you don't like it, you're stuck with it anyway."

BevfromNYC said...

Maybe it's time to broaden the definition of "religion". Maybe that will help our secular brethren. Why should someone who worships at the altar of secularism get away scott free.
So, in the time honored spirit of throwing the baby out with the bathwater, I hereby define "religion" thusly:
[The 4th definition in the Merriam Webster ought to cover just about any belief -]

Religion:
4 : a cause, principle, or system of beliefs held to with ardor and faith.

Now no idea can be funded by the government including, but not limited to...well...anything.

That should solve our fiscal crisis and balance the federal budget.

LawHawkSF said...

Bev: That would paralyze the government, which is not a half-bad idea. As Will Rogers said, "This country has come to feel the same when Congress is in session as when the baby gets hold of a hammer." Or for that matter, Mark Twain: "No man's life, liberty or property is safe while the legislature is in session." I guess our times are not entirely unique.

BevfromNYC said...

I know it is extreme and would paralyze us all. But the broader we define our rights, the narrower our rights become. And frankly, we as a nation have lost sight of the middle ground. If we continue to go down the road this country is going right now, one day some brainiac it going to discover that any individual right effects someone else negatively, therefore we must ban all rights. Extreme I know, but isn't this what we are fighting against?

LawHawkSF said...

Bev: That reductio ad absurdum regarding everyone's rights eventually negatively affecting someone else's is the core of what we're fighting for. It's the left's rabid egalitarianism versus the conservative's liberty-based government that is behind so much of what the national debate is all about these days. One is outcome-based, the other is based on the freedom to produce the outcome by individual hard work and innovation. The former produces Cuba, the latter produces a healthy, wealthy America.

Writer X said...

Judge Crabb is really living up to her name. I guess next on her list is to abolish Christmas and kill puppies.

As always, it will be interesting to see how the President weasels his way around this.

LawHawkSF said...

WriterX: Henceforth, she shall be called Judge Christmas Crabb.

Obama's a weasel. He doesn't care about a national prayer day, but he knows where the country's sentiments lie. If the judge leaves the injunction stayed, I think he will do something resembling a presidential proclamation (with his fingers crossed behind his back).

Post a Comment