Federal Court Rules National Day of Prayer Unconstitutional

April 15, 2010

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U.S. District Court Judge Barbara B. Crabb of the Western District of Wisconsin today ruled that the federal statute designating a yearly National Day of Prayer ( 36 U.S.C. § 119 ) violates the separation of church and state enshrined in the First Amendment’s Establishment Clause.  

Judge Crabb’s decision granted summary judgment to the plaintiffs in Freedom From Religion Foundation v. Obama .  FFRF originally filed the lawsuit in 2008 against the Bush administration to prevent the government from declaring the National Day of Prayer.  Judge Crabb acknowledged that under legal precedent, "some forms of ‘ceremonial deism,’ such as legislative prayer, do not violate the establishment clause."  She said that the National Day of Prayer, however, is different.  "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."

The statute in question states that "The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals."  Congress established the National Day of Prayer in 1952 and in 1988 designated the first Thursday in May as the day for presidents to issue proclamations urging Americans to pray.  This year’s National Day of Prayer falls on May 6.

An order accompanying Judge Crabb’s opinion enjoins the government from enforcing the statute.  The injunction is delayed, however, until the conclusion of any appeals by the defendants.  The court’s decision is controlling only within the Western District of Wisconsin, although it does provide persuasive authority for other courts that may hear similar legal challenges.  An appeal to the U.S. Court of Appeals for the Seventh Circuit is virtually certain to follow.  The case might then be heard before the U.S. Supreme Court.

Judge Crabb should be applauded for her intellectual honesty and her courage in issuing what is sure to be an unpopular decision. In a nation where government may not meddle in religious affairs, surely federal officials have no business telling the people when they should, or should not pray.  Whether Judge Crabb’s decision will survive on appeal remains to be seen.  In recent years, our federal courts have become increasingly hostile to church-state separation claims, and increasingly accommodating to  "ceremonial deism."