It wasn’t supposed to work like this.
An atheist organization filed a lawsuit earlier in the year challenging the National Day of Prayer as a violation of the establishment clause. The hope was that, if the organization won, the suit wouldn’t be challenged by the Obama administration. After all, a liberal democratic president (a “socialist,” “communist,” and “closet Muslim”) certainly would not, as would have his “devout and godly man of the Lord” predecessor, George W. Bush, fight a ruling that used the power of government to encourage people to pray. The atheists were sure that, had they prevailed in the court, Obama would have stood right alongside them, defending the Republic against such an egregious violation of the Constitution as a nonbinding proclamation to encourage prayer. It was, as one aficionado called it, a “vulnerable time” to make their move.
That was the plan, anyway.
Well, in accordance with statute 36 U.S.C. § 119, which 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,” the president did just that, “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.”
At first, it looked very good for those who wanted to see the National Day of Prayer declared unconstitutional. The suit was filed; Judge Barbara Brandriff Crabb of the U.S. District Court for the Western District of Wisconsin ruled on April 15, 2010, that the 1988 law requiring the annual proclamation of the National Day of Prayer by the president violated the establishment clause. In Freedom From Religion Foundation, Inc., v. Obama, she wrote that the law violates the Constitution because the event’s “sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context.”
Right after the district court’s ruling, Obama Attorney General Eric Holder’s Justice Department announced that it would appeal the district court’s decision. Which means, then, that the National Day of Prayer can continue until the legal process is exhausted, which could take years.
“I would have expected something better from a legal scholar [meaning President Obama],” said Annie Laurie Gaylor, copresident of the Freedom From Religion Foundation [FFRF], a Wisconsin-based “association of freethinkers: atheists, agnostics and skeptics of any pedigree,” as well as the organization that filed the suit. FFRF now plans an online offensive, asking Obama, the principal defendant in the lawsuit, to “leave days of prayer to individuals, private groups and churches, synagogues, mosques and temples.”
Atheists suing Barack Hussein Obama because, supposedly, he’s using the power of the federal government to get people to pray? If you stuck the name George W. Bush in that sentence instead of Barack Hussein Obama, it might not seem as surreal as it now does.
A Little History
Whatever the ultimate outcome, this case highlights the fact that, even after more than 200 years of the American experiment with religious freedom and—for its time (the late eighteenth-century)—the radical idea of the nonestablishment of religion, the nation is still grappling with how the religion clauses of the First Amendment should be interpreted and applied. After hundreds of cases, many of them climaxing in the U.S. Supreme Court, what Freedom From Religion Foundation, Inc., v. Obama shows is that, even on the most basic issues, the results of this experiment, much less the hypothesis and presuppositions behind it, are still up for grabs.
In one sense, it’s unfortunate that an organization calling itself the Freedom From Religion Foundation would be the one initiating the lawsuit. Unfortunate, because it gives the idea that only atheists, and those opposed to religion in general, are the ones who have been the traditional and long-standing proponents of a strict interpretation of the establishment clause. When the First Amendment says that “Congress shall make no law respecting an establishment of religion,” for them, it means just that “no law,” not even statute 36 U.S.C. § 119, a nonbinding proclamation urging folks, under no compulsion of the law, to pray.
Historically, though, it was religious groups who were the staunchest defenders of the establishment clause. In most early American colonies, for instance, Baptists were jailed, fined, exiled, beaten, and mobbed, most often for refusal to obtain a license to preach, for refusal to attend established churches, or for refusal to pay taxes to the state established religious body, whatever it was.
The problem was particularly acute in Virginia, where the Baptists, under constant harassment from the established church (Anglican), decided to fight back. As a result, American constitutional history was made, and, in a real sense, their fight helped shape the America we have today.
The bottom line was simple: the Baptists said that unless the new federal Constitution, just recently hammered out in Philadelphia in 1787, had a Bill of Rights that guaranteed religious protection, they simply weren’t going to support its ratification, which could have stopped the Constitution in its tracks. If such a large and influential state like Virginia refused ratification, other states could have followed suit, the Constitution would not have become the law of the land, and one can leave it to the reader’s imagination to envision how different our world would be than it is today. (Plus, too, congressional elections were coming, and the Baptists—previously enthusiastic supporters of James Madison—were threatening to support his opponent, James Monroe, for the seat if Madison didn’t support a Bill of Rights for the new Constitution.) Thus, the much-loved First Amendment religion clauses resulted not only from some self-serving politicking by James Madison, but also from the lobbying efforts of a Christian group looking out for number one.
The Genius of the Establishment Clause
Of course, the America of today is a radically different place than in the days of eighteenth-century Virginia, and First Amendment jurisprudence has greatly evolved (for starters, it was never meant to apply to the states, but only to the federal government; and it wasn’t until the twentieth century that, through the vehicle of the Fourteenth Amendment, it was “selectively incorporated” to the states).
Nevertheless, the principle behind it remains the same: government, by virtue of being government, works by force, the force of law, which includes threats of fines, jail, or even worse, depending upon the offense. In contrast, religion (at least as we understand it in the West) is predicated upon free choice. Coerced religious practices, particularly coerced by the threat of law, are worthless. To quote John Locke, who heavily influenced the thinking of Thomas Jefferson: “The care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force.” He continued: “I may grow rich by an art that I take not delight in; I may be cured of some disease by remedies that I have not faith in; but I cannot be saved by a religion that I distrust, and by a worship that I abhor.”
The Founding Fathers understood this principle. Hence, the idea behind the establishment clause: if the government doesn’t establish religion, then religious practices won’t have the force of law behind them, which is the way it should be in any society that deems itself free.
However lofty the principle, implementing it in a large and complex country like the United States, where morals, religion, and politics by their very nature are often inextricably combined, has been the challenge our nation has faced since inception. Freedom From Religion Foundation, Inc., v. Obama is, simply, one of the latest manifestations of that challenge.
The National Day of Prayer
From the earliest days of the Republic, some leaders have issued nonbinding decrees of some sort or another invoking the Deity; others, citing church-state concerns, haven’t. Jefferson refused, saying in 1808: “Fasting and prayer are religious exercises; the enjoining them an act of discipline. Every religious society has a right to determine for itself the time for these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it.”
Though the National Day of Prayer has its roots in the 1950s, when a law was passed allowing each president to pick a day for national prayer, the present federal statute, the one struck down in the recent decision, was signed in 1988 by Ronald Reagan, had said: “On our National Day of Prayer, then, we join together as people of many faiths to petition God to show us His mercy and His love, to heal our weariness and uphold our hope, that we might live ever mindful of His justice and thankful for His blessing.”
Is this legal proclamation, a law of the land, a violation of the establishment clause, especially when it’s nonbinding. Though the courts have long ruled that “nonbinding” religious exercises such as prayer, in certain public venues, such as schools, where children by law are forced to attend, are a violation, what about something as broad-based and innocuous as this law, which most Americans, even the religious ones, probably don’t even pay attention to anyway?
One could argue, technically, as Judge Crabb did, that nonbinding or not, the law is still a government endorsement of some form of theism, and in principle does violate previous establishment clause jurisprudence: This law, she wrote, “is not an accommodation under Supreme Court precedent; it is taking sides on a matter of religious belief. Because supporters of the National Day of Prayer have no need for the machinery of the State to affirm their beliefs, the government’s sponsorship of that day in § 119 is most reasonably understood as an official endorsement of religion and, in this instance, of theistic religion.” She said, too, that the law “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. When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship.”
However much Americans have, at least historically, revered the idea of the “wall of separation” between church and state, it’s not easy to build a wall between two entities that are so intricately entwined. Church-state separation was meant to protect religious freedom of all people; the establishment clause is a crucial component of that protection. But the clause itself was never meant to push religion out of public life altogether. The challenge for lawmakers and courts is, as one U.S. Supreme Court justice wrote, a matter of “line-drawing.” Where to draw the line? When does an attempt to keep the government out of religion actually become something that restricts the free exercise of religion, the other part of the religion clauses of the First Amendment? That’s been the struggle the nation has been facing for the past 200 years and, as Freedom From Religion Foundation, Inc., v. Obama shows, we still don’t know just what the precise answer is.
The situation can get sticky for churches, such as it was with the Baptists in the 1800s, who advocate for church-state separation. Even today, religious bodies—the very people the establishment clause was originally written to protect—can be seen as hostile to religious liberty by their strong defense of the nonestablishment of religion.
The Seventh-day Adventist Church, for instance, a staunch supporter of the separationist principle (and also the publisher of Liberty magazine), has struggled with the issue. In the late 1800s, a law was proposed to have the King James Bible read in public schools (could you imagine something like that today?); some leaders in the church wanted to fight the law on church-state separation grounds. Another leader, Ellen White, while admitting that she did “not see the justice nor right in enforcing by law the bringing the Bible to be read in the public schools,” didn’t want to see the church placed in a position where its stance could easily be misconstrued.
That’s been a problem that any church—or any organization for that matter, religious or secular, which understands the importance of the establishment clause—faces. Again, where do you draw the line? Not everyone wants it drawn in the same place, and it’s easy to be suspicious of those who draw it where you don’t think it belongs.
How this case will play out in the long run, who knows? What we can be sure of, though, is that it will be a long run. Until then, the National Day of Prayer remains—arguably for better, not for worse.
Author: Clifford R. Goldstein
Clifford Goldstein writes from Mt. Airy, Maryland. A previous editor of Liberty, he now edits Bible study lessons for the Seventh-day Adventist Church.