The National Day of Prayer has come and gone, again, and no one was burned at the stake (by Christians anyway) even in effigy. The government did not suddenly transform into a scarlet-robed theocracy, and Barack Obama was not seen wearing gold-threaded vestments and a miter. Nary a censor nor a whiff of incense was seen or smelled in the Capitol, though there was a good deal of incensed rhetoric whizzing about the Internet. We’ve survived the 58th incarnation of what secularists would have us believe is an exercise repugnant to our Founder’s intent.
This, of course, is utter nonsense wrapped around a germ of truth.
Both the Constitution and the First Amendment were written and ratified by the States because as a body, the people of this country understood and accepted that religion plays an important part in society and private life and is worthy of protection, and that government sponsored oppression of religion is a great evil. Many of the immigrants to this country throughout history have come here fleeing government oppression of religion.
To say, as many atheists do, that this nation was not founded as a religious nation, which is the equivalent of saying that this nation was formed as a nation of atheists, is preposterous nonsense and rank historical revisionism of the worst sort.
This nation was founded instead as a place of religious pluralism, where no one can be compelled to adhere to any particular religion, but where everyone is free of government restraint of their right to peaceably adhere to any religion they may choose.
The vast majority of people in this nation, from before the day of its foundation, are and were always profoundly religious, and they had no intention of sacrificing their religious beliefs on the altar of secularism and atheism as the Socialists and Communists have done, which is precisely why they forever forbade government from suppressing their religious beliefs.
The Free Exercise clause makes it perfectly clear that “Congress shall make no law…prohibiting the free exercise [of religion].” Extension of this proscription to the states, and every level of government from the top down comes through the 14th Amendment, which says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Free exercise of religion is one of the privileges citizens enjoy.
In this regard, both the states and the Congress have an affirmative duty to the People to preserve, protect and defend their rights to express religion peaceably and freely wherever and whenever they choose to do so.
On the other hand, the Establishment Clause mandates that government in its official acts, may not prefer secularism or atheism over religion, or religion over secularism or atheism, because doing either interferes with the free exercise of religion, or irreligion, by all.
But neither atheism nor secularism are common ground, in society or in law.
The Establishment Clause may not be used to scour society of all references or instances of religion in the public sphere because the Free Exercise Clause prevents it from doing so.
Rather, the gist of the jurisprudence on the matter is that government must remain strictly neutral in such matters, and that government itself may neither advance nor inhibit the free exercise of religion, or irreligion, by citizens. This in no way (and the jurisprudence goes to great pains to point this out) inhibits the exercise or expression of religion in public by anyone. Nor, as the cases point out, does it prohibit the display or exercise of religion on public property, including permanent installations of monuments expressing religious belief, within bounds.
Having read the decision, I’m going to have to agree with Judge Crabb, who does an excellent job of restating the law and explaining her rationale, and I find no disagreement in the statement that the law is unconstitutional as written:
“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.”
But the devil’s in the details, and nowhere is that more true than here. The objective of proclaiming a day for celebrating religious pluralism can be achieved while complying with the Constitution simply by changing the wording slightly, as Judge Crabb herself suggested. “If the government were interested only in acknowledging the role of religion in America,” she writes, “it could have designated a ‘National Day of Religious Freedom’ rather than promote a particular religious practice.”
How brilliant is that? Well done, Judge Crabb, and thank you!
I think that the following statute would survive constitutional scrutiny:
“The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Religious Freedom on which the people of the United States may celebrate and exercise religious freedom and plurality of belief and practice, as their conscience and beliefs may guide them.”
Let’s see if this statute would pass constitutional muster. The Supreme Court has established what is called the “Lemon Test,” from the case “Lemon v. Kurtzman,” and it says that when analyzing a government regulation or act for compliance with the First Amendment, the following considerations apply:
Does the law have a secular legislative purpose?
Does the law have the primary effect of either advancing or inhibiting religion?
Does the law “excessively entangle” the government in religion?
Here’s my analysis:
The secular legislative purpose of a “National Day of Religious Freedom” is to acknowledge, support and celebrate the First Amendment right of free religious expression by the citizens of the nation.
The declaration of a “National Day of Religious Freedom” neither advances nor inhibits any religion because it commands no one to do anything, and merely provides opportunity for the People to celebrate the great tension between religious freedom and freedom from religion in a manner that does not infringe on anyone’s religious rights or favor one over another.
The declaration does not “excessively entangle” government with religion, which primarily means funding programs that are religious in nature, and celebrating liberty is a valid reason for the government to spend money.
Therefore, I suggest that the Congress repeal the existing law and replace it with the one I’ve drafted, and settle this matter once and for all.