It was easy to imagine Tony Perkins turning purple as he banged out a screed expressing outrage over a federal judge’s ruling that the National Day of Prayer (NDP) is unconstitutional.
“While this is one of many instances in which the courts have tried to banish God from the public square, this case reveals a level of supreme arrogance,” blustered Perkins, president of the Family Research Council, in an April 16 e-mail to supporters.
U.S. District Judge Barbara B. Crabb, who handed down the ruling April 15, was, Perkins fumed, guilty of fostering “a hostile treatment of religion in public life.”
Perkins was not alone in his outrage. Crabb’s ruling in Freedom From Religion Foundation v. Obama sparked a barrage of umbrage from Religious Right organizations, right-wing politicians and their allies in the conservative media.
The Alliance Defense Fund sent letters to mayors nationwide, noting that Crabb’s ruling had been placed on hold pending an appeal and encouraging them to celebrate the National Day of Prayer.
Even the Christian Coalition – or what’s left of it – got in on the act. The group, founded by TV preacher Pat Robertson, reminded people that “it was a Democrat appointed judge that made the ruling.”
Added the Coalition, “In this case, it’s Carter appointee Judge Barbara Crabb – which should serve as a reminder of the importance of elections to everyone.”
Right-wing members of Congress were quick to join the show. On April 21, several members of the Congressional Prayer Caucus convened a Capitol Hill press conference to denounce the ruling. At least two resolutions were introduced in Congress backing the NDP (H. Res. 1273 and H. Res. 1279).
During the press conference, U.S. Rep. J. Randy Forbes (R-Va.) attacked Crabb’s decision that the National Day of Prayer violates the First Amendment, telling the crowd, “That’s not what the Constitution says. That’s what one unelected judge says the Constitution says.”
Brandishing a copy of the ruling, Forbes asserted that Crabb had “substituted her opinion” for the judgment of Congress, the president and state lawmakers and asserted that under her rationale, the Declaration of Independence must also be unconstitutional.
To hear Forbes and his Religious Right allies tell it, Crabb’s ruling was a no-holds-barred assault on religion, the American way of life and all that is good and decent.
In fact, many observers saw the 66-page ruling as a model of judicial restraint and historical accuracy. Crabb traced the history of the National Day of Prayer, examined the effect of the law and concluded that it was a clear instance of government meddling in private religious affairs – an obvious no-no under the First Amendment.
“[The National Day of Prayer] 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,” Crabb wrote. “In this instance, the government has taken sides on a matter that must be left to individual conscience.”
Crabb was careful to point out that nothing in her ruling should be construed as an attack on religion or prayer.
“[R]ecognizing the importance of prayer to many people does not mean that the government may enact a statute in support of it, any more than the government may encourage citizens to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic,” the judge wrote. “In fact, it is because the nature of prayer is so personal and can have such a powerful effect on a community that the government may not use its authority to try to influence an individual’s decision whether and when to pray.”
Such language did nothing to appease the Religious Right. Groups immediately attacked Crabb’s ruling, and several also smeared President Barack Obama – even though his administration appealed the ruling and indicated plans to proclaim a National Day of Prayer. (It occurred May 6.)
The lawsuit, brought by the Freedom From Religion Foundation in Madison, Wisc., took aim at the 1952 law that created the National Day of Prayer. In her ruling, Crabb discussed the history of the NDP legislation, noting that evangelist Billy Graham held a six-week-long religious meeting in Washington, D.C., that culminated with a rally on the steps of the Capitol.
Graham demanded that Congress pass a law creating a national prayer day. His vision couldn’t be called ecumenical.
“We have dropped our pilot, the Lord Jesus Christ, and are sailing blindly on without divine chart or compass, hoping somehow to find our desired haven,” preached Graham.
He continued, “The capital city of our nation can have a great spiritual awakening, thousands coming to Jesus Christ, but certain leaders have not lifted an eyebrow, nor raised a finger, nor showed the slightest bit of concern.”
U.S. Rep. James Percy Priest, a Tennessee Democrat, quickly introduced legislation establishing the National Day of Prayer. With the Cold War raging and the country focused on fending off “godless communism,” members of Congress didn’t require much persuading.
In the Senate, the bill was sponsored by A. Willis Robertson, a conservative Virginia Democrat and father of TV preacher Pat Robertson. Introducing the measure on the floor of the Senate, Robertson pitched the official prayer day as a corrective to “the corrosive forces of communism which seek simultaneously to destroy our democratic way of life and the faith in an Almighty God on which it is based.”
Congress passed the measure on April 17, 1952, and it was duly signed into law by President Harry Truman.
The National Day of Prayer was originally a floating holiday. The president would decide when to declare it. In 1988, after a lobbying campaign by the Religious Right, the law was amended to fix the NDP as the first Thursday in May.
The law establishing the NDP is brief, but there’s nothing voluntary about it. The president is required to recognize the day.
The statute reads, “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.”
Crabb’s ruling declares this law unconstitutional. Her decision does not prevent private groups from celebrating the National Day of Prayer or even block the president, governors, mayors and other elected officials from issuing proclamations that recognize the event.
Should the ruling stand, its practical effect would be that the president would no longer be required to recognize the National Day of Prayer. The event would lose its official status. It could still be commemorated, but it would no longer be mandated.
Many Americans may not even recognize a difference. In recent years, most NDP events have been sponsored by a private task force headed by Shirley Dobson, wife of James Dobson, founder of Focus on the Family.
Under Shirley Dobson’s tutelage, the NDP has become closely associated with fundamentalist Christians. Most events are “Christians only” and reflect fundamentalist theology and political tenets. In some communities, moderate and progressive members of the clergy got so fed up with the exclusive nature of the NDP events that they took to planning separate, interfaith ceremonies. (For example, Rabbi Merrill Shapiro, president of the Americans United Board of Trustees, organized a Day of Inclusivity event at Heroes Park in Palm Coast, Fla.)
What effect did the ruling have on the National Day of Prayer last month? None.
Crabb, aware that her ruling would spark an appeal, placed a hold on her decision. The Obama administration has appealed the decision to the 7th U.S. Circuit Court of Appeals.
Nevertheless, Religious Right groups behaved as if Christianity itself were under assault. In seeking to defend the National Day of Prayer, many cited history.
Religious Right attorney Jay Sekulow, for example, argued on Beliefnet.com that the United States has “a long history of recognizing a national day of prayer dating back to the late 1700s with the Continental Congress recommending that the states set apart a day for prayer and thanksgiving.”
Sekulow continued, “Such requests were made by our nation’s Founding Fathers – including Benjamin Franklin and George Washington. Even the drafter of the First Amendment, James Madison, issued four proclamations in the early 1800’s calling the nation to a day of prayer. The fact is that since the country’s inception, nearly every president has issued proclamations calling the nation to pray for a variety of purposes.”
As usual, Sekulow played fast and loose with the facts. Madison issued proclamations during the War of 1812 at the behest of Congress. Later in his life, he wrote an essay regretting those actions and concluded that his proclamations had violated the First Amendment.
“They seem,” observed Madison in an essay, “to imply and certainly nourish the erroneous idea of a national religion.”
Madison’s predecessor, Thomas Jefferson, flatly refused to issue such proclamations. Andrew Jackson, the seventh president, also declined to issue them. In 1832, a church group asked Jackson to declare a day of prayer and fasting in response to a cholera epidemic.
Old Hickory refused, writing, “I could not do otherwise without transcending the limits prescribed by the Constitution for the President and without feeling that I might in some degree disturb the security which religion nowadays enjoys in this country in its complete separation from the political concerns of the General Government.”
AU Executive Director Barry W. Lynn set the record straight in a round of media interviews after the NDP decision came down. It was something of an uphill struggle, however. In one case, Fox News Channel host Megyn Kelly asserted that the National Day of Prayer doesn’t have to be religious.
“Why can’t it be a day where we take a moment and we stop and we acknowledge the role that God has played in the formation of this country and its laws? What’s so promotional about religion there?” Kelly asked.
As the case moves through the appeals process, AU’s legal team will come to the fore. Although Americans United is not litigating the case, the organization can file a friend-of-the-court brief urging the 7th Circuit to uphold the lower court.
“This decision is a tremendous victory for religious liberty,” Lynn said in a press statement the day the ruling was issued. “Congress has no business telling Americans when or whether to pray.
“The Constitution forbids the government to meddle in religious matters,” Lynn continued. “Decisions about worship should be made by individuals without direction from elected officials. That’s what freedom is all about.”