National Day Of Prayer Is Unconstitutional, Americans United Tells Appeals Court

Americans United for Separation of Church and State has urged a federal appeals court to find the congressionally mandated National Day of Prayer unconstitutional.

In a friend-of-the-court brief filed with the 7th U.S. Circuit Court of Appeals, Americans United asked the panel of judges to affirm a lower court decision against the federally sponsored religious event.

In April, U.S. District Judge Barbara Crabb of the Western District of Wisconsin held that the federal law violates the constitutional separation of church and state. The ruling sparked widespread outcry from the Religious Right, and the Obama administration quickly vowed to appeal.

In her ruling, 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 violation of 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.” (See “Misbegotten Outrage,” June 2010 Church & State.)

Americans United Executive Director Barry W. Lynn said Crabb made the right call.

“Congress needs to get out of the prayer business,” said Lynn. “Prayer is an inherently religious practice, and our Constitution makes it clear that promoting it is not part of the government’s job.

“Americans are free to pray whenever they want,” Lynn continued. “It’s obvious this ‘holiday’ is not really about the freedom to worship, but rather another opportunity for certain religious groups to use government to push their narrow viewpoint on the rest of us.”

Congress created the National Day of Prayer in 1952. In 1988, after pressure from the Religious Right, Congress ordered the event to be held on the first Thursday in May. The law directs the president to proclaim on that day that Americans “may turn to God in prayer and meditation at churches, in groups, and as individuals.”

Crabb’s ruling does not prevent people from taking part in the prayer day if they choose to do so; it merely strikes down the law mandating that government observe it.

AU’s brief argues that the NDP statute is a “plain endorsement of religion over nonreligion and of certain types of religious beliefs and practices over others.” The brief also asserts that the statute has no secular purpose and “by its very terms, it is not a commemoration or accommodation of our religious heritage but an active encouragement to engage in religious practice.”

The American Civil Liberties Union, the American Civil Liberties Union of Wisconsin and The Interfaith Alliance Foundation joined Americans United in filing the brief in Freedom From Religion Foundation v. Obama.

The brief was drafted by Evan M. Tager and Carl J. Summers of the law firm Mayer Brown with assistance from AU’s Legal Director Ayesha N. Khan and two attorneys from the American Civil Liberties Union, Daniel Mach and Heather L. Weaver.