April 27, 2010

Recently, U.S. District Judge Barb Crabb ruled that the National Day of Prayer was unconstitutional because it violated the separation of church and state which, she believed, was mandated by the Establishment Clause of the First Amendment.  Both the Obama Administration and the American Center for Law and Justice, a “friend of the court” litigant, have vowed to appeal it.

The National Day of Prayer was first established in 1952, and the statute presently reads:  “€œThe 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.”€

It is this simple statement that Judge Crabb found to be constitutionally indefensible.  In her ruling, she wrote that, “in my view of the case law, government involvement in prayer may be consistent with the establishment clause when the government’s conduct serves a significant secular purpose and is not a “€˜call for religious action on the part of citizens.”€™”€

She determined that the National Day of Prayer failed that test, finding that it went “€œbeyond 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.”€

She concluded that, “€œthe government has taken sides on a matter that must be left to individual conscience….[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.”€

Judge Crabb’s ruling is only the latest example of the state of confusion that exists in the 1st Amendment’s religion case law, particularly in the area of ceremonial deism.  For instance, the Supreme Court has upheld the use of the motto “€œIn God We Trust”€ on our nation’s currency but, conversely, has held that the display of the Ten Commandments in a courtroom is unconstitutional.

“The problem lies in the fact that the courts have read into the Constitution two religion clauses when there is in fact only one”€”‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’”

The Supreme Court has held that manger scenes may be constitutional, but only if surrounded by a Christmas Tree, menorah, and Rudolph.  It has held that prayer before the opening of a legislative body is constitutional, but lower courts have found some prayers to violate the 1st Amendment.  The Supreme Court hasn”€™t addressed the constitutionality of the Pledge of Allegiance yet, but in 2002 the 9th Circuit found that it ran afoul the great wall of separation of church and state.

This condition of uncertain confusion in our nation’s church-state case law rests on a profound misunderstanding of the Religion Clauses of the 1st Amendment, with the Supreme Court itself noting that, “€œ[w]hile the two Clauses express complimentary values, they often exert conflicting pressures.”€

The problem lies in the fact that the courts have read into the Constitution two religion clauses when there is in fact only one”€””€œCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”€

The Religion Clause was intended to protect a freedom”€”religious liberty”€”from the coercive power of government.  The goal was not to simply prohibit a state church or the prosecution of a church by the state, but to prohibit all religious discrimination that can occur between these two sides of the same coin.

The only way to consistently protect all aspects of religious liberty is to read it as one unified clause prohibiting religious discrimination by the government.  Such discrimination occurs in three primary forms”€”governmental denial of equal protection based on religion, government interference with a religious organizations beliefs and practices, or government coerced adherence to a particular religious faith.

Symbolic references to religion”€”National Day of Prayer, Ten Commandments, manger scenes, etc”€”do not fall into any of these categories of government discrimination.  Though generic endorsements may, as Justice O”€™Connor has noted, send “€œa message to non-adherents that they are outsiders,”€ these “€œnon-adherents”€ are not denied the equal protection of the laws because they fail to conform.

Nor does ceremonial deism present the threat of government interference with a church or organization’s religious tenants and customs.  Neither can symbolic references constitute coercion because they cannot reasonably and tangibly lead to government indoctrination and proselyzation.

It is time for the courts to replace their unworkable and conflicting religion jurisprudence with one that makes sense”€”that the Religion Clause is only violated by government religious discrimination.


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