National Day of Prayer

As The Preacher here at Preachers and Horse Thieves, a certain news item caught my attention this week as I was out and about in search of evening entertainment options for The Queen and I at the nearest Blockbuster. As is my normal practice while in the car by my lonesome, I had the radio tuned to an AM talk station. At that particular hour, I was expecting to hear Dennis Miller’s radio show (whose talent I have enjoyed since his Saturday Night Live days). He generally has a very balanced, moderate view of things which I find refreshing in the current culture of extremism I see on both sides of the political landscape.

Unfortunately for me, I tuned in to discover that my local station that carries Dennis Miller had recently made the decision to insert an hour of the Jay Sekulow Live show in front of Miller’s show effectively preventing me from hearing my expected Miller fix. For those not familiar, Jay Sekulow is a lawyer with the American Center for Law and Justice (the ACLJ). The ACLJ is sort of like the anti-ACLU. It’s an organization that tries to stand up for religious rights (most notably the rights of Christians) as opposed to attempting to tear them down (which is what you normally see the ACLU attempting to do).

Now, I have nothing against Mr. Sekulow (other than the fact that he’s a lawyer). I’ve listened to him before. I was just expecting something else. You know how it is. You go to the freezer expecting to get the last bowl of Blue Bell cookies and cream only to find that [fill in the blank of the evil, despicable ice cream thief here] beat you to it and left you with the Blue Bunny frozen yogurt. Bleh. I wanted my Dennis Miller, and all I got was Jay Sekulow. Talk about being unfulfilled.

Again, I have nothing against Mr. Sekulow. He is passionate about his work and his beliefs, but it’s hard not to listen to him and not think that the gates of hell (or the ACLU) are prevailing against Christians everywhere. Nevertheless, I think he does a good job of making the legal issues understandable to folks who don’t spend their lives steeped in the esoteric world of litigation.

Anyway, I told you that to tell you this. Mr. Sekulow was on a rant about a court challenge to the National Day of Prayer. Apparently, there is a fight going on right now about whether or not there should be such a thing as a National Day of Prayer. A group called the Freedom From Religion Foundation along with a few individual plaintiffs filed suit in Federal Court in Wisconsin over the constitutionality of the National Day of Prayer.

First, a bit of history. I’ve done this to you before. You knew it was coming. Just relax, and I promise not to make it too painful.

The NDP (you’ll have to pardon me if I’m gettin’ a little tired of writin’ National Day of Prayer over and over again) is a law passed by Congress and enacted by Harry S. Truman in 1952 following an evangelical campaign by Billy Graham in Washington including a speech on the steps of the Capital building. For those legal minded individuals, you can find the text of the law by searching 36 U.S.C. 119 (don’t worry…I’ll save you the trouble and give it to you in a minute).

Well, if this isn’t right up the alley of Preachers and Horse Thieves, I don’t know what is. You’ve got your preachers and your horse thieves all wrapped up into one issue. How could I not write on this subject?

The 1952 law is not without precedent. Both presidents Washington and Adams issued proclamations setting aside an NDP. Lincoln called for “national humiliation, prayer and fasting” during the Civil War. By 1952, America had been through 2 world wars as well as several more or less major wars, was in the middle of fighting the Korean War, was up to its neck in the Cold War with Russia and was dealing with Senator Joseph McCarthy’s efforts to ferret out Communist influence and espionage in America. Under this back drop, Billy Graham’s speech called for an NDP to avoid the possibility of “national shipwreck and ruin.” Congress wasted no time passing a law requiring the President to proclaim an NDP.

As promised, here is the original language of the law passed in 1952:

The President shall set aside and proclaim a suitable day each year, other than a Sunday, 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 language of the law underwent a minor revision in 1988 for the purposes of setting aside a specific day to allow people to plan ahead a little easier. Here is the revised language:

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.

At first blush, the language of the law appears to be fairly benign. However, take a moment to compare the language of section 119 with the language of section 118 which establishes the National Aviation Day. Here is the language for section 118:

The President may issue each year a proclamation—
(1) designating August 19 as National Aviation Day;
(2) calling on United States Government officials to display the flag of the United States on all Government buildings on National Aviation Day; and
(3) inviting the people of the United States to observe National Aviation Day with appropriate exercises to further stimulate interest in aviation in the United States.

I know this is one of my world famous subtle distinctions, but do you see where it says “may” in section 118 and says “shall” in section 119? If you spend any time in the litigation world, you will quickly discover that there is a world of difference between “may” and “shall”. “May” means something is permitted but not required. There is an element of discretion provided for in the term “may”. “Shall” means you will do this without fail. There is no discretion allowed for in “shall”.

Coming back to our controversy de jour, the Wisconsin Federal Court suit filed by Freedom From Religion Foundation is based on the wording of the NDP statute allegedly violating the U.S. Constitution’s First Amendment. Hold on, hold on. You should know me better than that by now.
Here’s the language of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First, let’s get a couple of minor quibbles out of the way.

The main plaintiff in this suit is the Freedom From Religion Foundation. When people think of the First Amendment, they generally think that it guarantees freedom OF religion since that’s what a majority of us were taught in school. While the language of the amendment does not say those words exactly, the concept is there in the form of a prohibition on infringing the right to freely exercise one’s religion (or lack thereof). The government cannot establish one particular faith, sect or religion as THE national religion. The government cannot stop you, me or anyone else from practicing our religion or not practicing a religion if that floats your boat. I would like to take this opportunity to point out to the plaintiffs in this suit that the language of the First Amendment in no way states nor can be construed to mean that the Constitution provides for freedom FROM religion. I know those seem like minor points, but they are apparently major ones to some people.

Next, some people (previously myself included) might try to argue that the First Amendment only applies to Congress on not the President or the government as a whole. The opinion written by Federal District Court Judge Barbara Crabb (no, I did not make that up) succinctly sums up the precedent and case law settling the issue that it most certainly does apply to the President and the rest of the gub’ment. Judge Crabb’s opinion is an interesting read if somewhat long at 66 pages. You can read it here if you want to know what she really said instead of what Fox or CNN says she said. In short, she finds the NDP to be unconstitutional.

Now, I suspect that some of my readers might expect me to be vehemently opposed to Judge Crabb’s opinion. Those readers would be wrong.

Yes, you read that right. The Preacher here at Preachers and Horse Thieves agrees with a Federal Court Judge in Wisconsin that the NDP statute violates the Establishment Clause of the First Amendment. What next? Sheep and wolves living together in harmony? Don’t bet on it in this lifetime.

Here’s my reasoning. Prayer is the main means by which most people commune with their god. If you subscribe to the Holy Bible as your spiritual instruction book, you are strongly encouraged (some would say commanded) by God to pray daily. Prayer is a natural and essential part of a religious life. Now we have Congress passing a law requiring the President to set aside a specific day as a day of prayer. Being the President, he represents all Americans, religious and non-religious alike. The President is also, whether we like him or not, an individual with his (or eventually, someday, her) own beliefs or lack thereof. Assume for the moment that Americans elect an atheist. Some would argue that we already have…several times (and, no, I will not engage in a discussion about whether or not President Obama is a Muslim). Congress has passed a law prohibiting said presidential atheist from freely exercising his lack of religious beliefs by requiring (remember, the statute says “shall” not “may”) him (or her) to proclaim a day of prayer.

Secondary to that, I do not need nor do I want my government telling me how or when to practice my religion. That’s why I have a Bible. That’s why I attend a church which teaches what I believe to be The Truth (your experience may vary). I don’t need President Obama, or Congress, or anyone else telling me that the first Thursday in May is a really good day to pray. What’s next? Is the government going to pass a law saying that being Catholic or Mormon is a really good religion (no offense intended towards Catholics or Mormons)?

As a strict constitutionalist and small government conservative, I don’t think the government has any business proclaiming a day of prayer anymore than they have any business declaring National Aviation Day. It’s just not their job. They have more important things to do. The more time they spend on silly proclamations or other non-sense; the less time they have to devote to more important matters like staying the hell out of our healthcare.

Then there’s the non-conformist in me. Telling me it’s a National Day of Prayer makes me want to NOT pray tomorrow out of spite.

The bottom line for me is that my faith is just that: mine. I’ll practice it how and when I please. I’m not here to tell you how to practice yours. I may make the occasional observation to give you something to think about; but, if you disagree with me, that’s fine. You are welcome to your sincerely held beliefs. I only ask the same courtesy in return.