by This week Judge Barbara Crabb struck down the National Day of Prayer law as a violation of the Establishment Clause. Predictably, some have praised the decision as signaling our long overdue embrace of the Enlightenment, and some have condemned it as one more step on the slippery slope to Constitutionally Mandated Atheist-Land. The statute, as amended in 1988, provides that:
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.
Let’s put the constitutional issues to the side for the moment. This strikes me, to quote Justice Stewart, as an “uncommonly silly law.” The notion that we may turn to God “as churches, in groups, and as individuals” on the first Thursday in May, thanks to a Presidential proclamation, should be more than a little rankling to many of the Christian advocates who are so concerned about the federal government’s overreaching. Yes, I know people like to have their religious sensibilities affirmed at the national level, and I know American Christians have a long tradition of seeing a causal relationship between such national affirmations and the continued blessings of the Almighty. I think it’s fine to express, as a nation, the importance of religious practices in a descriptive way, but this statute doesn’t really do that. Maybe the statute would be less objectionable (both constitutionally and theologically) if it simply read,
Prayer is important to many Americans, and the President shall accordingly issue a proclamation designating the first Thursday in May as the National Day of Prayer.
Is my statute an improvement, an abomination, or even sillier than the current version? If there should be such a statute, what should it say?
Rob, thanks for the post. I don’t really think that you are setting constitutional issues aside because you are wondering whether “as a Christian,” you should take issue with the fact that the statute was “struck down,” which I think implicates the constitutional issue.
Your post is also laden with what have become Establishment Clause issues — whether people ought to be able to have the govt. affirm their religious sensibilities, whether people ought to be concerned about govt. “overreaching” (which sounds like a separationist concern), whether it’s ok for the government to engage in descriptive affirmations as opposed to normative ones.
So if we acknowledge that this is really a question about constitutional law, then it seems to me that there are many, many laws that one might find silly but also believe (as a Christian or anyone else) constitutional. The notion that we live in a society of perfectly rational, non-silly laws is a fantasy. Many laws are cobbled together by common lawyers just trying to get through the day, and eventually they become part of the legal deposit of the common and statutory law. And I think that a Christian or anyone else ought to be reticent to start slashing and burning on constitutional grounds because one law or another seems silly to him or her or doesn’t rise to a sufficiently high level of rationality or, if you like, “public reason.” This is particularly true in the Establishment context, where the whole field is dominated by wide disagreement about what’s silly and what’s not.
At all events, your amended statute looks about the same to me as the original, which is to say, it oughtta be fine (legally speaking)!
I’m pretty retrograde in these matters, but I don’t think the National Day of Prayer, or the statute authorizing it, is silly. I’d be more likely to apply that adjective to the decision invalidating the law– although I recognize that Judge Crabb might have felt bound to reach that result under the “no endorsement” doctrine, which is what most deserves to be called silly.
One line in Rob’s post strikes me as important, and representative of how critics of such practices see these matters in a way that doesn’t quite capture what’s at stake. Rob says it’s understandable that people would want the government to affirm their religious sensibilities or beliefs. Well, yes, that may be understandable, but if that’s what’s at stake it’s also easy to conclude that this is a desire that shouldn’t be accommodated. But is that what’s really going on? i.e., People have what’s an essentially personal belief and they want government to (gratuitously) affirm that belief?
Compare Washington’s declaration that “it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor . . . .” Notice that the duty applies to nations. In this conception, what we have isn’t an essentially private belief seeking a government subsidy, but rather a belief that in its intrinsic nature applies to the nation. (Borrowing from Rob’s excellent new book, which came in the mail a couple of days ago, I might say that this sort of faith is intrinsically “relational,” not individual.) If that’s a more accurate description of the matter, then I think it’s not so easy to regard the national day of prayer as silly while telling people just to go pray on their own.
Marc — you’re right that it’s hard to disentangle the constitutional issues here, so let me rephrase my question: Assuming that there was no National Day of Prayer statute on the books, should I (as a Christian) hope that one gets enacted?
Steve –excellent point, but that would surely pose an Estab Clause problem if we put Washington’s declaration into the statute, wouldn’t it? That seems to go a bit beyond “In God We Trust.” Even aside from the constitutional dimension, I might be more comfortable recognizing our duty as a “nation” (to the extent Americans share a tradition or culture) rather than making it a duty recognized by the nation-state. I know Washington was speaking with that distinction in mind, but I tend to think that Christians should be more leery of the state co-opting their faith for political purposes (as has happened with the National Day of Prayer in some instances) than they have been in recent years.
I am not sure that the state/nation distinction makes things more comfortable.
If we suppose that American organic/nonstate “nation(s)” has/have political obligations to acknowledge God through obedience, gratitude and petition,
and if we suppose that the current American state does not permit such national expressions within its political order,
then, the organic nations under the U.S. state have an obligation to seek some other corporate means of expressing their required political acknowledgement of God outside of the U.S. government.
On this to me uncomfortable line, the U.S. government is less coopting the role of the church — which is given significant corporate freedom — than the role of the organic nations — whose rights to religious expression have been denied.