A federal judge ruled in April that a law designating the National Day of Prayer is unconstitutional. She didn't instantly ban the official day (which takes place the first Thursday of each May) in order to give President Obama and others time to appeal.
The case will likely force the Supreme Court to revisit its past decisions on church-state issues, in hopes of further reconciling two often opposing points in the First Amendment: (1) that Congress cannot pass a law respecting the establishment of religion, and (2) it cannot prohibit the free exercise of religion.
The judge, Barbara Crabb, makes a strong case that the law designating National Day of Prayer, first enacted in 1952, goes beyond acknowledging faith. The law encourages citizens to "turn to God" and pray, thus promoting a type of worship. It refers only to churches and requires the day not be on a Sunday.
She also argues that the proclamation issued each year treats nonbelievers and anyone whose faith does not include prayer as outsiders. This sense of exclusion and isolation from the political community is what the Founders feared would threaten civic unity. And throwing the weight of government behind a call for prayer can make it seem indirectly coercive to nonbelievers.
No matter how long the nation has had presidents proclaim days of prayer, she points out, the courts have found that tradition cannot trump constitutionality.
Still, courts have ruled that if a law supporting religion has significant secular purpose, it might survive. Judges have found such purpose in Christmas as a public holiday (it's a "cultural phenomenon") and in legislative sessions opening with prayer (it is a ritual act of "ceremonial deism" that "solemnizes" the event).
It is on this argument that Judge Crabb's ruling falters. She says Congress did not give a secular reason for endorsing prayer. She also claims that the day of prayer has no secular effect. This is odd because she does say prayer is a way to find truth, express joy and gratitude, and seek comfort and forgiveness. (She could have added healing.) "No one can doubt the important role that prayer plays in the spiritual life of a believer," she wrote. In fact, she even cites "a powerful effect on a community."D
Inadvertently the judge may have helped Congress if it now tries to rewrite this law. Prayer, like government, does have social purpose. Can the two ever peek over the high wall that separates them?