National Day of Prayer Is Illegal, But Courts Won’t Hear Challenges

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Religion Dispatches Religious Liberty

National Day of Prayer Is Illegal, But Courts Won’t Hear Challenges

Andrew L. Seidel

In 2010 the district court correctly decided that the National Day of Prayer violated the First Amendment: “Its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function.” On appeal, the Seventh U.S. Circuit Court of Appeals did not disagree—it couldn’t—but it tossed the case.

Tomorrow is the National Day of Prayer, the day our secular government tells citizens that they should pray, violating the Constitution in the process.

The First Amendment says that “Congress shall make no law respecting an establishment of religion.” And yet, in the early 1950s, Congress passed this law:

“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 . . . .”

Congress made a law respecting an establishment of religion, precisely what our First Amendment bars. Alexander Hamilton wrote that the president has “no particle of spiritual jurisdiction.” But the law orders the president to tell the people to pray. Every year, he does. By any reasonable constitutional or legal measure, this law is out of bounds. It’s unconstitutional. Illegal. A no-no.

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So, why do we have it?

The law was passed during a time of fear and suspicion, when speaking out against such a blatantly unconstitutional move could have lost the critic her job. The doubter might even be hauled in front of Congress to answer questions about godless communists. This was also a time when America’s admen were deliberately trying to sell the country an anti-New Deal religion to fight back against government regulation.

In his book One Nation Under God: How Corporate America Invented Christian America, Princeton historian Kevin Kruse convincingly shows that the wave of public piety in America, which peaked in the 1950s, was the result of a coordinated corporate strategy. Religion was popular and speaking out against religion mixing with government, even when clearly prohibited by the Constitution—in other words, even when it was the American thing to do—was borrowing trouble.

So that’s part of our answer, intense social pressure and coercion. But after the Red Scare and the corporate push to sell middle America religion, why wasn’t the law struck down? It’s because even though the law is unconstitutional, courts have said that it cannot be challenged.

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The Founding Myth book cover

When the Freedom From Religion Foundation sued over the National Day of Prayer statute in 2010 the district court correctly decided that it violated the First Amendment: “its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function.” On appeal, the Seventh U.S. Circuit Court of Appeals did not disagree—it couldn’t—but it tossed the case. The court said that FFRF could not challenge the law in court, writing of its decision: “If this means that no one has standing, that does not change the outcome.” [Disclosure: I work at FFRF, but did not join the organization until after these decisions came down].

We have a right to a secular government, enshrined in the Constitution, but courts will not let anyone enforce that right against the National Day of Prayer. In other words, the National Day of Prayer violates our rights twice: It’s illegal, and courts won’t let citizens cure the injustice. The Bill of Rights is meant to protect the minority from the tyranny of the majority. When it comes to religion mixing with government, the courts fail us as often as not.

It’s possible that sometime in the near future, courts won’t be needed to fix this injustice. Last month, the shifting religious demographics in this country hit a new milestone: Religious “nones” are now the largest group in the country. Americans that check “none of the above” on surveys of religious belief now outnumber Catholics and evangelicals.

As the “nones” grow, we are working to organize politically and also in our communities. This year, secular Americans are offering a poignant alternative to the day of prayer: action. Secular groups—the Freedom From Religion Foundation, Secular Student Alliance, American Humanist Association, American Atheists, Center for Inquiry, Black Nonbelievers, Ex-Muslims, the Secular Coalition for America, and many more—are hosting a Week of Action. Instead of praying, we will act. We will work. We will take social, political, and charitable actions that make a positive impact on their community.

Between the embarrassing political piety of the Trump-Pence administration and the charitable work of America’s largest (non)religious demographic, the “nones” are proving 19th century freethinker Robert Green Ingersoll correct, “The hands that help are better far than lips that pray.”