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Thursday, April 15, 2010

Supreme Court strikes down National Day of Prayer!

OK, not exactly. But a federal district court did.

Without expressing myself on the merits of the decision for the time being (it's correct), I will at this point just note that the district court's holding is most likely not long for this world. The counterfactual that comprises the title of this post is unlikely to materialize any time in the near future. Indeed, the district judge herself held up enforcement of the order until all appeals are completed - which might indicate on some level just how confident she is that her order will be upheld.

Posted by Jessie Hill on April 15, 2010 at 10:32 PM | Permalink


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I just got a call from "Jay Sekulow's" office and had to listen to a prerecorded msgs from him, hyping me up to join him and put my name on the list to help him fight this case. After listening to the msgs, the operator came back and asked me for a "modest" donation of $100 to $200 dollars. So why would I "donate" money to a cause that can not be won? Does it make me a better person to give my last little bit of $$ so I can have my name on a list? She asked me did I want my name on the list, I said yes, then she asked me for the money. When I said "Lord No" she then tried to get me for a smaller amount. I just hung up the phone. Jay, if you are listening, you are a crook. I guess there will be people who give to you and I am sure you will become rich off of this, even though you cant win it. Shame on you.

Posted by: Leigh Anne | Apr 23, 2010 7:54:31 PM

Regardless of whether or not Judge Crabb is correct, what amazes me is why anyone feels the need to have the federal government promote religion or any religious practice. Has it not occurred to anyone that if the National Day of Prayer does for religion what FEMA did for New Orleans, we will have a nation of atheists in no time? On the other hand, does an almighty G-d really need the government's assistance?

Posted by: Michael | Apr 20, 2010 2:39:39 PM

"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."

This grew out of a 1950s measure, not a "a centuries-old practice."

This is not a President himself putting forth a proclamation. This isn't a congressional proclamation or some measure honoring "God" who we "trust" or whatever. Not that Judge Reinhardt was wrong on the Pledge. This isn't a law just honoring religion. It isn't tied to a war or time of trouble. It isn't a bland call for "thanksgiving" that can be many things.

This is a law -- as noted by the opinion which in practice had entanglement issues -- that singles out a specific religious practice and says the President "shall" honor it. It seems bad on the latter point alone. Why should the President be told he "shall" do something of this sort? Can Congress even do that in this context?

The law even singles out "churches." I assume this is supposed to be some of neutral word (just like "God," I guess), since Jews and Moslems and other non-Christians go to "churches" after all. But, it says "groups" and "individuals." Generous, I guess. No favoritism there.

I also reject the idea the problem is the tests. Any test is likely to have some possible extreme application. It is simply we accept petty establishments of this type.

Posted by: Joe | Apr 18, 2010 12:36:40 PM

It seems to me, for what it's worth, that Judge Crabb's application of the various tests, criteria, and standards that shifting majorities of justices have supplied, over the years, is (like the Ninth Circuit decision that struck down the Pledge) reasonable and workmanlike. For me, this fact suggests that the just-mentioned tests, criteria, and standards are lacking. Whatever the policy merits of the "National Day of Prayer", it should not, in my view, be regarded either as burdening any American's religious freedom or as "establishing" religion.

Posted by: Rick Garnett | Apr 16, 2010 5:05:05 PM

Judge Crabb is brilliant and principled. She has taken tough stands before, and is almost always upheld. I agree with Jessie that if she isn't upheld this time, it will likely be because the reviewing panel is more susceptible to popular pressure than she is.

Posted by: Mark Edwards | Apr 16, 2010 4:19:49 PM

Atheistic ears shall burn from this video showing

Posted by: Tor Hershman | Apr 16, 2010 2:10:11 PM

Marc, thanks for the further clarification. I see your point about withholding constitutional invalidation in the face of reasonable disagreement. Myself, though, I am not a judicial minimalist.

But more importantly, I tend to think that (probably unconscious)majoritarian bias already infects judges' views of these sorts of questions in particular (i.e., questions about the meaning and effect of government-supported religious speech), and therefore that this is a scenario in which being attentive to popular reactions may be especially unwise.

Jay, as for standing, of course it's always a bit dicey in these sorts of cases, but I agree with Judge Crabb that it doesn't seem to make a distinction between the injury in religious display cases and in this case, just because the confrontation with the problematic government action is somehow more visual or physical in the former.

Posted by: Jessie Hill | Apr 16, 2010 1:52:53 PM

An amendment -- public, governmentally sponsored prayer is a centuries-old practice; the national day of prayer is not. I certainly agree that that context ought to matter as well.

Posted by: Marc DeGirolami | Apr 16, 2010 12:47:33 PM

What do you make of the standing issue?
The opinion itself has an air of sloppiness about it -- citing section 1983 as the cause of action, despite its irrelevance to a suit seeking an injunction against a federal statute.

Posted by: Jay | Apr 16, 2010 12:33:16 PM

Jessie, thanks for the response and question in return.

I'm happy to read that you think that there is room for reasonable philosophical and doctrinal disagreement on the issue. That more than rebuts my feeling that you thought the disposition obviously correct. For what it's worth, I think so too, and am loath to use the heavy hand of constitutional invalidation when such disagreement exists.

Indeed, my post was meant to make the point (I'm afraid inartfully) that some of that reasonable disagreement might well be expressed (again, inartfully) by a populace that would be outraged by the decision. But then I'm not sure exactly what is wrong with judges taking cognizance of that outrage, assuming, of course, that it is based on reasonable disagreement.

If there is anything that at least some of the recent Establishment Clause jurisprudence makes clear (as the judge in this case rightly noted -- think Justice Breyer in Van Orden), it is that context matters. It ought not be surprising, therefore, that invalidating with a single swift coup de grace a centuries-old practice with deep social roots would attract the negative attention of judges, legislators, and the public at large.

Posted by: Marc DeGirolami | Apr 16, 2010 11:20:46 AM

Marc, my unadorned parenthetical statement that the decision was correct was admittedly rather flip. I do personally believe that the Establishment Clause should not be understood to permit the federal government to engage acts that have such apparent religious purpose and send such a clear message of endorsing religious practice and belief. I do recognize that there is much room for reasonable philosophical and doctrinal disagreement about this issue, however.

Still, I am indeed pretty certain that the higher courts will find it difficult, to put it mildly, to agree with Judge Crabb's decision. And I do think that at least in some cases, that is because of a desire to avoid the popular outrage and uproar that would ensue, a la Newdow's initial victory in the Pledge case.

But I guess I'm not understanding why my two points (that Judge Crabb is right and that her opinion will almost certainly be reversed) are somehow incompatible, or why it is troubling to you that I could hold both views. It's certainly possible that my (minority) view is correct and the majority view is incorrect, just as it's possible that the reverse is true. But perhaps I've misunderstood the thrust of your post.

Posted by: Jessie Hill | Apr 16, 2010 10:40:30 AM

Jessie, if you and the court are so certain that the decision will be rejected by higher courts (not just the Supremes?), and likely reviled by the majority of the populace, what makes you so simultaneously certain that the court is "right"?

I am guessing that it's the principle of the thing, as well as the entrenched politics of the other side. But if that's true, the assumption must be that the other side (higher courts, politicians, and at least a large segment of the general public) is unprincipled, or benighted, or at least deeply wedded to the wrong principles in this context.

My own view, for what it's worth (not much), is that there's nothing like principle to give unflinching certitude its righteous backbone.

Posted by: Marc DeGirolami | Apr 16, 2010 8:06:04 AM

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