Federal Judge Barbara Crabb recalled an inconvenient truth with her ruling that the National Day of Prayer, which was established by Congress in 1952 and is celbrated this May 6, is unconstitutional.
Specifically, the judge for the Western District of Wisconsin determined that the prayer law “violates the establishment clause of the First Amendment to the United States Constitution.”
But the broader message is really about the spirit of the Constitution.
Though it is too seldom acknowledged by contemporary politicians and jurists — including members of the Obama administration, who have joined fundamentalist conservatives in griping about Crabb’s ruling — the initiators of the American experiment were keenly aware of the dangers associated with the imposition by civil government of religious tests, requirements and calendars.
Men of the Enlightenment who had rejected the cruel construct of a “divine right of kings” and waged a revolution against a colonial empire that claimed its imperial reach was sanctioned by God, they knew the folly of mixing religion and politics.
And they were explicit in their determination that the United States must not go the way of the old monarchies of Europe, where state religions, state prayers and attendant rules and regulations served as the apparatus for constraining popular discourse, dissent and diverse expressions of faith.
So they established a Constitution that left no doubt of their determination that the United States would not dictate which religion was superior or inferior, or require an expression of faith as a qualification for citizenship.
They were explicit in this regard, weaving into the initial outline of the American experiment a blunt rejection of any “religious test.”
“The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States,” reads Article VI, section 3, of the U.S. Constitution.
In case anyone missed the point, when the Constitution was amended to include a Bill of Rights, written into the first of the amendments were two specific declarations:
The first enshrined the principle that “Congress shall make no law respecting an establishment of religion.” This meant that the federal government could not identify a preferred faith or set of prayers or practices. In effect, it barred the establishment of the sort of state religions that kings, czars, kaisers and potentates had employed to provide a fantasy of “moral cover” for their abuses of power.
The First Amendment also recognized that the government had no authority to prohibit the “free exercise” of religion, meaning that the state could not tell Americans how to pray or not pray, how to worship or not worship, how to express their faith or not express their faith.
If there was any lack of clarity, the matter should have been resolved one year into the tenure of the nation’s first president, George Washington, when he used a letter to the Hebrew congregation in Newport, R.I., to hail the “enlarged and liberal policy” that said: “All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.”
America did not “tolerate” religious diversity. It embraced that diversity, welcoming Christians and Jews, believers and nonbelievers into a polity where, Washington explained, “The government … gives to bigotry no sanction, to persecution no assistance.”
To maintain that happy circumstance, Thomas Jefferson explained in his 1802 letter to the Danbury Baptists: “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state.”
While the founders survived, there was no mystery about their “original intent” with regard to that wall of separation between church and state. Indeed, when the greatest of our public services, the post office, was developed, it was determined without serious debate that mail would be delivered seven days a week.
Only in the late 1820s did some Christian groups object. And their complaints were quickly rejected by Congress, which adopted the position — stated by Kentucky Sen. Richard M. Johnson — that: “our government is a civil and not a religious institution.”
A century later, long after the last of the founders and those inspired and instructed by them had died, Sunday mail service was stopped. It was not until the mid-1950s, in response to Joe McCarthy’s “red scare,” that the motto “In God We Trust” was approved by Congress, along with the initial National Day of Prayer legislation.
Crabb’s ruling, in a case initiated by the Madison-based Freedom From Religion Foundation, seeks to restore Jefferson’s “wall of separation between church and state.” It is not her point or purpose to undermine the practice of religion. “It is important to clarify what this decision does not prohibit,” the judge wrote. “Of course, ‘no law prevents a (citizen) who is so inclined from praying’ at any time. And religious groups remain free to ‘organize a privately sponsored (prayer event) if they desire the company of like-minded’ citizens. The president too remains free to discuss his own views on prayer. The only issue decided in this case is that the federal government may not endorse prayer in a statute.”
Anticipating the outcry her decision would stir, Crabb continued: “I understand that many may disagree with that conclusion and some may even view it as a criticism of prayer or those who pray. That is unfortunate. A determination that the government may not endorse a religious message is not a determination that the message itself is harmful, unimportant or undeserving of dissemination. Rather, it is part of the effort to ‘carry out the founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society.’ The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy.”
That is a reasoned judgment, a judgment grounded in a core value of the American experiment. Indeed, if it took courage for Judge Crabb to issue this historic ruling, it was the courage of the founders.