- The Washington Times - Friday, April 16, 2010

If there is one thing this country needs right now, it is prayer. Thus, it was a singular case of bad timing last week when Judge Barbara B. Crabb of the U.S. District Court in Madison, Wis., ruled that the National Day of Prayer is unconstitutional. The observance was established in 1952 as a day when presidents issue proclamations asking Americans to pray, and the Freedom From Religion Foundation brought suit in 2008 on the grounds that the law violates the First Amendment ban on establishment of religion. Judge Crabb agrees. We dissent.

National days of prayer have been declared since the earliest days of the republic. Our Thanksgiving holiday is rooted in the 1789 decree by President George Washington that the nation “unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations … [and] to render our national government a blessing to all the people by constantly being a government of wise, just and constitutional laws.” Likewise, Abraham Lincoln in 1861 called for “a day of humiliation, prayer and fasting for all the people of the nation.” He recommended that Americans “observe and keep that day according to their several creeds and modes of worship, in all humility and with all religious solemnity.”

The 1983 Supreme Court case Marsh v. Chambers, which upheld the right of the Nebraska Legislature to have an invocation, is one of the most cited regarding Establishment Clause issues. In it, the high court affirmed that such long-standing, nondenominational customs and practices are constitutionally sound. “It can hardly be thought that in the same week members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states,” the court argued, “they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable.”

Even the fact that some opposed the practice at that time does not weaken “the force of the historical argument,” the Supreme Court maintained. To those Founders who argued that a group divided by many denominations could not join in the same act of worship, Samuel Adams responded, according to his cousin John Adams, that “he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the same time a friend to his country.” Judge Crabb’s decision reinforces the passions that divide the nation rather than promoting that which should unite us.

Judge Crabb counters that “recognizing the importance of prayer to many people does not mean that the government may enact a statute in support of it, any more than the government may encourage citizens to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic.” But if rune magic had played as important a role in our national history as prayer did, no doubt Rune Day would be a cherished annual observance. If the first Congress convened in a sweat lodge, then hallucinations and visions would guide our public policy - that is, to a greater extent than they do in the current government.

This passage reveals the most critical flaw in Judge Crabb’s reasoning. She seeks to equate things that are not equal, to elevate the obscure to the level of the commonplace. The United States is defined by its people, their culture and history, and the Constitution is part of that fabric. It is not a theoretical construct in which radical judges are free to seek utopian interpretations separate from the society that created the document and sustains the principles on which it was founded.

In the 1952 case Zorach v. Clauson, the Supreme Court observed that Americans are “a religious people whose institutions presuppose a Supreme Being.” The National Day of Prayer does not establish religion but recognizes what already exists.

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