U.S. District Judge Barbara B. Crabb

A federal district court in Wisconsin today ruled the National Day of Prayer unconstitutional.

U.S. District Judge Barbara B. Crabb issued the decision in a case filed by the Freedom From Religion Foundation, a Wisconsin-based atheist and agnostic group that challenged the constitutionality of a 1988 federal law.

The law gives the president the authority to designate the first Thursday in May as a National Day of Prayer.

Crabb, appointed to the court in 1979 by President Carter, determined the statute violates the First Amendment’s establishment clause, which says, “Congress shall make no law respecting an establishment of religion.”

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In her opinion, Crabb wrote that in her view of case law, “government involvement in prayer may be consistent with the establishment clause when the government’s conduct serves a significant secular purpose and is not a ‘call for religious action on the part of citizens,'” citing a high-profile Ten Commandments case, McCreary County, Kentucky v. ACLU.

“Unfortunately,” she wrote, the National Day of Prayer law “cannot meet that test.”

“It goes beyond mere ‘acknowledgment’ of religion,” Crabb wrote, “because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience.”

Jay Sekulow, chief counsel of the American Center for Law and Justice, called the decision flawed and expressed confidence it will be overturned.

“It is unfortunate that this court failed to understand that a day set aside for prayer for the country represents a time-honored tradition that embraces the First Amendment, not violates it,” he said.

The case names as defendants President Obama, who is responsible for enforcing the statute, and White House Press Secretary Robert Gibbs.

The Freedom From Religion Foundation contends the statute violates the First Amendment because it endorses prayer and encourages citizens to engage in the practice. The White House argues the statute is simply an “acknowledgment of the role of religion in American life” and is indistinguishable from government practices courts have upheld.


Sekulow, who contends the decision “runs counter to well-established legal precedent,” said the ACLJ plans to file a brief representing members of Congress to challenge the decision in the U.S. Court of Appeals for the Seventh Circuit.

“This is the first step in what could be a lengthy legal process that ultimately puts this issue before the Supreme Court,” he said.

Sekulow noted that with the upcoming retirement of Justice John Paul Stevens, the issue could be decided by President Obama’s appointee to the court.

“An issue like this underscores the importance of why it’s so critical for the nominee to answer direct questions about their judicial philosophy, how they view the role of judges, and their view of the rule of law,” Sekulow said.

Attorneys with the Alliance Defense Fund are urging President Obama to appeal the decision. They point out the order does not affect presidential prayer proclamations and will not go into effect unless the decision stands after all appeals are exhausted.

“It’s important to remember this about the National Day of Prayer: it’s America’s heritage, and this day belongs to Americans,” said ADF Senior Legal Counsel Joel Oster.

Oster argued the day gives opportunity “for all Americans to pray voluntarily according to their own faith – and does not promote any particular religion or form of religious observance.”

‘A matter of intense debate’

The act was signed into law in 1952 by President Harry Truman. Congress amended the law in 1988, which was signed by President Ronald Reagan, to establish a particular day of observance.

The law currently reads, “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.”

The ACLJ filed a friend-of-the-court brief in Crabb’s court that recalled the country’s long history of recognizing a national day of prayer dating back to 1775 when the Continental Congress recommended the states set apart a day for prayer and thanksgiving.

In the introductory paragraph of her opinion, Crabb pointed out that when the Continental Congress met for its inaugural session in September 1774, “delegate Thomas Cushing proposed to open the session with a prayer. Delegates John Jay and John Rutledge (two future Chief Justices of the Supreme Court) objected to the proposal on the ground that the Congress was ‘so divided in religious Sentiments … that We could not join in the same Act of Worship.'”

“The role that prayer should play in public life has been a matter of intense debate in this country since its founding,” she wrote.

President George Washington, however, began a tradition of issuing a National Day of Thanksgiving Proclamation. Since then, American presidents have made similar proclamations and “appeals to the Almighty.”

The ACLJ brief states “the historical evidence establishing a National Day of Prayer as deeply embedded in the tradition and history of this country is indisputable.”

In its brief, the ACLJ represented itself and 31 members of the 111th Congress, including Rep. J. Randy Forbes, R-Va., who chairs the Congressional Prayer Caucus.

The others supporting the brief are Robert B. Aderholt, Michele Bachmann, Roscoe G. Bartlett, John A. Boehner, John Boozman, Eric Cantor, K. Michael Conaway, Mary Fallin, Virginia Foxx, Trent Franks, Scott Garrett, Louie Gohmert, Wally Herger, Peter Hoekstra, Walter B. Jones, Jim Jordan, Doug Lamborn, Thaddeus G. McCotter, Patrick T. McHenry, Mike McIntyre, Jeff Miller, Sue Wilkins Myrick, Randy Neugebauer, Pete Olson, Mike Pence, Joseph R. Pitts, Heath Shuler, Adrian Smith, Lamar Smith and Joe Wilson.


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