CHICAGO (BP)–A coalition of legal and pro-family groups asked the U.S. Seventh Circuit Court of Appeals July 7 to reverse a lower court ruling and declare the National Day of Prayer constitutional, asserting that the district court’s decision amounted to “an act of hostility to religion.”
The 28-page friend-of-the-court brief was filed nearly three months after U.S. District Court Judge Barbara Crabb ruled that a congressional statute setting aside the first Thursday of May each year for the National Day of Prayer is unconstitutional and amounts to a government establishment of religion. The Justice Department, which has the responsibility to defend the law, appealed the ruling.
Groups such as Liberty Institute, Liberty Counsel, Focus on the Family Action and the Family Research Council signed the friend-of-the-court brief, which argues that the statute is “completely consistent with the First Amendment” and the Founding Fathers’ intent for the nation. Focus on the Family Founder James Dobson also signed the brief.
“[T]he First Congress called for the president to declare a national day of thanksgiving and prayer the same day as it finalized the language of the First Amendment itself,” the brief reads, alluding to a specific date in 1789. “… There was no conflict between the two actions in the minds of the Framers. To determine otherwise would be to indict the Founders as ‘unable to understand their handiwork (or, worse, hypocrites about it)’ in the extreme.”
The brief argues that the plaintiffs in the case — the Freedom From Religion Foundation — lacked standing to sue because Congress did not set aside any money for the National Day of Prayer and because Supreme Court precedent requires a congressional appropriation to file such a suit. But even if the Seventh Circuit determines the plaintiffs do indeed have standing, the statute should nevertheless be upheld, the brief says.
The brief points to Supreme Court precedent in Marsh v. Chambers, a 1983 case in which the justices, in a 6-3 ruling, upheld the Nebraska legislature’s usage of public funds to pay for the legislature’s chaplains. Just as the high court ruled in that ’83 case regarding the chaplaincy, history and tradition support the National Day of Prayer, the brief says.
“Congress’ calling for a National Day of Prayer is but one of many governmental actions throughout history that have called for willing Americans to seek divine guidance and favor,” the brief says, pointing to, for instance, the Declaration of Independence, the “Star Spangled Banner,” and presidential and congressional proclamations on Thanksgiving and Christmas. “… It is true that longstanding tradition alone cannot cure a violation of the Constitution. The Supreme Court, however, has emphasized that the meaning of the Establishment Clause is determined by reference to historical practices and understandings.”
The brief also quotes the 1984 Supreme Court case Lynch v. Donnelly, which said the Constitution does not “require complete separation of church and state.” Participation in the National Day of Prayer, the brief notes, is voluntary.
Congress established the National Day of Prayer as an annual event in 1952. In 1988, the law was amended to set the first Thursday of May for its observance.
Crabb, who was appointed by President Carter in 1979, said in her ruling the National Day of Prayer “serves no purpose but to encourage a religious exercise, making it difficult for a reasonable observer to see the statute as anything other than a religious endorsement.”
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, called Crabb’s ruling “an egregious and revealing decision.”
“It shows the brooding hostility toward religion that exists at some levels of federal, state and local government in this country,” Land said. “I am confident that this wrong-headed and hostile decision will be overturned at the appellate and Supreme Court level. Every one of our founding fathers would be astounded at the wrong-headedness of this decision.”
More than 25 state pro-family groups also signed the brief.
The Seventh Circuit consists of federal courts in Wisconsin, Illinois and Indiana. The Freedom From Religion Foundation is an organization of atheists and agnostics based in Madison, Wis. It filed the case in 2008.
Michael Foust is an assistant editor of Baptist Press. With reporting by Erin Roach, a staff writer for Baptist Press.