Legal Experts Blast Judge’s Decision: ‘If National Day of Prayer Is Unconstitutional, the Constitution Is Unconstitutional’

April 15, 2010 - 6:16 PM
Conservative legal groups and congressmen blast Thursday's ruling as ignorant and wrong -- and warn the issue could be settled at the Supreme Court by Justice Stevens' successor.
(CNSNews.com) - Conservative legal experts say a federal district judge in Wisconsin had no legal basis for declaring the National Day of Prayer unconstitutional – and predict the decision cannot stand.
 
“If the National Day of Prayer is unconstitutional, then the Constitution itself if unconstitutional,” Mathew Staver, president of Liberty Counsel and dean of the Liberty University School of Law in Lynchburg, Va., told CNSNews.com.
 
“The National Day of Prayer – or prayer itself – is older than the Constitution,” Staver said. “There is no question (this ruling) will be overturned by the U.S. Supreme Court.”
 
In a decision released Thursday, U.S. District Judge Barbara B. Crabb in Madison,Wis., declared unconstitutional a 1988 federal law giving the president the authority to designate the first Thursday in May as the National Day of Prayer.
 
The decision came in a case filed by the Freedom From Religion Foundation, a Madison, Wis.-based atheist group, which had argued that the statute was unconstitutional because it endorses prayer.
 
The judge agreed with the atheist group, and based her decision, in part, on the fact that atheists “feel” marginalized by the law, which directs the president to declare a National Day of Prayer.
 
Crabb admitted that many people are not “harmed” by the president proclaiming a day of prayer – because they are "unaware of the message," or it was "not directed at them," or they approve of the observance.
 
“However, individuals such as (the) plaintiffs, who do not pray and feel marginalized as a result of the government’s message of prayer, suffer a distinct harm,” the judge wrote.
 
Jay Sekulow, chief counsel of the American Center for Law and Justice (ACLJ), which represented 31 members of Congress in an amicus brief defending the National Day of Prayer, said the decision was badly thought out.   
 
"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," Sekulow said.
 
Rep. Louie Gohmert (R-Texas), himself a former judge and one of the 31 congressmen who weighed in on the case, blasted Crabb, telling CNSNews.com that "it was obvious" the federal judge "had not received a very good education" in American history. 
 
“If she had, she would have known that at the Constitutional Convention, after five weeks of nothing being accomplished. Benjamin Franklin stood up and said, ‘Why is it that we have not once applied to the Father of Lights to illuminate understanding?’
 
“He said, ‘In the beginning of the contest with Great Britain, we had daily prayer in this room.’ He went on to say that he had lived a long time, and the longer he lived the more convincing proofs he saw of the truth of God governing the affairs of men. He went on to move that, ‘Henceforth, that prayers imploring the assistance of Heaven, and its blessings upon our deliberations in Congress be held every day.’
 
“And from that day in 1787, until today, the very day I’m talking with you, we start (each session of Congress) with prayer. President after president have had National Days of Prayer – the whole country has. Poor Judge Crabb – I’m sure she thought she paid for a good education, but she just grew up in the dark.”
 
Sekulow, meanwhile, agreed the case will go to the U.S. Supreme Court -- but also issued a warning.
 
“The reason I think it goes to the Supreme Court is because, who knows what’s going to happen at the Seventh Circuit (Court of Appeals),” Sekulow said. “That is a circuit that has been difficult at times on religion cases. I think it is very likely that this case ends up in the Supreme Court of the United States, and I think we will carry the day, but it is going to be a close case.”
 
But he added: "This issue could very well be decided by the next appointee to the high 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."
 
The lawsuit, meanwhile, had named National Day of Prayer Task Force Chairman Shirley Dobson, President Barack Obama and his press secretary, Robert Gibbs, as defendants. The judge dismissed the case against Dobson.
 
President Obama, who last year issued a proclamation but refused to host National Day of Prayer ceremonies at the White House, as previous administrations had done, contend that the statute is simply an “acknowledgment of the role of religion in American life” that is similar to other ceremonial practices that courts have upheld in the past.