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Court rules National Day of Prayer is constitutional,
but the government's declaration of NDP isn't

The lawsuit. Background to the ruling

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The lawsuit:

The lawsuit was initiated by the Freedom from Religion Foundation (FFRF) from Madison, WI. They are a freethought, educational, non-profit organization whose mandates are:

"... to educate the public on matters relating to nontheism, and to promote the constitutional principle of separation between church and state.

"Since 1978, the Foundation has acted on countless violations of the separation of state and church, and has taken and won many significant complaints and important lawsuits to end state/church entanglements and challenge the 'faith-based initiative'." 1

The FFRF filed a lawsuit on 2008-OCT-03 to challenge the constitutionality of Public Law 100-307. This is the federal law that designates an annual National Day of Prayer to be held on the first Thursday each May. It also requires the President to issue a NDP Proclamation each year.

They sued:

  • President George W. Bush who wrote the 2008-MAY proclamation.
  • The president's press secretary, Dana Perino, who disseminated the 2008-MAY proclamation.
  • Governor Jim Doyle (D-WI) who was one of 50 governors who issued NDP proclamations. He was probably chosen because the FFRF is located in Wisconsin.
  • Shirley Dobson, chairperson of the National Day of Prayer Task Force. She is the wife wife of James Dobson who is the founder and was the head -- at the time -- of the fundamentalist Christian advocacy group Focus on the Family.

The suit alleges that the task force was "working hand-in-glove" with the federal government in organizing the NDP.

Annie Laurie Gaylor, Foundation co-president, said:

"This is another one of those nasty McCarthy-era violations which have caused so much damage to legal precedent, and which have distorted public perception over what is supposed to be our secular government. ... There is no end to the mischief this public law creates for those of us working to keep church and state separate. Citizens have a right to demand that public officials respect their freedom of conscience–including the right to be free from official prayer proclamations."

Dan Barker, Foundation co-president, said:

"Complaints over government entanglements with the Day of Prayer are among the most common the Foundation receives."

Richard L. Bolton of Boardman Law Firm, Madison, WI filed the suit. He said:

"Mandated Prayer proclamations by the President exhorting each citizen to pray constitutes an unabashed endorsement of religion."

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Background to U.S. District Judge Barbara Crabb's ruling:

Judge Barbara B. Crabb of the U.S. District Court for the Western District of Wisconsin ruled on 2010-APR-16 that the federal U.S. statute authorizing a National Day of Prayer is unconstitutional. 2 She determined that it violated the establishment clause of the First Amendment of the U.S. Constitution. She enjoined the President from issuing the customary executive order declaring the NDP.

However, she immediately stayed the ruling until the inevitable appeal(s) are ruled upon by higher courts.

Virtually unnoticed in the media is the limited range of the ruling. According to the Center for Inquiry:

"The court's decision is controlling only within the Western District of Wisconsin, although it does provide persuasive authority for other courts that may hear similar legal challenges.  An appeal to the U.S. Court of Appeals for the Seventh Circuit is virtually certain to follow.  The case might then be heard before the U.S. Supreme Court." 3

Judge Crabb wrote:

"I understand that many may disagree with [my] conclusion and some may even view it as critical 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." 4

Lower court judges cannot deviate from precedences established by the U.S. Supreme Court. In this case, the Supreme Court has ruled that the establishment clause is violated when the government endorses a specific religious belief or practice; prayer is one example. However, the highest court has also ruled that some public displays of religion are acceptable if they reflect only a general religious heritage. These are called displays of "ceremonial deism."

Deism itself is a religion that teaches about a God who created the universe and its laws, started it up, departed from the scene, and hasn't been seen since. Almost 25% of American adults believe in the existence of this type of "Distant God" even though this belief is incompatible with the teachings of Jewish, Christian, Muslim, and any of the other main religions in the U.S. "Ceremonial Deism" refers to some statement or action that implies the existence of a deity without linking it to any specific religion or theological belief such as monotheism, polytheism, henotheism, pantheism, panentheism, etc.

This would cover the use of the phrase "So help me God" in swearing-in ceremonies, "God bless America" in political speeches, etc.

Judge Crabb concluded in her 66 page decision that when a government declares a National Day of Prayer, it is going well beyond ceremonial deism and is actively endorsing a specific religious behavior. Thus, it is unconstitutional. She wrote that the key test between an endorsement of religion and a vague reference to ceremonial deism is whether the government’s conduct:

"... serves a significant secular purpose and is not a call for religious action on the part of citizens. ... [The law establishing the National Day of Prayer] goes beyond mere acknowledgment of religion 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. ... [This ruling is not a] judgment on the value of prayer or the millions of Americans who believe in its power. ... Recognizing the importance of prayer to many people does not mean 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."

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References used:

This information source was used to prepare and update the above essay. The hyperlink is not necessarily still valid today.

  1. The Freedom from Religion Foundation's website is at:
  2. "Opinion and order 08-cv-588-bbc," 2010-APR=15, 66 pages, at:
  3. "CFI Applauds Federal Court Ruling against National Day of Prayer," Center for Inquiry press release, 2010-APR-16, at:
  4. Warren Richey, "Federal judge: National Day of Prayer is unconstitutional," Christian Science Monitor, 2010-APR-15, at:

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Site navigation:

Home > Christianity > Christian history, etc > Prayer > NDP > Constitutionality > here

Home > Christianity > History, beliefs... > Practices > Prayer > NDP > Constitutionality > here

or Home > Spiritual topics > NDP > Constitutionality > here

or Home > Religious information > NDP > Constitutionality > here

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Copyright 2010 by Ontario Consultants on Religious Tolerance
Originally published: 2010-APR-16
Most recent update: 2010-APR-17
Author: B.A. Robinson
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