Is the legislation declaring
the NDP actually constitutional?
Constitutionality of the NDP legislation:
Some background is needed:
In 1789, the first ten Amendments to the Federal Constitution were written. They
have since been referred to as the Bill of Rights. The First Amendment reads:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the government
for a redress of grievances." (emphasis ours)
This amendment was ratified by the States in 1791.
As interpreted by the U.S. Supreme Court, the establishment clause of the First Amendment (shown in bold above) is supposed to guarantee that:
The government and its agencies will not recognize:
One religious faith as more valid than any other faith.
Secularism as more valid that theism (the belief in a God, or Gods or a Goddess or Goddesses).
Theism as more valid than secularism.
Meanwhile, the free exercise clause of the First Amendment (shown in italics above) is supposed to guarantee that
Individuals will have almost complete freedom of religious expression without government interference.
These two principles are continuously in a state of creative tension.
feel that prayer forms part of their religious expression; thus they want their children
to pray in school, their school board to pray before it holds a
meeting, law courts to post the 10 Commandments, the Federal government to proclaim a NDP,
etc. Others, including the U.S. Supreme Court -- at least up to now, -- feel that a wall of
separation must be maintained between religion and the government and its agencies.
The Supreme Court has issued many decisions in recent decades that clarify the range of
allowable government involvement in religion. Vague references to America's religious heritage, the use of the phrase "So help me God" during swearing-in ceremonies, and similar vague references to God and religion are permissible. However, the federal or state government proclamation of the National Day of
Prayer might be argued to be unconstitutional for any of at least six reasons. The NDP promotes the concepts that:
Having a theistic religious faith is more valid than following a secular path.
Religions which require belief in a personal God are more valid than other religions
which do not (e.g. the faiths of Buddhists, Deists, and
many followers of the Unitarian Universalist Association who do not believe in the existence of a deity who answers prayers.)
There is only one God.
God is male.
God hears and responds to human prayer.
When this essay was first placed online, to our knowledge, there had never been a constitutional challenge to the National Day of Prayer proclamation. However, a U.S. District Judge ruled on 2010-APR-15 that the government declaration is indeed unconstitutional.
The decision will undoubtedly be appealed. Even if this ruling is upheld by a higher court, it is important to realize that, if the NDP declaration were to be ruled invalid by the courts, people's religious freedom in the
U.S. would not be impacted in the slightest.
The "free exercise" clause guarantees that:
Citizens could still pray on the first Thursday of every May, either
alone or in groups, either in private or in public.
The Evangelical Christian National Day of Prayer Task Force (NDPTF) could continue to function as a coordinating body
for conservative Christian NDP events.
Local religious groups or individuals of all religions could continue to organize NDP events.
groups would still be guaranteed the right to hold prayer meetings on streets, sidewalks, parks, courthouse lawns, and in
those government buildings (including school rooms and auditoriums) which are generally
accessible by the public.
As in the past, if public school boards allow any secular student-organized
and student-run club to exist,
it must also allow the creation of religious clubs.
If public school boards have rented a school
auditorium or room to any secular group in the past, they must
also rent it
to religious groups, including a gathering observing a local NDP event.
The "American Center for Law and Justice" has prepared a special
bulletin in anticipation of restrictions by schools and government bodies of NDP
observances. 1Section VI of that bulletin appears
to contain some errors. It states that students are free to engage in prayer and other
religious speech at any time and location within the school, as long as it does not
interfere with school discipline. That would imply that student initiated spoken prayer in
the classroom is constitutionally permitted. It is not.
This information source was used to prepare and update the above
essay. The hyperlink is not necessarily still valid today.
"Special Bulletin: National Day of Prayer," The American
Center for Law and Justice, at: http://www.aclj.org/