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.

Many Americans 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:

1. Having a theistic religious faith is more valid than following a secular path.
   
   
2. 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.)
   
   
3. God exists.
   
   
4. There is only one God.
   
   
5. God is male.
   
   
6. 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.
	Individuals and 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 First Amendment guarantees that students may observe the NDP in their school's Bible Clubs, when saying grace in the cafeteria, in the hallways, at the flagpole, in schoolrooms before and after classes. However, they cannot engage in group prayer as part of the school classroom schedule.

However, the U.S. constitution may be interpreted as prohibiting:

	The Federal, state or local governments from actually proclaiming the NDP.
	Governments at all levels (federal, state, county, municipal) from organizing NDP functions, or funding them with taxpayer money.

The National Day of Prayer would then have the status of a multitude of other special days, weeks and months recognized nationally.

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. 

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Reference:

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

1. "Special Bulletin: National Day of Prayer," The American Center for Law and Justice, at: http://www.aclj.org/

Related essay:

• Legislation to create National Day of Prayer found to be unconstitutional

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

Home > Christianity > History, beliefs... > Practices > Prayer > NDP > here or Home > Spiritual topics > NDP > here or Home > Religious information > NDP > here

Copyright © 1999 to 2010 by Ontario Consultants on Religious Tolerance
Originally published: 1999-MAY-5
Most recent update: 2010-APR-17
Author: B.A. Robinson

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