It is always disappointing to me when judges make rulings that compound errors previously made. It is a sad fact of modern life that we have federal judges eager to make rulings that are ideologically driven, rather than giving any credence to both the Constitution and to history.
From the Christian Science Monitor:
A federal judge in Wisconsin declared Thursday that the US law authorizing a National Day of Prayer is unconstitutional.
Oh is it, now?
“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,” she said. “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.”
Brilliant. Bravo. Except for one niggling little thing. She completely misrepresents the Founders with this statement. No doubt George Washington, President of the Constitutional Convention and the First President of the United States of America would beg to differ with Judge Crabb. But what would he know? From his proclamation of General Thanksgiving, October 3, 1889:
And also, that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions;– to enable us all, whether in publick or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shewn kindness unto us); and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as he alone knows to be best.
How dare he proclaim a day of national prayer!!!11!!! Didn’t he know he was violating the wall between separation of church and state????
Well, no. He didn’t. Because there is no such wall in the Constitution. Just this phrase:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”
And a national day of prayer is not establishing a religion. It is a recognition of the sovereign from who we have been granted our rights as Americans, as the noted “deist”, Thomas Jefferson, described in our nation’s charter:
“When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
But what’s worse is that evil religionist wouldn’t stop. From his Thanksgiving Proclamation of 1795:
“Deeply penetrated with this sentiment, I, George Washington, President of the United States, do recommend to all religious societies and denominations, and to all persons whomsoever, within the United States to set apart and observe Thursday, the 19th day of February next as a day of public thanksgiving and prayer, and on that day to meet together and render their sincere and hearty thanks to the Great Ruler of Nations for the manifold and signal mercies which distinguish our lot as a nation, particularly for the possession of constitutions of government which united and by their union establish liberty with order; for the preservation of our peace, foreign and domestic; for the seasonable control which has been given to a spirit of disorder in the suppression of the late insurrection, and generally for the prosperous course of our affairs, public and private; and at the same time humbly and fervently to beseech the kind Author of these blessings graciously to prolong them to us; to imprint on our hearts a deep and solemn sense of our obligations to Him for them; to teach us rightly to estimate their immense value; to preserve us from the arrogance of prosperity, and from hazarding the advantages we enjoy by delusive pursuits; to dispose us to merit the continuance of His favors by not abusing them; by our gratitude for them, and by a correspondent conduct as citizens and men; to render this country more and more a safe and propitious asylum for the unfortunate of other countries; to extend among us true and useful knowledge; to diffuse and establish habits of sobriety, order, morality, and piety, and finally, to impart all the blessings we possess, or ask for ourselves, to the whole family of mankind.”
But surely this madness stopped with him? Not really. That famous flouter of Constitutional law, John Adams, also declared days of national prayer:
From Adams’ Proclamation of March 23, 1798: (same link as above)
“I have therefore thought fit to recommend, and I do hereby recommend, that Wednesday, the 9th day of May next, be observed throughout the United States as a day of solemn humiliation, fasting, and prayer; that the citizens of these States, abstaining on that day from their customary worldly occupations, offer their devout addresses to the Father of Mercies agreeably to those forms or methods which they have severally adopted as the most suitable and becoming; that all religious congregations do, with the deepest humility, acknowledge before God the manifold sins and transgressions with which we are justly chargeable as individuals and as a nation, beseeching Him at the same time, of His infinite grace, through the Redeemer of the World, freely to remit all our offenses, and to incline us by His Holy Spirit to that sincere repentance and reformation which may afford us reason to hope for his inestimable favor and heavenly benediction; that it be made the subject of particular and earnest supplication that our country may be protected from all the dangers which threaten it; that our civil and religious privileges may be preserved inviolate and perpetuated to the latest generations; that our public councils and magistrates may be especially enlightened and directed at this critical period; that the American people may be united in those bonds of amity and mutual confidence and inspired with that vigor and fortitude by which they have in times past been so highly distinguished and by which they have obtained such invaluable advantages; that the health of the inhabitants of our land may be preserved, and their agriculture, commerce, fisheries, arts, and manufactures be blessed and prospered; that the principles of genuine piety and sound morality may influence the minds and govern the lives of every description of our citizens and that the blessings of peace, freedom, and pure religion may be speedily extended to all the nations of the earth.”
And again on March 6, 1799:
“For these reasons I have thought proper to recommend, and I do hereby recommend accordingly, that Thursday, the 25th day of April next, be observed throughout the United States of America as a day of solemn humiliation, fasting, and prayer; that the citizens on that day abstain as far as may be from their secular occupations, devote the time to the sacred duties of religion in public and in private; that they call to mind our numerous offenses against the Most High God, confess them before Him with the sincerest penitence, implore His pardoning mercy, through the Great Mediator and Redeemer, for our past transgressions, and that through the grace of His Holy Spirit we may be disposed and enabled to yield a more suitable obedience to His righteous requisitions in time to come; that He would interpose to arrest the progress of that impiety and licentiousness in principle and practice so offensive to Himself and so ruinous to mankind; that He would make us deeply sensible that “righteousness exalteth a nation, but sin is a reproach to any people”; that He would turn us from our transgressions and turn His displeasure from us; that He would withhold us from unreasonable discontent, from disunion, faction, sedition, and insurrection; that He would preserve our country from the desolating sword; that He would save our cities and towns from a repetition of those awful pestilential visitations under which they have lately suffered so severely, and that the health of our inhabitants generally may be precious in His sight; that He would favor us with fruitful seasons and so bless the labors of the husbandman as that there may be food in abundance for man and beast; that He would prosper our commerce, manufactures, and fisheries, and give success to the people in all their lawful industry and enterprise; that He would smile on our colleges, academies, schools, and seminaries of learning, and make them nurseries of sound science, morals, and religion; that He would bless all magistrates, from the highest to the lowest, give them the true spirit of their station, make them a terror to evil doers and a praise to them that do well; that He would preside over the councils of the nation at this critical period, enlighten them to a just discernment of the public interest, and save them from mistake, division, and discord; that He would make succeed our preparations for defense and bless our armaments by land and by sea; that He would put an end to the effusion of human blood and the accumulation of human misery among the contending nations of the earth by disposing them to justice, to equity, to benevolence, and to peace; and that he would extend the blessings of knowledge, of true liberty, and of pure and undefiled religion throughout the world.
And I do also recommend that with these acts of humiliation, penitence, and prayer, fervent thanksgiving to the Author of All Good be united for the countless favors which He is still continuing to the people of the United States, and which render their condition as a nation eminently happy when compared with the lot of others.”
But surely Madison, as the author of the Constitution and a contemporary of Jefferson, would not have engaged in such effrontery!
Except that he did:
“The two Houses of the National Legislature having by a joint resolution expressed their desire that in the present time of public calamity and war a day may be recommended to be observed by the people of the United States as a day of public humiliation and fasting and of prayer to Almighty God for the safety and welfare of these States, His blessing on their arms, and a speedy restoration of peace, I have deemed it proper by this proclamation to recommend that Thursday, the 12th of January next, be set apart as a day on which all may have an opportunity of voluntarily offering at the same time in their respective religious assemblies their humble adoration to the Great Sovereign of the Universe, of confessing their sins and transgressions, and of strengthening their vows of repentance and amendment. They will be invited by the same solemn occasion to call to mind the distinguished favors conferred on the American people in the general health which has been enjoyed, in the abundant fruits of the season, in the progress of the arts instrumental to their comfort, their prosperity, and their security, and in the victories which have so powerfully contributed to the defense and protection of our country, a devout thankfulness for all which ought to be mingled with their supplications to the Beneficent Parent of the Human Race that He would be graciously pleased to pardon all their offenses against Him; to support and animate them in the discharge of their respective duties; to continue to them the precious advantages flowing from political institutions so auspicious to their safety against dangers from abroad, to their tranquillity at home, and to their liberties, civil and religious; and that He would in a special manner preside over the nation in its public councils and constituted authorities, giving wisdom to its measures and success to its arms in maintaining its rights and in overcoming all hostile designs and attempts against it; and, finally, that by inspiring the enemy with dispositions favorable to a just and reasonable peace its blessings may be speedily and happily restores.
Given at the city of Washington, the 16th day of November, 1814, and of the Independence of the United States the thirty-eighth.”
And:
“The senate and House of Representatives of the United States have by a joint resolution signified their desire that a day may be recommended to be observed by the people of the United States with religious solemnity as a day of thanksgiving and of devout acknowledgments to Almighty God for His great goodness manifested in restoring to them the blessing of peace.
No people ought to feel greater obligations to celebrate the goodness of the Great Disposer of Events of the Destiny of Nations than the people of the United States. His kind providence originally conducted them to one of the best portions of the dwelling place allotted for the great family of the human race. He protected and cherished them under all the difficulties and trials to which they were exposed in their early days. Under His fostering care their habits, their sentiments, and their pursuits prepared them for a transition in due time to a state of independence and self-government. In the arduous struggle by which it was attained they were distinguished by multiplied tokens of His benign interposition. During the interval which succeeded He reared them into the strength and endowed them with the resources which have enabled them to assert their national rights, and to enhance their national character in another arduous conflict, which is now so happily terminated by a peace and reconciliation with those who have been our enemies. And to the same Divine Author of Every Good and Perfect Gift we are indebted for all those privileges and advantages, religious as well as civil, which are so richly enjoyed in this favored land.
It is for blessings such as these, and more especially for the restoration of the blessing of peace, that I now recommend that the second Thursday in April next be set apart as a day on which the people of every religious denomination may in their solemn assembles unite their hearts and their voices in a freewill offering to their Heavenly Benefactor of their homage of thanksgiving and of their songs of praise.
Given at the city of Washington on the 4th day of March, A.D. 1815, and of the Independence of the United States the thirty-ninth.”
And The Chicago Messiah’s favorite president? Yup. Him too.
“It is therefore recommended to the people of the United States that at their next weekly assemblages in their accustomed places of public worship which shall occur after notice of this proclamation shall be have been received they especially acknowledge and render thanks to our Heavenly Fathers for these inestimable blessings, that they then and there implore spiritual consolation in behalf of all who have been brought into affliction by the casualties and calamities of sedition and civil war, and that they reverently invoke the divine guidance for our national counsels, to the end that they may speedily result in the restoration of peace, harmony, and unity throughout our borders and hasten the establishment of fraternal relations among all the countries of the earth.
In witness whereof I have hereunto set my hand and caused the seal of the United States to be affixed.
Done at the city of Washington, this 10th day of April A.D. 1862, and of the Independence of the United States the eighty-sixth.”
And:
“Now, therefore, be it known that I do set apart Thursday, the 6th day of August next, to be observed as a day for national thanksgiving, praise, and prayer, and I invite the people of the United States to assemble on that occasion in their customary places of worship and in the forms approved by their own consciences render the homage due to the Divine Majesty for the wonderful things He has done in the nation’s behalf and invoke the influence of His Holy Spirit to subdue the anger which has produced and so long sustained a needless and cruel rebellion, to change the hearts of the insurgents, to guide the counsels of the Government with wisdom adequate to so great a national emergency, and to visit with tender care and consolation throughout the length and breadth of our land all those who, through the vicissitudes of marches, voyages, battles, and sieges, have been brought to suffer in mind, body, or estate, and finally to lead the whole nation through the paths of repentance and submission to the divine will back to the perfect enjoyment of union and fraternal peace.
In witness whereof I have hereunto set my hand and caused the seal of the United States to be affixed.
Done at the city of Washington, this 15th day of July A.D. 1863, and of the Independence of the United States the eighty-eighth.”
And the Founders were not concerned with government recognition of religion. Their concern was to not have government establish any single sect of religion as the state religion. We know as much, because the principal author of the Constitution told us this in the Federalist 10:
“The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.”
A theme he returned to in the Federalist 51:
“In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.”
Which helps to explain the reasoning underlying the decision not to make adherence to any religion a qualification for public office, as described in the Federalist 57:
“Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people.”
And other founders? I have touched on the invocation of prayer by Franklin at the Constitutional Convention before, but it is noteworthy, as these men were assembled to decide on what the bylaws of our nation would say:
“Mr. President:
The small progress we have made after 4 or five weeks close attendance & continual reasonings with each other — our different sentiments on almost every question, several of the last producing as many noes as ays, is methinks a melancholy proof of the imperfection of the Human Understanding. We indeed seem to feel our own wont of political wisdom, since we have been running about in search of it. We have gone back to ancient history for models of government, and examined the different forms of those Republics which having been formed with the seeds of their own dissolution now no longer exist. And we have viewed Modern States all round Europe, but find none of their Constitutions suitable to our circumstances.
In this situation of this Assembly groping as it were in the dark to find political truth, and scarce able to distinguish it when to us, how has it happened, Sir, that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings? In the beginning of the contest with G. Britain, when we were sensible of danger we had daily prayer in this room for the Divine Protection. — Our prayers, Sir, were heard, and they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a Superintending providence in our favor. To that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. And have we now forgotten that powerful friend? or do we imagine that we no longer need His assistance.
I have lived, Sir, a long time and the longer I live, the more convincing proofs I see of this truth — that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, Sir, in the sacred writings that “except the Lord build they labor in vain that build it.” I firmly believe this; and I also believe that without his concurring aid we shall succeed in this political building no better than the Builders of Babel: We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall be become a reproach and a bye word down to future age. And what is worse, mankind may hereafter this unfortunate instance, despair of establishing Governments by Human Wisdom, and leave it to chance, war, and conquest.
I therefore beg leave to move — that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the Clergy of this City be requested to officiate in that service.”
This conflicts with Judge Crabb’s stated test in the case just decided:
Crabb said in her view the key test between these two conflicting lines of decision is whether the government’s conduct “serves a significant secular purpose and is not a call for religious action on the part of citizens.”
If that is the standard that the federal judiciary uses, then federal judiciary is wrong. How do I know? Because Jefferson, whose line regarding “a wall of separation between church and state” was cited as reason to overturn this massive body of history that is contrary to how this line has been applied in our jurisprudence himself asked for the prayers of his “fellow-citizens” in his second inaugural address:
“I shall now enter on the duties to which my fellow-citizens have again called me, and shall proceed in the spirit of those principles which they have approved. I fear not that any motives of interest may lead me astray; I am sensible of no passion which could seduce me knowingly from the path of justice, but the weaknesses of human nature and the limits of my own understanding will produce errors of judgment sometimes injurious to your interests. I shall need, therefore, all the indulgence which I have heretofore experienced from my constituents; the want of it will certainly not lessen with increasing years. I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power, and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.”
The weight of history is against her, and underscores the hollowness of her final statement, especially in light of the fact that the Establishment Clause had nothing to do with proclamations or laws setting aside a day for a national observance and practice of prayer.
“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.”
More information on the National Day of Prayer here.
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