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April 16, 2010

Judge Rules Unconstitutional the National Day of Prayer

Yesterday a district court judge struck down the statute that instituted a National Day of Prayer. The judge held that it was an unconstitutional endorsement of religion.

"[I]ts sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function," a Wisconsin judge wrote in the ruling, referring to the 1952 law that created the National Day of Prayer.

"In this instance, the government has taken sides on a matter that must be left to individual conscience," wrote the judge, Barbara B. Crabb.

The injunction against the National Day of Prayer will not take effect until the defendants in the case, President Obama and White House Press Secretary Robert Gibbs, have exhausted their appeals, the decision said.

It is expected that they will appeal.

Establishment Clause jurisprudence has been drifting further and further afield in the past twenty years. Eugene Volokh thinks there might be five votes on the Supreme Court to curb the anti-religious drift.

There now seem to be five votes on the Court for jettisoning the endorsement test. While Justice Kennedy takes a broader view of the Establishment Clause than do Justice Scalia and Justice Thomas (and, probably, Chief Justice Roberts and Justice Alito), he is on the record — in his County of Allegheny dissent (1989) — as opposing the no-endorsement interpretation of the Establishment Clause. What’s more, Justice Kennedy’s County of Allegheny opinion expressly pointed to the National Day of Prayer as something that should be upheld.

Of course, this rosy scenario relies on Justice Kennedy to do the right thing...

This also gives GOP senators some ammunition when questioning the President's court nominees. It's timely and something that seems so obviously constitutional to conservatives and so obviously not to leftists.


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posted by Gabriel Malor at 09:52 AM

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