May 5 was the National Day of Prayer, something I only discovered that afternoon, when I went for a walk on Independence Mall.
A stage with a podium had been set up on the block adjacent to the Visitor Center, with several rows of folding chairs arranged in front and loudspeakers at either end. There was a tent nearby with signs advertising the event, which is how I learned it was the National Day of Prayer.
About two dozen people had gathered to listen to a young man offer a prayer, which, given its stem-winding delivery and the setting, could have been mistaken for a political speech.
I can’t tell you exactly what he was saying, because, frankly, I didn’t stop and I didn’t pay much attention. The only thought that crossed my mind as I crossed the mall was something Thomas Jefferson said about freedom of conscience. Perhaps it was the view of Independence Hall that brought it to mind.
Here’s what the author of the Declaration of Independence had to say in another of his great works, Notes on the State of Virginia (1784):
“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.”
It was that last phrase that I remembered as I crossed Independence Mall. I was quite sure I didn’t share the faith of those who were gathered to pray or simply to listen. But neither did I feel injured by their devotions. I just continued on my way.
Would it be appropriate and/or constitutional to recognize National Day of Prayer in public schools? Consider the implications of Abington School District vs. Schempp and Lemon v. Kurtzman on prayer in schools.
Back at the office, I was curious to see what I could find out about the National Day of Prayer. A quick search produced a fascinating story by Daniel B. Wood of The Christian Science Monitor. Wood reports that the National Day of Prayer was formally designated by Congress and President Harry Truman in 1952 and has been carried on by every president since, including President Obama this year.
The story notes that the designation of national prayer days dates back to our country’s founding. In 1775, the Continental Congress asked the colonies to pray for wisdom in forming a nation. And in proclaiming the first Thanksgiving Day in 1789, President George Washington, called on his fellow Americans to “unite in rendering unto God our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation.”
But The Founding Fathers were an argumentative bunch, and when it came to matters of religion, and especially its place in public life, they were no more like-minded back then than we are today.
As president, Jefferson himself never proclaimed any fasts or thanksgivings. In a letter to clergyman friend in 1808, he explained:
“I do not believe it is for the interest of religion to invite the civil magistrate to direct it’s exercises, it’s discipline, or it’s doctrines; nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them.”
Which suggests that Jefferson probably would have frowned on a law designating a National Day of Prayer, even if other Founding Fathers would have commended it.
But is it constitutional today?
Last year a federal judge ruled the law designating the first Thursday in May as a National Day of Prayer violates the First Amendment’s prohibition on a state-sponsored establishment of religion.
Among the reasons she gave is that throwing the weight of government behind a call for prayer can make it seem coercive to nonbelievers.
This past April the Seventh Circuit Court of Appeals in Chicago overturned that decision. The court ruled that feeling excluded or being made to feel unwelcome do not amount to a significant enough injury to file a constitutional claim against the president. Said Chief Judge Frank Easterbrook: “Hurt feelings differ from legal injury.” In any case, the ruling noted, President Obama’s proclamation was more inclusive than the original statute, calling on citizens to pray “or otherwise give thanks.”
But the decision went on to note that someone who could show that they had altered their daily routine to avoid offensive contact with, for example, a religious display on public property would have cause to sue the president and challenge the constitutionality of the National Day of Prayer.
Which brings me back to my walk last Thursday on Independence Mall, federal property under the jurisdiction of the National Park Service. I didn’t alter my route, and it didn’t occur to me to sue. I know what religious liberty in this case means to me, but what does it mean to you?