Congress made a law

The First Amendment to the US Constitution says, “Congress shall make no law respecting an establishment of religion.”  Seems straightforward enough.

Title 36 of the United States Code (“the law of the land”) covers patriotic and national observances, ceremonies, and organizations.

Drilling down, Subtitle One outlines observances and ceremonies, while Part A Chapter 1 of Subtitle One describes national observances as follows:

Patriotic Flag

§ 101. American Heart Month
§ 102. Asian/Pacific American Heritage Month
§ 103. Cancer Control Month
§ 104. Carl Garner Federal Lands Cleanup Day
§ 105. Child Health Day
§ 106. Constitution Day and Citizenship Day
§ 107. Columbus Day
§ 108. Constitution Week
§ 109. Father’s Day
§ 110. Flag Day
§ 111. Gold Star Mother’s Day
§ 112. Honor America Days
§ 113. Law Day, U.S.A.
§ 114. Leif Erikson Day
§ 115. Loyalty Day
§ 116. Memorial Day
§ 117. Mother’s Day
§ 118. National Aviation Day
§ 119. National Day of Prayer
§ 120. National Defense Transportation Day
§ 121. National Disability Employment Awareness Month
§ 122. National Flag Week
§ 123. National Forest Products Week
§ 124. National Freedom Day
§ 125. National Grandparents Day
§ 126. National Hispanic Heritage Month
§ 127. National Korean War Veterans Armistice Day
§ 128. National Maritime Day
§ 129. National Pearl Harbor Remembrance Day
§ 130. National Poison Prevention Week
§ 131. National Safe Boating Week
§ 132. National School Lunch Week
§ 133. National Transportation Week
§ 134. Pan American Aviation Day
§ 135. Parents’ Day
§ 136. Peace Officers Memorial Day
§ 137. Police Week
§ 138. Save Your Vision Week
§ 139. Steelmark Month
§ 140. Stephen Foster Memorial Day
§ 141. Thomas Jefferson’s birthday
§ 142. White Cane Safety Day
§ 143. Wright Brothers Day
§ 144. Patriot Day
§ 145. Veterans Day

If you look at that list, thoughtful reader, I’ll bet you had no idea, before now, that there was a “Leif Erikson Day,” let alone that it’s October 9th.  Because I pride myself on memorizing useless bits of information on the off-chance the subject will come up at a party or while waiting in line at Walmart (just kidding! — I would never be in a Walmart), I should tell you that Leif Erikson was the son of Erik the Red, and that he had two children named Thorgils and Thorkell with his wife Thorgunna.  Oh! — and apparently he was the first known European to set foot on the North American continent, almost 500 years before Christopher Columbus.

But take a second look at that list, thoughtful reader.  Did you notice Section 119?  The text of 36 US Code § 119 reads:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

Okay, aside from the obvious, that tomorrow is the first Thursday in May, why am I pointing this out?  Well, let’s go back to the First Amendment in the Bill of Rights.  Any high school civics student can tell you that America is a secular nation founded on the separation of Church and State.  I remember Mr. Valente’s 2nd period Civics class in Room 402 and I’m sure he covered that.  But fortunately we don’t have to rely on my memory, because the framers of the Constitution wrote it down:

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.

Congress made a law respecting an establishment of religion.

Alexander Hamilton wrote in “The Real Character of the Executive“ (The Federalist Papers, #69, March 1788) that the president has “no particle of spiritual jurisdiction.”  But 36 US Code § 119 contradicts that and the First Amendment by directing the President of the United States to tell the American people to pray — and not at synagogues or mosques or temples, not even at “houses of worship,” but at churches (which by definition means “Christian”).  Every year, he does so; he must — it’s the law.  I’m not a lawyer; I don’t even play one on tv.  I’m not a constitutional scholar; again, also not on tv.  But I can read, and I can think.  It is clear to me this law is unconstitutional.

The law was passed in 1952, during a time of fear and suspicion, when speaking out against religion and/or being a homosexual branded one an atheistic amoral communist.  In Hollywood, suspected communists were “Black-listed” which prevented them from getting work, while in the government suspected homosexuals lost their jobs during a period of queer US history known as “The Lavender Scare” (a play on words meant to conjure up the national fear of communism known as “The Red Scare”).  Homosexuals were suspected of being communists because of our love of the color pink and its closeness to red (just kidding! — a notorious spy ring which passed British intelligence to the Soviet Union from the United Kingdom known as the Cambridge Five is to blame:  at least two of the Cambridge Five spy ring, Guy Burgess and Anthony Blunt, were gay, while a third, Donald MacLean, was bisexual).

Why, you may ask, hasn’t this law been struck down since, given the ludicrous notion that one’s sexuality somehow makes one a “godless” communist?  Or that god-less-ness makes one a traitor and prayer, in and of itself, makes one a patriot.

The answer, thoughtful reader, is it has!  Back in 2010, a US District Court judge ruled the annual National Day of Prayer is unconstitutional:


It goes beyond mere “acknowledgment" of religion because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context.
(Judge Barbara Crabb)

Judge Crabb’s ruling was that the National Day of Prayer violates the First Amendment's establishment clause, which bans the creation of a "law respecting an establishment of religion" in the Constitution.  So why is the law still on the books?

A year later,  a three judge Federal appeals court voted 3-0 to overturn that ruling; their decision was based on the finding that the group that challenged the law — the Freedom From Religion Foundation — did not have standing to do so.  In asserting that the Freedom From Religion Foundation lacked standing, the US Court of Appeals for the 7th Circuit said that "unless all limits on standing are to be abandoned, a feeling of alienation cannot suffice as injury in fact,” meaning there was no injury in part because the proclamation can simply be ignored by an individual.  The court went on to say, “If this means that no one has standing, that does not change the outcome.”

The annual National Day of Prayer proclamation and the 7th Circuit’s ruling violate the First Amendment twice:  (1) the National Day of Prayer is unconstitutional because it promotes the establishment of religion, and (2) the courts won’t let citizens cure the injustice, or to use the language of the First Amendment, "petition the government for a redress of grievances,” because the 7th Circuit ruled that a universal lack of standing was not sufficient to overturn their ruling on standing.

We are guaranteed a secular government, but we cannot complain when the government dips its toe into the religion pool every May.

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