Nearly 70 Members of Congress Go to Court to Defend The National Day of Prayer

By Nick Dean | July 12, 2010 | 1:21 PM EDT

People from across the region and the nation took part in the event in the caucus room of the Canon building, which included prayers for all branches of government. ( Starr)

( -- Sixty-three (63) members of the House and four senators, Republicans and Democrats, have weighed in on the legal case to defend the constitutionality of the National Day of Prayer.
The American Center for Law and Justice (ACLJ) filed an amicus (friend of the court) brief Thursday on behalf of the congressmen, members of the Congressional Prayer Caucus, in the case of Freedom From Religion Foundation v. Obama, in which a Wisconsin federal district court declared unconstitutional the statute directing the president to declare the annual observance of the National Day of Prayer.
On April 15, U.S. District Judge Barbara Crabb in Madison, Wis., ruled in favor of the Freedom From Religion Foundation that the National Day of Prayer violated the Establishment Clause of the U.S. Constitution's First Amendment. The Justice Department has appealed the case to the 7th Circuit Court of Appeals in Chicago.
"(The ACLJ is) representing Democrats, Republicans, some moderate, some conservative, senators, who are signing on because the National Day of Prayer has been part of our congressional act(ion) -- an act of the president -- since the 1950s, officially," Jordan Sekulow, attorney at the ACLJ told
Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation and a named plaintiff in the case, told that the support from members of Congress "shows the harm" of the National Day of Prayer law and that the government is working "hand-in-glove with Christian, right-wing and evangelical organizations."
"I think (the members' support) is very disheartening but I think that, actually, they are proving our case. I think that they are elected officials working in concert with openly fundamentalist Christian organizations that are hostile to the separation of church and state and are basically bureaucratic in nature," Gaylor said.
Gaylor said that support from Congress members supports her group’s cause.
"Organizations are using this unconstitutional act of Congress to further their own names. The fact that they are working in concert with an amicus brief is exactly the issue, exactly the problem. I think that it might make our case for us," Gaylor said.
Sekulow said the members of Congress, many of whom co-sponsored the original NDP statute, have a message for the atheist group.
"I think that the Freedom From Religion Foundation needs a wake-up call that members of Congress and groups like the ACLJ aren’t going to sit by while they find one judge in Wisconsin to go along with their position. We are going to defend the National Day of Prayer vigorously."
In the brief, the members of the Congressional Prayer Caucus, which is chaired by Reps. Mike McIntyre (D-N.C.) and Randy Forbes (R-Va.), say that the plaintiffs lacked legal standing to file suit, and the congressman argue for a complete reversal of the lower court decision.
The case began before the Obama administration took office, and Sekulow said that the "unprecedented bipartisan support" for the group's amicus brief means that members of Congress are looking to ensure that the current Justice Department will vigorously defend the National Day of Prayer.
"We want to make sure our brief makes sure that the Obama Department of Justice is defending the National Day of Prayer," Sekulow said. "They could get up there and start conceding things, still ‘defending’ (the statute), but also conceding things that make it easier for the Seventh Circuit to declare this unconstitutional."
Using a test that arose from a 1971 Supreme Court case, Lemon v. Kurtzman, Judge Crabb compared the National Day of Prayer law to the three requirements on religiously related legislation that the Lemon test provides: 1) The government's action must have a secular legislative purpose; 2) it must not have the primary effect of either advancing or inhibiting religion and 3) it must not result in an "excessive government entanglement" with religion.
Gaylor's group argues that the day constitutes "much more than an acknowledgement."
"It is the government exhorting us to pray and Congress exhorting the president to exhort us to pray. Exhortation of prayer by government is impermissible. That is the heart of our lawsuit," Gaylor said. "This is not an acknowledgement. This is setting aside an entire day for prayer and directing Americans to do so as well."
The judge concurred that the National Day of Prayer failed the test. In her opinion, Crabb wrote that the law endorsed religion, specifically Judeo-Christian religion, and went beyond an "acknowledgement" of the role religion has played in American history.
“(America's) establishment clause values would be significantly eroded if the government could promote any longstanding religious practice of the majority under the guise of ‘acknowledgement,' " Crabb wrote in her opinion.
But Sekulow said Crabb had "stretched" the Lemon test -- and that the higher federal courts test may or may not use it going forward in the appeals process.
"It is used when the court wants to declare something unconstitutional and it is forgotten when they don’t. So, you never know," Sekulow said.
Sekulow said it was rare for a case that "challenges generic references to religion in this country" to be heard.
"The most controversial religion cases involve young people and students," Sekulow said. "But, when it involves state legislatures and the military, the Court has been very wary to declare something as unconstitutional because it references religion."
He also said the Establishment clause of the First Amendment protects the National Day of Prayer because it is not the call of or for a specific religion, it is not mandated and there are no punishments for not participating.
"That goes back to, what I think the First Amendment is about, which is an establishment of a religion in the United States. That means you don’t say that it is, for instance, the Baptist Day of Prayer, just the National Day of Prayer," Sekulow said. "Anyone or no one at all can pray in the way that they want to or not pray -- there is no punishment for not taking part in the National Day of Prayer."
Both sides have until Sept.1 to collect and file other court briefs in support of their side.