In my view of the case law, government involvement in prayer may be consistent with the establishment clause when the government’s conduct serves a significant secular purpose and is not a “call for religious action on the part of citizens.” McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 877 (2005).    

     Unfortunately, § 119 cannot meet that test. 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. In this instance, the government has taken sides on a matter that must be left to individual conscience. “When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual's decision about whether and how to worship.” McCreary County, 545 U.S. at 883 (O’Connor, J., concurring). Accordingly, I conclude that § 119 violates the establishment clause.

 

Unfortunately the Judge’s order does not take effect immediately. The Obama Justice Department is expected to appeal, and will be joined by the American Center for Law and Justice representing 31 congressmen. The order enjoining the presidential declaration and the Day of Prayer events are stayed until all appeals have been exhausted. The next stop for this case will be the Seventh Circuit Court of Appeals.

 

The FFRF’s success in this case breaks a skein of Establishment Clause losses. On the same day in March, the Ninth Circuit Court of Appeals ruled against Michael Newdow in Newdow v. Rio Linda Union School District, covering the insertion of “under God” into the Pledge of Allegiance, and Newdow v. Congress of the United States, over the words “In God We Trust” on money and currency. Newdow has filed appeals in both cases for a rehearing or a hearing by the Ninth Circuit Court of Appeals en banc. Newdow is also appealing an adverse decision in Newdow v. Roberts, in which he is fighting the addition of “so help me God” to the president’s oath of office. Newdow remains optimistic, and in the last case was actually celebrating his court defeat:

    

     I have always advocated for losing in the District Court if possible. Basically - except for findings of fact (which rarely exist in constitutional cases such as this) - it is advantageous to lose. As the loser, you are the Appellant in the next round. That allows you to frame the issues, since you go first during the briefing. The Appellant starts with a maximum 14,000 word Opening Brief. The "winners" then have a 14,000 word limit to respond with their Respondent Briefs. Then the loser gets to speak last, with a 7,000 word Reply Brief.

 

A few years ago, Rob Boston of Americans United for Separation of Church and State remarked to me that we are better off not taking on cases like this because the Supreme Court will never invite the political flak that a strong Establishment Clause stand would bring down upon them. At the Humanist of Minnesota Banquet in April, American Humanist Association President David Niose suggested abandoning Establishment Clause litigation in favor of suits in state courts based on guarantees of equal protection in state laws. I think that it is too early to abandon the tactic that Newdow and the FfRF are pursuing, however. When we lose one of these cases we lose nothing, but every win is a big step forward.