National Day of Prayer ruled unconstitutional

The Freedom From Religion Foundation‘s long-running case against the Bush administration for the National Day of Prayer has finally come to a kind of sort of conclusion last week when federal district Judge Barbara Crabb ruled the NDoP unconstitutional.

First, something about the FFRF. They have a certain legal strategy which is kind of controversial, even amongst freethought activists. Their strategy is basically to take every church/state separation issue very seriously and technically, and then to sue on as many of them as possible.

Some other organizations, like American Atheists, try to discourage this kind of strategy because it can lead to bad precedents. They encourage people to only take legal action when it’s clear that the case is going to come out in their favor.

So if you’re in a situation where secularism is being threatened and the legal system you would have to appeal to is stacked against you, then it would be better to wait for the political climate to change before bringing up the issue at all. Otherwise, you make an unofficial and semi-unspoken Establishment Clause violation into an official and legal Establishment Clause violation by setting a bad precedent. So there’s this discussion going on between those advocating legal action based on political tact (like American Atheists) and those advocating action based on principle (FFRF).

What this case makes clear is that we need a little of both of these strategies and to simultaneously be taking risks while understanding the probabilities of winning. Even though they may sometimes make bad precedent, and even though it’s easy to make fun of Dan Barker on the Daily Show, and maybe his debating leaves something to be desired, the FFRF also sometimes wins in court, and wins big.

There is, however, some question as to how big this victory will turn out to be. From the Associated Press:

Obama spokesman Matt Lehrich said in an e-mail to The Associated Press the president still plans to issue a proclamation for the next prayer day.

“As he did last year, President Obama intends to recognize a National Day of Prayer,” Lehrich said.

Now Pat Robertson’s American Center for Law and Justice (Get it? It’s the ACLJ, kind of like that other organization except totally different), which is defending both the Bush and Obama administrations in this case, is now appealing to a higher court. So this isn’t over yet. But, as far as I understand it, the judge’s ruling is still law while the appeal is pending.

The NDoP is scheduled for the first Thursday in May, so it is very difficult to believe that the appeals process will be over by then. So even if this ends up being overturned by a higher court, the FFRF will still have yet another lawsuit to press against the current administration for clearly acting against the judge’s ruling, as if the President were somehow above the law. It will be interesting to see how this plays out.

UPDATE: Rev. Barry Lynn of Americans United for Separation of Church and State on Fox

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