Legal Commentary

District Court Judge Strikes Down Statute Providing for National Day of Prayer

By Eugene Volokh

Here are today?s opinion and the earlier opinion holding that plaintiffs had standing to sue.

I find this hard to reconcile with the logic of Marsh v. Chambers (1983), which upheld legislative prayers on the grounds that they go back to the founding of the nation; official proclamations of days of prayer, thanksgiving, and even fasting are just as firmly rooted. The opinion tries to distinguish those proclamations from the National Day of Prayer, but I don?t see the distinctions as having constitutional significance. And while it?s true that Thomas Jefferson refused to issue such proclamations, he was something of an outlier on this; and while James Madison expressed opposition to such proclamations at one point, he nonetheless issued them. Nonetheless, Establishment Clause doctrine related to government religious speech is quite ambiguous and contradictory, and it?s not clear exactly how large an exception Marsh carves out from the ban on government endorsement of religion ? a ban that still has precedential support. And the judge?s opinion is indeed consistent with the other endorsement cases.

But what most interests me about the case is not the district court decision, but what might happen on appeal, and on certiorari.

There now seem to be five votes on the Court for jettisoning the endorsement test. While Justice Kennedy takes a broader view of the Establishment Clause than do Justice Scalia and Justice Thomas (and, probably, Chief Justice Roberts and Justice Alito), he is on the record ? in his County of Allegheny dissent (1989) ? as opposing the no-endorsement interpretation of the Establishment Clause. What?s more, Justice Kennedy?s County of Allegheny opinion expressly pointed to the National Day of Prayer as something that should be upheld.

So if the government appeals ? as I?m nearly sure that it will, given that the decision strikes down a federal statute ? and the Seventh Circuit affirms the judge?s decision on appeal (far from certain, but possible), then I suspect that the Justices will agree to hear the case, reverse, and officially reject the endorsement test. Of course that rejection would itself probably last only as long as the conservative majority on the Court lasts, and that turns on many factors that are hard to predict.

Full post as published by The Volokh Conspiracy on April 15, 2010 (boomark / email).