Freedom From Religion Foundation, Inc. v. Obama

By:  Scott R. Grubman

On April 15, 2010, United States District Judge Barbara Crabb, of the Western District of Wisconsin, issued her order granting summary judgment in favor of the plaintiffs in the case of Freedom From Religion Foundation, Inc. v. Obama.  Freedom From Religion, a non-profit organization based in Madison, Wisconsin, whose mission is to “educate the public on matters relating to nontheism,” (Oxford English Dictionary defines “nontheism” as “not having or involving a belief in God, especially as a being who reveals himself to humanity”), and “to promote the constitutional principle of separation of church and state,” brought suit against President Obama and his Press Secretary Robert Gibbs, claiming that the federal statute establishing the National Day of Prayer violated the Establishment Clause of the First Amendment to the United States Constitution.  In a detailed 66-page opinion, Judge Crabb sided with the plaintiff, concluding that the federal statute creating the National Day of Prayer was unconstitutional. 

The bill establishing the National Day of Prayer was introduced in the United States House of Representatives by Representative Percy Priest of Tennessee in 1952, immediately after the Reverend Billy Graham called for such a bill in a speech on the steps of the United States Capitol.  On April 17, 1952, Congress passed the bill into law, which provided that “[t]he president shall set aside and proclaim a suitable day each year, other than a Sunday, as a National Day of Prayer, on which the people of the United States may turn to God in the prayer and meditation at churches, in groups, and as individuals.”  The law was amended on May 5, 1988 to its current version, which set the National Day of Prayer as the first Thursday in May.  As Judge Crabb noted in her opinion, all Presidents since 1952, including President Obama in 2009, have issued proclamations designating the National Day of Prayer each year.

The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion . . . .”  As Judge Crabb correctly notes in her opinion, “[d]ecisions under the establishment clause are controversial and difficult in part because of the competing values at stake in each case.”  Although the Supreme Court’s Establishment Clause case law is rather confusing, the standard that courts will apply when dealing with challenges brought under the Establishment Clause can be found in the Supreme Court’s 1971 decision in Lemon v. Kurtzman.  Under what is commonly referred to as “the Lemon test,”  in order to pass constitutional muster, a law must (1) have a secular legislative purpose, (2) not have the primary effect of either advancing or inhibiting religion, and (3) not result in an “excessive government entanglement” with religion.  Although the Lemon test has been criticized by several individual Justices over the years (including former Chief Justice William Rehnquist and current Associate Justice Antonin Scalia), it continues to be the governing test when it comes to Establishment Clause challenges. 

Judge Barbara B. Crabb

Applying the Lemon test to the National Day of Prayer statute, Judge Crabb concluded that the statute violated the Establishment Clause because it failed to satisfy both the first and second prongs of that test.  As to the first prong, which asks whether the statute has a secular legislative purpose, she concluded that the statute’s legislative history indicated that its primary purpose was to endorse religion.  Judge Crabb noted that the bill to establish the National Day of Prayer was first introduced in the Congress at the conclusion of an evangelistic revival led by Billy Graham.  She also cited the statements of several of the bill’s sponsors, which were placed in the Congressional Record, indicating that the purpose of the law was to promote religion and to spread the word of God.  Judge Crabb held that the legislative history “supports the view that the purpose of the National Day of Prayer was to encourage all citizens to engage in prayer, and in particular the Judeo-Christian view of prayer.”  Rejecting the government’s argument that the purpose and effect of the National Day of Prayer was “to acknowledge the role of religion in American life,” Judge Crabb held that “[e]stablishment clause values would be significantly eroded if the government could promote any longstanding religious practice of the majority under the guise of ‘acknowledgement.’”  She also rejected the government’s argument that it was simply attempting to accommodate religion, a practice allowed under the other religion clause of the First Amendment—the Free Exercise Clause.  Noting that, with or without the statute,  private citizens were free to pray at any time, and could even proclaim their own day of prayer if they wished, Judge Crabb held that the statute at issue could not be seen as a mere attempt to accommodate religion.  (An example of a statute that permissibly accommodates religion is the Religious Land Use and Institutionalized Persons Act, which prohibits the government from imposing substantial burdens on prisoners’ religious exercise.  In Cutter v. Wilkinson (2005), the Supreme Court held that this statute was constitutional because instead of establishing religion, it merely accommodated religion).

As to the second prong of the Lemon test, dealing with the law’s primary effect, Judge Crabb noted that the proper focus was whether a “reasonable observer” would view the government’s conduct as endorsing religion.  She found that the primary effect of the National Day of Prayer statute was to advance religion, and rejected the argument that the National Day of Prayer did not violate the Establishment Clause because it did not endorse any one religion, noting that not all adherents of all religions “turn to God in prayer.”  Judge Crabb cited the Supreme Court’s decision in McCreary v. ACLU (2005), where the Court held that “[m]anifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with” the First Amendment.  She also cited the Supreme Court’s decision in County of Allegheny v. ACLU (1989), where the Court, in an opinion authored by Justice Harry Blackmun, held that the First Amendment “guarantee[s] religious liberty and equality to ‘the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.’”  Judge Crabb held that the government’s conduct could not survive First Amendment scrutiny simply because it arguably endorsed multiple religions instead of just one.  She concluded her application of the Lemon test by holding that “[b]ecause the National Day of Prayer does not have a secular purpose or effect, it cannot survive scrutiny under Lemon.”  Finally, she rejected several of the arguments advanced by the Government to get around application of the Lemon test, including its argument that the statute was constitutional because participation in the National Day of Prayer is voluntary, as well as an attempted comparison to the permissible practice of opening legislative sessions with a prayer.  In conclusion, Judge Crabb granted the plaintiff’s motion for summary judgment and enjoined the defendants from enforcing the National Day of Prayer statute.  However, this injunction does not go into effect until after the defendants have exhausted their appeals.

The Obama administration has expressed its intention to appeal Judge Crabb’s order.  Although the district court decision seems to be well-grounded in established First Amendment precedent, it would not be surprising if the conservative Seventh Circuit Court of Appeals eventually reverses Judge Crabb’s ruling.  In order to do so, the court would have to identify a secular legislative purpose served by the National Day of Prayer statute.  One way to do this would be to cite some of the legislative history of the statute that indicates the secular purposes of “protect[ing] against the corrosive forces of communism” and promoting peace.  Further, the court of appeals would have to show why the primary effect of the statute is not to advance religion over non-religion.  Although this would be a difficult task, it would not be surprising given the inconsistent history of Establishment Clause case law.  Further, if the Seventh Circuit reverses Judge Crabb’s ruling, it would be exceedingly likely that the current 5-4 conservative Supreme Court would either refuse to review that decision (thereby leaving the Seventh Circuit’s ruling intact) or affirm the circuit court.

Useful Sources:

The full citation to Judge Crabb’s order is Freedom From Religion Found, Inc. v. Obama, No. 08-cv-588-bbc, 2010 U.S. Dist. LEXIS 37570 (W.D. Wis. April 15, 2010).

A full PDF version of Judge Crabb’s order can be accessed online at

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