Barry,

While we don’t agree on the outcome of the Supreme Court decision in the case of  Christian Legal Society v. Martinez – there’s one thing that I suspect we see eye-to-eye on.  And that’s the fact that this decision, like many church/state decisions, was decided by one vote continuing to reflect a sharply divided court on these issues.  Even if Elena Kagan is confirmed to replace retired Justice Stephens – that fact is not likely to change anytime soon.

Let’s focus on a case now that is likely to end up at the Supreme Court.  It’s a case we discussed earlier out of Wisconsin where a federal judge ruled in favor of the Freedom From Religion Foundation declaring the National Day of Prayer unconstitutional – a violation of the Establishment Clause.

The case is now before the U.S. Court of Appeals for the Seventh Circuit and we have just filed an amicus brief on behalf of 67 members of Congress in support of the federal government’s defense of this tradition.

Barry, this is a case where the law and history are very clear in recognizing the fact the a day set aside to pray for our country is not only a time-honored tradition, but one that is consistent with the First Amendment.

Many members of Congress understand that the National Day of Prayer is a constitutional reflection of our history – our heritage.  This tradition is supported by Supreme Court precedent and numerous acts of Congress. 

In our amicus brief, we argue that the Freedom From Religion Foundation lacked standing to bring the suit in the first place.  And we argue that there are key Supreme Court decisions that point to the constitutionality of this day of prayer.  Specifically, we cite the 1983 decision in Marsh v. Chambers by the Supreme Court as one important example.

According to the brief:  “The historical record establishes that the National Day of Prayer ‘is deeply embedded in the history and tradition of this country.’ 463 U.S. at 786.  If calls for national prayer did not violate the Establishment Clause during the founding era, Marsh requires the conclusion that the National Day of Prayer is constitutional today.”

“A proper understanding of the Court’s Establishment Clause jurisprudence supports the conclusion that because of the historic pedigree of the National Day of Prayer, the federal statute in which it is codified is constitutional,” the brief contends.

The brief concludes:  “The First Amendment Religion Clauses, which themselves single out religion for favorable treatment, simply do not require such a ‘relentless extirpation’ of all religious expression and reference from public life.”  Allegheny, 492 U.S. at 657 (1989) (Kennedy, J., concurring).

Since the founding era, nearly every president has issued proclamations calling the nation to pray for various purposes.  The brief outlines the robust history of prayer proclamations, including presidential proclamations dating back to George Washington.  It’s also significant to note that James Madison, who authored the First Amendment that is at the center of this challenge, himself issued four similar proclamations of prayer.

We represent 67 members of Congress – both Democrats and Republicans – who understand that the National Day of Prayer is not a violation of the First Amendment.

Barry, the 7th Circuit has an important opportunity to correct this badly flawed lower court decision.  We’re hopeful the appeals court will reverse the federal district court and protect a tradition that’s been part of our nation for centuries.

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