The National Day of Prayer typically sparks debate about whether the day violates the establishment clause from the First Amendment to the U.S. Constitution.
This year’s observance on May 3, however, likely will take on added significance, says John Inazu, JD, First Amendment expert and professor of law at Washington University in St. Louis. The reason? 2012 marks the 50th anniversary of the Supreme Court’s decision in Engel v. Vitale, which invalidated official prayer in public schools.
“Some religious believers will likely use the day of prayer to call attention to what they view as a regrettable and consequential decision,” Inazu says.
Establishment clause questions persist
The constitutionality of the National Day of Prayer hinges on the establishment clause of the U.S. Constitution, which has been interpreted to prohibit the establishment of state-endorsed religion and/or the preference of one religion over another.
Whether official recognition of the National Day of Prayer violates the establishment clause is a complicated question, says Gregory Magarian, JD, constitutional law expert and WUSTL law professor.
“There are two particular aspects of the National Day of Prayer issue that make it a tough one,” Magarian says.
“First, the question whether official policies that favor religion generally over non-religion generally has divided the justices of the Supreme Court, with no truly authoritative resolution to the question. Arguably the National Day of Prayer is such a policy. On the other hand, it may not be; not all religious practices prominent in the United States involve ‘prayer’ as such.
“Second, the court tends to grow more concerned about official policies that favor religion when the policies entail some kind of actual observance. Official recognition of a National Day of Prayer, without more, doesn't make anyone do anything.”
Magarian says that if a public school imposed a prayer requirement on students in conjunction with the National Day of Prayer, it certainly would violate the establishment clause.
“But arguably official recognition of the day, without more, simply amounts to the sort of ‘ceremonial deism’ that the court has long tolerated, for example, in allowing the words ‘In God We Trust’ to appear on money,” he says.
“On the other hand, the court's prevailing doctrine rejects official practices that send a message of endorsement of religion, on grounds that such endorsements treat nonbelievers as second-class citizens.”
Magarian believes the current court would reject an establishment clause challenge to the National Day of Prayer, treating official recognition of the day as an inconsequential instance of ceremonial deism that shows equal regard to many religious beliefs.
Inazu agrees but cautions that secular opponents to prayer in schools should not be the only ones concerned by that outcome.
“For many religious believers, prayer matters because its object — God — matters. If the justification for ‘official’ prayer renders the prayer merely ‘ceremonial,’ then observing the National Day of Prayer may be at cross-purposes with faithfulness.
“Ceremonial deism risks harming believers as well as non-believers,” Inazu says.