Founding Fathers and separation of church and state
The modern history of the National Day of Prayer began in 1952 when the law was enacted in the midst of post-WW II Red Scare hysteria. In 1988 it was amended to read, “The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.”
The law gives rise to at least two issues that invite constitutional scrutiny. The first: Ought the president to act as a theocratic leader by instructing people to pray? A second: Should faith groups be permitted to perform prayer rituals in a building built and maintained by taxpayer dollars designated to conduct the public’s business?
The headline in last week’s Courant above the letter contesting my analysis of the issue of faith groups wanting to use the Idaho Springs City Hall for their National Day of Prayer ritual suggests, “Fabyanic doesn’t know the Constitution.” Perhaps, so to ascertain the “original intent” of the writers, I’ll defer to two guys who might know something about it: Thomas Jefferson, author of the Declaration of Independence, and James Madison, Father of the Constitution.
The use of the helper verb in the NDP law “shall” rather than “may” helps put the president’s power on a par with the pope’s. In 1808 President Jefferson wrote to Samuel Miller on this same issue: “It is… proposed that I should recommend, not prescribe, a day of fasting and prayer. That is, that I should indirectly assume to the United States an authority over religious exercises which the Constitution has directly precluded them from.” Not only disagreeing profoundly with his predecessor President Adams who did just that, Jefferson would find the NDP law unconstitutional.
Understanding there would be consequences for those who do not abide by the proclamation, Jefferson continues: “It must be meant, too, that this recommendation is to carry some authority and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription, perhaps in public opinion. And does the change in the nature of the penalty make the recommendation less a law of conduct for those to whom it is directed?” In other words, those who do not participate would be construed as not being “God-fearing Americans.”
Finally, he says it is dangerous for the President to mandate prayer: “I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines…. Fasting and prayer are religious exercises. The enjoining them, an act of discipline.…Everyone must act according to the dictates of his own reason, and mine tells me that civil powers alone have been given to the President of the United States, and no authority to direct the religious exercises of his constituents.”
Likewise, President Madison was leery of church and state entanglement. In his “Detached Memoranda” in 1817, he writes, “Strongly guarded as is the separation between Religion & Government in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies…” Regarding a national day of prayer, Madison, disagreeing with Adams, declares, “Religious proclamations by the Executive recommending thanksgivings & fasts ….seem to imply and certainly nourish the erroneous idea of a national religion.”
When the line between church and state is blurred, it opens itself to a panoply of unintended consequences. For example, if traditional and mainstream religious groups are permitted to use the facility on the NDP, so would other groups such as satanic cults and neo-Nazi white supremacists. If the Gideon Bible is allowed to be distributed at public schools, so too would the Koran and the Humanist Manifesto.
As for being taxpayers, religious groups cannot have both ways: While as individual citizens they pay taxes in their private lives, their religious corporations do not. When they met on the NDP, they were not acting as individual citizens but as members of congregations that are tax exempt. In his Detached Memoranda, Madison took aim at the growing power of what he called “ecclesiastical corporations,” but more on that in a future piece.
While the words “a wall of separation” are not literally in the Constitution, Jefferson makes it quite clear the concept is. Responding to Baptists in Danbury, Connecticut while he was president (1802), President Jefferson writes, “Believing… that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”
Footnote: Do you remember the good old days when going to church and a Rockies’ baseball game were two separate events?