Judge Barbara Crabb Defends the Constitution

In his April 16 entry at the Thomas Jefferson Street blog (US News and World Report) condemning the March 2 decision by Barbara Crabb of the US District Court for the Western District of Wisconsin, a decision in which the court declared the National Day of Prayer unconstitutional, Fox News and UPI political analyst Peter Roff repeats a mythology about American history, that the United States was founded as a religious nation. Whatever it might have become, the country was not founded as such.

Former student Bonnie Gutsch, now of the Freedom of Religion Foundation, showing her appreciation for Judge Crabb’s defense of our secular republic (Associated Press picture published by Madison.com)

“The men and women who first settled the North American continent were religious pilgrims looking for a promised land,” Roff contends. “Upon their arrival they established compacts and agreements that recognized the power and author of a Creator whom they worshiped and to whom they gave thanks for their safe arrival and survival.”

Roff claims that “the fact that they believed there was a linkage between faith and freedom is inescapable. The Declaration of Independence, for example, makes reference to the importance ‘the protection of Divine Providence’ played in the struggle for liberty against the tyrannical British King.” He continues: “The men who founded this country—those who wrote the documents that set forth our independence and those who established the framework for the national government—were not anti-religion nor were they irreligious. Even Thomas Jefferson, frequently depicted by historians as an unspiritual man, once wrote, ‘I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man,’ a phrase inscribed on the frieze that circles the interior of his memorial in Washington, DC.”

Roff claims that the First Amendment contains two components: first, “the right to practice one’s religion without undue interference under the free exercise clause,” and, second, “the right to be free from disfavor or disparagement on account of religion under the establishment clause.”

Roff’s history lesson is typical of the Americanist outlook and his constitutional analysis is just as self-serving. Whatever the character of some of the colonies, the historical fact is that colonization of North America was carried out by the English state using chartered corporations composed of wealthy capitalists and wielding armies of white settlers. The motive was material gain, which required the expansion of the British Empire, albeit sublimated as English nationalist aspiration.

The British crown vested the corporations it chartered with political-juridical authority, and often, as social control agents often do, religion was used to manipulate the settlers. The fact that the settlers brought with them religious sentiment is secondary to the purpose and the function of the colonial project, namely the accumulation of capital, which required the destruction of indigenous populations and the forced servitude of millions of people over the next several hundred years.

Roff (and he’s not alone) invert the causal relation, developing a romantic story of Europeans fleeing religious persecution. Since the settlers were seeking religious freedom, it doesn’t follow that they would create a society in which the supernatural was relegated to the margins. However, once we recognize the primarily motor force of colonization, the romantic construction collapses.

It is simply untrue that the framers meant to put religion central to political life. The Constitution, which is the foundation of the Republic, is a godless document. The only time it mentions religion is to say there can be no religious test for office. And the First Amendment attached to that document creates a wall separating church and state.

Roff should have quoted Jefferson’s statement in his 1802 letter to the Danbury Baptist association of the state of Connecticut rather than Jefferson’s irony-laden line about swearing upon the altar of god eternal hostility toward all forms of thought control. In that letter, Jefferson said, “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.”

Roff argues, “No one alleges that force was used, that there was any coercion involved, or that anyone was forced to pray. Simply the mere existence of such a proclamation made the plaintiffs uncomfortable, which to my judgment is not exactly a constitutional standard validating the further exclusion of faith from the public square.” But the First Amendment does not say that Congress shall not force or coerce citizens to pray. It says that Congress shall make no law respecting the establishment of religion. Without a law, the president has no Constitutional grounds upon which to declare such a thing as a National Day of Prayer.

Judge Crabb ruled that the National Day of Prayer “goes beyond mere ‘acknowledgment’ of religion because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context.” As she properly noted, “In this instance, the government has taken sides on a matter that must be left to individual conscience.”

She then noted the obvious: that this was not a criticism of prayer or those who pray. “A determination that the government may not endorse a religious message is not a determination that the message itself is harmful, unimportant or undeserving of dissemination. Rather, it is part of the effort ‘to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society.’”

Crabb is right. No office of the government can legitimately declare a National Day of Prayer.

Published by

Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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