On December 12, Judge Silver, a federal judge in Arizona, threw out a claim that Arizona Governor Jan Brewer violated the Establishment Clause by issuing day of prayer proclamations in observance of the National Day of Prayer. The court cited the Seventh Circuit’s recent ruling in FFRF v. Obama, saying “hurt feelings” don’t give someone standing to bring a federal case. The Court also said that no constitutional injury results from plaintiffs getting up to turn off the TV or avoiding conversations with people because they don’t want to hear about the prayer proclamations.

Judge Silver got it exactly right. The Establishment Clause doesn’t give anti-religionists license to roam the country or channel surf looking for things to be offended by, and then making a federal case out of them. There is no right not to be offended in America. This decision, like the Seventh Circuit’s decision in FFRF v. Obama in which ADF represented Mrs. Dobson and the National Day of Prayer Task Force, is another very important step in limiting the ability of anti-religion activist groups like FFRF to harass state and local government officials who simply want to acknowledge our nation’s religious heritage. These groups often use lawsuits and the attorney fees that come with them as a vehicle to intimidate government officials into silence about their own religious beliefs, as well as those of our Founding Fathers and the vast majority of present day Americans.

Certainly the government cannot tell people how, and to whom, to pray. But a long line of government officials like George Washington, Abraham Lincoln, Franklin Delano Roosevelt, and Ronald Reagan have encouraged people to pray because they believed it is helpful to our country and rightly acknowledges our religious heritage. Our Founders even had prayer at the Constitutional Convention. The Constitution was never meant to be used to censor this practice, and courts shouldn’t misinterpret it to do so now.

Kudos to Judge Silver for getting this one right, and to Governor Brewer for standing against special interest groups bent on silencing her and eradicating religion from all public acknowledgement.

A recent column in USAToday titled “5 rules for faith and politics 2012” proposes rules the authors say would avoid both theocracy and hostility toward religion. But all they succeed in doing is marginalizing people of faith who have the audacity to think their most cherished beliefs about God and morality should affect all aspects of their lives - including how they vote. A review of their “5 rules” indicates what the authors really want is for people of faith to keep their religious convictions to themselves. Their fear of a theocracy is completely unfounded.  Virtually all of the Founding Fathers had a political philosophy that reflected their Christian beliefs and nobody would argue they set up a government that established a theocracy. I suspect what the authors are really afraid of is people of faith waking up to the fact that we must have moral, God honoring leaders if we expect to have a moral, God honoring country.  Their proposed rules attempt to shame religious voters into closing their eyes to a candidate’s moral convictions (or lack thereof).  Moreover, they ask people of faith and their churches to sacrifice the religious freedom that is the foundation of our country.

Their first rule advocates that the wise constitutional provision prohibiting the government from imposing a religious test for office  should apply to individuals also.  They say, “Voters should evaluate candidates based on their policies, their values and their character but not on whether or how they choose to worship.”  Of course, one’s values and character are heavily influenced by religious beliefs.  Not to consider them would be foolhardy.  And I highly doubt the authors themselves would vote for someone whose religious beliefs include child sacrifice (which recent tragic reports demonstrate is not merely an implausible hypothetical).

The next rule would prohibit the Catholic Church from denying communion to politicians who fail to abide by and uphold the Church’s beliefs.  The authors think churches should not hold their members accountable when members act in a way that is contrary to what they say they believe. This effectively encourages hypocrisy. Under this rule, politicians can say they believe abortion is murder on Sunday but vote to allow it (and force all taxpayers to pay for it) on Monday – and their church is absolutely prohibited from taking any action to correct them.  This asks churches to forfeit a long established right to govern themselves and their members without governmental interference.

“Candidates should refrain from citing religion as the exclusive authority for their position on issues,” is the authors’ next proposal and it also restricts religious freedom.   The rule is really just a restatement of part of the Supreme Court’s Establishment Clause Lemon Test which requires all government actions to have a secular purpose.  Putting aside whether Lemon is a good test or not, it only applies to the government, not a candidate.  Obviously, if they are elected to office, candidates will want to be able to articulate reasons for their policies that aren’t necessarily based on religious conviction in order to persuade their colleagues that don’t share those convictions.  But when a candidate is running for office, there’s absolutely nothing wrong with saying something like, “my deeply held religious beliefs prohibit me from voting for laws imposing the death penalty.”  This creates no constitutional crisis and many voters are interested in what’s underlying a candidate’s views on a particular issue.

The fourth proposed rule, as explained by the authors, appears to be relatively benign.  As I understand it, they believe politicians should avoid alienating anyone who does not share their religious beliefs, but they should be free to express their personal religious beliefs.  They use former President George W. Bush’s reference to Christ as being the most influential political philosopher in his life as being acceptable.  To the extent the authors are saying they think it’s smart for politicians to avoid offending people of different faiths, that makes sense.  But the idea that this can be accomplished by not using references to God, and instead saying “the Creator,” “the Almighty,” or “Divine Providence” is naive.  These terms may offend any number of groups, including atheists and polytheists.

The final proposed rule is fraught with danger and inaccuracy. It reflects the current law (the “Johnson Amendment”) which prohibits pastors from preaching to their congregations about how a candidate’s platform lines up with scripture. The authors claim this law is necessary to avoid election fraud.  But pastors who preach sermons and apply Scripture to political candidates are not making an “end-run” around campaign finance laws.  They are exercising their right to freedom of religion.  The tax code restrictions that prevent churches and pastors from specifically discussing how their faith applies to a particular election and the candidates in that election trample the First Amendment.  (Click here for an excellent article by my colleague Erik Stanley summarizing the constitutional problems with the Johnson Amendment).  Other tax-exempt organizations, such as veterans’ groups, are allowed to endorse or oppose candidates and remain tax-exempt while giving their donors a deduction for contributions.  Why single out churches and religious organizations for discriminatory treatment?Further, whether such endorsements or oppositions are “deeply problematic from a religious perspective” is a great question for churches to debate but not for the government to mandate. Those who believe their faith requires that they apply Scripture and its teachings to specific candidates and elections are prohibited from doing so by the Johnson Amendment.  The government, in effect, has mandated a winner in what is a quintessential theological debate:  namely whether churches should apply Scripture in a way that opposes or endorses a candidate.  The Johnson Amendment allows government to act as a type of “orthodoxy police” to enforce its own view of how religion should apply to candidates and elections. That is not only offensive from a religious perspective, it is blatantly unconstitutional.

Professor Carl Esbeck is fond of saying, “The government does not establish religion by leaving it alone.”  But the authors’ “5 rules for faith and politics” have the opposite effect.  For the most part, they meddle in the religious affairs of churches and individuals, requiring them to check those beliefs at the door whenever the realm of politics is entered.  This misguided attempt to “cleanse” politics of religion is a bad idea because it tramples religious freedom, and would make politics a completely secular, amoral undertaking.  God knows it’s bad enough already!

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Have you ever thought about who you pray to? The name. The deity. Jabez cried out to the “God of Israel.” Daniel prayed, “O Lord, the great and awesome God….” Jesus himself, when giving us an example, prayed, “Our Father, who art in Heaven….”

The point is that, when we pray, we are communicating with God, so we call Him by His name. We are reverent. We are sincere.

It is hard to think of a practice more intimate, more to the core of a person’s religious beliefs, than the name in which a person prays. Calling to a deity is a person announcing who he believes in.

So that is why it is so odd that the government is now trying to get in the business of telling people how and to whom to pray.

Let me provide a little context. In Marsh v. Chambers, the United States Supreme Court was presented with a legal challenge to the Nebraska Legislature’s practice of permitting a chaplain to open its sessions with prayer. This chaplain, Rev. Palmer, had been hired by the Nebraska Legislature and, for 16 years, offered prayers before the legislature. According to the plaintiff, these prayers were unconstitutional because they were exclusively in the Judeo-Christian tradition, many were in Jesus’ name, and thus the prayers favored Christianity.

The Supreme Court, after reviewing all of the prayers, and after noting that the practice of legislative prayers has been going on in America since before we became a nation, found that the prayers did not violate the Constitution. The Court said,

“The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”

So that should have settled this issue that prayers are permitted to open legislative sessions. But it didn’t. Groups like Americans United for Separation of Church and State had lost one fight but were not about to give up.  But since they could not challenge the prayers themselves, they instead attacked the deity to whose name the prayers are offered. These groups want the various town councils, counties, and state legislatures to tell people that they cannot pray to Jesus.

They want the government to tell people how and to whom to pray!

One would think that a group that calls itself “Americans United for Separation of Church and State” would not be advocating for the government to tell people how and to whom to pray.  If anything, one would think that if the town did tell people how to pray, this group would be on our side.  I mean, if “separation of church and state” means anything, it should mean that the government should not be in the business of telling people how or to whom to pray.

But that is exactly what they were asking the Town of Greece to do in the case , a case pending before the U.S. Court of Appeals for the Second Circuit.