Constitution? Who cares?

Last week the House of Representatives voted almost unanimously to add a plaque bearing a prayer to the World War II Memorial in Washington, D.C.

The bill, officially called “The World War II Memorial Prayer Act of 2013,” has been on the wish list for right-wingers for years. It is also, without a doubt, unconstitutional.

A bit of history: The World War II Memorial, located on the Mall in Washington, D.C., was authorized by legislation signed by President Clinton in 1993.  It is the first national memorial dedicated to all who served during World War II and acknowledging the commitment and achievement of the entire nation, and it has been open for ten years.

Since 2011 this bill has been pending in Congress, over the objection of the Obama administration, and the bill would change the memorial by adding a plaque setting forth the prayer delivered by President Franklin Roosevelt in a radio address on D-Day. The bill was pushed in the Senate by conservatives like Rob Portman, Joe Lieberman, and Mary Landrieu, and was passed in the Senate on a unanimous consent request earlier this month.  Monday it passed the House of Representatives, 370-12.

 As I said, the bill clearly violates the Constitution. You know, that whole “Congress shall pass no law respecting an establishment of religion” thing?

The Supreme Court has a long-standing test to evaluate Establishment Clause challenges, called the Lemon test from the case, Lemon v. Kurtzman, in which it was first enunciated. In order to survive a constitutional challenge, the government action must pass all three elements of the test:

The statute must not result in an “excessive government entanglement” with religious affairs. (also known as the Entanglement Prong)

The statute must not advance or inhibit religious practice (also known as the Effect Prong)

The statute must have a secular legislative purpose. (also known as the Purpose Prong).

 In this case there is no problem with the entanglement prong: the plaque doesn't involve any interaction between a religious group and the government because it is simply the words actually used by FDR.

 The second prong is more problematic, as the plaque will not only advance but also embody a specific prayer in a national monument.

Finally, the third prong is clearly violated: regardless of the disingenuous claims we can expect to hear from the bill's proponents, it is impossible that the purpose of the bill is anything but to advance religion. As Americans United for the Separation of Church and State pointed out in their written statement:

 When Senator Rob Portman and Senator Joseph Lieberman spoke about the bill on the Senate floor upon its introduction, they both noted the religious significance of adding the prayer. Senator Portman explained that the new inscription will be a “permanent reminder of . . . the power of prayer through difficult times.”6 And Senator Lieberman stated his belief that the prayer will “remind us that faith in God has played a pivotal role in American history every day since the Declaration of Independence.”

 Talk about faith in god and the power of prayer is not secular, it is the precise opposite: an effort to use the government to advance the claims of religion in contravention of the Constitution.

I encourage our readers to contact the White House and urge President Obama to veto this legislation

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