It may come as a surprise to some that Memorial Day, as proclaimed by the President, is unConstitutional — at least by some people’s logic.

Like the National Day of Prayer, it is annually recognized by a statute initially passed in 1950 (1952 for the NDoP) that calls on the Nation to pray: 

Sec. 116. Memorial Day

    (a) Designation.–The last Monday in May is Memorial Day.
    (b) Proclamation.–The President is requested to issue each year a proclamation–
        (1) calling on the people of the United States to observe Memorial Day by praying, according to their individual religious faith, for permanent peace;
        (2) designating a period of time on Memorial Day during which the people may unite in prayer for a permanent peace;
        (3) calling on the people of the United States to unite in prayer at that time; and
        (4) calling on the media to join in observing Memorial Day and the period of prayer.

The statute, as quoted above, uses similar “religious” language to that establishing the NDoP, which has been used to call the NDoP itself “unConstitutional:”

Sec. 119. National Day of Prayer

      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.

In fact, the Memorial Day text is more specific, even suggesting the content of the prayers of the people.

To be sure, Memorial Day itself (separate from the President’s call for prayer) can be described as having a “secular purpose” (ie, patriotism, remembering America’s fallen), and that is what would likely protect it from the same outcome as the NDoP.  Still, it is an interesting exercise to observe the American government’s (seemingly) self-contradictory statements; “endorsing” prayer in one case is unConstitutional, in another it is not — even though the text is essentially the same.

It is also interesting that Memorial Day was one of the few American holidays not mentioned in the NDoP lawsuit, even though it was quite relevant.  (For example, the judge said there was “no other instance in which Congress has endorsed a particular religious practice in a statute,” which in fact the Memorial Day statute appears to do, using the same definitions.)

Religious sentiment is found throughout the American government, including the military, as it has been for centuries.