He introduced legislation to codify the authority of the military academies to offer "voluntary, nondenominational prayer" at academy events. Designed to send an unsubtle signal to any court that entertains an ACLU suit against the Navy, the proposal is likely to be included in next year's Defense authorization.
But will it stop a judge from banning the Navy's prayer? I doubt it.
The same federal courts that declared same-sex sodomy a right and banned the Ten Commandments from state buildings will not be deterred by an ordinary act of Congress.
If the federal judiciary stays on trend, prayer will be banned at Navy, and the ACLU will set its sights on a bigger target -- perhaps banning military chaplains.
Must Congress surrender? No. Just as the Navy has faithfully defended our democracy, our democratically elected leaders must faithfully defend the Navy. The Constitution says Congress has the power to "establish" the lower federal courts and that the appellate jurisdiction of the Supreme Court shall be set "with such exceptions, and under such regulations as the Congress shall make." Explaining this language, Justice Joseph Story, who was appointed by President James Madison, said: "Of course, as the judicial power is to be vested in the supreme and inferior courts of the Union, both are under the entire control and regulation of Congress."
If the ACLU files suit against Navy's prayer, Congress should pass a law lifting the issue from the jurisdiction of the courts. Then, borrowing lawyer Rocah's words, it should tell the ACLU to go pound sand.