I am not going to go ballistic over Judge Barbara Crabb’s decision that the National Day of Prayer – an event that has gone on for 58 years and mirrors, in many respects, actions of our federal government throughout the history of the Republic – violates the Establishment Clause.

She is, I think, wrong and may have been well served to have given more attention to a principle of legal analysis that has served me over the years: The law can be an ass, but it doesn’t always have to be. Invalidating the National Day of Prayer seems intrinsically wrong and that sense, while not dispositive, needs to be given attention.

But Judge Crabb’s decision rehearses the doctrine and the various arguments for and against the constitutionality of the matter. She did not mail it in. She did not ignore the obvious arguments against her decision, even if I don’t think she handled them in the right way.

It would be hard for me to conclude otherwise. I have argued — here and here — that there is a trail in our Establishment Clause jurisprudence (and various trails, rather than structure, is all we have in this area of the law) that is overly ambitious. It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government.