Challenges to prayer at government meetings revisit boundaries

By K. Hollyn Hollman

Hollman Report
March 2005

Two recent cases have sparked questions about prayers that open city council meetings. In both cases, citizens had business before local government bodies and witnessed invocations that they believed violated the Establishment Clause.

In Rubin v. City of Burbank, the city council has a longstanding practice of beginning each meeting with an invocation, typically given by a member of a local ministerial association. The plaintiffs, a Jew and a Catholic, sued after an invocation was given "in the name of Jesus Christ." The California Court of Appeal held that the prayer was "sectarian" and enjoined the city from "knowingly and intentionally allowing sectarian prayer at City Council meetings."

In Wynne v. Town of Great Falls, S.C., a resident who is a follower of the Wiccan faith objected to council members praying at the opening of town council meetings with frequent references to "Jesus," "Christ," or "Savior." The plaintiff first suggested alternatives, such as nonsectarian prayer or allowing members of different religions to pray. When she was asked to leave town, she sued. The 4th Circuit ruled that the town cannot "engage, as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe."

These two cases don't break new ground, but they have generated debate. The response to them suggests that it might be useful to review the Supreme Court's guidance on legislative prayer. In both cases, the municipalities defended the prayers by trying in vain to stretch well-settled case law to fit their circumstances. The controlling precedent is the Supreme Court's 1983 decision in Marsh v. Chambers.

The issue in Marsh was whether the Nebraska legislature's practice of opening each legislative day with a prayer offered by a chaplain who was paid by the state violates the Establishment Clause. The Supreme Court reviewed the historical record of prayer in public legislatures and found that such prayer was "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." The majority in Marsh did not evaluate legislative prayer under the Lemon test — the standard formulated 10 years earlier to assess potential Establishment Clause violations. Instead, as Justice Brennan said in dissent, the Court "carved out an exception" to accommodate this longstanding practice.

In Marsh, the Court specifically noted that the Nebraska chaplain had removed all references to Christ in response to a complaint by a Jewish legislator. The nonsectarian nature of the prayers upheld in Marsh was thus highly significant, as the Court stressed in a subsequent case. It has noted that the "clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another."

The two recent cases are easily distinguished from Marsh. As the Rubin court observed: "It cannot reasonably be argued that the prayer here, with a specific reference to Jesus Christ, is on the same constitutional footing as the prayer before the court in Marsh, from which all reference to a specific religion has been excised."

In both recent cases, our country's growing religious diversity was manifest — making it imperative to respect Marsh's boundaries. The Rubin court referred explicitly to this concern: "The interest in protecting and safeguarding the fundamental constitutional right to maintain a separation between church and state and to demand neutrality when the interests of religion and government intersect is increasingly more important as our nation becomes more pluralistic."

The Wynne court concluded with an affirmation of Marsh, noting that invocations may still be offered: "The opportunity to do so may provide a source of strength to believers, and a time of quiet reflection for all. This opportunity does not, however, provide the Town Council, or any other legislative body, license to advance its own religious views in preference to all others, as the Town Council did here."

These twin cases make clear that the constitutionality of prayers at government meetings depends on their close conformity to the facts in Marsh. The Supreme Court's exception for the tradition of legislative prayer extends only to the most generic of invocations. While nonsectarian prayers are lawful, they are not necessarily sound public policy. Legislative bodies should remain open to and welcoming of all citizens. Religious minorities may still feel excluded by monotheistic references. Observant Christians, Muslims and Jews may oppose prayers whose religious content is diluted. A moment of silence may provide an acceptable compromise, both politically and theologically, between the extremes of scripted prayer and no prayer at all.

In any event, these two rulings will offer ammunition to those who want to challenge Christian prayers at government meetings. They should also caution against stubborn adherence to traditions that exclude citizens outside the religious majority.