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GOD AND CITY



Deerfield Beach


Does "Legislative Prayer" Have a Prayer? - 07/13/13

The Prayer Conundrum - 11/06/13

The Oral Arguments - 11/16/13

"The Wall of Separation": A Little Thanksgiving History - 11/26/13

Satan and the City - 06/18/14



Preface

This is a series of articles concerning the question of "legislative prayer," that is, the religious ceremonies or invocations of prayer read before the civic business of the city is conducted at city meetings. The question, as posed in this series, is whether the prayer practice as instituted in Deerfield Beach is unconstitutional or just bad policy.

In 1983, the U.S. Supreme Court held that with certain provisos, invocations offered before the beginning of sessions of legislative bodies, like Congress or state legislatures, did not violate the Establishment Clause of the Constitution.

After this decision was announced by the Court, lower courts struggled with how it applies the local councils, which typically use volunteers to deliver the invocations and which are conducted in a different manner from Congress or state legislatures. This has resulted in conflicting rulings about when a prayer practice, especially when left in the hands of volunteer prayer-givers, crosses the constitutional line.

However, in June 2014, the Supreme Court handed down its decision in The Town of Greece v. Galloway upholding a local council's right to conduct invocations within the framework of its 1983 decision Marsh v. Chambers. The Greece decision came after all but the final article in this series. Still, there are questions about the sweep of this decision.

Since 2010, when the law was first proposed, until 2013, when it was finally enacted and went into effect, I've written quite a lot about the right of citizens to speak at city meetings; and in 2013 especially, I've written about the invocations at city meetings. In certain respects, these issues are related. The new right-to-speak law strengthened Florida's open-government environment by ensuring hat all citizens can attend and speak with respect to the business of local government.

Aside from the constitutional issues raised by the invocation practices, there is the question of whether the invocations are good policy. I think not: a religious ceremony injected into a civic meeting, tending to exclude people who do not share the religious beliefs of the prayer-giver, runs counter to the right of all people to participate in a public meeting from which they cannot otherwise be excluded without good reason.

The U.S. Supreme Court said that the invocation prayers are "simply a tolerable acknowledgment of beliefs widely held among the people of this country." But the city commission is not required by law or the Constitution to acknowledge religious diversity at the start of every meeting. This is a self-evident fact. I submit, moreover, when most of the prayers are distinctly sectarian, they hardly acknowledge anything like religious diversity.

What local public officials are required to do is to respect the right of the people — in fact, to uphold and defend the right of the people — to fully participate in the civic affairs of the city regardless of their religious beliefs, their ideological beliefs, or opinions, from the opening gavel to adjournment of the meeting. The invocations, I further argue, work against the principle of open government by excluding, even if only for a moment, some from the business of the commission.

On this page, the articles are presented in order of publication.



Does "Legislative Prayer" Have a Prayer? - 07/13/13

The issue of prayer before the opening of an official public meeting is one of the most contentious and intimidating issues a town or city council can face. An elected official, in some places, dare not challenge the practice, lest he encounter public outrage and doom his own political future.

Many towns and cities across the land, including Deerfield Beach, as well as state legislatures, require invocations. The U.S. Senate and House of Representatives both appoint chaplains to offer prayer before they begin their sessions.

Legally, this form of invocation is called "legislative prayer," to distinguish it from other situations like mandated prayers in public schools.

However, the issue is not about the efficacy of prayer or the right of people to pray as and when they choose. The issue is freedom of religion.

Our forbearers, who wrote the Constitution and held a variety of religious views, understood that the right of citizens to exercise their own form of worship would be endangered if civic government became involved or "entangled" in the church as it was in England, from which we had recently separated. Thus, the First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .... 1

The first part of this is known as the Establishment Clause of the U.S. Constitution. The second part is the Free Exercise Clause. Through the Fourteenth Amendment, both clauses now apply to states and local governments.

You don't have to be a Commie or Godless heathen to question whether the invocation practices of some city councils violate the Constitution by endorsing particular religious views over others. No less than James Madison, the principal author of the First Amendment, opposed the appointment of chaplains by the Congress as a violation of the Establishment Clause. After his retirement from public service, he wrote in his journal:

Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?

In strictness, the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation. 2

In 1999, the Town of Greece, New York, instituted the practice of invocation before the meetings of the town council. Unlike most places, which require the prayers to be read by clergy or paid chaplains, Greece extended the opportunity to offer the pre-meeting prayers to any person who applied, clergy or non-clergy. No questions were to be asked of the prayer-giver's religious views.

Greece, New York, is a suburb of Rochester, with a population of around 97,000. Located on Lake Ontario, Greece has been named as one of the safest cities in the United States. Now the town has the additional distinction of being a party in a Supreme Court case challenging its invocation practice. 3

Despite its seeming outreach and neutrality, the fact is that most of the invocations in Greece were conducted by Christian clergy with a distinctively Christian theme.

In a way, this is not surprising. In polls, the vast majority of Americans believe, like the hot dog makers, in a Higher Authority, and most profess to be Christians. Few people admit to poll-takers that they are atheists or agnostics.

A survey conducted by the Pew Research Center’s Forum on Religion & Public Life and released in 2010 found that 78 percent of Americans describe themselves as Christian and 5 percent identify with other religious faiths (2 percent Jewish). Twelve percent could not describe their religious beliefs, while 4 percent deny the existence of God or don't know. Still, however one interprets these statistics, it is clear that at least one-in-five Americans does not believe in God, could not care less, or worships a deity not conforming to Christian theology. 4

Notwithstanding Madison, the U.S. Supreme Court held in Marsh v. Chambers, 5 that legislative prayer in general does not violate the Constitution. This is the decision upon which city councils rely to justify their invocation practices. To support this argument, the majority opinion cited what Madison had decried: Congress' appointment of chaplains to conduct opening prayers just days before approving the First Amendment, suggesting that the lawmakers then saw no conflict between the invocation practice and the Establishment Clause. In other words, there is a strong tradition in the U.S. of conducting prayers before official civic meetings that weighs heavily against a strict reading of the Constitution.

Another line of cases dating back to 1947 has developed a different set of rules with respect to the separation of church and state. This line of cases established a three-part formulation referred to as the "Lemon test" after the principal case in the series, Lemon v. Kurtzman. 6 However, the Court has never applied the Lemon test to the constitutionality of legislative prayer as conducted by cities or towns.

Without getting hyper-technical, what the Lemon test essentially holds is that government involvement in religion must have a valid secular purpose, that is, must not have a primary effect of advancing or inhibiting particular religious beliefs, or result in excessive government entanglement with religion. The continued validity of the Lemon test has been reaffirmed by the Court in cases after Marsh v. Chambers. 7

In Lemon, the Court stated, "In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority." 8

The United States inherited many of its legal and political traditions from our English ancestors. One tradition we rejected was the establishment of an official connection between church and state. Our concept of religious freedom is also different from some other countries in that it is inclusive. No person may be legally stigmatized or denied his legal rights for his personal religion, faith, or beliefs.

In that sense, the Town of Greece had it almost right, but it could also be its undoing. This is because town officials never actually reached out to people with "unconventional" religious beliefs, but selected its prayer-givers from a list of clergy it compiled. Most of the time, with a couple of rare exceptions, the prayers were offered by Protestant Christian ministers.

Finally fed-up, some local Greeks (Grecians?), Susan Galloway and Linda Stephens, filed suit in federal court. The district court found against Galloway and Stephens, basing its decision on the Marsh v. Chambers rationale. The court of appeals for the Second Circuit reversed and remanded to the district court to reconsider the case in light of the sectarian nature of the town's prayer practice that the town could not control. The court stated:

A substantial majority of the prayers in the record contained uniquely Christian language. Roughly two-thirds contained references to "Jesus Christ," "Jesus," "Your Son," or the "Holy Spirit." Within this subset, almost all concluded with a statement that the prayer had been given in Jesus Christ's name. Typically, prayer-givers stated something like, "In Jesus's name we pray," or "We ask this in Christ's name." Some prayer-givers elaborated further, describing Christ as "our Savior," "God's only son," "the Lord," or part of the Holy Trinity. One prayer, for example, was given "in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever." Other prayers, including ones not expressly made in Christ's name, spoke of "the role of the Holy Spirit in our lives," and celebrated Christ's birth and resurrection. 9

The Second Circuit recognized the constitutionality of invocations under Marsh, but held that the town may have violated the Establishment Clause of the First Amendment by allowing volunteer private citizens to open town meetings with a prayer. Though officials never regulated the content of the prayers and did not discriminate in selecting prayer-givers, according to the record, and could not constitutionally censor the content of the prayers anyway, the court still concluded:

[A] legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation. 10

The Town of Greece appealed to the U.S. Supreme Court. The Court granted certiorari on May 20, 2013. The case will be argued next term, which begins on Oct. 1.

It's difficult to see how the invocations can ever be truly for a secular purpose, regardless of the language of policy or law. First, prayer is by definition communication with God or a higher power. Thus by allowing or mandating prayers, the city is supporting or promoting a particular religious view — the existence of a God with whom to communicate and, in some cases, a particular view on the nature of the Supreme Being. But, in fact, the other Supreme Beings — the U.S. Supreme Court — clearly do not agree that complete neutrality is required.

In his dissent in Marsh v. Chambers, Justice William J. Brennan, Jr. (joined by Thurgood Marshall) argued:

Legislative prayer clearly violates the principles of neutrality and separation that are embedded within the Establishment Clause. [ .... ] It intrudes on the right to conscience by forcing some legislators either to participate in a "prayer opportunity," ... with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate. It forces all residents of the State to support a religious exercise that may be contrary to their own beliefs. It requires the State to commit itself on fundamental theological issues. It has the potential for degrading religion by allowing a religious call to worship to be intermeshed with a secular call to order. And it injects religion into the political sphere by creating the potential that each and every selection of a chaplain, or consideration of a particular prayer, or even reconsideration of the practice itself, will provoke a political battle along religious lines and ultimately alienate some religiously identified group of citizens. [citations omitted] 11

Brennan wrote further:

[O]ur cases recognize that, in one important respect, the Constitution is not neutral on the subject of religion: Under the Free Exercise Clause, religiously motivated claims of conscience may give rise to constitutional rights that other strongly held beliefs do not. [ .... ] Moreover, even when the government is not compelled to do so by the Free Exercise Clause, it may to some extent act to facilitate the opportunities of individuals to practice their religion. [ .... ] This is not, however, a case in which a State is accommodating individual religious interests. We are not faced here with the right of the legislature to allow its members to offer prayers during the course of general legislative debate. We are certainly not faced with the right of legislators to form voluntary groups for prayer or worship. We are not even faced with the right of the State to employ members of the clergy to minister to the private religious needs of individual legislators. Rather, we are faced here with the regularized practice of conducting official prayers, on behalf of the entire legislature, as part of the order of business constituting the formal opening of every single session of the legislative term. If this is free exercise, the Establishment Clause has no meaning whatsoever. [citations omitted] 12

Second, regardless of what the city law provides, it is nearly impossible to enforce a rule that the prayers be completely neutral. What is the city to do if the prayer-giver violates the rule — summarily execute him in the courtyard of City Hall? More seriously, keep in mind that the prayer-givers have a First Amendment right to their religious beliefs and to express them freely. Thus the city or town which mandates the invocation cannot write the prayers or censor them.

As the Second Circuit opinion in the Town of Greece case stated:

People with the best of intentions may be tempted, in the course of giving a legislative prayer, to convey their views of religious truth, and thereby run the risk of making others feel like outsiders. Even if all prayer-givers could resist this temptation, municipalities with the best of motives may still have trouble preventing the appearance of religious affiliation. Ours is a society splintered, and joined, by a wide a constellation of religious beliefs and non-beliefs. Amidst these many viewpoints, even a single circumstance may appear to suggest an affiliation. To the extent that the state cannot make demands regarding the content of legislative prayers, moreover, municipalities have few means to forestall the prayer-giver who cannot resist the urge to proselytize. These difficulties may well prompt municipalities to pause and think carefully before adopting legislative prayer, but they are not grounds on which to preclude its practice. [Italics added] 13

I take no offense to the prayers read before the city commission, even if they don't represent my particular religious point-of-view. However, as a constitutional matter, I agree with James Madison, as well as Justices Brennan and Thurgood Marshall, that there should be a clearer separation of the religious from the civic realm, even in ceremony.

Prayer assumes a God or deity to which the prayers are offered. If the city mandates prayer, is it not "establishing" an official position that God exists? Like it or not, some people do not believe in God or prayer, or in the particular deity to whom the prayers are offered.

Of course, you can argue that people who do not believe in God or prayer can sit out the prayers. Some do. But should not civic meetings — a meeting of citizens and officials — be all-inclusive? It would be nearly the same thing if we were to decide, all people can address the city commission, except Democrats.

City commission meetings are civic meetings to do the business of the city. Unless the prayers help make city government more efficient and less costly, or cleanse public officials of the sins of undue bias or dishonest motives, I don't see a valid secular purpose for the invocations. In any event, if this is the idea in Deerfield Beach, it doesn't seem to be working.

On the other hand, the commission won't change its policy with regard to the invocations, absent a ground-breaking decision by the Supreme Court. A few years ago, after a bitter fight over this issue, the commission decided to retain the invocations, with the proviso that the prayers be "nonsectarian." I don't expect a ground-breaking decision in the Greece case.

Americans are a religious people. The polls show this. Even the Declaration refers to the "Creator" who is the source of our natural rights to life, liberty, and the pursuit of happiness.

It may be against this background that the Supreme Court has been reluctant to build an impenetrable wall between religion and government.

NOTES:

1 U.S. Const. amend. I.

2 Fleet, "Madison's 'Detached Memoranda,'" 3 Wm. & Mary Quarterly 534, 558 (1946), quoted in Marsh v. Chambers, 463 U.S. at 807-808 (Brennan, J., dissenting) (Marshall joined the dissent).

3 Town of Greece, New York v. Galloway (Docket No. 12-696).

4 Pew Reseaech Center, "Religion Among the Millenials," Feb. 2010, pewforum.org.

5 463 U.S. 783 (1983).

6 403 U.S. 602 (1971).

7 Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000); McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005); Van Orden v. Perry, 545 U.S. 677 (2005); County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573 (1989).

8 403 U.S. at 615.

9 Galloway v. Town of Greece, 681 F.3d 20, 24 (2d Cir. 2012).

10 681 F. 3d at 34.

11 463 U.S. at 808.

12 Id. at 812-813.

13 681 F. 3d at 34.



The Prayer Conundrum - 11/06/13

Lawmakers at the local level face a dilemma when they open their public sessions with prayers, in effect momentarily converting a civic meeting into a religious exercise. First is the question of whether the invocations violate the Establishment Clause of the Constitution. The second issue is whether the invocations are good policy, or bad.

"Bad policy" is not necessarily unconstitutional. Assuming, for the purpose of discussion, that the invocations are constitutional, it is still up to the city commission to decide if the prayers are "necessary and proper" in a meeting that is supposed to include all citizens and exclude none who are well-behaved from the proceedings.

Today, the U.S. Supreme Court heard oral arguments in a case challenging the invocation practice of an upstate New York town. It is too early to safely predict the outcome of the case, which I discussed in the previous article.

Part of the issue is the fundamental question of what the constitutional fathers meant by the first words of the Bill of Rights: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." What they intended was central to the Supreme Court's opinion 30-years ago in Marsh v. Chambers, which held that, in general, invocations presented before the opening of a legislative session do not violate the Establishment Clause. In this connection, I've been reading Joseph Story's Commentaries on the Constitution of the United States.

Joseph L. Story was a Justice of the Supreme Court in the formative era of American constitutional law. Story was born during the American Revolution. His dad, a doctor, participated in the Boston Tea Party. A Harvard grad, Story was named to the Court in 1811 by James Madison, the principal architect of the Constitution and, in particular, of the Bill of Rights. He was 32-years-old. He was, and remains, the youngest person ever appointed to the U.S. Supreme Court.

Story was a prolific writer. He wrote a number of legal tracts, including the Commentaries. He also authored some important decisions by the Supreme Court. The Amistad (1841) was the basis of a Steven Spielberg motion picture starring Morgan Freeman and Anthony Hopkins. Spielberg recruited a living Justice, Harry Blackmun, then retired, to portray Joseph Story in the film. Story also wrote the groundbreaking opinion in Martin v. Hunter's Lessee (1816), which established the right of the Supreme Court to review civil-case decisions of state courts that involve a federal issue.

Justice Story published the Commentaries in 1833. The Constitution was not yet even 40-years-old. Madison was still alive. Story's Commentaries are read by legal scholars even today because they offer valuable insight into what the founders intended the Constitution to mean.

I shall not attempt a complete analysis (though it's quite interesting), but these words stand out. He wrote — 150 years before the Supreme Court handed down Marsh v. Chambers — that the Establishment Clause ensured that "the Catholic and the Protestant, the Calvinist and the Armenian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship."

This, to me, hits the nail on the head. The purpose of a civic meeting, especially at the local level where everyone has a right to observe and participate, is to include and bring citizens and public officials together, irrespective of their religion, to conduct the business of government, not to provide a public forum for personal religious views.

The invocations are more likely to be divisive and exclusionary than unifying and inclusive. This, I grant, is an academic argument. It may be too bland to excite public outrage.

Most people who attend the meetings of the city commission "go along" with the invocations. Most stand and bow their heads when commanded to do so by the mayor. This year, the commission has heard 16 invocations; all but four were conducted by Christian ministers and were Christian-themed.

By all appearances, most people are comfortable with the invocations. Some are not. According to the polls, at least one-in-five Americans are not Christian or do not identify with any Christian denomination. They may feel excluded or under pressure to participate in a religious exercise that may not comport with their own religious views.

I don't think you can successfully argue that participation in the prayer session is purely voluntary. Yes, I can come and go as I please, but some people are required to attend. This includes, of course, the mayor and commissioners, but also city staff and people who have business before the commission and people who wish to speak in support or opposition to a particular proposition.

In a civil suit brought in federal court following Marsh v. Chambers, one of the plaintiffs testified that if she failed to comply with the chair's order to stand and pray, contrary to her own religious beliefs, it could have "negatively prejudice[d] consideration of [her] intended petition as a citizen appearing for public comment."

Finally, I pose an irreverent question, which goes mainly to the policy issue: Why do the city commissioners need to ask for Divine guidance? They don't seem to need it at special meetings or CRA meetings. City officials do not rule by divine right. They are elected by, and derive their power from, the people.

Do the invocations put the imprimatur of God on the work of the city commission? I wonder about a couple of things. First, how many of the people who sheepishly stand and pray really pray, or care. Second, whether the Creator, who, according to our Declaration, endowed us with our inalienable right to life, liberty, and the pursuit of happiness, is concerned with ad valorem tax rates, inland canals, or how the city provides for the public safety. All of these problems were created by people.

When we elect people to public office, we expect them to make sound decisions in the public interest. It seems to me, they ought to be looking to their constituents — us, not God — for guidance and approval.



The Oral Arguments - 11/16/13

I've read the transcript and listened twice to the oral arguments in The Town of Greece v. Galloway to see if I could get any hint of how the Supreme Court might rule in the case. Court watchers always advise caution when listening to the oral arguments because justices often ask provocative questions that do not necessarily reveal a predisposition on how they may come down on the issues.

Bearing this in mind, few of the legal pundits believe that the Court will overturn Marsh v. Chambers point-blank. The Court could narrow its reach, however, in view of the distinctions between sessions of a state legislature (to which Marsh pertained) and the meetings of town councils, which generally use volunteers to read the invocations.

Some of the issues I raised in my previous articles on this subject were discussed during the oral arguments.

First, it is difficult to draft a truly nonsectarian prayer and nearly impossible to make a preacher deliver one as the invocation, especially when he's a volunteer, not paid for his services.

That said, further, there is no clear test of what makes a prayer sectarian or nonsectarian. If the Christian ministers remove from their prayers all references to Jesus and other sectarian-Christian terms, are the prayers now nonsectarian? If that's the test, then the prayers by the rabbis are just by circumstance nonsectarian. But can one really make the argument that the rabbi's prayers are any less sectarian, i.e., "of, relating to, or characteristic of a sect"? [Merriam-Webster]

At the oral arguments on Galloway, Justice Samuel Alito asked Douglas Laycock, counsel for Galloway, if his argument was that "you can never have prayer at a town meeting." Laycock replied, "You cannot have sectarian prayer." So, Alito asked him, "Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus." And atheists, Chief Justice Roberts added. Laycock couldn't think of one.

Alito later said, he couldn't "see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups."

Nor, frankly, can I. Especially for the non-believers and people who do not identify with any one religious faith. Mr. Laycock acknowledged that the prayers, if allowed, could not be entirely neutral. Responding to a statement by Justice Sonia Sotomayor that there is "resistance of some members of the court to sitting as arbiters of what's sectarian and nonsectarian," Laycock said, "If you really believe government can't draw lines, then your alternatives are either to prohibit all prayer entirely or permit absolutely anything."

Second, the town meetings typically are different from state legislatures. Those are meetings of legislators that the public can observe but in which they cannot participate. Town and city meetings are participatory, that is, they are meetings of elected city officials with citizens. Citizens have the right to speak to the commission on any proposition before the commission acts upon them. Even on matters not on the agenda, there can be back-and-forth between citizens and officials at the meetings.

Also, city councils are more than just legislative bodies. Yes, they pass ordinances, but they also perform administrative and executive functions at the meetings. When commissioners grant or deny a sign variance, they are not making law, but simply doing what the law allows. When the commission authorizes a project, they are making law. When they award the contract, they are performing a distinctly executive function that can be delegated to the administrative staff.

Both of these issues were raised at the oral arguments. It is still unclear, however, how they might figure into the broader constitutional question the Court must ultimate decide in the case.

Anyone interested in listening to the oral arguments for themselves can do so here, bottom of page. It's about an hour long.



"The Wall of Separation": A Little Thanksgiving History - 11/26/13

What did the Framers of the Constitution intend to accomplish with the Establishment Clause and why did they want to build a "wall of separation between church and state"?

This is an appropriate question for Thanksgiving, because, you see, the expression "wall of separation" is connected to this holiday. And this little history note does not involve pilgrims or turkey.

In 1802, President Jefferson wrote a letter to the Danbury Baptist Association (as had his predecessors, Washington and Adams) explaining why he could not, would not declare a national day of Thanksgiving. In the letter, which is still preserved in the National Archives, he wrote, "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church & state."

Jefferson himself is reputed to have been a deist or Unitarian, reflecting some of the religious diversity that existed at the time. He had been a long-standing advocate of complete religious freedom. So it was that in January of 1777, the author of the Declaration of Independence met in Fredericksburg, Virginia, with a small group of men to draft what would become the Statute of Virginia for Religious Freedom. You could rightfully call it the first draft of the religion clauses of the First Amendment.

In the notes on the drafting of the Statute of Virginia, Jefferson wrote his personal sentiments:

The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg. [...] Reason and free enquiry are the only effectual agents against error.

The Statute of Virginia in its final form provided:

[N]o man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

Jefferson's Gravestone at MonticelloThomas Jefferson regarded the Statute as one of his greatest achievements. His gravestone at Monticello he himself designed (pictured left) makes no mention of his presidency or the Louisiana Purchase. Here was buried Thomas Jefferson, it reads, "Author of the Declaration of Independence, of the Statute of Virginia for Religious Freedom, and Father of the University of Virginia."

Jefferson's concept of the "wall of separation," was one high, pretty solid, built, perhaps, of brick and stone. He and his colleague, James Madison, might not be happy with the way the relationship of church and state has evolved in constitutional law since their time.

Prior to the Fourteenth Amendment, the Establishment Clause and the related Free Exercise Clause did not apply to the states and local governments. In this sense, the Virginia statute was advanced thinking. Upon its formal adoption in 1786, the official church of Virginia, the Church of England, was disestablished. It was not until 1940 that the Supreme Court declared that the Free Exercise Clause applies to the states. Seven-years later, the Court held, in the case of Everson v. Board of Education, that the Establishment Clause also applies. Now, an effective reading of the First Amendment is that neither Congress nor the states or local governments shall make "law respecting an establishment of religion, or prohibiting the free exercise thereof."

After Everson, the Establishment Clause became a hot-button issue at the Supreme Court. In a society as complex as ours, there is bound to be interaction between government and religion, just as there is between government and business, especially at the state and local levels. In a series of decisions after Everson, the Court struggled to define where the "wall of separation" lies.

Rather than a case-by-case analysis, let me propose seven hypothetical situations to illustrate how the Establishment Clause may apply in accord with our present understanding of the Constitution. (Keep in mind these are hypotheticals. None has ever been proposed, but some are based on actual cases.)

1. As part of the effort to promote Deerfield Beach as a "destination beach," the city declares the Community Presbyterian Church the city's official Church of the Beach. While this may seem to have a secular purpose, it is unconstitutional. Everson held, the Establishment Clause "means at least this: Neither a state [here represented by the city] nor the Federal Government can set up a church."

2. The city grants funds to the Community Church to upgrade the landscaping on the church property. Most likely, unconstitutional.

3. A closer case: the city grants funds to the Community Church to renovate its community room. The room serves principally the needs of the church, but it also serves as a polling place and is used for civic purposes by the city and other non-church groups. This would be constitutional if (a) the grant has a secular legislative purpose; (b) does not have the primary effect of either advancing or inhibiting religion; and (c) does not result in an "excessive government entanglement" with religious authority.

4. The city decides to use city-owned buses to transport children to the Community Church's school (as well as kids who attend other private and church-run schools). Probably constitutional, because the state has a compelling interest that all children up to a certain age go to school and are safely transported to their schools, public or private. The law, moreover, does not discriminate between children on the basis of race or religion or where they freely choose to go to school.

5. The city appoints the minister of the beach church as the official chaplain of the city to read generic, nonsectarian invocations at city meetings. Well, see Marsh v. Chambers, which held a nearly-identical arrangement in a state legislature was constitutional. It would be a different story if the chaplain used his position as a pulpit to promote his church or preach his own version of the Gospel.

6. The city scraps its current invocation practice using volunteer clergy, instead having each of the commissioners read a generic, nonsectarian prayer on a rotating basis. In 2008, the Fourth Circuit upheld such a scheme as practiced in Fredericksburg, Virginia. (Coincidentally, where Jefferson and his colleagues met to draft the Statute of Virginia for Religious Freedom. Another little tidbit: retired Justice Sandra Day O'Connor presided over the case. She was one of the six justices in the majority in Marsh v. Chambers.)

7. The city erects a crèche and a menorah at City Hall. Unconstitutional. A Christmas (er, Holiday) tree is okay, so sayeth the Court.

Where the "wall of separation" will be located in the future regarding the interactions between civic government and religious institutions is a good question. Most of the tests for situations involving some form of financial support or benefit (2, 3, 4, above, the so-called Lemon test) and "ceremony" (5, 6, 7) were developed by past Courts, by justices long dead or retired.

Whether future jurisprudence will move the wall farther out or bring it back closer to Tom Jefferson's and Madison's view remains to be seen. We might get a clue in the pending invocation decision involving Greece, New York.

Whatever the direction, the Court faces the reality that in our society, religion and government do not exist on different planets; yet, at the same time, the Establishment Clause is not meant to protect government or public officials. It is supposed to protect the religious freedom of individuals guaranteed by the First Amendment, and it also respects the religious diversity of our country.

That's something for which every person living in the United States can be thankful.



Satan and the City - 06/18/14

"Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian." So wrote Justice Kennedy for the Court in Town of Greece v. Galloway.

So you want God in the city commission chambers? You might get Satan or other gods that people may invent.

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Over the past ten months or so, I have written a series of articles concerning the policy of many local governments, including Deerfield Beach, to start their official meetings with a religious ceremony asking for Divine guidance for the public officials who make decisions affecting our everyday lives. The prayer is often offered by a clergyman or women appointed by the governing board with varying instructions on how they must conduct the invocation (e.g., they should respect the religious diversity of the community). In this series, I have approached this issue from two angles: first, as a constitutional issue — do these invocations violate the Establishment Clause? — and, second, whether the invocation practices serve a useful governmental purpose or effect — is it "good" policy?

The propriety of legislative prayer has been a long-standing conversation. As late as the 1850's, committees in both houses of Congress reevaluated the appointment of official chaplains started by the First Congress, after receiving petitions to abolish the office. The committees concluded that the office posed no threat of an establishment of religion because lawmakers were not compelled to attend the daily prayer.

As a personal matter, I side with James Madison, who was a member of the First Congress and was instrumental in the drafting of the Establishment Clause. He opined that the appointment of chaplains to the houses of Congress was unconstitutional, not because it established a religion, which is one part of the concept, but because it was establishment of religion within the institution of government, as the literal words of the Establishment Clause say.

However, in 1983, the Supreme Court held in Marsh v. Chambers that the appointment of a chaplain by a state legislature (and by inference, Congress) was a deeply embedded tradition that did not violate the Establishment Clause. Following this decision, numerous lower courts in different circuits affirmed that Marsh applied equally to the governing councils of local governments.

In 2010, Susan Galloway and Linda Stephens filed suit in federal court challenging the invocation practice of the Town of Greece, a city of 90,000 bordering Rochester, New York. Galloway and Stephens did not challenge Marsh v. Chambers but claimed that the invocations offered in their city crossed the constitutional line because nearly all the prayers were sectarian, reflecting a single faith, Christian beliefs. Their claim was rejected by the trial court. The Second Circuit Court of Appeals reversed the district court, and the Supreme Court agreed to review the case.

The Supreme Court's decision in Town of Greece v. Galloway is a dud compared to what it could have been. Basically the Court did little more than affirm the right of local government councils to hold prayers at the start of their meetings without violating the Establishment Clause — a right already well established by various circuit court decisions after Marsh v. Chambers.

Town of Greece had the potential to be a nuclear bomb within the context of legislative prayer. The Court could have reversed Marsh v. Chambers. The Court could have used the case as a platform to change the whole course of Establishment Clause jurisprudence with respect to the ceremonial functions of government, which some justices seem to favor. The Court could have ruled that because local council meetings are different from legislative bodies at the state and federal levels, involving more direct participation and interaction between officials, the prayer givers, and the public, Marsh v. Chambers should not apply without reservation.

In fact, the Court did not change the constitutional landscape very much. The Court made it clear that local prayers cross the constitutional line if people are actually made to participate in them, a principle already strongly implied in Establishment Clause prayer cases. Yet, the decision leaves doubt as to exactly how the lower courts determine if people are unlawfully pressured into participating against their will: It shifted the focus away from the sectarian nature of a prayer practice as the key factor in deciding whether an invocation practice is constitutional or unacceptably coercive.

The debate is not over. Undoubtedly, the controversy over the propriety of invocations at the local level and the protests will continue.

A local blogger, Chaz Stevens (MAOS), has requested the city to deliver the prayer that normally opens the meetings of the city commission, Stevens posing as a minister of Satan. City officials must now decide if the commission may constitutionally limit its prayer givers to clergy of established churches or whatever its criteria are. I find nothing in Marsh v. Chambers or Town of Greece v. Galloway that denies the city the right to choose the prayer givers according to its own criteria, or even to dictate the content of the prayers to some extent, if the city decides to hold invocations.

Let's say a local council decides to hold a religious ceremony as a regular item on the agenda, implying that it is part of city business. It further specifies that only "legitimate clergy" will be invited to deliver the prayers and states that the prayers must be nonsectarian or nondenominational, meaning that the prayers should not reference any particular deity or religious figure like Jesus, Allah, or Satan. We all know that the second requirement is nearly impossible to enforce: the only practical recourse being not to invite the offending preacher back again. Does either requirement violate the prayer giver's or prospective prayer giver's First Amendment rights?

Maybe not. This is because the invocations serve a governmental purpose and are governmental speech, as opposed to private speech that warrants full First Amendment protection.

Fredericksburg, Virginia, conducted its invocations by having council members read a generic prayer composed by city staff. One of the council members was a Baptist minister. When it came his turn to read the prayer, the chair asked him, Do you intend to invoke the name of Jesus? He said he intended to do so. The chair passed him over and handed the prayer to the next member in the rotation. The council member, Turner, sued, claiming the council had violated his First Amendment right to freedom of speech.

Ironically, Fredericksburg is where Jefferson, Mason, and others met in 1777 to write the Statute of Virginia for Religious Freedom, the precursor to the religion clauses of the U.S. Constitution.

Turner's case was not about freedom of religion; it was about freedom of speech. He lost. The Fourth Circuit held, in an appeal presided over by retired Justice Sandra Day O'Connor, "the central purpose" of the program in which the speech in question occurred was a governmental purpose over which the council rightfully exercised substantial editorial control, "as it has prohibited the giving of a sectarian prayer."

"While Turner [the prayer giver] is the literal speaker," the court said, "he is allowed to speak only by virtue of his role as a Council member. Council members are the only ones allowed to give the Call to Order" that included the invocation.

In Turner v. City Council of Fredericksburg (2008), Justice O'Connor wrote for the court:

[T]he purpose of the program suggests that the speech is governmental in nature. The prayer is an official part of every Council meeting. It is listed on the agenda, and is delivered as part of the opening, along with the Pledge of Allegiance. The person giving the prayer is called on by the Mayor. The prayers typically ask that Council members be granted wisdom and guidance as they deliberate and decide how best to govern the city. We conclude that the central purpose of the Council meeting is to conduct the business of the government, and the opening prayer is clearly serving a government purpose.

So what does this mean? It implies that a local council is probably on safe ground from a constitutional perspective to choose its prayer givers and to mandate that the prayers be nonsectarian or "ecumenical" as long as the policy does not discriminate on the basis of race, color, creed, or the like. If nothing else, it is the starting point for an argument that such limiting rules are constitutional.

As a general proposition, when a governmental agency (in this case, the city) promulgates a rule for its own convenience without intending to vest any rights in the public or an individual, e.g., a set of regulations for how it will conduct its meetings, then there are no rights to be delayed or denied. In other words, the agency has wide latitude with respect to the claimed rights of individuals. It could be argued in the hypothetical case outlined above that the local council has established the invocation practice solely for its own convenience and benefit and is, therefore, free to choose who shall or shall not offer the prayers. In effect, no one has any constitutional right to deliver an invocation.

Because the prayers are ostensibly for a valid governmental purpose — to "solemnize" the proceedings — it is logical to assume the local council would not welcome a prayer planned to protest the invocation practice itself or to mock the Supreme Court decision, because the proposed invocation does not serve the governmental purpose.

Anyone who thinks the Court's decision in Town of Greece v. Galloway gives anyone the right to read the opening prayers is, in my opinion, misreading the decision. The dictum of Justice Kennedy, quoted at the beginning of this article, may imply, however, that the local council may not discriminate solely on the basis of the prayer giver's faith.

In Marsh v. Chambers, the Supreme Court held that the Nebraska state legislature's invocations did not violate the Establishment Clause of the Constitution as there was "no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." In the Marsh case, the invocations were made by a paid chaplain; in the Greece case, the prayers were given by volunteers. But in both cases, the prayer givers were chosen by government officials, and the Court ruled that paying the Nebraska chaplain from public funds was okay also.

After Marsh, a number of cases concerning local invocations hit the lower-court dockets and made it to the appellate level, including the Greece case. None of the lower courts challenged Marsh, which one circuit court of appeals called the "fixed point" in this type of litigation. They couldn't because Marsh is the law of the land established by the High Court. Instead, the lower courts focused on the sectarian nature of the prayers, going both ways in their decisions. The majority of the Supreme Court now holds that the content of the prayers — sectarian in somebody's opinion — is not the way to determine if the prayer practice crosses the constitutional line. If the pattern of the prayer practice is not to proselytize or disparage and no one is forced or coerced to pray, the religious view that predominates the legislative prayer practice in a town or city does not necessarily invalidate the practice. In other words, as long as you and I are free to leave the room or remain seated to think our own thoughts, the prayer sessions are probably constitutional.

In retrospect, the only way the Court was going to rule against the Town of Greece in this case was to overturn Marsh v. Chambers or limit its applicability to state legislatures. It did the opposite. In fact, the plaintiffs, as noted above, did not suggest this outcome so this was not even the principal issue before the Court.

While Town of Greece v. Galloway was technically a 5-4 decision, it was, in a sense, unanimous because all nine justices acknowledged that Marsh v. Chambers was correct. Thus, Marsh is likely to remain the fixed point for generations to come. Bear in mind that in the decision itself, three justices vigorously dissented, including one still-living justice, John Paul Stevens.

Justice Kagan, while accepting Marsh as that fixed point, still opined that Greece's practice should be struck down because town officials had not done enough to ensure relative neutrality of the invocation practice. In her dissenting opinion, joined by three other justices, she wrote:

. . . I agree with the Court’s decision in Marsh v. Chambers, 463 U.S. 783 (1983), upholding the Nebraska Legislature’s tradition of beginning each session with a chaplain’s prayer. And I believe that pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality; such a forum need not become a religion-free zone. But still, the Town of Greece should lose this case. The practice at issue here differs from the one sustained in Marsh because Greece’s town meetings involve participation by ordinary citizens, and the invocations given — directly to those citizens — were predominantly sectarian in content. Still more, Greece’s Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.

Mr. Stevens' request to conduct a Satanic invocation may be denied, if it hasn't been already, but it rattles some chains in a good way. First off, if he delivers his proposed invocation, some people (many, I assume) will be offended. Perhaps, some of them will better understand why other people are offended by prayers that do not accord with their religious views. Feelings run deep on religion. They may also see more clearly why some people feel excluded and alienated.

People may see why the invocations are more likely to divide than unify — even more so when someone has the gall to propose they be done away with or even suggests that a moment of silence would be a good compromise. If people are not literally forced to pray, some feel pressure to participate in a religious ceremony they'd rather not.

Chief Justice Warren Burger, writing for the Court in Marsh v. Chambers, stated that "[t]o invoke Divine guidance on a public body entrusted with making the laws . . . is simply a tolerable acknowledgment of beliefs widely held among the people of this country." The problem is that this is not necessarily the case and not everyone agrees with mixing religion and politics. Many men and women of the cloth, in fact, feel it is entirely inappropriate and unnecessary to do church at city meetings.

In an ideal world, the city commission would reconsider whether the city should hold the invocations. Does it serve any real purpose? Is it compatible with the main purpose of the city meetings to conduct city business?

But it won't happen as long as public opinion seems to support them. It's a toxic issue for politicians. Frankly, if I were in public office and intended to run again, I wouldn't touch this issue with a ten-foot pole.

The invocations in Deerfield Beach and other places, I submit, rest more on public opinion — as perceived by the elected officials — than on the arcane and complicated issues of constitutionality.

If the attendance at the city meetings fits the national profile, at least four-of-five of the attendees are Jews or identify with Christan denominations or sects. Thus, most attendees may be comfortable with the prayers, as they are mostly Christian and Jewish religious leaders are given their turn at the lectern. By all appearances, most of the people in the commission chambers agree with, accept, or acquiesce in the prayers.

I suspect, however, that if the prayers gave equal time to imams, Vestal Virgins, or Satanic priests, or were exploited as an opportunity for political protest, public opinion could shift on the issue.

Possibly, more people would agree with me that religious ceremonies are not appropriate at a town meeting between citizens and city officials in which all people have the right to participate irrespective of their religious beliefs.

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Municipalities are essentially administrative agencies of the state. Under the Home Rule concept, they exercise broad powers over local affairs and even equity-like authority to ensure that laws are fairly applied. Typically, town meetings are more participatory than legislative bodies at the state level. Still, like the state legislature, local councils are legislative bodies "entrusted with making the laws." There appears to be no solid constitutional argument that local government councils should be treated any differently from state legislatures under the Establishment Clause or should be denied the authority to conduct invocations in some form just because they operate differently.

Galloway's case was doomed from the outset. The only way she could win was if the Court overturned the baseline case, Marsh v. Chambers. None of the justices were ready to do that.

Town of Greece v. Galloway should be read cautiously. The case is instructive, but requires nothing. It presents a kind of mosaic of what the law is. Local councils are still free to have prayers to start their meetings — as they have been all along — or not to have them. Within certain limitations, they can decide how the prayers will be conducted and who will give them. They can appoint a chaplain with instructions to read a generic prayer. They could adopt an invocation system like Fredericksburg, Virginia. They can ask volunteer prayer givers to read prayers that respect the religious diversity of the city. They can, in my opinion, tell prayer givers not to invoke any specific deity or religious figure, without impinging on any constitutional right.

The continuation of the prayers depends more on public opinion than the fact they are permitted. Cities can do lots of things they don't do either because of public opposition or because they aren't right. As long as the public tolerates the prayers and powerful religious factions support them, they will likely continue. As communities grow in population and grow more diverse, the practice of invocations skewed toward a particular faith may become less popular.

I see the invocation practice as unnecessary and unproductive interruptions to city business. I am concerned that they tend to be divisive and exclusionary and violative of the spirit, if not the laws that promise open and fully participatory government at the local level.



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