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November 30, 2012 1

Renewed Concerns About “Legislative Prayer”

As we approach 2013, the 30th anniver­sary of the U.S. Supreme Court’s deci­sion on leg­isla­tive prayer, the issue has come alive again.

Thirty years ago, in an ami­cus curiae brief sub­mit­ted to the U.S. Supreme Court oppos­ing the Nebraska Legislature’s prac­tice of des­ig­nat­ing a chap­lain to open its ses­sions with a prayer, ADL noted that the prac­tice was not only uncon­sti­tu­tional but unwise, because it would be polit­i­cally divi­sive.  The Court nev­er­the­less upheld the prac­tice in Marsh v. Cham­bers, carv­ing out a lim­ited excep­tion to the First Amendment’s Estab­lish­ment Clause, which man­dates the sep­a­ra­tion of church and state, for non-sectarian prayers.

Ever since, lower courts have wres­tled with whether and how prayers can be non-sectarian, and recently there has been a new wave of cases.  Courts in at least five states are now con­sid­er­ing var­i­ous forms of prayers before state and local leg­isla­tive bod­ies, county and/or city com­mis­sions, and it may just be a mat­ter of time before the U.S. Supreme Court revis­its the issue.   It has, in fact, become polit­i­cally divi­sive.  When and if a case reaches the Supreme Court, the Court should pro­hibit such “leg­isla­tive prayer” once and for all.

Over the past three decades, courts have already issued widely diverg­ing opin­ions, essen­tially con­firm­ing that a prayer can never truly be non-sectarian.  Some courts have deter­mined that prayers in the name of Jesus, Abra­ham, or Mohammed are not sec­tar­ian or do not advance reli­gion.  Of course, even a seem­ingly non-denominational prayer is likely to cause divi­sions among Chris­tians, Jews and Mus­lims.  And most courts have failed to con­sider that any such prayer would exclude adher­ents of  poly­the­is­tic or East­ern faiths such as Hin­duism or  Bud­dhism, not to men­tion the grow­ing seg­ment of Amer­i­can soci­ety that iden­ti­fies as human­ist or atheist. 

Leg­isla­tive prayer is not only divi­sive, but also a dis­trac­tion from the job of gov­ern­ing that can end up in costly lit­i­ga­tion.  If leg­isla­tive bod­ies deem it nec­es­sary to sol­em­nize their ses­sions, the best prac­tice would be a moment of silence.  It allows offi­cials and cit­i­zens to silently pray or med­i­tate in the faith or beliefs of their choos­ing, with­out gov­ern­ment offi­cials con­vey­ing any actual or per­ceived mes­sage of reli­gious pref­er­ence or exclusion.

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