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August 7, 2014

Legislative Prayer Ruling Does Not Permit Prayers by Local Lawmakers

In the recent Greece v. Galloway decision, the U.S. Supreme Court expanded the types of opening prayers or invocations that may be given at public meetings of legislative bodies.  According to the Court, clergy or community members can deliver sectarian prayers before municipal and county boards, councils, and commissions.  However, a federal court in Virginia has just determined that the Greece decision does not give carte blanche for invocations by members of a Board of Supervisors at public meetings.town-hall-image

Based on the Greece decision, a supervisor asked the court to revoke an order barring sectarian prayers by Board members at public meetings.  Due to significant factual differences between the Greece decision and this case, Hudson v. Pittsylvania County, the court refused.

In his decision, Judge Michael Urbanski indicated that the Greece decision’s overarching principle is that government officials “cannot dictate the content of prayers offered at local government meetings.” But that would be the exact result of revoking the order.  Unlike the Greece case, having supervisors offer the invocations would deny people of other faiths that opportunity.  Also unlike Greece, supervisors often direct citizens to participate in prayers by asking them to stand for invocations.

Based on these factual distinctions, the court appropriately concluded that “the active role of the … Board of Supervisors in leading the prayers, and, importantly dictating their content, is of constitutional dimension and falls outside the prayer practices approved in Town of Greece.”

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November 30, 2012

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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