ILNews

Torres: How to handle prayer before government meetings

June 18, 2014
Keywords
Back to TopCommentsE-mailPrintBookmark and Share

By Lori Torres

torres-lori.jpg Torres

The Supreme Court of the United States recently issued another opinion on the constitutionality of prayer before a government meeting. The court found the prayer practice constitutional on a 5-4 vote, but also made some clear statements that the permissibility is based on the particular facts and the setting. In Town of Greece, New York v. Galloway, et al., 12-696, 572 U.S. _______ (2014), the court found that the brief prayer offered by rotating ministers of churches in the town conformed with the requirements of the Establishment Clause of the First Amendment.

The framers of our Constitution considered legislative prayer a way to add gravity to public business and to remind lawmakers of their duty to transcend petty differences in pursuit of a higher purpose. Even the first Congress appointed and paid official chaplains, and the practice has been carried on ever since.

And yet, there have been prayer practices that have been struck down. So how do governments work to ensure that their practices are such that they are wholly within the First Amendment’s Establishment Clause? Following is a list of factors considered by the majority opinion, as well as the primary dissent.

1. Be inclusive. Invite officiants of different faiths. Have a methodology, such as everyone listed in the phone book is invited on a rotating basis, or every church in the city, town, etc., is welcome on different meeting nights. If you have no Muslim or Jewish congregations, for example, in or near your municipality, it isn’t necessary to go outside your city or town. But if houses of worship are located within driving distance, you should consider inviting nearby officiants, as you can assume that some of those members probably live in your city or county. Make reasonable efforts to identify all faiths in reasonable proximity, and welcome anyone who wishes to give such a prayer. Such policy might be placed on the website or on a bulletin board.

2. Don’t approve the content of the prayers. Each religion is entitled to invoke the deity or power in which they believe. Prayers need not be nonsectarian (generic, without affiliation to a particular religion). Neutrality of content is not required. However, prayer givers should be counseled that the prayer opportunity is not to be exploited to proselytize, advance or disparage any other person, faith or belief. Prayer that is solemn, respectful in tone and causing lawmakers to reflect upon shared ideals and common ends serves a legitimate function. Prayers that denigrate non-believers or religious minorities, threaten damnation or preach conversion fall short of that purpose. A pattern of such prayer will be fatal to its continued practice. While the government entity can’t be sure of what any minister may say, an isolated incident of prayer outside the bounds won’t necessarily doom the practice. Our pluralistic society is acknowledged not by proscribing content, but by welcoming ministers of many creeds.

3. Prayer is best done during the “opening ceremonies” of a legislative meeting. Often, the Pledge of Allegiance and opening prayer are the first items after a meeting is gaveled to order. It fits in well with ceremonial matters, special recognitions, etc., but not during adjudicatory parts or policy-making portions of the meeting. For example, prayer before a zoning petition is presented for approval is probably not wise. Don’t include the prayer before adjudicatory bodies (for example, court sessions, though the Supreme Court has long opened its sessions with “God save the United States and this honorable Court”).

4. Consider the prayer to be directed to the legislative body members, not the public. Even the direction the minister faces might impact to whom the prayer is directed. While the minister in Town of Greece faced the public, it was a point of contention for the dissent. Avoid the issue, and consider the prayer exercise an internal act with the principal audience being the lawmakers, not the public attendees.

5. Do not require participation. Neither the municipal board nor the prayer giver should direct or require the public to participate, single out dissidents or indicate that decisions might be influenced by a person’s participation or acquiescence in the prayer. People should be and feel free to enter after the prayer, leave during the prayer, sit rather than stand (if invited to stand), or otherwise feel free to ignore the invitation to prayer. Even though a member of the public may be offended or feel excluded by such prayer, disagreeable speech is not actionable as an Establishment Clause violation. Prayers should not, however, chastise dissenters nor attempt lengthy dogmatic conversion. It is a basic principle that government cannot coerce its citizens to support or participate in any religion or its exercise. Where the pattern of prayer does so, it will not be permitted.

These simple steps can preserve a government’s prayer practice within the bounds of the Establishment Clause. They can’t ensure a lack of complaints, the absence of litigation or other objections, but they address the writing justices’ concerns. “From the earliest days of the Nation, these invocations have been addressed to assemblies comprising many different creeds. These ceremonial prayers strive for the idea that people of many faiths may be united in a community of tolerance and devotion. Even those who disagree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.” Town of Greece, (KENNEDY J.), 572 U.S. ______, (2014) (slip op., at 16).•

__________

Lori Torres is an attorney in Ice Miller’s Public Affairs Group. She concentrates her practice in the areas of public affairs, public policy planning, economic development, and labor and employment, with a focus on state wage and hour issues and real estate. She can be contacted at 317-236-2291 or at lori.torres@icemiller.com. The opinions expressed are those of the author.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The Conour embarrassment is an example of why it would be a good idea to NOT name public buildings or to erect monuments to "worthy" people until AFTER they have been dead three years, at least. And we also need to stop naming federal buildings and roads after a worthless politician whose only achievement was getting elected multiple times (like a certain Congressman after whom we renamed the largest post office in the state). Also, why have we renamed BOTH the Center Township government center AND the new bus terminal/bum hangout after Julia Carson?

  2. Other than a complete lack of any verifiable and valid historical citations to back your wild context-free accusations, you also forget to allege "ate Native American children, ate slave children, ate their own children, and often did it all while using salad forks rather than dinner forks." (gasp)

  3. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  4. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  5. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

ADVERTISEMENT