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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

ADVERTISEMENT