Invocation Discrimination

When Government Officials Offer Sectarian Prayers, A Lot Of Americans Won't Say Amen

A couple years ago in casual conversation with a friend from church, Cyndi Simpson learned that her county's governing board opened its public meetings with prayers, typically ones referring to Jesus or ending with an "amen."

Simpson, a longtime resident of Chesdterfield County, Va., knew right away that she would approach the county board with a different kind of prayer. A member of a Unitarian Universalist congregation for some 30 years, she also practices Wicca, a nature-based neo-pagan faith sometimes known as witchcraft. Simpson's friend told her that the county maintains a list of religious leaders who are invited to give invocations.

"I called up the county clerk and requested to be placed on the list of persons interested in being invited to provide the board's opening prayer," Simpson told Church & State. "I told the clerk I wanted to offer the invocation as a witch, one from the Wiccan faith. I heard nothing from the clerk for several weeks."

When she finally received a response, it was by way of a letter from the county attorney. Steven L. Micas's Sept. 12, 2002, letter concluded that the Chesterfield Board of Supervisors had a policy that only allows for an invocation "consistent with the Judeo-Christian tradition," not one that "invokes polytheistic, pre-Christian deities."

Simpson would eventually bring a federal lawsuit, with the help of Americans United for Separation of Church and State and the ACLU of Virginia, challenging the board's prayer policy as a violation of the First Amendment.

Simpson's case is one of a growing number of disputes surrounding prayer before governmental meetings. As the nation has become more diverse in matters of belief, more and more citizens have stepped forward to protest what they see as a clearly improper entanglement between religion and government.

How did we get to this place in American history?

Prayers before at least some government meetings have been a part of the nation's landscape since its inception. But the federal courts have struggled to explain why such acts of worship do not run afoul of the Constitution's call to keep government and religion separate.

The federal judiciary has not provided an easily recognizable line between church and state. Indeed, the concept of "civil religion" has found significant support in a string of Supreme Court cases that turn on the fact that some government acknowledgments of religion are perceived rightly or wrongly as basically secular or incidental. The federal government gives official acknowledgment to Christmas and Thanksgiving by making them national holidays despite their religious significance. Our coins bear the phrase, "In God We Trust." The U.S. House of Representatives and Senate start each day with an invocation given by a chaplain. Sessions of the Supreme Court begin with the marshal saying, "Oyez, oyez, God save the United States and this Honorable Court."

The federal courts have upheld such government acknowledgments of religion on the theory that they are generic, ceremonial or historical and do not advance a sectarian perspective that favors one religion over others. That theory was used in the 1983 Supreme Court decision upholding the practice of the Nebraska legislature to open each day with a prayer by a state-paid chaplain, a position that had been filled for nearly 20 years by the same Presbyterian minister.

In Marsh v. Chambers, a 6-3 majority, led by Chief Justice Warren Burger, relied on the "unique history" of legislative prayer, pointing out that only three days before Congress adopted the Bill of Rights in 1789, it authorized the appointment of a paid chaplain to lead prayers, a policy that has continued ever since.

"In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society," the Marsh majority found. "To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an 'establishment' of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."

Justice William Brennan dissented in Marsh, arguing that the "practice of official invocational prayer, as it exists in Nebraska and most other state legislatures, is unconstitutional." Brennan noted that the Constitution's Framers, including Thomas Jefferson and James Madison, broke with the tradition of many state constitutions that invoked the name of God by not including a reference to God in the U.S. Constitution. Jefferson and Madison also refused during their presidencies to declare national days of thanksgiving or fasting.

"Prayer is a serious business serious theological business and it is not a mere 'acknowledment of beliefs widely held among the people of this country' for the State to immerse itself in," Brennan wrote. "Some religious individuals or groups find it theologically problematic to engage in joint religious exercises predominately influenced by faiths not their own. Some might find any petitionary prayer improper."

The majority opinion in Marsh, however, did not conclude that all legislative prayer could pass constitutional muster. The majority instead said that "the content of prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other faith, or belief."

The language of the majority opinion in Marsh therefore has proved the death knell for some city council prayers. A California appeals court ruling from 1999 concluded that a city council's pre-meeting prayers were not "on the same constitutional footing as the prayer before the court in Marsh, from which all reference to a specific religion had been excised." The 9th U.S. Circuit Court of Appeals ruled in 2002 that a California public school board's prayers "in the name of Jesus" did violate the First Amendment principle of church-state separation, noting that they were not like the nonsectarian prayers found constitutional in Marsh.

But, the Marsh decision may have also given a green light to local governmental bodies that want to include an invocation at the beginning of their meetings.

It is not just citizens who practice minority religions or no religion at all who have bemoaned the use of prayer by government officials. Some pundits, law professors, and journalists have noted that government acknowledgments of religion are all too frequently employed solely for political purposes.

"It might be supposed that this appeal to the will of God in support of nearly every cause is evidence of the exalted position of religion in our culture," wrote Yale law school professor Stephen L. Carter in his 1993 book, The Culture of Disbelief. "But it is evidence of the opposite. By calling upon the word of God in service of every known cause, our society diminishes the weight and the force of religious belief."

Simpson, the Richmond resident challenging her county's use of Christian prayer at public meetings, said she doesn't think the Board of Supervisors should begin any of its public gatherings with prayer.

"This is the kind of snarl you get into when you have these types of prayers to a specific deity," Simpson told Church & State.

Simpson also said her drive in challenging the Chesterfield board's prayers is not fueled by an anti-Christian sentiment.

"I would prefer the board not do this, but my challenge is not aimed at Christianity," she said. "These types of prayers open the door to the worst kind of hypocrisy. Board members say they are invoking good and right behavior, and then they turn right around and degrade another person's beliefs. The board's invocations also have the result of trivializing religion."

When Simpson asked the board to consider a Wiccan prayer for its invocation, she was met with open hostility.

The Chesterfield County attorney told Simpson that only invocations "traditionally made to a divinity that is consistent with the Judeo-Christian" beliefs were permitted before the board's public meetings. Renny B. Humphrey, a member of the Board of Supervisors, derisively told the Richmond Times -Dispatch shortly after Simpson's request was turned down that she hoped Simpson was "a good witch like Glinda," from the movie "The Wizard of Oz."

But Simpson had the last laugh. On Nov. 13, a federal court in Richmond provided a rare victory in these types of disputes, coming down on the side of religious pluralism. U.S. Magistrate Judge Dennis W. Dohnal ruled that the Chesterfield County policy limiting the types of prayer that can be given at public meetings to the Judeo-Christian faith contravenes the First Amenddment principle of separation of church and state. Dohnal said a policy like Chesterfield's that prefers a certain type of religious belief "cannot survive constitutional scrutiny."

Chesterfield County is not alone in confronting controversy surrounding prayers before public governmental meetings. Nationwide, growing numbers of citizens are taking notice of longtime practices of representative bodies opening public meetings with prayer. And as in Chesterfield, more and more of those citizens are questioning the use of sectarian prayer at those meetings.

In 1999, two Burbank, Calif., residents sued the city council over its use of invocations. Irv Rubin, who was the leader of the Jewish Defense League, was at a council meeting that opened with an invocation that concluded, "We are grateful heavenly Father for all that thou has poured out on us and we express our gratitude and our love in the name of Jesus Christ. Amen." Roberto Alejandro Gandara, who was raised a Catholic, was at an earlier meeting that opened with an invocation that also noted Jesus Christ. Their lawsuit, filed in state court, argued that the council violated the separation of church and state by employing a sectarian prayer to open its meetings.

A California state judge agreed and enjoined the City of Burbank from "knowingly and intentionally allowing sectarian prayer at City Council meetings."

Last fall, a California appellate court upheld the trial judge's ruling and injunction.

"By directing the prayer to 'Our Father in Heaven...in the name of Jesus Christ' the invocation conveyed the message that the Burbank City Council was a Christian body, and from it could be inferred that the council was advancing a religious belief," the appellate court ruled in Rubin v. City of Burbank.

The city appealed the ruling to the U.S. Supreme Court, which refused to review it. Other city councils throughout California have had to re-examine their policies of using prayer at their public meetings. The Orange County Register reported earlier this year that most of the county's 34 cities use invocations at their council meetings and that at least five of them had started creating new policies to fall in line with the ruling.

A federal judge recently ruled against a South Carolina city council that was also determined to allow only Christian prayers at its public meetings.

On August 21, U.S. District Judge Cameron McGowan Currie ordered the Great Falls town council to stop referring to Jesus Christ or other deities associated with specific faiths in its pre-meeting prayers.

In late 2000, a Great Falls citizen approached the council and objected to its reference to Jesus Christ in its prayers. The citizen proposed that the prayer's references be limited to God or that members of different religions be invited to give prayers. According to Judge Currie's ruling, Great Falls Mayor H.C. "Speedy" Starnes Jr. responded to the citizen's request by declaring, "This is the way we've always done things and we're not going to change."

Judge Currie found that the Great Falls prayers went beyond the "recognized constitutional limits to legislative prayer" spelled out in Marsh. "While the Supreme Court in Marsh condoned references to 'God' in legislative prayer, references to 'Christ' or 'Jesus' are of a different genre and do not pass constitutional muster" under the First Amendment. The judge concluded that the town council's opening prayer does "not have a secular purpose but, instead, proselytizes or advances a particular faith or belief in this case, Christianity."

Great Falls officials are bent on keeping their sectarian approach. The town attorney announced in September that Currie's ruling would be appealed to the 4th U.S. Circuit Court of Appeals.

Controversies surrounding governmental prayer are not confined to local authorities. Numerous state legislatures have struggled to reconcile prayer policies that frequently allow for sectarian invocations.

Lawmakers in the Texas House of Representatives have found themselves debating the guidelines for legislative prayers after state Rep. Scott Hochberg noted that too often the House's prayers had a Christian fundamentalist tilt.

"There are a lot of us who do not pray in Jesus' name," Hochberg wrote in a letter to the House's speaker. "That's not to take away from anybody who does, but when we are asked to do that, that cuts us out of the loop and that very much says we are not expected to participate."

Members of the Maryland Senate are also in the midst of reviewing their policy of opening daily sessions with prayer, after complaints that the prayers were not inclusive of other faiths. The Baltimore Sun reported in October that Maryland Senate President Thomas V. "Mike" Miller had appointed a commission "to promote a more comprehensive policy and a greater comfort level on this issue for the entire membership."

It is all too likely that these types of controversies surrounding prayer at government functions will continue to multiply, especially as the nation's religious make-up becomes more and more pluralistic. Church-state separationists believe that the best way to resolve or avoid such controversies would be to leave prayer out of government functions altogether.

Church-state separationists argue that religious practices are more meaningful and will flourish at other places, such as homes or houses of worship. The Constitution's Framers recognized the need to keep government neutral on matters of religion. Some Religious Right activists like to claim that Benjamin Franklin convinced the delegates to the Constidtutional Convention of 1789 to begin their sessions with prayer. Franklin did argue for the prayer at the convention, but the other delegates didn't act on his recommendation. Indeed, the Constitution born from those deliberations contains no mention of God.

The lawmakers of today should get out of the prayer business. Such action would be better for religion, individual freedom and the Constitution.