It is inappropriate and coercive for public officials—many of whom have tax-paid positions and all of whom take an oath to uphold secular constitutions—to schedule prayer at government functions, or open government meetings with prayer and religious ritual.
While the U.S. Supreme Court issued an unhelpful decision about prayer at the state legislative level in the 1980s (see detailed analysis below), you can still complain when you encounter government prayer. Just because the Supreme Court carved out a narrow exception for some legislative prayer does not mean legislatures must schedule prayer. They are free to set their own rules, to embrace secularism and to be responsive to citizen complaint and the need to avoid excluding constituents.
Without going to court, citizens and the Foundation have successfully halted sectarian prayer by government boards at local levels around the country. Citizens have even persuaded local boards to drop prayer altogether, to substitute a moment of silence or to rotate opening remarks by individual board members.
Citizens of all religions or no religion are compelled to come before local government bodies on civic, secular matters: variances, sewers, permits, licenses, repair, etc. They should not be subjected to a religious show or test, or be expected to bow heads and demonstrate religious obeisance at a government function. (We fail to see why divine guidance is needed over such earthly matters, anyway.)
Nor is it necessary to pray on taxpayers’ time. Members of government boards are free to pray privately or to worship on their own time in their own way. When government bodies lend their power and prestige to religion, this amounts to a governmental endorsement that excludes the 15% of the population that is nonreligious (American Religious Identification Survey 2008). This practice inevitably will turn minorities, including atheists, Jews, Muslims, Hindus and Wiccans, into second-class citizens. Even when prayers are “nondenominational,” there is no conceivable way for a government body to conduct prayers that will not inevitably exclude, divide and embarrass various taxpayers and constituents.
Even the Jesus of the New Testament condemned public prayer: “Enter into thy closet, and when thou hast shut the door, pray to thy Father which is in secret” (Matt. 6:5-13).
Observing a strict separation of church and state offends nobody.
Prayers at government bodies continue to be litigated because they so frequently “cross the line” and because they are politically divisive. (See legal analysis following for what conduct tends to “cross the line.”) If after reading this analysis you believe a governmental body is clearly violating the law, the Foundation may be able to help you complain, but will need documentation.
State of the Law on Legislative Prayer — Marsh Precedent
The legal benchmark for legislative prayer remains the 1983 Supreme Court decision, Marsh v. Chambers, 463 U.S. 783 (1983), which ruled that the Nebraska legislature's tradition of opening with a prayer by a paid chaplain was constitutional. Nebraska State Senator Ernie Chambers challenged the practice as violative of the Establishment Clause. The Marsh decision carved out a very narrow exception to the Establishment Clause, as well as established Court doctrine, as a nod to history and custom; however, the Court made clear that “Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees . . . ” Marsh v. Chambers, 463 U.S. 783, 790 (1983). In the Court's language:
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.
If a legislative prayer were to exceed the confines of the circumstances outlined in Marsh, then no such exception would apply. First and foremost, the prayer opportunity must not be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Marsh v. Chambers, 463 U.S. 783, 794 (1983). This applies to the content of the prayers, the selection of the prayer leaders, be they clergy, representatives, or government officials, and the audience to whom the prayer is addressed. The audience in Marsh was construed as comprising only legislators, represented by the plaintiff, Sen. Ernie Chambers. The Court found that such an audience would not be “readily susceptible to 'religious indoctrination'.”
The Court found no “impermissible motive” in the appointment of the chaplain. Likewise, the Court found that, as the content of the prayers was both non-sectarian and non-denominational, although in the Judeo-Christian tradition, no attempt was being made to either proselytize or advance any one faith or belief, or to disparage any other. The Court took note that the chaplain had, in fact, previously determined to remove all references to Jesus Christ in his prayers. Ultimately, the Court dismissed the idea that legislative prayer poses any real, inherent threat to the Establishment Clause, barring circumstances other than those stipulated in Marsh.
A nice postscript: Following this decision, Senator Chambers was successful in persuading his fellow legislators to drop payment and go to a system of volunteer chaplains, thus minimizing the cost to taxpayers. Not all victories require winning a Supreme Court ruling.
When Government Prayer Crosses Marsh’s Line
Is an Establishment Clause violation occurring in the context of legislative prayer at your state legislature, city council, planning commission, school board, etc.? How will you know?
If you are concerned that a local or state government body, which represents your interests, may be violating the constitutional principle of separation of church and state in the context of legislative prayer, look for the following indications:
- Invocations of specific deities, saints, prophets, etc., such as Jesus Christ, Allah, Yahweh, Jehovah, Mohammed, Joseph Smith, Buddha, Krishna, Isis, etc.
- Invocation of a specific faith's deities to the near or total exclusion of other faiths' deities, i.e., your state legislature quotes only biblical scripture and invokes only Jesus Christ and the Holy Spirit, but never invokes deities or entities representing other faiths or denominations.
- Prayer leaders are clergy members or religious leaders, who represent only one particular faith, to the near or total exclusion of other faiths, i.e., your city council's prayer leaders are all Catholic priests.
- Prayer content includes disparaging and denigrating remarks about certain faiths, beliefs or non-beliefs.
- Prayer content includes indications of preference for one particular faith or belief over another or others.
- Prayer content encourages listeners (government body members, visitors, and/or citizens) to follow the tenets of a specific or any faith or belief.
- Prayer content indicates that our government (local, state, and/or federal) and/or laws should be subject to religious laws and principles.
- The prayer leaders, be they clergy or government officials, address and refer to visitors attending the government body meeting and/or citizens (whether local, state or federal), especially if requesting visitors and citizens to participate in the prayers or calling upon visitors and citizens to behave in a certain manner as a response to the prayers. Additionally, any public broadcasts of the prayers, including, but not limited to, television, cable, radio, and internet broadcasts, may provide further indication that a legislative body is religiously exhorting citizens.
- Government body members, officials, administrators, and staff, as well as visitors and anyone else who might be present at the public meeting, are denied the opportunity not to participate or be absent during the prayer.
- Prayer leaders, be they clergy or government officials, are paid for leading the prayer, including such reimbursement as stipends, per diems, mileage allowances, parking spaces, as well as publicity and promotion.
Marsh Law Evolves
Subsequent Supreme Court and lower federal court decisions serve as clarifications of the Marsh v. Chambers analysis, particularly with regard to the content of legislative prayers.
In County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989), The Court found that, even if history and custom had saved non-sectarian legislative prayer, “history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed.” Additionally, the Court reiterated that “not even the 'unique history' of legislative prayer, can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief.” The Court continued, “The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had 'removed all references to Christ.'” Therefore, while non-sectarian legislative prayer could fall within the constraints of the Marsh exception, legislative prayer which has the effect of either proselytizing or advancing or disparaging or demonstrating the government's allegiance to or affiliating the government with any particular faith or belief, cannot fall within the constraints of the Marsh exception, regardless of history or custom. The strong sectarian nature of legislative prayer, and/or the inclusion of sectarian references to deities, saints, and/or prophets, could indicate an Establishment Clause violation. It is significant that the U.S. Supreme Court has recently twice upheld the U.S. Circuit Court of Appeals requiring that city-led prayers be nonsectarian.
Current Prayer Cases By Appeals Circuit
4th Circuit Court of Appeals
The U.S. Court of Appeals for the 4th Circuit has issued repeated strong rulings against sectarian government prayer. This Circuit includes Virginia, West Virginia, North Carolina, South Carolina and Maryland.
- Wynne v. Town of Great Falls, South Carolina, 376 F.3d 292 (2004)
The 4th Circuit Court of Appeals engaged in an analysis of the constitutional validity of legislative prayer. In Wynne, a Wiccan citizen objected to the strongly sectarian nature of prayers, including numerous invocations of Jesus Christ, led by City Council members prior to meetings. The court held that any sectarian invocations of deities in legislative prayer are demonstrative of affiliating the government with a particular sect or creed and/or advancing a particular faith or belief. The court also averred that the Marsh use of the word “advance” indicates something far less coercive than the attempt at conversion necessary to incite a charge of proselytization. Additionally, both the presence and participation of town citizens were crucial to the court's determination that the Town Council had attempted to advance the Christian faith.
In the court's words:
Marsh does not permit legislators to do what the district court, after a full trial, found the Town Council of Great Falls did here—that is, to engage, as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe. The invocations at issue here, which specifically call upon Jesus Christ, are simply not constitutionally acceptable legislative prayer like that approved in Marsh. Rather, they embody the precise kind of “advancement” of one particular religion that Marsh cautioned against. Accordingly, we hold the district court did not err in finding that the challenged prayers violated the Establishment Clause and enjoining the Town Council “from invoking the name of a specific deity associated with any one specific faith or belief in prayers given at Town Council meetings. Likewise, the court reiterated the very narrow nature of the Marsh exception. The court stated: We note that this conclusion accords with the Supreme Court's apparent intent to confine its holding in Marsh to the specific “circumstances” before it—a nonsectarian prayer preceding public business, directed only at the legislators themselves. We also note that, in the more than twenty years since Marsh, the Court has never found its analysis applicable to any other circumstances; rather, the Court has twice specifically refused to extend the Marsh approach to other situations. Similarly, we and our sister circuits have steadfastly refused to extend Marsh. Indeed, as the district court noted, the Town Council has not cited any case upholding prayers by legislative or other public bodies that explicitly invoke one religion in preference to others. We refuse to do so here. Such a holding would, we believe, be plainly contrary to “[t]he clearest command of the Establishment Clause ... that one religious denomination cannot be officially preferred over another.”
- Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (2005)
This 4th Circuit decision affirmed the constitutionality of the board's exclusion of a Wiccan religious leader who had requested to lead a ceremonial prayer at the opening of one of the board's sessions. The board had excluded Simpson, because it determined that the Wiccan religion was not in the Judeo-Christian tradition. Nevertheless, the court held that the content of the board's prayers were nonsectarian, nondenominational, broad, and inclusive. “In fact, Chesterfield has aspired to non-sectarianism and requested that invocations refrain from using Christ's name or, for that matter, any denominational appeal.” The court said there was no impermissible religious motive in the selection of the prayer leaders, as religious leaders of the Jewish, Islamic, and various Christian denominational faiths had been invited to lead the prayer. “Reflecting the effort to include diverse creeds, Chesterfield has had a wide variety of prayers, the richness of which is quite revealing.” Additionally, the court made clear that the board in this case was addressing its prayers only to the members of its body, in line with the prescription inMarsh. “Moreover, Chesterfield, unlike Great Falls, did not invite the citizenry at large to participate during its invocations. Board members made clear in depositions that the invocation “is a blessing ... for the benefit of the board,” rather than for the individual leading the invocation or for those who might also be present.”
- Turner v. Fredericksburg, 534 F.3d 352 (4th Cir. 2008), cert. denied, 77 U.S.L.W. 3392 (U.S. Jan 12, 2009) (NO. 08-518)
Retired Associate Justice Sandra Day O’Connor wrote the opinion for the 4th Circuit decision. Here the court reaffirmed that legislative prayer is clearly government speech, unencumbered by First Amendment or Free Exercise consideration. Being government speech, the government is absolutely within its rights to prescribe or proscribe the content of legislative prayer, including by enforcing a policy of nonsectarian opening prayers. A City Council Member, Turner, sued the city in response, alleging violations of the Establishment and Free Exercise Clauses, as well as his First Amendment rights. The court stated that, within the context of legislative prayer, there is no intent to open a public discourse, no intent to allow for varied points of view, and no intent open a public forum in which the speaker may proselytize one faith or another. In pointed manner, the court asserted the crucial point that Lee v. Weisman, 505 U.S. 577 (1992), does not, as has been mistakenly asserted, preclude government from dictating the content of government speech, including legislative prayers. Lee simply holds that government (a public school in this instance) may not employ government speech, by dictating its content, in order to impose a religious exercise upon its citizens (public school students in this instance). Legislative prayer is not supposed to be a religious exercise imposed upon the citizenry. Therefore, Lee does not bar government from enforcing a policy of nonsectarian legislative prayer. The 4th Circuit held that the Establishment Clause does not bar government enforcement of the nonsectarian nature of legislative prayer, and the court declined to consider whether or not the Establishment Clause actually demands that legislative prayer be nonsectarian.
- Joyner v. Forsyth County, No. 1:07CV243 (MD NC 2009)
Here county residents sued Forsyth County alleging that the County’s practice of sponsoring sectarian prayer during the commencement of board of directors meetings violated their First and Fourteenth Amendment rights. As a result of the parties’ filing cross-motions for summary judgment, a magistrate judge was assigned to issue a recommendation. The magistrate judge recommended summary judgment for the plaintiff’s finding that “the prayers offered before the meetings of the Forsyth County Board of Commissioners advance one particular faith or belief and thus have the effect of affiliating the Board of Commissioners with that particular faith or belief in violation of the Establishment Clause.” The district court adopted the Magistrate Judge’s recommendation and granted the plaintiff’s motion for summary judgment. In February 2010, the County filed an appeal with the Fourth Circuit Court of Appeals.
9th Circuit Court of Appeals
The 9th Circuit includes the states of Washington, Oregon, California, Alaska, Hawaii, Idaho, Montana, Arizona, Nevada, Guam and the Northern Mariana Islands.
- The unpublished 9th Circuit decision, Bacus v. Palo Verde Unified School District, 52 Fed.Appx. 355 (9th Cir. 2002)
This decision concurs with the Wynne decision in the 4th Circuit regarding the unconstitutionality of sectarian invocations of deities. Teachers sued their school board over the constitutionality of opening meetings with prayer. The court stated, “These prayers advanced one faith, Christianity, providing it with a special endorsed and privileged status in the school board. Some religions accept Jesus Christ as the Messiah, some do not, and some people do not believe in any religious faith. Solemnizing school board meetings 'in the Name of Jesus' displays 'the government's allegiance to a particular sect or creed.' ” The court also determined that the school board in question had impermissibly made a citizen's religion, or lack thereof, relevant to his/her political standing.
10th Circuit Court of Appeals
The 10th Circuit includes the states of Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
- Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998)
This unfortunate 10th Circuit decision determined that a city council is free to exclude an atheist's request to deliver a “prayer” criticizing the doctrine of legislative prayer, if the legislature found the prayer to be proselytizing and disparaging. In the court's words: "Thus, the kind of legislative prayer that will run afoul of the Constitution is one that proselytizes a particular religious tenet or belief, or that aggressively advocates a specific religious creed, or that derogates another religious faith or doctrine. When a legislative invocation strays across this line of proselytization or disparagement, the Establishment Clause condemns it." The court also stated that Snyder's “prayer” fell outside the historical custom of legislative prayer, the historicity and customary nature of which, as an act of ceremonial deism, had been the basis for the Supreme Court's narrow exception to the Establishment Clause in Marsh v. Chambers. The 10th Circuit ruled: "The Establishment Clause and Marsh simply do not require that a legislative body ensure a kind of equal public access to a legislative body's program of invocational prayers. Instead, the constitutional restraints on legislative prayers flow directly from the scope of the religious genre blessed in Marsh. What matters under Marsh is whether the prayer to be offered fits within the genre of legislative invocational prayer that 'has become part of the fabric of our society' and constitutes a 'tolerable acknowledgment of beliefs widely held among the people.' " The court argued that this rejection does not indicate an impermissible religious motive: “It is clear under Marsh that there is no 'impermissible motive' when a legislative body or its agent chooses to reject a government-sanctioned speaker because the tendered prayer falls outside the long-accepted genre of legislative prayer.” This, unfortunately, may, and has provided a cover to any public body, which may wish to exclude opening prayers (or anti-prayers) that do not fall within the Judeo-Christian tradition, for impermissible religious motives. The court seemed not to recognize this apparent contradiction.
11th Circuit Court of Appeals
The 11th Circuit stands alone in not enforcing the Marsh decision. This Circuit includes Alabama, Georgia and Florida.
- Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008)
Here taxpayers sued over the constitutionality of nominally diverse, sectarian invocations delivered before both the county commission and the planning commission. Although two-thirds of prayers before the county board were Christian in nature, the Court “blessed” them by ruling in favor of the county’s sectarian bias. While ostensibly espousing an adherence to the reasoning of Marsh, Allegheny, and Wynne, the court undermined decades of established Supreme Court Establishment Clause jurisprudence by doing that which the Supreme Court has steadfastly refused to do, i.e., expanding the very narrow Marsh exception to the Establishment Clause for legislative prayer beyond the explicit circumstances detailed in Marsh. The court misconstrued the Marsh reasoning to bar the court from considering the plain and overt language of the prayers in question, including numerous sectarian and divisive appeals to specific divinities, absent additional evidence of proselytization, advancement, or disparagement from some source other than the prayers themselves. The court claimed not to be able to identify a sectarian reference, as opposed to a nonsectarian reference. Also, the 11th Circuit chose to ignore the fact that the Marsh Court felt no need to either scrutinize or parse the legislative prayers in question, precisely because they were nonsectarian. The 11th Circuit expanded the definitions of scrutinize and parse to include any consideration of the language of the legislative prayers whatsoever. Additionally, the court blatantly disregarded the Supreme Court’s conception of constitutionally permissible “ceremonial deism,” such as is discussed in Allegheny.
For your enjoyment, below is the proposed prayer offered by Snyder, an atheist, from the 10th Circuit Court case of Snyder v. Murray City Corp., 159 F.3d 1227 (1998):
OUR MOTHER, who art in heaven (if, indeed there is a heaven and if there is a god that takes a woman's form) hallowed be thy name, we ask for thy blessing for and guidance of those that will participate in this meeting and for those mortals that govern the state of Utah;
We fervently ask that you guide the leaders of this city, Salt Lake County and the state of Utah so that they may see the wisdom of separating church and state and so that they will never again perform demeaning religious ceremonies as part of official government functions;
We pray that you prevent self-righteous politicians from mis-using the name of God in conducting government meetings; and, that you lead them away from the hypocritical and blasphemous deception of the public, attempting to make the people believe that bureaucrats' decisions and actions have thy stamp of approval if prayers are offered at the beginning of government meetings;
We ask that you grant Utah's leaders and politicians enough courage and discernment to understand that religion is a private matter between every individual and his or her deity; we beseech thee to educate government leaders that religious beliefs should not be broadcast and revealed for the purpose of impressing others; we pray that you strike down those that mis-use your name and those that cheapen the institution of prayer by using it for their own selfish political gains;
We ask that the people of the state of Utah will some day learn the wisdom of the separation of church and state; we ask that you will teach the people of Utah that government should not participate in religion; we pray that you smite those government officials that would attempt to censor or control prayers made by anyone to you or to any other of our gods;
We ask that you deliver us from the evil of forced religious worship now sought to be imposed upon the people of the state of Utah by the actions of mis-guided, weak and stupid politicians, who abuse power in their own self-righteousness;
All of this we ask in thy name and in the name of thy son (if in fact you had a son that visited Earth) for the eternal betterment of all of us who populate the great state of Utah.
Thanks to interns, Sarah Braasch, for her legal research, and Megan Roughen, for her revisions.
Updated March 26, 2010.