November 12, 2008
Commissioners Steven Acquafresca, Craig Meis, and Janet Rowland
Mesa County Board of Commissioners
PO Box 20000
Grand Junction CO 81502
Dear Commissioners:
I am writing on behalf of Western Colorado Atheists and Freethinkers (WCAF) and members of the Freedom From Religion Foundation (FFRF) to urge you to discontinue the practice of opening County Board of Commissioners’ meetings with prayers that unconstitutionally reference Christianity and invoke Jesus Christ. FFRF is a nationwide nonprofit organization, which works to protect the constitutional principle of separation of church and state, and represents the rights of nonbelievers. FFRF represents nearly 13,000 members across the country, including over 400 members in Colorado.
It is our information and understanding that it is routine practice for the Board of Commissioners in Mesa County (hereinafter “Board”) to open weekly meetings with prayer. We further understand that the practice of opening the meetings with prayers only began with the election of Commissioner Craig Meis. Prior to his taking office in January 2005, there was no prayer; in fact, it is our information that Commissioner Meis is the one who instituted the practice.
The prayers given at the weekly meetings are rarely, if ever, non-denominational. Our complainant, WCAF, gave an example of a recent invocation, offered before the meeting on October 27, 2008:
“Heavenly Father, we thank you for another beautiful day in western Colorado. We’re thankful for our family and our friends and most of all our freedom. We’re thankful for our military men and women who are away protecting our freedom and we would ask that you keep your hand on them, be an encouragement to them and bring them home quickly ad safely to their families. We ask that you would keep your hand on all the children in Mesa County and protect them as they go about their day. We ask for the wisdom, discernment, as we make the decisions before us today, and we ask this in Jesus’ name.” (emphasis added)
It is also our understanding that members of the public regularly attend Board meetings and have necessary business before the Board.
Unfortunately, despite repeated objections to this practice and requests for the County Commissioners to discontinue opening sessions with prayer invoking specific deities, the Board has refused to stop this unlawful practice.
The prayers being offered before the Board’s meetings do not fall into the narrow exception of constitutionally permissible government-sponsored prayer laid out by the Supreme Court. In Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court ruled that the Nebraska legislature’s history and tradition of opening with a prayer by a paid chaplain was constitutional. The exception found by the Court in this case was confined to a situation involving a non-sectarian, non-denominational prayer, led by an officiant who had not been selected based upon any impermissible religious motive, and which was addressed to the body of legislators present and no one else. See Marsh, 463 U.S. 783. Additionally, the Court held that legislators must have the option not to participate. The prayer opportunity must not be “exploited to proselytize or advance any one, or to disparage any other, faith, or belief.” 463 U.S. at 794-95. The Court also noted that the content of the prayers was permissible because the chaplain has “removed all references to Christ.” Id. at 793 n.14.
Given that the Board only began this practice three years ago, there is no real ‘unique history’ of legislative prayer in this case. However, assuming arguendo that the Board had an established history of opening its meetings with prayer, the practice still violates the Establishment Clause because of its continual references to Christ. In County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 603 (1989), the Supreme 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, “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.” Id. The Court continued, “The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had ‘removed all references to Christ.’ ” Id.
Lower federal courts, including the 10th Circuit, which encompasses Colorado, have continued to emphasize that some government-sponsored prayers are constitutionally permissible only because they are non-sectarian, non-denominational and do not invoke a particular faith or deity. See, e.g., Snyder v. Murray City Corp., 159 F.3d 1227, 1234 (10th Cir. 1998)( “. . . the kind of legislative prayer that will run afoul of the Constitution is one that proselytizes particular religious tenet or belief, or that aggressively advocates a specific religious creed, or that derogates another religious faith or doctrine.”); Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004)(holding that the Establishment Clause was violated when the town council opened sessions with prayer containing references to Jesus Christ); Coles ex rel. Coles v. Cleveland Bd. Of Educ., 171 F.3d 369 (6th Cir. 1999)(striking down school board’s practice of opening meetings with prayer because the prayers contained repeated references to Jesus Christ and the Bible).
In Wynne, 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. See Wynne v. Town of Great Falls, 376 F.3d 292. 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. See id. at 301. Ultimately, the court concluded,
“Marsh does not permit legislators 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.” Id. (emphasis added).
The type of prayer offered at the Commissioner’s meetings runs afoul of the First Amendment. The prayers impermissibly advance Christianity and lead a reasonable observer to believe that the Board is endorsing not only religion over nonreligion but also Christianity over other faiths. Even though the Board may be permitted to engage in invocations prior to its meetings, this opportunity does not provide “license to advance its own religious views in preference to all others . . .” Id. Furthermore, this practice inappropriately alienates non-Christians and non-believers. Their efforts to participate in public meetings are adversely affected by these types of prayers, which turn non-believers and non-Christians into political outsiders of their own community and government. The constitutional rights of citizens to participate in government meetings such as the Board’s weekly meetings should not be predicated upon being subjected to Christian-based prayers.
The practice also violates the state constitution. Article II, section 4 of the Colorado State Constitution guarantees, “No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship.”
The Board’s practice of leading Christian-based prayers before Monday and Tuesday meetings is illegal. Your prayerful practices violate the Establishment Clause of the First Amendment of the United States Constitution, the Supreme Court’s Marsh decision, which was followed in the 10th Circuit’s decision, Snyder v. Murray City Corp., and Article II, section 4 of the Colorado State Constitution. We join WCAF in urging you to discontinue this practice immediately. We respectfully request notification of the appropriate actions you are undertaking to remedy this serious violation.
Sincerely,
Rebecca S. Kratz
Staff Attorney
