Letter to Russell Kottke

Russell Kottke
County Board Chairman
Dodge County Board of Supervisors
127 E Oak St
Juneau WI 53039

Dear Mr. Kottke:

I am writing on behalf of concerned Dodge County Board Supervisor Dean Fuller and other area members of the Freedom From Religion Foundation (FFRF) to urge you to discontinue the practice of opening County Board meetings with prayers. The County practice unconstitutionally references Christianity and invokes 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 more than 13,000 members across the country including over 1,100 in Wisconsin.

It is our information and understanding that since at least 2008, the Dodge County Board (hereinafter “Board”) meetings begin with either a moment of silent contemplation or an invocation. In 2008, there were four invocations offered by Supervisor Randy Grebel. These prayers were given at the February, April, August and November meetings. At the latest meeting, in January 2009, an invocation was again offered by Supervisor Grebel. Our complainant informs us that these prayers are rarely, if ever, non-denominational and routinely invoke Jesus Christ. It is our further understanding that members of the public regularly attend these public meetings and have necessary business before the Board.

The prayerful practice at Dodge County Board meetings is unconstitutional and must end immediately. These prayers offered by a county supervisor during an official government meeting open to the public demonstrates the County’s preference for Christianity and illegally promotes religion over non-religion.

The prayers being offered at the Board’s meetings do not fall into the narrow exception of constitutionally permissible government-sponsored prayer outlined 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.

Furthermore, 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 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).

Most recently, the Supreme Court let stand a decision from the Fourth Circuit, which upheld a government policy requiring prayer before city council meetings be non-denominational. In Turner v. Fredericksburg, 534 F.3d 352, 353 (4th Cir. 2008)(cert. denied, 2009 WL 56225 (U.S.)(No. 08-518), the Fourth Circuit held that prayers held at the city council meetings constituted government speech. Therefore, it was proper for the city council to prohibit sectarian prayers. Id. at 353. Justice O’Connor, writing for the court, stated, “[t]he restriction that prayers be nonsectarian in nature is designed to make the prayers accessible to the people who come from a variety of backgrounds, not to exclude or disparage a particular faith.” Id. at 356.

The type of prayer offered at the Board’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 . . .” Wynne, 376 F.3d 292. 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 monthly meetings should not be predicated upon being subjected to Christian-based prayers.

The Board’s practice of leading Christian-based prayers before its meetings is illegal. This practice violates the Establishment Clause of the First Amendment of the United States Constitution, the Supreme Court’s Marsh decision, and other federal court decisions. We urge you to discontinue this practice immediately. We respectfully request notification of the appropriate actions you are undertaking to remedy this serious violation so that we may notify our complainants.


Rebecca S. Kratz
Staff Attorney

cc: John Corey, Dodge County Corporation Counsel;
James Mielke, Dodge County Administrator

Freedom From Religion Foundation

Send this to a friend