If you were on the U.S. Supreme Court, would you find the following prayer at a public meeting uncomfortable and unconstitutional under the First Amendment?
“Lord, God of all creation, we give you thanks and praise for your presence and action in the world. … We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. … Praise and glory be yours, O Lord, now and forever more. Amen.”
GREECE, NEW YORK
Greece is a small town in upstate New York. Historically it has begun its town hall meetings with an invocation from a local minister serving as the “chaplain for the month.”
Described by the Court like this: “The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures.”
OPPOSITION TO PRAYER
Not all town hall attendees were enamored with Greece’s opening prayers. Several members of the community felt the prayers violated their religious and philosophical views, being “offensive,” “intolerable,” and an affront to a “diverse community,” especially as the prayers were always given “in Jesus’ name.”
The opposition folks wanted reference only to a “generic God” which would not associate the government with any one faith or belief.
The federal trial court ruled for the little town of Greece while the Court of Appeals reversed, setting up a showdown at the U.S. Supreme Court.
U.S. SUPREME COURT
The U.S. Supreme Court issued a ruling with multiple dissenting opinions. The Supreme Court reviewed the First Amendment ratified on December 15, 1791: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” That is known as the Establishment Clause.
The Supreme Court explained there is, what I would call a “carve out” of the Establishment Clause, an exception which allows prayer that fits within long-standing traditions followed in Congress and state legislatures: Prayer at the beginning of a public meeting — sometimes called a “legislative invocation.”
If Greece’s prayer practice fit within that framework, it would not violate the Establishment Clause “… even if … such prayers … refer to the ‘death, resurrection and ascension of the Savior Jesus Christ’ and the ‘saving sacrifice of Jesus Christ on cross.’”
THE FIRST PRAYER
Evidence the Supreme Court found compelling that our country has a long tradition of starting meetings with religious prayers was the first prayer delivered to the Continental Congress by the Rev. Jacob Duché in 1774:
“Be thou present O God of Wisdom … that Order, Harmony, and Peace be effectually restored, and the Truth and Justice, Religion and piety prevail and flourish among the people … All this we ask in the name and through the merits of Jesus Christ, Thy Son and our Saviour, Amen.”
PRE-MEETING PRAYER OK
The Court concluded the drafters of the Constitution intended to allow such prayers: “On the record in this case the Court is not persuaded that the town of Greece, through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings, compels the citizens to engage in a religious observance … the analysis would be different if town board members directed the public to participate in the prayers … although the board members themselves, stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar gestures by the public.”
The Court wrote, “The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.”
Frankly, the ruling is a surprise to me, but when read against the precise words of the Establishment Clause, it should come as no surprise.
By the way, this is the same Supreme Court that just ruled health insurance for Viagra is appropriate but not for women’s birth control. But I digress.
In Rubin v. City of Lancaster, the federal Ninth Circuit Court of Appeals recently approved a similar pre-meeting prayer that mentioned Jesus Christ. However, courts have mostly disallowed such prayers at school graduation ceremonies.
Have a fun and safe Fourth of July Weekend!
Jim Porter is an attorney with Porter Simon, licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or www.portersimon.com.