City Council Meetings Begin with the Lord’s Prayer and End Up with a Lawsuit

The Sussex County Council in Delaware begins each public meeting with the Lord’s Prayer, and has now ended up with a lawsuit (.pdf) for violation of the separation of church and state.

We can probably recite the constitutional mandate in our sleep: Congress shall make no law “respecting an establishment of religion, or prohibiting the free exercise thereof.” US Const amend I. The Supreme Court has taken this to mean that government may accommodate the free exercise of religion, but can’t coerce anyone to support or participate in religion or its exercise or act to establish a state religion or religious faith. Board of Educ. of Kiryas Joel v Grumet (1994) 512 US 687, 129 L Ed 2d 546, 114 S Ct 2481.

But what actually constitutes “establishment” of a religion? This is the tricky part. The Supreme Court offered some help by providing a description of a regulation or activity that will not “establish” religion (Lemon v Kurtzman (1971) 403 US 602, 29 L Ed 2d 745, 91 S Ct 2105):

  • It has a valid state secular purpose;
  • It has a principal or primary effect that neither discriminates nor inhibits religion; and
  • It does not produce excessive government entanglement with religion.

As the ABA Journal reports, the plaintiffs in the Sussex County Council case argue that, by reciting an explicitly Christian and Protestant version of the Lord’s prayer at meeting, the council is promoting a single religion. The council counters that this is simply a “positive tradition.”

The issue of prayer at public meetings has been considered by the Supreme Court many times before and is generally found to pass muster with the establishment clause. In Marsh v Chambers (1983) 463 US 783, 790, 77 L Ed 2d 1019, 103 S Ct 3330, the Supreme Court upheld the practice of opening legislative sessions with prayer based on the “unique history” of legislative prayer.

But prayer being ok does not mean that anything said in the prayers is ok. In Rubin v City of Burbank (2002) 101 CA4th 1194, 124 CR2d 867, cert denied (2003) 538 US 1034, a California court interpreted Marsh as requiring the omission of the words “Jesus Christ” from an invocation at a city council meeting.

The question in Delaware will likely turn on what is said in the prayer, not that a prayer is being said at all. How do you think this will turn out? How should it turn out?

On First Amendment limitations on California cities, turn to the book the cities use, The California Municipal Law Handbook (chap 1). For the related issue of the separation of church and state on a cities’ power to regulate land, check out CEB’s California Land Use Practice, chap 1.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

2 Responses

  1. As a young Jewish boy growing up in a Catholic parish in the 1950’s, I recited the Lord’s prayer everyday in elementary school, wondering the entire time what the heck I was doing. I never shared this with my parents (who didn’t really practice Judaism beyond the bare essentials) and, left to my own devices, I never felt comfortable doing so, but I did not want to draw attention to myself by not participating. I don’t think formal prayer recital (whether audible or not) has a place in secular settings.

  2. I agree, JSW.

    For the same reason, I believe that impressionable school children should not be indoctrinated with the idea that the United States is a nation “under God”. It is not enough to say that the child need not actively participate in the recital of this phrase. If he or she is in the classroom, then the indoctrination is being accomplished. And it’s highly impracticable (frankly, ridiculous) to suggest that the child get up and walk out of the room during the Pledge of Allegiance.

    The correct approach is to delete the words “under God” (which were only added during the communist “Red Scare” of the 1950’s anyway), and let the God stuff happen on the weekends under the direction of the parents.

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