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.
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