By K. Hollyn Hollman, Baptist Joint Committee General Counsel
Last month, this column explored the legal process by which litigants can seek review of a case by the U.S. Supreme Court, which begins when one party files a petition for a writ of certiorari. Shortly after the column appeared, the Court declined to review lower court decisions in two additional religious liberty cases, both of which involved prayer practices of government bodies and tested the boundaries of legislative prayers allowed under Marsh v. Chambers (1983). In Marsh, the Supreme Court recognized a narrow Establishment Clause exception for nonsectarian legislative prayers that serve as a “tolerable acknowledgment of beliefs widely held among the [American] people,” with “no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”
While denial of certiorari should not be interpreted as signifying the High Court’s approval of or agreement with the lower court holdings, the denials were nonetheless welcome. The decisions below reflect a proper application of religious liberty case law, recognizing that sectarian prayers by public officials undermine religious liberty and degrade religion by entangling it with government. The Supreme Court was right to deny the public officials’ request for review — in one case, a school board, and in another, a county board of commissioners.
In Indian River School District v. Doe, a public school board had a longstanding practice of praying during its public meetings, which were often attended by district students. The school board’s official written prayer policy appeared to permit all types of prayer, and formally prohibited prayers advancing or disparaging any particular faith or belief. But the record showed that in practice, the prayers recited were almost always — and exclusively — Christian. When the prayers were challenged in court, the school board claimed it was a legislative body entitled to the narrow Marsh exception allowing neutral prayers at legislative sessions. The 6th U.S. Circuit Court of Appeals rejected that contention, finding instead that the proper legal framework for determining whether the prayers violated the Establishment Clause was the analysis used in public school cases. The appellate court emphasized “the need to protect students from government coercion in the form of endorsed or sponsored religion.” According to the court, the Indian River School Board meetings resembled other school events like graduations or extracurricular activities, where the Supreme Court has said there are special concerns about indirect coercion and the appearance of official sponsorship of religion. School board meetings are different than meetings of other legislative bodies because their business is uniquely related to school matters, and they represent a different type of “constituency”: students. The court concluded that the board’s prayer practice violated the Establishment Clause because it had the primary effect of advancing religion, and it resulted in excessive government entanglement with religion.
In Joyner v. Forsyth County, a county board of commissioners maintained a formal prayer policy that appeared neutral on its face but, in practice, had the effect of advancing Christianity. The 4th U.S. Circuit Court of Appeals held that the prayers violated the Establishment Clause because they were overwhelmingly sectarian and “repeatedly suggest[ed] the government has put its weight behind a particular faith.” Marsh notwithstanding, a public body’s prayer practice may never be used to advance, disparage or prefer one specific faith or belief. The Forsyth County Board’s prayers exceeded those limits and, as a result, could not withstand constitutional scrutiny.
As Christians, we know that we can pray to God at any time and in any place, so there is no real threat to prayer when the Establishment Clause is interpreted to prohibit prayers in certain government-sponsored contexts like school board or county commissioner board meetings. Students, too, are free to pray voluntarily at various times of the school day, absent school involvement or disruption to others. There is simply nothing constructive to be gained from official prayer that advances or harms a particular religion. On the contrary, such prayers threaten individual freedom of conscience and violate the First Amendment’s promise of religious liberty for all.
