Written by Don Byrd
Because the U.S. Supreme Court has decided to hear a case in the next term about government meetings that open with prayer, courts across the country may have helpful guidance in how to approach theses cases. In the meantime, they still adjudicate these difficult cases. On Friday, the 6th Circuit ruled constitutional (PDF) the prayer policy for Tennessee’s Hamilton County meetings, but allowed a lawsuit to continue that challenges the way in which that policy has been applied during the past year.
The policy, which began about a year ago, allows for all clergy in the county to receive invitations to lead the Commission in prayer. The invitations request a brief presentation that does not seek to convert others, or disparage any faith. Clergy acceptance is received on a first-come, first-serve basis. The Appeals Court ruled those safeguards are good enough.
[T]he Commission’s Policy is facially constitutional. The Policy allows for three different types of invocations: (1) a reflective moment of silence; (2) a short solemnizing message; or (3) a prayer. The County’s procedures for selecting potential invocation speakers are not discriminatory and allow any bonafide religious organization to participate. The Policy calls for a list of religious assemblies in the County to be compiled on a yearly basis, and, if a specific religious assembly in the County is not on the list, it can write to the County to be included. Further, the Policy allows religious assemblies from outside the County to give the opening invocation if a resident of the County requests their inclusion. The Policy expressly states that it is “intended to acknowledge and express the Commission’s respect for the diversity of religious denominations and faiths represented and practiced among the citizens of Hamilton County.”
In addition, the Policy states that invocation speakers will be notified: “To maintain a spirit of respect for all, the Commission requests only that the opportunity not be exploited as an effort to convert others to the particular faith of the invocation speaker, nor to disparage any faith or belief different than that of the invocation speaker.” On its face, the Policy is tailored to comply with Marsh and it does not advance any one faith or belief over another.
The proper interpretation of the Supreme Court’s legislative prayer decision in Marsh is the subject of intense debate, however. Of particular concern is whether sectarian prayer offered by government can be constitutional regardless of the clergy selection policy. The Supreme Court may have some answers for us next year.
In the meantime, the 6th Circuit’s decision still allows the plaintiffs to move forward with their challenge to the application of the policy during the last year. If the trial court determines the prayers under the policy have been exploited to proselytize or disparage other faiths, the Establishment Clause may still have been violated, notwithstanding the legality of the policy itself.
Stay tuned.
