Written by Don Byrd
In a colorful decision addressing the issue of legislative prayer, a District Court in Tennessee has ruled that a challenge to the Hamilton County Commission’s invocation practice is not “ripe” enough to warrant an injunction, because the policy has not yet been implemented for a sufficient time to allow judicial review, but the lawsuit may go forward because a record will eventually develop. The Court rejected the plaintiffs’ contention that the policy on its face violates the Constitution.
On the issue of whether the policy as written violates the separation of church and state (citations removed):
It appears to the Court that, at least as written, the policy strives for neutrality. The policy specifically states it is not intended to “proselytize or advance any particular faith, or show any purposeful preference of one religious view to the exclusion of others.” It expressly contemplates invocations that do not constitute prayer, but instead include only “a reflective moment of
silence, or a short solemnizing message.” It does not require the participation of Commissioners or meeting attendees. Additionally, it provides that: “all religious congregations with an established presence in Hamilton County” may be included on the list
from which prayer-givers will be drawn, any congregation may request inclusion, and all questions of “authenticity” will be resolved by reference to the Internal Revenue Code’s criteria for religious entities. In extending invitations to local religious leaders, the Commission will request that the speaker “maintain a spirit of respect for all,” not attempt to use the opportunity to convert others, and refrain from disparaging any other faith
…
[I]f the Commission’s practice develops into one that is inclusive of all faiths and creeds, or that represents the participation of a wide cross-section of diverse religious leaders, it can hardly be said to violate the First Amendment.
On the issue of whether the County’s practical application of the policy violates the First Amendment, the Court noted that because so little time has passed since the introduction of the new policy, evidence is slim. That doesn’t mean that a future challenge could not result in a finding that the policy as applied in Hamilton County is unconstitutional.
The Court is not prepared to hold that, through its adoption of the July 3 prayer policy, the County has permanently insulated itself from all liability for future violations of the Establishment Clause. Plaintiffs’ “as-applied” challenge to the prayer policy is not yet ripe. Because there is no meaningful record of the policy’s application, the Court is unable to gauge the likely success of Plaintiffs’ constitutional claim, and a preliminary injunction cannot issue. Nevertheless, this litigation is not over, and eventually, a sufficient record will develop.
At this stage of the litigation, at least, the Court is not prepared to accept that, after Marsh, a legislative body may uniformly open meeting after meeting with explicitly Christian prayers without facing some constitutional scrutiny… Indeed, in an en banc opinion, the Sixth Circuit has implied that the constitutional permissibility of a legislative prayer may be tied in part to its nonsectarian character…. The burden of distinguishing between “sectarian” and “non-sectarian” prayers may be less insurmountable than the County would suggest. Many
Courts to have confronted the issue – including those cited by the County – have reached a conclusion concerning the meaning of such classifications.
