Constitutionality of Legislative Prayer for Local Governments
City councils and other local governments that include an opening prayer in their business meetings find themselves straddling parallel lines of religious freedom and religious tolerance. After all, one man’s prayerful welcome could be taken by another man as exclusion or even a violation of the Establishment Clause.
As we have written before, there are numerous ways city governments may inadvertently trigger constitutional issues under the First Amendment. This is especially true in the age of the internet and social media, but not all of the legal headaches arising from First Amendment issues are born out of the advent of Facebook and Twitter.
Many local governments, for instance, choose to begin their meetings with a prayer. Practiced in most settings, prayer is protected under the First Amendment’s Free Exercise Clause, which prohibits the government from interfering with a person’s practice of their own religion. However, while “legislative prayer” has been ruled constitutional, there are additional considerations of which municipalities embracing the practice should be aware.
Constitutional Under the Establishment Clause
While the Establishment Clause prohibits Congress from making any laws “respecting an establishment of religion,” the Supreme Court held in its 1983 decision in Marsh v. Chambers that the practice of opening legislative sessions with prayer is “part of the fabric of society” and does not violate the Establishment Clause.
Again, in 2014, the Supreme Court held in Town of Greece v. Galloway that prayers offered by local clergy at the opening of that town’s board meetings did not violate the Establishment Clause either. Writing for a 5-4 majority, Justice Anthony Kennedy echoed the Court’s reasoning in Marsh, emphasizing that legislative prayers are a historic practice within the bounds of constitutionality because they are solemn and respectful in tone, lend gravity to or elevate the purpose of the occasions which they precede, reflect longstanding national values, and unite lawmakers in their common effort.
Nonetheless, Justice Kennedy’s opinion also pointed out that legislative prayer, though generally constitutional, is not without limitations. Under Greece, municipalities that want to include a prayer at the beginning of their meetings are more likely to avoid problems of constitutionality if such prayers do not proselytize or attempt to convert others to the prayer giver’s own faith. Legislative prayers should not disparage the traditions of others. Governments should also have a nondiscrimination policy in place so that representatives from a variety of traditions and faiths have opportunities to pray at the beginning of meetings as well.
Notwithstanding these limitations, legislative prayers need not be nonsectarian to be constitutional. Specific terms from one’s own religious tradition, such as “in Jesus’ name,” “Allah,” or “Namaste,” are equally permitted. But, especially when it is only elected officials offering spoken prayers, governments are probably still less likely to trigger constitutional issues if they use inclusive language that does not associate the government with any one faith or belief.
Best Practices for Avoiding Constitutional Questions
After Town of Greece v. Galloway, some local governments added clergy or citizen led prayers while others, either unwilling to implement a nondiscriminatory policy or unconfident in their ability to do so, stopped the practice altogether. While the best approach for each municipality will invariably depend on the municipality in question, governments that wish to recognize that the people gathered are united in common civic purposes without suggesting any common religious perspective or a government role in advancing religion may wish to consider using a moment of silence as an alternative to a spoken prayer. Moments of silence can begin with a statement and invitation to join in silent meditation, reflection, or prayer in preparation for the important work of the meeting ahead.
By guest contributor Joe Holloway
Joe Holloway is a former journalist and educator pursuing a J.D. from the University of Houston Law Center. He serves as the UHLC Student Director for the Houston Young Lawyers Association, the President of the Space Law Society, Student Bar Association Executive Board Secretary, and Vice-Chair for Public Relations on the Board of Advocates. He received his master’s degree in journalism from the University of Texas at Austin in 2011 and his bachelor’s degree in journalism from Baylor University in 2009.
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