Public prayer in Jesus name declared legal

November 26, 2008 by 24 Comments

A federal district court ruled that government officials in a government context can legally pray in the name of Jesus. Judge Richard Story, referring to the county situation at issue, made a useful distinction:

To be sure, many of these speakers, in offering their invocations, identify the deity to whom they direct their prayer. In that respect, they surely convey their alignment with one religious creed to the exclusion of others. But viewed cumulatively, given the diversity in the denominations and faiths represented, it is difficult to extrapolate from any one speaker’s affiliation a preference on the part of the Cobb County government.

Filed Under: Law 24 Comments

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About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • http://thebookbeast.blogspot.com Darren

    No, it hasn’t been overturned; in fact, the 11th Circuit just affirmed it on 10/28/08.

    2008 WL 4710693

  • http://www.geneveith.com Veith

    Right. This IS a new ruling, I just discovered, so I revised the post accordingly.

  • jgernander

    If this is Cobb County which lies outside Atlanta, it doesn’t surprise me. I spent a lovely summer there with wonderful people on a summer vicarage back in 1994. The county had a very strong stance on ownership of firearms. Also it had recently passed a “family values” statement which, I believe, included a condemnation of homosexuality (if not explicitly stated, then at least strongly implied) — which resulted in the Olympics governing body’s quickly removing the volleyball preliminary rounds from Cobb County sites.

  • Don S

    This shouldn’t be news. The sad thing to me is that it is. The 1st Amendment only addresses the prohibition against the State establishing religion. Of course, a public official praying in Jesus’ name is not akin to establishing a state religion. The Free Exercise clause of the 1st Amendment, guaranteeing all of us the right to freely practice our faith, actually protects this official’s right to pray in Jesus’ name.

    Of course, the same clause would also protect the right of a government official who happened to be Muslim, for example, to pray in the name of Allah, as long as he was not trying to establish Islam as a state religion. We, as Christians, need to understand our Constitutional protections, and be consistent in enforcing them, for our own long term protection. If such an event bothers you sufficiently, your remedy is not the courts, but the ballot box. Would that we all would stop running to the courts, and express our views and concerns through the ballot box, as our founders intended.

  • Bill

    Don, while I agree in the main that the ballot box should be a citizen’s primary option to redress grievances, I fail to understand how, in instances like this, an election would have been more effective than a court order. The founders put the courts into the constitution to resolve constitutional, i.e., first amendment, matters.

  • FW

    It would probably bother me alot to have public officials pray to the sea goddess, or refer to diety as a she. It would REALLY bother me to have to allow prayers at a government funded institution that would pray, for example to satan.

    What is the point? I as a lutheran would not accept the prayer of a non-christian or even some christians on my behalf. I can pray at home or at my church.

    Further, If someone DID ask ME to pray at a public function, I am not sure I would accept in that I would have to pray in Jesus name, and so would abridge the rights of the jews or hindus or whathaveyou in the crowd who would not willingly accept having me lead them in that prayer. It would seem that a pluralistic society would demand that kind of respect and consideration modeled by a christian because I would certainly want to be extended the same, EXPECIALLY if that public place was a classroom and the teacher was muslim or wikkan and my child was being led in prayer.

    Finally it would seem, with this ruling, that the only thing that would prevent a prayer by say, a wiccan, would be the official who vets the person asked to pray. This looks alot like the rule of men, every one doing what he feels is right, rather than any rule of law.

    With all these considerations, I really do not think I would at all object to simply banning public prayer in these kinds of venues.

    While it is certainly true that there is a long tradition of evoking diety (eg the founders praying to their masonic “great architect of the universe” small-d diety), the situation then was that our country was diverse religiously almost exclusively as diferent christian sects with a few jews.

    Would it not be wise for us christians to anticipate a time when other faiths outnumber christians or even worse (and more likely) the day when there is some sort of pseudo-christian state religious cult similar to what the romans had but with a thin christian veneer?

    There is an excellent very short book by concordia title “How to respond to the Lodges”. In that book is an excellent treatment of exactly how Lutherans view the nature of prayer and what exactly prayer is.

    In this area, the Wisconsin Synod Lutherans have some good insights for the rest of us. While some in that synod, I think, push things to the wrong conclusion based on some partially uncertain premises, they have sent out their own military chaplains at their own expense rather than participate in the military chaplaincy program of the US government. This is consistent, laudatory and very, very wise on their part. That commitment to principle on their part neatly avoids alot of these issues.

  • http://palmsundays.blogspot.com Juan Palm

    Will this help free military chaplains from their shackles? I recently had a member invite me to do the invocation and benediction for his change of command ceremony, knowing that I would have the freedom to be myself, while any chaplains would not.

  • Don S

    Bill @ 5: But, my point is, the issue in question is NOT a constitutional issue. There is nothing in the Constitution that legitimately prohibits a public official from praying in the tradition of his religious faith. He/she has a free exercise right under the 1st Amendment to do so. If folks don’t want public officials praying in the name of Jesus, or Satan, or Allah, the remedy is the ballot box. Don’t elect those officials.

    This country works best when we use the courts to protect our own constitutional rights, rather than to prevent someone else from exercising theirs. If someone is prevented, by a public official, from exercising their free exercise right to pray in a public forum, they have a court remedy. However, just because someone doesn’t feel like hearing such a prayer doesn’t give them the right to run to court to prevent someone else from exercising their rights, which is what happened here.

  • Don S

    Juan @ 7:

    This case, in and of itself, probably doesn’t help. Military chaplains are restrained by their commanders because of political concerns. This particular case holds that a public official cannot be constitutionally prevented from praying in Jesus’ name, but doesn’t address the issue of a public official prohibiting a subordinate public official from so praying. However, the thinking and legal reasoning set forth in this case could ultimately change the political environment and thus help folks like military chaplains to regain some of their ability to practice their faith freely within their assigned duties. We can pray that is the case, anyway.

  • kerner

    I am less sanguine about this than most of us here. I lean more toward Frank and the WELS. I am not as rigid as WELS (who, when I was a member there, wouldn’t even pray with other Lutherans not in fellowship with them; which made for some uncomfortable sayings of grace before Christmas dinner), but I do think that independent chaplains are a really good idea. The idea that a clregyman from any religion should pray, or do anything in a manner contrary to his conscience and doctrine, for the sake of politics and/or cultural unity strikes me as a really bad idea.

    I also have to disagree with Don S a little bit here. The free exercise clause of the 1st Amendment guarantees the right of any private citizen, acting as an individual, to practice his/her religion (or no religion) as he or she sees fit. But I am not as convinced that “establishment” of religion is limited to trying to start an official state religion. I do think that for a public official to “lead” in prayer can be to act in his public, governmental capacity. Whether this exercise of public leadership rises to the level of “establishment of religion”, for me at least, depends on the circumstances. I haven’t read this case, so I don’t know all the details, but there are, for example, certain municipalities around Detroit in which prayers to Allah from public officials would not be unexpected. And I think those would require me to withdraw, which would possibly insult the other people there, which might negatively impact on me. And why should I have to suffer any negative impact from the conduct of a public official acting in his public capacity on account of religion?

  • Don S

    Kerner @ 10:

    You raise a fair point. The case involves a County Commission which invited religious leaders from the community to offer invocations. Christians, Jews, and even a Muslim offered the invocation over the course of time, but the community (Cobb County, GA) is overwhelmingly Christian, so the majority of prayers were offered by Christian pastors. Certain members of the community objected to these “sectarian prayers” and brought suit.

    Clearly, under the facts of this case, the judge properly decided it, would you not agree? Their actions in inviting community pastors to open their meetings with invocations, prayed in accordance with the faith of the pastor offering the prayer, were far short of establishing a state religion. I think the Constitution further protects the right of an official acting in his official capacity to “lead” in prayer on occasion. It might make some people uncomfortable, but why is it unconstitutional? It makes me uncomfortable when a government official talks about increasing taxes to fund public works projects, but that doesn’t mean he is not allowed to do that. It just means that I should exercise my option to vote him out of office. Same with prayer, or any other annoying thing an official does.

    Would you not agree that we would be a lot better off if we worried more about what we do and are permitted to do, rather than trying to restrict, through court action, what other people are doing? Of course, if those other people are public officials, and what they are doing are restricting our freedoms to do what we want to do, that could be actionable. But, do we have the right to go to court because they are hurting our feelings or making us feel uncomfortable? I don’t think this tendency to run to court to restrict what other people can do is what made/makes America great.

  • FW

    #11 Don

    “Would you not agree that we would be a lot better off if we worried more about what we do and are permitted to do, rather than trying to restrict, through court action, what other people are doing?”

    curious how you would overlay this idea of yours on the topics of gay marriage, and legalized prostitution, drugs, legalized divorce, unmarried couples cohabiting, and pornography along with related zoning laws.

  • FW

    #11 don

    “And I think those would require me to withdraw, which would possibly insult the other people there, which might negatively impact on me. And why should I have to suffer any negative impact from the conduct of a public official acting in his public capacity on account of religion?”

    here is the answer to your question Don I think.

    don, how would your views be adapted in public school classrooms where the “prayer leader” is a wikkan school teacher or buddhist or mormon or…..

  • rlewer

    As one of my elders who was formerly a Baptist deacon for 20 years once said, “Baptists want prayers in public school – as long as they are Baptist prayers.”

    Imagine living in Utah when you make pronouncements about public prayers.

  • Don S

    FW @ 12: I’m not sure I understand your point. Or perhaps it’s that you don’t understand mine. I am not saying that we cannot pass laws against behavior that the majority believes is negative for society, through our elected representatives and the ballot box. That is our right in a representative democracy. And, if those who are affected by those laws believe their prohibitions constrain their own liberty under the Constitution, they are free to go to court to seek redress.

    What I am saying is that we trod on shaky ground when we go to court, as a first resort, seeking to constrain the behavior and activities of others.

    Taking your specific examples, I believe that the laws related to all of marriage and divorce, prostitution, drug sales and possession, pornography, cohabitation, zoning, etc. should be established by the community through its elected representatives, as, I believe, they have been, for the most part. I would assume that we agree on this point. Of course, if someone has a legitimate belief that these duly passed laws impose on their constitutional rights, they are free to seek court redress. This has also been done frequently, regarding the above topics.

  • Don S

    Rlewer @ 14: I understand the difficulty of living in Utah as a non-Mormon. In Utah is where you probably get the closest to having a legitimate 1st Amendment case against the government for establishment of a state religion at times. But even so, I believe that is a pretty high bar. The founders were talking about establishment of religion in the context of the Anglican Church in England, the Catholic Church in Spain, the Lutheran Church in Germany, in the 18th Century, when the leadership of those churches were intertwined with the government and they received substantial tax revenue. Even in Utah, I don’t think there is a legitimate establishment case to be made very often. Just because we don’t like something, doesn’t give us the right to run to court and stop it on constitutional grounds. To have liberty ourselves, we need to be tolerant of the liberties of other folks. Unfortunately, we have lost that concept to a great degree in the past 50 years, to our great detriment, particularly as Christians.

  • Don S

    FW @ 13: I think you were actually addressing Kerner @ 10 with your quotation, rather than me. However, I will address your last question. Personally, because of potential issues like the ones you bring up, we do not have our children in public schools. We home school them. We know that public school teachers will, on many occasions, do things that we don’t like, and we don’t want our children exposed to those things. We also know that we don’t have a constitutional right to a public school that operates exactly the way we want it to.

    As for the teacher leading prayers in the classroom in the Wiccan tradition, this is, of course, an entirely hypothetical question, as of the 1962 U.S. Supreme Court case which banned prayer led by authorities in public schools. On the whole, I think this prayer ban was a horrible thing for our country, because, in effect, it established secularism as the de facto state religion. Prior to 1962, had a teacher tried to lead a prayer to Satan, the local parents (this was also back when local parents ran the schools — another very good thing that liberals have taken away from us) would have gone to the principal and school board and exerted political pressure to have that teacher disciplined and possibly removed from her post. This is the proper way to handle things in situations such as this, rather than running to court.

  • FW

    #17 don

    If i understand you respectfully and reading your posts over time, you seem to position yourself as a jacksonian democrat and believe that the majority should rightfully rule . you also seem to feel that laws passed by propositions would probably be the ideal form of legislation.

    here we differ. I am a definite small-r republican. I really like the idea that constitutions should be written to limit government power, and all power not granted to the government are the “natural rights” of the people. This means that constitutions should never have embedded in them the granting of specific rights to the people,and EXPECIALLY not prohibitions in the constitution of public rights. only prohibitions against government power. this is exactly why our constitution is so seemingly vague, the founders felt that specifically enumerating rights would imply the limitation of those rights or at least delimit them. this would have run contrary to their views of constitutional republicanism.

    In this system, ideally, the rights and freedoms of an unpopular minority (think blacks, gays,jews, jehovah´s witnesses, neo-nazis, indians, arab-americans, japanese or german americans during wwI&II ) would be preserved ESPECIALLY when 95% of the populace was antagonistic towards the idea.

    this is what we want as christians in viewing our society moving towards increased pluralism religiously is it not?

  • kerner

    Don S:

    I have now had the opportunity, and the best I can say about this decision is I can’t conclude that it was wrongly decided, but I can’t get enthusiastic about it either. I understand that there may be some benefit to the Body of Christ, and the American people in general, if our leaders recognise a higher authority to the extent that they invoke that Higher Authority at the opening of their legislative sessions. But as a Christian, I fear the watering down of the truth of the Gospel more than I fear the lack of a general religious character in American culture.

    The decision indicates that occasionally Rabbis came in to do the invocation. And I think a Unitarian-Universalist did as well, and definitely an Imam from a local mosque was invited and prayed the invocation at least once. Other non-Christian clergymen (Buddhists, Baha’is and Mormons, etc.) will probably brought in in the future. I think the Jehovah’s Witnesses refused to participate. The thing is, Don, if any of these non-Christians had offered the invocational prayer, and if I had been present, my conscience would have compelled me to not participate. I don’t know if I would have felt compelled to leave the room, but I would have had to have made it clear in some way that I was not praying to a non-Triune God. And this would have put me in the ridiculous position of having invited the Rabbi, or Imam or whomever to pray, while refusing to pray along with him myself. Which is, at the very least, awkward if not rude. Why should the board put itself, or the clergymen, in such a position?

    The only answer I can think of is that it might be interest of the overall community if community members of all religions were encouraged to think of the themselves as a part of the entire community strongly enough to pray for it. That is, even if they are praying to false gods, at least the are developing a bond with the community. But I still worry that that attitude includes a subtext that any religion is as good as any other.

    (Rev. Lovejoy to his parishioner, Homer Simpson: “Why don’t you join one of the other major religions, Homer. They’re all pretty much the same.”)

    This case may not be one in which religion was actually “established” as that term is used in the 1st Amendment. But as a Christian, I don’t feel any desire to turn cartwheels because of it.

  • FW

    #19 kerner

    light-bulb-comes-on. the issue is not constitutionality as don frames it. the real issue is one of christian witness vs. cultivating the idea of a small-g “god-fearing” nation where it is impled to all that any higher power at all is as good as the next one in the interest of civic morality/religiosity.

    so the issue is misframed by focusing on constitutionality or even tradition or history of the usa as a “christian” or “christianity-based” nation.

  • kerner

    FW:

    Right. Actually, as an American Christian, I think this sort of practice raises at least 3 issues. For me, in descending order of importance, these are:

    1) What will serve to spread the Gospel? I don’t believe that it is ever a good idea for Christians to join in prayer when non-Christians pray to their false gods. Our spiritual ancestors died rather than do this. And, incidently, this is exactly what was going on in Cobb County.

    2) Is the prctice within the boundaries of the Constitution. In this case, it might have been. Cobb County seems to have been going out of its way to offer the opportunity to pray the invocational prayer to most clergymen in the area, including those of the minorities that were not Christians. So, it appears that positive steps were taken to not “establish” any particular religion. I suppose atheists can claim that any invocational prayer “establishes” religion in general, but I think Don is right that this argument breaks up against the right of individual politicians to pray in public if they want to, as long as they are at least a bit careful not to be coersive about it. And this was done in an adult setting in which claims of coersiveness are pretty weak.

    3) Is it good for the nation/state/community to be doing this? This is really one of those policy/political questions that have more to do with expediency than principle. Will inviting the clergy of all religions to publically prey for the welfare of Cobb County and for wisdom and guidance to be granted to its political leaders have some unifying effect on Cobb County as a community? Maybe. But for me any such benefit is so secpndary to the issues raised by question No. 1, that I think it is better to build community unity some other way.

  • Don S

    FW @ 18: No, I don’t think you have characterized my position correctly. Yes, I do believe that, in a properly functioning democratic/republican form of government, the majority, which will typically be a majority of elected representatives, should rule. Once we vitiate this principle, by frequently overturning majority rule on the basis of superseding law (Constitutional, international, or otherwise), people lose faith that their government is responsive to them, and serves them, and you no longer have an effective government. You have a de facto oligarchy, run by the judiciary. However, I firmly believe in the Constitution, and its enumerated civil liberties, guaranteed to individuals is paramount to majority rule, as you do.

    In other words, the Constitution is a fence, so to speak, beyond which the government may not move, in order to protect the fundamental liberties of the individual.

    If the government takes an action which infringes an individual’s civil liberty in some respect, I wholeheartedly agree that the individual has every right to seek redress against that action through the courts.

    Here’s the problem. When, instead of directly asserting our liberties to do something (worship, speak freely, be secure in our homes, etc.), we assert our rights not to be made uncomfortable by the actions of another, by going to court to prevent that other person from acting, we cross the line. Individual liberties intersect. At some point, our right to act will impact someone else. Example–someone’s right to freely speak on a public sidewalk means that many others have to hear him. If we are all to be truly free, we also all have to be very tolerant of the actions of others which may be disagreeable to us. When we lose our ability to be tolerant, and run to court to stop the actions of others on the ground that they are making us uncomfortable and thus somehow infringing our constitutional rights, then we cease to be truly free ourselves.

    In the present case, if the court had ruled for the plaintiff, the name of God would have been further removed from the public square. We may disagree politically with the commissioners in this case, and their decision to invite various members of the clergy to offer invocations at the start of meetings. But is it really a constitutional issue? Is it really impacting the civil liberties of any particular person? Is it “establishing religion” within the meaning of the First Amendment? I think not, and if someone has to leave the room for a moment during the invocation because of a personal feeling of uncomfortableness, then so be it. That person can prevail upon the commissioners, using the political process, to change their policy if it bothers them sufficiently. But they don’t have a constitutional right not to be bothered. This principle is perhaps more important as we move to a more pluralistic society, lest because of our differences, we prohibit more and more conduct in the public square because it makes us feel uncomfortable.

  • Don S

    Kerner @ 19:

    I think we agree. I don’t necessarily agree with the practice of inviting clergy members of various faiths in to offer an invocation to start governmental meetings, although it doesn’t bother me a great deal. I like it that officials acknowledge a higher power, because I detest secularism. I don’t like it when Muslims offer prayers on my behalf. However, it’s a two kingdoms issue, and government officials represent all of us. So, it’s not unreasonable that they include clergy other than Christians. Like I said above, if we don’t like the policy, we can take political action to try to change it.

  • Don S

    FW @ 20:

    I disagree that the issue is “mis-framed”. Rather, there are multiple parts to the issue. I was emphasizing the Constitutional aspects of the issue, and opining that we are not well served when we entertain notions of prohibiting conduct of others via court order because we feel “uncomfortable”. Of course, Kerner raises other equally valid issues concerning what our response should be politically to these types of things.


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