Tokenism in Government Prayer Fails Again

In the long-simmering battle over the inclusion of (largely Christian) prayers at the beginning of government meetings, an assumption held sway that a written policy of pluralistic inclusion would provide a fig-leaf of legal protection against lawsuits from organizations like Americans United or the ACLU. At least that was the assertion of the conservative Christian advocacy organization Alliance Defense Fund (ADF). In their “model public invocations policy,” the ADF noted how important it was to have an inclusive “neutral” policy on paper, if not in actual practice.

“The bottom line is that any policy adopted and implemented […] must ensure that the invocation opportunity is not exploited to proselytize any particular faith or disparage any others, or show any preference of the Council for a specific faith or religious denomination. It is our belief that the Policy we have carefully drafted meets these criteria and would pass court muster if challenged. […] No invocations policy has a chance to be upheld by a reviewing court today unless it offers equal opportunity to at least the broad array of monotheistic faiths and denominations with a presence in that particular geographic area.  One conclusion from the case law is clear: if a public body allows any prayers, it is required to allow for most all prayers, without unlawful discrimination against any.”

The document goes on to assert that no “extraordinary efforts to include particular minority faiths” were necessary, and “no apology is necessary for the demographics of the community that the public body serves.” In other words, in their opinion, a predominately Christian town doesn’t have go out of its way to include Wiccans, Hindus, or Buddhists. This policy blueprint was partially constructed around two 4th Circuit cases involving public prayers and modern Pagans: Simpson v. Chesterfield County, the case that helped create the so-called “Wiccan-proof” invocation policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. The idea was that if local governments threaded the needle of this issue carefully, they could have their cake (opening prayers), and eat it too (mainly Christian-only prayer).

For awhile, this tactic of de facto tokenism seemed to be working well. Towns like Greece, New York and Lancaster, California won lower-court challenges by including a smattering of minority religions in sectarian prayers (aka the “include a Wiccan gambit”), with the majority of prayers being Christian ones. Then a setback for sectarian prayers to Jesus emerged in the 4th Circuit Court of Appeals, who ruled that simply saying you’re inclusive while showcasing predominantly sectarian Christian prayer is not acceptable.

The 4th U.S. Circuit Court of Appeals today ruled 2-1 that the Forsyth County Board of Commissioners’ preference for Christian prayers violates the constitutional separation of church and state. […] The record in the case indicates that 26 of the 33 invocations given from May 29, 2007, until Dec. 15, 2008, contained at least one reference to Jesus, Jesus Christ, Christ, Savior or the Trinity. The appellate court majority said government favoritism in religion is wrong. “Faith is as deeply important as it is deeply personal,” wrote Judge J. Harvey Wilkinson, “and the government should not appear to suggest that some faiths have it wrong and others got it right.”

This ruling withstood appeal when the Supreme Court of the United States denied certiorari (judicial review), prompting the ADF to complain that “the standard for prayer policies in the 4th Circuit will be different from the standard held by the rest of the country.” Now, it seems like the 4th Circuit has just been joined by the 2nd Circuit, who ruled on Thursday that invocations given before the town of Greece, New York (one of the early winners in the “include a Wiccan” gambit) should have been more inclusive, and the town should have gone to greater lengths to ensure religious diversity.

“…the U.S. Court of Appeals for the Second Circuit ruled the town of Greece, a suburb of Rochester, should have made a greater effort to invite people from other faiths to open monthly meetings. […] The court found that religious institutions in the town of just under 100,000 people are primarily Christian, and even Galloway and Stephens testified they knew of no non-Christian places of worship there. […] “The town’s process for selecting prayer-givers virtually ensured a Christian viewpoint,” it ruled.” The court acknowledges there was no formal policy on who should be invited to deliver invocations, and that the town was open to people of all faiths speaking at meetings. But it also noted the town board didn’t publicize the idea that anybody could volunteer to deliver prayers…”

The decision went on to note that a town’s religious community cannot be defined by a list of churches or religious organizations, since a town is a community of “individual residents” who each have may have unique beliefs and philosophies.

“The town fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town. Such residents may be members of congregations in nearby towns or, indeed, may not be affiliated with any congregation. The town is not a community of religious institutions, but of individual residents, and, at the least, it must serve those residents without favor or disfavor to any creed or belief.”

The ADF, who were defending the town of Greece, has already vowed to appeal this ruling, saying that towns will have to “complete an obstacle course” in order to have opening prayers at government meeting. If this decision holds, as the 4th Circuit’s did, it could help establish a new standard for government prayer, one that demands strong pluralism if a body is going to allow sectarian invocations. It remains to be seen how long the Supreme Court will punt on this issue by denying judicial review. Eventually, they will have to make a stand on these policies, just as it recently took a stand on the question of “ministerial exception.” However, for now, Pagans and other members of minority religions have a new precedent to use in demanding equal treatment in regards to public prayer. No doubt several towns and cities who fall under the jurisdiction of the 2nd and 4th Circuit Courts are currently talking with their lawyers over their prayer policies, and whether they need to include far more Wiccans (and Buddhists, Hindus, Musilms, Jews, etc) than previously imagined.