Tokenism in Government Prayer Fails Again

Tokenism in Government Prayer Fails Again May 18, 2012

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).

Cynthia Simpson and Darla Wynne

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.

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16 responses to “Tokenism in Government Prayer Fails Again”

  1. I expect this will ultimately be a good thing. As these policies are challenged and defeated, eventually we will lose the superstitious nonsense about praying before government meetings. I am somewhat amazed that this is taken seriously in modern society anyway.

  2. The ADF is trying to argue that public officials have no burden whatsoever to actually live by their non-discrimination policies. They’re saying that as long as their clients are not flagrantly and openly discriminatory, that they aren’t responsible for how it plays out on the ground. They’re going to find that judges are going to be highly unimpressed with that as they go jurisdiction-shopping for a reversal. 

  3. I was struck by Judge Calabresi’s conclusion:  “These difficulties may
    well prompt municipalities to pause and think carefully before adopting legislative prayer . . . .”  One can only hope.

    To truly honor the 1st Amendment, I’d prefer to see no prayer at government functions, not even “nondenominational” prayer or Wiccan invocations.  However, if there are going to be prayers, then Pagans must insist upon inclusion.  

    I continue to be amazed at the time, money, and good will that various government agencies and school boards are willing to spend fighting over this, particularly during economic times that are requiring towns to cut their police forces and fire departments and when boards of education are letting teachers go and are unable to purchase new textbooks.

    Good for the Second Circuit.   

  4. I agree, and I want to echo Hecate here.  I find there is absolutely nothing to be gained at a
    government meeting by praying to any form of religious entity or belief
    structure, of any sort.  I think it is truly fair to say that we only
    want our (being minority religion) prayers to be included because of
    this propensity.  While the Christian response to that might be “If we
    cannot have it our way, then no one can”, I find that preferable to
    discriminatory exclusion. 

    The fact of the matter is that the United States does not have an established church.  There is nothing gained from encouraging this kind of policy, other than causing sour feelings to erupt which could bar potential progress on administrative and legal matters. 

    I’m glad to see a pissant town in New York getting it stuck to them, though.  The majority of those towns need to have a firm kick to the ass when it comes to discriminatory policy.  If you want to talk about a bloated bureaucracy, look no further than this state.

  5. This shouldn’t even be an issue.  There shouldn’t be ANY prayer before ANY Government meeting.  A moment of thoughtful silent deliberation is all that should be necessary.

  6. 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.

    And the easy fix is for the government officials to pray silently in their office prior to the meeting and not have the government offering “opening prayers” at all. See, no “obstacle course” required.

  7.  The Christian reaction to efforts to curb their wide-spread domination of all things public has always been “If we can’t do it ONLY OUR way, then NOBODY can!”  And that’s why many people think that it is against the law for teachers or administrators to show articles of their faith.

    Snively Whiplash mustache stroking motion and all.

  8. I fully agree , as a supporter of church/state seperation . There should be no prayer of any kind at any Government Function ………..EVER.Our constitution rightly so states our govt. should not endorse or deny any religion [paraphrased]. I’m with others here this should be a non issue .If anthing the obstacles need to be bigger to further discourage public prayer . The  ADF endorced policy of saying one thing and doing another is absurd , i for one  am happy to see this kind of crap challenged . Another Question can this Group use that name ?ADF is the name of the religious organisation Ar n Draoicht Fein , a druid Church . I personaly am a member of ADF and resent these fools using our name .

  9.  I agree, but I doubt even the silent deliberation is necessary.  If a person would like to pray before a government function they can do it at home or in the taxi.  Government meetings should get down to business and leave religion out of it.

  10. I hope this ultimately ends the practice of prayer before public meetings because poor old Jehovah must be getting ready to smite all of them for being such bores.  

  11. “It remains to be seen how long the Supreme Court will punt on this issue by denying judicial review.”

    Denying cert is not punting. It’s saying, “We like the Circuit’s decision enough to let it stand. We don’t like it enough to insist the other Circuits follow it, too, at present.” It lets events like the second case appeal decision emerge. Of course, if another Circuit went in the opposite direction, SCOTUS would almost certainly have to resolve it.

    IANAL but if this latest appeal is allowed to stand, I daresay municipal law directors across the country will be telling their clients they can’t trust ADL boilerplate to stand up to a constitutional test.

  12. Given that the circuit courts are in near unanimity on this issue (unlike the circuit splits on “ministerial exception”) , the US Supreme Court is not likely to hear this issue anytime soon.

    These decisions are not just victories for practitioners of minority religions in those particular circuits but also serve as potential road maps for those in other areas of the country who seek to challenge their marginalization in local legislative prayers.

  13. I agree with the view that eliminating prayer at government functions would be very salutary, on any number of grounds. Re. “nondenominational” prayer, I doubt that such a thing is even possible. Somebody might be able to come up with a form of verbal prayer that does not embody some hidden religious assumptions, but I find the task to be beyond my admittedly limited capability. And, of course, people who have no religion at all should not be subjected to any form of prayer, denominational or otherwise, at civic functions.

    WRT the expenditure of public funds to engage in litigation over municipal prayer, school prayer, display of Christian texts in schools and courthouses, tax exemption for federally recognized religious organizations, and similar nonsense, I suspect that this represents the final throes of a dominant religious grouping that sees its hegemony disintegrating in the context of a society that is increasingly pluralistic and increasingly secular. This is, IMO, what is also behind the war on QUILTBAG people and on women that has been launched in the US by the Roman Catholic Church. It is a desperate attempt to retain, at all cost, their power-over (as Starhawk would likely call it).

    In the end, it won’t work. The demographics are against it, and it is only a matter of time until history takes its course. In the meantime, the hegemons will continue to pour out large sums of money–in the case of the civic matters, taxpayers’ money–in their attempt to keep the tide from coming in.

  14. This is why we have a separation of church and state.  If we had to go through a list of all the deities/elements and philosophies that Americans venerate, it would take all day.  I don’t know why Christians want to include it in mundane government work but I guess its to shame people of other sects (Christian included) into going with their particular belief system.  Evangelicals equate other belief systems to be the devil so I don’t know how they expect to lawsuit proof themselves without damning themselves.

  15. Real easy way to include prayer without assumptions. Get rid of all rules re prayer. Let whoever is holding the mic say whatever they say in their own words. If someone wants to pray before they speak, let them. Just be clear that it is their personal prayer, it doesn’t have to be a shared or collective thing. The more it gets “regulated” in courts and the more it becaomes this multi-inclusive don’t offend anybody nonsense, the more it looks like an official religion. I’d much rather let someone say something I happen to not agree with, than try to make him say something that almost everyone might agree with and assume that I do.

  16. I feel the same way. I do not see a need for prayer of any kind before a government function or meeting.  I am also a member of ADF , Ar n Draoicht Fein and it made me wince to see those initials used to refer to a group that promotes discrimination. ADF, a Druid Church, has nothing to do with this group. ADF celebrates diversity, and is against religious discrimination of any kind.

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