Prayer in the United States has been contentious ever since it was forbidden in schools. Although over half of Americans say they pray daily, the Supreme Court, in Engel v. Vitale, ruled that public school students cannot be required to begin their day with a nonsectarian prayer . Across the nation, numerous local, county, and state officials take their opening time allotted to them to pray. These prayers are often sectarian in nature.
The argument around prayer in these public institutions stems from the Establishment Clause of the United States Constitution which states, “Congress Shall make no law respecting an establishment of religion.” Circuit courts are split on how to interpret the clause as it relates to the often sectarian prayers that open meetings. The split boils down to whether lawmakers are able to lead prayer in a sectarian manner.
Town of Greece v. Galloway
In Town of Greece v. Galloway, the Supreme Court ruled that prayer that was nonsectarian in nature could open meetings or sectarian prayer led by guest ministers was constitutional. They cited that the first Congress had a paid chaplain open the meeting, highlighting the history of prayer opening meetings. Additionally, they stated that the prayer “lends gravity to public business” to remind the legislatures that they should work towards a “higher purpose” instead of quibbling amongst themselves. The argument that the prayer was coercive in nature was dismissed because “legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”
The Split: Does a lawmaker’s sectarian prayer violate the Establishment Clause of the US Constitution?
The Fourth Circuit ruled that it does. In Rowan v. Lund County, a county in North Carolina had rotating prayer which the elected officials would lead in a clearly sectarian manner. No one other than the elected officials were permitted to offer the prayer. The court ruled that the practice caused the government to be aligned with Christianity with the risk that minority faith citizens would see it as a message of exclusion. They reasoned that although Town of Greece allowed for sectarian prayer from guests and volunteers, the “intimate government involvement” identified the government more strongly with that particular religion because the legislators were the only eligible people to deliver the prayer.
Additionally, the court looked at the audience of the prayers. While Town of Greece found that the intended target of the prayers were the legislators, the Fourth Circuit found that these prayers were intended for the audience and sought audience involvement rather than target specifically the legislators.
Because the audience was targeted and compelled to participate in the prayer, and because the prayers aligned the government with Christianity, the Fourth Circuit ruled that prayers given by lawmakers violated the Establishment Clause of the US Constitution.
The Sixth Circuit took a different approach. In Bormuth v. County of Jackson, a county in Michigan held monthly meetings which were opened by the Commissioners with prayer. A member of the community did not follow Christianity, the religion of all Commissioners, and felt isolated and the Board of Commissioners would prejudice against him because of his beliefs. He voiced his concerns to the Board and was met with expressions of disgust and disagreement, confirming his fear. He filed suit later against the County for violating the Establishment Clause.
Much like the Fourth Circuit, the Sixth Circuit, looked at Town of Greece concerning whether the Commissioners’ prayer practice fell within the tradition of legislative prayer. Looking at the history of legislative prayer, the court rebuked the Fourth Circuit for not engaging the entire legislative prayer history as they had. They found that it was so commonplace that it has been “uninterrupted and continues in modern time.” They say that to strike down a prayer based on the deliverer is an absurd result because one prayer delivered by a minister would be permitted while the same prayer delivered by a lawmaker would be stricken down. To this end, the court holds that the prayers were well within the tradition of legislative prayer.
Next, the court looked to see if the content of the prayer was incompatible with the Establishment Clause. While disparaging and distinguishing the Fourth Circuit’s decision that the content of the prayer was against non-Christians as similar to those in Town of Greece, the court does not agree that one comment that was Christian in nature was enough to disparage nonbelievers. The court also considered that anyone may be elected to the board and lead a prayer in any way that they so choose once elected, adding to their argument that the content and make-up of the Board is irrelevant.
Although the court was unable to determine which coercion standard to apply from Town of Greece, they held that the prayers were not unconstitutionally coercive under either standard, so they did not need to resolve the issue.
Because the prayers were not coercive, not too-Christian in content, not affected by the Board’s composition, and not outside the scope of historic practices, the Sixth Circuit held that the County of Jackson did not violate the Establishment Clause of the Constitution.
Prayer is a regular part of many town, county, and state meetings. These decisions will ultimately affect how those processes change depending on which jurisdiction the polity may find itself. To that end and due to the current Supreme Court’s enthusiasm with religious freedom cases, the Supreme Court is likely to grant cert. to these cases and settle whether the sectarian prayers are constitutional.