By ED MIHALKANIN
The San Marcos City Council voted unanimously at its July 7 meeting to continue opening its meeting with prayer. The council would seem to have both community opinion and legal precedent in support of its actions. All the people who spoke on the issue during the citizen comment period were in favor of an opening prayer, except for a representative from the American Civil Liberties Union (ACLU). And the United States Supreme Court has established a controlling precedent in a 6-3 decision (Marsh vs. Chambers) declaring that the practice of having chaplains open state legislative sessions with prayer constitutional.
Yet, it may be instructive to review the majority and dissenting opinions in Marsh and to review the council’s practice of opening prayer to help illuminate the constitutional issues present. In Marsh, the constitutional question was simple: Did the Nebraska legislature’s practice of opening each day with a prayer by a chaplain, paid by the state government, violate the Establishment clause of the First Amendment? The term “Establishment Clause” refers to the first ten words of the First Amendment, which are, “Congress shall make no law respecting an establishment of religion.”
The Establishment clause has been interpreted, according to constitutional scholar Henry J. Abraham, to prohibit “the national government both from founding or perpetuating a state religion and from favoring any one religion or religions.” Yet, the Supreme Court has been divided on the issue of state aid to religious activities and state cooperation with religious organizations.
In 1983, then Chief Justice Warren Burger wrote the majority decision in Marsh, with which justices Harry Blackmun, Sandra Day O’Connor, Lewis Powell, William Rehnquist and Byron White concurred. Burger ignored court precedent and instead emphasized the long history of opening legislative sessions with prayer in the United States. Burger pointed out that the First Congress under the Constitution “adopted the policy of selecting a chaplain to open each session with prayer.”
Burger noted that a few days after Congress passed a bill to pay the chaplains, it also reached agreement on the language of the Bill of Rights. Burger concluded from this that, “Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.”
Basically, Burger argued that the long-standing federal government practice could not be seen as a violation of the Constitution, because that practice dates from the earliest days under the Constitution and was not challenged by the men who wrote the Constitution. Further, Burger inferred that because the states do not have to follow stricter First Amendment limits than the federal government, then they, too, are allowed to use opening prayers.
In the main dissent, the Associate Justice William Brennan argued that “If the Court were to judge legislative prayer through … settled doctrine, it would strike it down as a clear violation of the Establishment Clause.” As Brennan noted in his dissent, the “settled doctrine” were the three tests the Court developed to decide if a legislative act were constitutional under the Establishment Clause, first explicitly enunciated as such in Lemon vs. Kurtzman (1971). The Lemon tests are: “the statute must have a secular legislative purpose; … its principal or primary effect must be one that neither advances nor inhibits religion,” and “the statute must not foster ‘an excessive government entanglement with religion.’”
For Brennan, the purpose of legislative prayer is “preeminently religious” and its primary effect advances religion. If there is not secular legislative purpose and its primary effect advances religion, then it can be inferred that the practice fosters “an excessive government entanglement with religion.” Brennan also noted in passing that James Madison, who, as a member of Congress, voted for the bill authorizing paying the first congressional chaplains, later said that the practice was unconstitutional.
Justice John Paul Stevens, who wrote his own dissent in Marsh, is the only justice to have participated in that decision who is still on the Supreme Court. In his very brief dissent, Stevens noted that the legislature had used the same minister for sixteen years and that his prayers were highly sectarian.
In United States Constitutional law, municipalities are treated as legal creatures of the states and are seen to help the states in the discharge of their “police powers,” the authority to regulate the health, safety and morals of their residents. So, municipalities are only allowed to take actions that states are allowed constitutionally to take.
So, is the council violating the Establishment Clause of the Constitution by opening its meetings with prayer? Those in favor of the prayer can argue for the applicability of the Marsh precedent to San Marcos. Because the Supreme Court said, in Marsh, that state legislatures can constitutionally open their sessions with prayer, then, as legal extensions of the states, municipalities can also open their sessions with prayer. What states are allowed to do, cities are allowed to do.
Second, the prayers are not composed and said by a municipal employee whose job it is to compose and recite such a prayer. When a city employee has said the opening prayer, the employee appears to have recited the prayer as a volunteer action and not as part of his or her job responsibility.
Third, the people giving the opening prayer have come from a variety of church congregations, including one Native American, whose prayer could be considered to be derived from a non-Christian faith. Therefore, no one religious sect has predominated, thereby negating any claim that the prayer entails an “excessive entanglement with religion.”
Those in opposition to council prayer could argue that the Marsh precedent as wrongly decided and maintain that council prayer is unconstitutional, based on the three-pronged test of Lemon, as the Court as done in invalidating state laws allowing prayer in public schools. This position would argue that an opening prayer at a city council meeting serves no secular legislative purpose, its primary effect is to advance religion and, thus, such a prayer inherently fosters “an excessive government entanglement with religion.”
A different tactic for the opponents of an opening prayer could be to argue that the facts of the San Marcos case are different from those in Marsh and to ask for more restrictions on allowing such prayer while operating within the Marsh framework. First, a prayer opening council meetings is not “deeply embedded in the history and tradition” of the city government of San Marcos. The practice of opening the council meetings with a prayer is of recent vintage, only dating back a few years and not dating from the earliest city councils.
Second, at times the prayer has been said by a city government employee. Once a government employee and/or official engages in a religious practice during the operations of that government and is publicly recognized as a government employee as he is introduced to give the prayer, it can be argued that the government in question has put its imprimatur on the prayer and, thus, is impermissibly advancing religion and entangling government with religion unconstitutionally.
Further, having a government employee say such a prayer opens up a number of labor issues, including questions of preferential treatment of the employee who says a prayer, questions of how voluntary the prayer is if given by a city employee, and the selection process that led to the employee saying a prayer publicly. Procedural questions then can arise that could invalidate the practice.
For example, were city government employees informed in toto that it was possible to volunteer to say an opening prayer at a council session? If not, why not? Were employees selected because they belonged to what was considered mainline Christian denominations? How can the city government prove that its selection was not biased in any way? The opening prayer has been public, but the selection process to pick the prayer giver has not been.
Connected to the previous point, however tangentially, is the prohibition of any religious test as a qualification for public office, found in Article VI of the original Constitution. Some may argue that allowing city government employees to say a prayer is creating a de facto preference towards those employees who say a prayer when any raises or promotions occur.
Finally, opponents of council prayer can point to the overwhelmingly Christian content of the overwhelming majority of prayers said at the opening of the council meetings, while others could go further and point to what they believe to be the overwhelmingly Protestant content of the prayers. San Marcos is home to many faith traditions: Roman Catholicism, Protestantism, Islam, Judaism, Buddhism and a host of other faiths not limited to those mentioned above, while still others may not hold any of these theistic beliefs.
With the council voting unanimously to continue the opening prayer, it seems certain that the issue will be decided in federal court within the next few years.
Ed Mihalkanin is a Texas State political scientist and a former San Marcos City Councilmember.Email | Print