Freethought San Marcos: A column
by LAMAR W. HANKINS
After years of ignoring the US Constitution, the San Marcos City Council will consider at its August 4 meeting a policy on invocations that purports to comply with a Supreme Court decision handed down in 1983. But the proposed policy fails in several ways. It does change the responsibility for scheduling who will give the invocations from the San Marcos Ministerial Association to the City Clerk, but the policy limits who may give invocations to “clergy.” Anyone not affiliated with a church or religious group will not be represented among those giving invocations.
The proposed policy is based only on one part of the 1983 Supreme Court decision–the requirement that invocations not be proselytizing, a concept difficult to understand or define. In its decision, the Supreme Court carved out a narrow exception that permits, but does not require, some legislative prayer. In Marsh v. Chambers, 463 U.S. 783 (1983), the court ruled that the Nebraska legislature’s tradition of opening with a prayer by a paid chaplain was constitutional. A Nebraska State Senator challenged the practice as violative of the Establishment Clause. The court held that such legislative prayer is constitutional if it adheres to the principles enunciated in Marsh, but the Court found that “[s]tanding alone, historical patterns cannot justify contemporary violations of constitutional guarantees… .”
The Court determined that if a legislative prayer exceeds the confines of the circumstances outlined in Marsh, then no such exception would apply. First and foremost, the prayer opportunity must not be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” This ruling applies to the content of the prayers, the selection of the prayer leaders, be they clergy, representatives, or government officials, and the audience the prayer addresses. The audience in Marsh was construed as comprising only legislators, represented by the plaintiff, Sen. Ernie Chambers. The Court found that such an audience would not be “readily susceptible to ‘religious indoctrination.’” But in San Marcos, the city council’s legislative prayers are heard by all who attend the meetings, watch on cable TV, or see the meetings via the internet. They include everyone, including children who are at meetings to receive recognition by the mayor for some achievement.
The Marsh Court found also that because the content of the Nebraska legislative prayers was both non-sectarian and non-denominational, although in the Judeo-Christian tradition, no attempt was being made to either proselytize or advance any one faith or belief, or to disparage any other. The Court took note that the chaplain had, in fact, consciously removed all references to Jesus Christ in his prayers.
Such references to Jesus have been a major problem with the city council’s invocations since they were instituted more than four years ago at the insistence of Mayor Narvaiz. Nearly all of the invocations have been in the form of Christian prayer to, or in the name of, Jesus Christ. Nothing in the proposed policy addresses the sectarian nature of city council invocations.
Subsequent Supreme Court and appellate court decisions serve as clarifications of the Marsh v. Chambers analysis, particularly with regard to the content of legislative prayers, but the city council has based its proposed policy only on part of the 1983 ruling (mainly on one word), ignoring a subsequent decision by the Supreme Court and the views of many other courts that have explained their understanding of Marsh, understandings being ignored by the city council.
In County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989), the Supreme Court reiterated that “not even the ‘unique history’ of legislative prayer, can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief.” If there is a strong sectarian character in legislative prayer, and/or sectarian references to deities, saints, and/or prophets, as have occurred regularly in San Marcos, the Establishment Clause is violated.
In a 2004 decision, Wynne v. Town of Great Falls, South Carolina, the 4th Circuit Court of Appeals held that any sectarian invocations of deities in legislative prayer affiliate the government with a particular sect or creed and/or advance a particular faith or belief. The court also suggested that the use of the word “advance” in Marsh indicates something far less coercive than the attempt at conversion necessary to incite a charge of proselytization. Likewise, the court reiterated the very narrow nature of the Marsh exception:
We note that this conclusion accords with the Supreme Court’s apparent intent to confine its holding in Marsh to the specific “circumstances” before it–a nonsectarian prayer preceding public business, directed only at the legislators themselves. We also note that, in the more than twenty years since Marsh, the Court has never found its analysis applicable to any other circumstances; rather, the Court has twice specifically refused to extend the Marsh approach to other situations.
In 2002, in a 9th Circuit decision, Bacus v. Palo Verde Unified School District, regarding prayers before school board meetings, the court stated:
These prayers advanced one faith, Christianity, providing it with a special endorsed and privileged status in the school board. Some religions accept Jesus Christ as the Messiah, some do not, and some people do not believe in any religious faith. Solemnizing school board meetings “in the Name of Jesus” displays “the government’s allegiance to a particular sect or creed.”
The court also determined that the school board in question had impermissibly made a citizen’s religion, or lack thereof, relevant to his or her political standing because citizens regularly have business before the board. In San Marcos, citizens of all religions or no religion are compelled to appear before the city council on civic, secular matters: variances, permits, licenses, contracts, zoning approvals, appeals, ordinances, resolutions, etc. They should not be subjected to a religious show or test, or be expected to bow heads and demonstrate religious obeisance at a government function.
In a similar case in 1987, the 6th Circuit Court of Appeals, in Stein v. Plainwell, held that prayers that “invoke the name of Jesus as the Savior,” or otherwise “employ the language of Christian theology or prayer” are clearly impermissible under the Marsh decision.
The 5th Circuit Court of Appeals (which covers Texas) found in 2006, in Doe v. Tangipahoa Parish School Board, that Marsh forbids a prayer policy that allows specific references to Jesus Christ. The policy proposed for adoption by the city council on August 4 does not specifically prohibit such references, though it does suggest that proselytizing in invocations “may result in removal” of the person’s name from the list of those asked to give invocations. (Emphasis added.) This is about as wishy-washy a standard as the city attorney could draft, which is why the mayor is in favor of it. Who will decide if an invocation violates the council policy? Who will decide if the person’s name should be removed from the list? Who will notify the person of the removal? Can we really expect this city council to have the integrity to uphold even this half-hearted policy?
Observing a strict separation of church and state offends nobody. As far as I know, the city received no complaints about the absence of invocations before Mayor Narvaiz pushed them onto the council’s agenda four years ago. Prayers at government bodies continue to be litigated because they so frequently “cross the line” into sectarianism, are politically divisive, and serve no useful purpose not served by a non-religious alternative.
The invocation/prayer scheme now scheduled for consideration by the San Marcos City Council ignores the most important parts of the Marsh decision and wholly ignores the various decisions of the federal courts of appeal cited. By focusing only on the “no proselytizing” holding, the city council is poised to continue the sectarian prayers that have been its practice for the past four years (with the July 21 invocation by Rabbi Baker standing as its only non-sectarian prayer since the invocations began.)
If the Mayor and City Council believe that having an invocation is essential to the conduct of the public’s business (which is impossible to demonstrate), the best alternative may be a moment of silence, reflection, or personal prayer. Another alternative is for someone to write a non-sectarian, non-denominational invocation not in conflict with the Marsh decision, that can be read at each meeting, just as the pledge to the flag of the United States is recited.
As many people have noted, San Marcos is a diverse community, including residents with a variety of religious beliefs. Legislative prayers that include references to deities usually do not represent the beliefs of people not in the Judeo-Christian tradition or who practice no religion. Such prayers may convey to these residents that the council does not represent their interests or welcome their participation in civic affairs.
And for people who believe their religion is a personal matter, not to be flaunted publicly for political gain, the intrusiveness of sectarian legislative prayer may be viewed as discourteous, inconsiderate, disrespectful, and profane.
© Freethought San Marcos, Lamar W. HankinsEmail | Print