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October 16th, 2013
Freethought San Marcos: How Hays County government promotes religion

Freethought San Marcos: A column
by LAMAR W. HANKINS

 

Part 1: The Framework of Its Religious Practice

Some strange events occurred in Hays County a year ago, on October 16, 2012, when its Commissioners Court adopted a resolution and a policy and procedures relating to invocations held at the beginning of its regular meetings.  The policy and procedure established religion as a bona fide part of Hays County government and excluded participation in its invocations by the non-religious.  How the Court took this action is as strange as what it did.

In April 2012, the Commissioners Court received a letter from Americans United for the Separation of Church and State (AU) requesting that it cease having sectarian prayers at the beginning of its meetings.  At its meeting on September 25,  County Judge Bert Cobb scheduled a “Discussion and possible action regarding the inclusion of an invocation during Commissioners Court meetings.”  No public hearing on the subject had been scheduled on the Court’s agenda, but around 25 people spoke in favor of the prayers at the meeting.  Such an outpouring of opinion was unusual, causing some to wonder if the “public” response had been orchestrated.

It was no surprise that those who spoke during the September 25 meeting favored Christian prayers at the Court’s meetings.  It was a forum hostile to those with differing views.  A report in the Austin American-Statesman noted that “impassioned calls to action were met with a chorus of ‘amens’ at the packed Hays County courthouse as about 25 residents urged commissioners to continue starting their weekly meetings with a prayer.”  As you will learn in my next column, Part 2, nearly all of the prayers are by Christian religious leaders.  The Court discussed the matter in Executive Session, but took no public action that day.

At its October 16 meeting, the court announced that it would move into Executive Session to discuss with its attorney and deliberate “regarding the policies and procedures related to the invocation held at the beginning of Commissioners Court.”  County Judge Bert Cobb also read from the agenda that “Possible action may follow in open court.”

There was no doubt that action would follow because a two-page resolution and a three-page policy had already been drafted and prepared for adoption, yet the resolution and policy had not been made available to the general public before the meeting.  It had, however, been made available to attorney Jonathan Saenz, who was allowed to speak to the matter prior to the court’s convening in Executive Session.

Saenz was at the meeting representing the Liberty Institute and Texas Values, two groups that promote the government sponsorship of religion and religious practices.  When he spoke to the Commissioners Court just before its members retired into Executive Session, his comments made it appear that he had something to do with drafting the resolution and policy.  However, according to Mark Kennedy, attorney for the Commissioners Court, Saenz had nothing to do with preparing the two documents, though Saenz did apparently review a draft of the two documents, which Kennedy had written, and give his advice on them.

Before adopting the Resolution and Policy, several commissioners commented on their support for it.  Commissioner Debbie Gonzales Ingalsbe said that she believed it was their right to pray (publicly) at their meetings.  Commissioner Will Conley tried to muster historical support by commenting on the fact that there had been Christian prayer at the Continental Congress in 1774.

But, as Dan Barker of the Freedom From Religion Foundation (FFRF) recently reminded us, the Continental Congress was held thirteen years before the Constitution on which this country is founded was written.  And it wasn’t until 1791 that the Bill of Rights was adopted, guaranteeing the separation of church and state through the enactment of the Establishment Clause and the Free Exercise Clause as parts of the First Amendment.

The prayer referenced by Commissioner Conley and given in 1774 before the Continental Congress was offered by the Episcopal Reverend Jacob Duché, who has been described by FFRF attorney Andrew Seidel, whose comments demonstrate the irony of putting so much faith in a public prayer at a government meeting:  “True to the flexibility of religious thinking and principles, the Rev. Duché later abandoned his fellow colonials in their fight for independence and defected to the British. He was convicted of treason against Pennsylvania and decamped to the warm bosom of his King.  Not one of the brighter stars in our founding history.”

Of even more historical importance is the fact that the Continental Congress did not have an opening prayer again for eight months, until May 11, 1775.  During the eight years under the Articles of Confederation, between March 1, 1781, and June 21, 1789, prayers were sporadic, even though the Articles did not recognize the separation of church and state as did the Constitution after 1791.

Many people justify prayers before legislative bodies by arguing that the Congress and the legislatures frequently have chaplains and begin their sessions with prayers.  While there may be some reason to provide a chaplain for the benefit of congressional representatives and legislators who are away from their homes doing the people’s business for many months each year, the same cannot be said of local legislative bodies like commissioners courts, city councils, and school boards.  Their members rarely stay in session away from their homes for extended periods, if at all, so their need for religious counsel can be met by their own religious leaders.  A practice that may have made sense during the horse and buggy days of the republic seems rather outmoded in the 21st century.

Whether it is ever appropriate to have these chaplains or other religious officials offer prayers was addressed by the Supreme Court in its decision in Marsh v. Chambers thirty years ago, a decision relied upon by the Commissioners Court in developing their current policy.  Marsh allowed prayer to open a session of a legislature providing that it met certain criteria.  The prayer must not “advance any one religion, disparage any other religion, or proselytize.”  And the Court noted that the invocation prayers were directed only to legislators in the Nebraska Legislature, not to non-legislators, and were offered by the Legislative Chaplain.  Once the practice was established in the Nebraska Legislature, the prayers never included any reference to Jesus or other Christian symbols or language, so they did not “advance” Christianity or any other religion.

Under these narrow circumstances, the Supreme Court concluded that the prayers in Marsh did not violate the Establishment Clause of the US Constitution.  Such has not been the case in Hays County, where ministers frequently make a point of promoting their religious traditions, beliefs, doctrines, and practices in giving invocations.  Nothing in the current policy discourages such promotion.  In fact, the Policy invites such sectarianism by granting each religious leader who participates the same freedom of speech granted to all citizens who speak during the Public Comment portion of each agenda.  The constitutionality of this practice will be addressed in Part 3 of this series.

And the Marsh invocation prayers differ in other ways from those that have been offered for the past year at meetings of the Hays County Commissioners Court.  In Marsh, the prayers were addressed only to the legislators present, not to the general public, which does not participate in general legislative sessions, but are involved instead through the legislative committee process.  In a local government setting, citizens (including children) are frequently an integral part of the process and attend the meetings to participate in the discussions and business at hand, often addressing local government officials directly.  This almost never happens concerning substantive matters before a legislature.

The Commissioners Court wrote in its Policy (officially titled “Policy and Procedure Regarding Invocations to be Held in the Hays County Commissioners Courtroom”) that it wanted to use invocations “to solemnize the proceedings of Court.”  In a strange twist of logic, the Court’s Policy provides that the invocations will not be “considered an action of the Court” because they will be placed “in advance of the Court’s weekly agenda items.”

Since an invocation normally appears before the action items on an organization’s agenda, it hardly seems necessary to explain this in a policy, but the Court’s statement is disingenuous. Written agendas for meetings of the Court begin with a “Call to Order,” the “Invocation,” the “Pledge of Allegiance” to both the US flag and the Texas flag, and the “Roll Call,” before “Public Comments” from citizens and Court deliberations and voting begin on matters under its jurisdiction.  Clearly, the invocation is a part of the Court’s agenda at each meeting and is an action it has scheduled, even if the Court denies its own documentary evidence of that fact.

The Policy calls for a volunteer Chaplain to be appointed.    On October 23, 2012, the Court appointed County Judge Bert Cobb’s personal pastor, Rev. Gary Smith of Christ the Redeemer Church, for a two-year term.

Chaplain Smith has responsibility for coordinating the invocations by compiling a list of all religious institutions in the county, including “churches, mosques, temples, and other religious institutions within Hays County.”  The Chaplain was directed by the Policy to determine “a method for randomly selecting” and inviting religious leaders from his list to deliver an invocation during a meeting.

A special provision of the Policy provides that those invited to give invocations must come from authentic religious organizations.  The “authenticity of a religious institution” included in the list of participating religious groups under the Policy is one that legitimately qualifies for tax exempt status under section 501(c)(3) of the Internal Revenue Code.  Apparently, given the concern with “authenticity” in the Policy, religious leaders from inauthentic or illegitimate religions are prohibited from participating in the invocations.  Because only leaders from sectarian religious institutions may participate in giving invocations, the Policy promotes sectarianism in Hays County.

The Resolution adopting the Policy attempts to set out a legal and constitutional justification for the Policy.  It begins by affirming that the Establishment Clause of the First Amendment applies to Hays County, that is, Hays County may not constitutionally make a law “respecting an establishment of religion.”

The Resolution then strings together some disparate court cases that the Commissioners Court believes give it the authority to create an establishment of religion in Hays County.  If it did not wish to establish religion officially in Hays County, it would not have limited the invocations to authentic religious institutions, but would have opened them to anyone who wants to give an invocation.  So far as I know, ministers and religious officials have no particular expertise in public speaking that distinguishes them from myriad other Hays County citizens.  I know dozens, perhaps hundreds, of Hays County citizens capable of brilliantly “solemnizing” the opening of meetings of the Court – the stated purpose for the invocations.

The Court claims in its resolution that there is a tradition of such prayers in Hays County.  However, this “tradition” began in 1998 with the election of Jim Powers as County Judge.  For a county created in 1848, that’s not much of a history of praying before meetings of the Commissioners Court.  We’ve had 150 years without county government prayer and 15 years with it.

The Commissioners Court’s Resolution makes clear that it is “religious views” that it wants to recognize through its invocations Policy.  Others of us, who are not members of authentic religions or religious institutions are relegated to make our views heard only during the Public Comment portion of a meeting.  These people, then, are deemed not worthy to provide an invocation for the opening of the Court.  Only religious people have that privilege.

Clearly, the Court has acted to promote religion over non-religion, and approved religion over other belief systems that it does not value.  By its action, it has disparaged the religious views of non-believers and the views of those who follow religions of which it does not approve.

[This is the first of three columns analyzing the invocations practices of the Hays County Commissioners Court.  Part 2 will address the actual invocations practice under the Policy,  and Part 3 will look at the constitutionality of the Policy.  They will appear over the next two weeks.]

© Lamar W. Hankins, Freethought San Marcos


LAMAR W. HANKINS is a former San Marcos city attorney.

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17 thoughts on “Freethought San Marcos: How Hays County government promotes religion

  1. Let’s not forget that the Texas Constitution requires all government employees acknowledge the existence of a Supreme Being in order to hold their position.

  2. I am a Christian who believes there is no good case for religious invocations at meetings of city government. They should be stopped immediately.

  3. To A.M.D. – Indeed, there are some unconstitutional provisions that have never been removed from the Texas Constitution, but they cannot be enforced. No public employee or public official is required to make such an acknowledgment. If you have any evidence of anyone trying to enforce these unconstitutional provisions, please let me know.

  4. The opening paragraph pretty much nullifies anything beyond,

    “excluded participation in its invocations by the non-religious.”

    By its very definition, “invocations” are not meant for anyone that is non-religious.

    “Where’s the beef?”

    in·vo·ca·tion
    [in-vuh-key-shuhn] Show IPA
    noun
    1.
    the act of invoking or calling upon a deity, spirit, etc., for aid, protection, inspiration, or the like; supplication.
    2.
    any petitioning or supplication for help or aid.
    3.
    a form of prayer invoking God’s presence, especially one said at the beginning of a religious service or public ceremony.
    4.
    an entreaty for aid and guidance from a Muse, deity, etc., at the beginning of an epic or epiclike poem.
    5.
    the act of calling upon a spirit by incantation.

  5. To eric:

    Your “gotcha” moment fails based on your own multiple definitions. You seem to have overlooked your second definition – “any petitioning or supplication for help or aid.” Merriam-Webster’s first definition is similar: “the act or process of petitioning for help or support”; also, “a calling upon for authority or justification”. Invocation comes from the Latin “invocare” meaning “to call”. It doesn’t matter whether one calls on government leaders to carry out their sworn duties in a certain way, using the authority of the laws and the constitution, or whether one calls on a Diety for one’s authority. Both would be an invocation.

    As it happens, Jim Berry, a person I know to be non-religious, gave the invocation at Tuesday night’s San Marcos City Council meeting. It is clear from what he said, that it is not necessary to pray in order to give an invocation:

    “Please join me in an invocation…..because it is customary for this council to begin each session with an invocation, a time to seek inspiration and to focus our minds on the important business of our beautiful city.

    The people of this city are as diverse as the people and the landscape of this great state and this great nation and we are fortunate to live in a country where we have the freedom to exercise the religion of our choosing or to choose no religion at all while also being free from having any religion imposed upon us by our government institutions, where we can come together around our common values of equality and justice and working for the common good.

    So let us invoke the highest ideals of our democratic traditions as we share this extraordinary experience of being alive and dedicating ourselves toward improving the lives and prospects of our city and its people.

    May we always remember our shared belief that we must treat our fellow humans as we, ourselves, would wish to be treated — with respect and dignity.

    May we keep our eyes constantly open to the serious issues that our city government can and should solve or improve.

    May we recognize and respect our differences while we seek ways to mold our unique talents, dreams, backgrounds, and perspectives into common solutions;

    May our leaders administer all affairs of government in justice and equity, so that peace and security, happiness and prosperity, right and freedom, may forever be a part of our lives.

    May we always appreciate the contributions of those who serve this nation, this state, and this city, and honor their service. Especially, tonight, let us appreciate and honor the members of this city council as they work toward the common good of us all.

    May our city officials gain strength and sustenance from one another and from all our citizens through reason and compassion.

    May we all prove ourselves worthy citizens of our city, devoted to truth, sincere in fellowship, given to service, confident in our ideals, and focused on the common good.

    Thank you.”

  6. 2nd Response to eric:

    Even if I were to accept your narrow understanding of the word “invocation,” your argument fails for another reason. If an invocation is a purely religious exercise, as you claim, this makes the action of the Commissioners Court even worse. The Court would be, by your definition, engaging in and promoting a religious exercise. As I stated, and will state again more fully in Part 3 in this series, the government has no business promoting a religious exercise. So, whether an invocation is a religious exercise (as you claim) or something broader (as I claim), the Court is wrong to promote religion in any form.

  7. After 237 years of breaking the law, religion is forced to comply with the law. It’s an “attack”? No, it’s justice and it’s high time!

  8. What is the ultimate intent? Is it not to foster/promote religion (and in many cases specifically Christianity?

  9. R V, no. The invocations are generally purposed to call out to God and ask his blessing on the human endeavor of the meeting, as well as the county itself. The last thing they should be doing is advancing a single religion or church, because we should not pray with the goal of persuading those around us.

  10. “generally purposed to call out to God and ask his blessing”
    In asking the question whether this serves a secular or religious purpose this clearly serves a religious purpose. Our government(s) should not be entangled with religion.
    And, invoking a single “God” shows preference for/”advances” monotheism over polytheism and nontheism.

  11. Since you quoted me, I would clarify that I was talking of the purpose of the person delivering the prayer, not the government in allowing it. Those are separate inquiries. If I am delivering a prayer, I certainly have the freedom to show a preference. The government’s purpose in allowing the forum could be all sorts of allowed purposes, and my preference as the one delivering the prayer does not become the government’s preference. But all of that can be dealt with when Lamar spends Part III butchering the Constitutional analysis.

  12. “I was talking of the purpose of the person delivering the prayer, not the government in allowing it. Those are separate inquiries”

    Yes, they are. Imo, the government should be doing what it is supposed to be doing according to Constitutional mandates, not entertaining religious agendas – which is what prayer amounts to.

    Freedom of religion is protected, but the imposition of religion on others is not, especially via a government/taxpayer forum. Individuals can pray before the meetings as individuals or even in groups, etc., but once the meeting is assembled as a government/taxpayer forum, it should not then become a surrogate church (which is the appropriate place for prayer).

    Do Christians even read the Bible? Refer to Matt 6:

    6:1

    “Be careful not to practice your righteousness in front of others to be seen by them. If you do, you will have no reward from your Father in heaven.”

    6:5

    “And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. Truly I tell you, they have received their reward in full. 6 But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you. 7 And when you pray, do not keep on babbling like pagans, for they think they will be heard because of their many words. 8 Do not be like them, for your Father knows what you need before you ask him.”

  13. And if the government does allow prayer in this setting then the government should also give nontheists the same amount of time to present the argument that there is no God and prayer is futile (as well as commentary from other monotheists and polytheists

  14. Matthew 6:5 “When you pray, you are not to be like the hypocrites; for they love to stand and pray in the synagogues and on the street corners so that they may be seen by men.

    6 “But you, when you pray, go into your inner room, close your door and pray to your Father who is with you.

  15. There is a debate over the Constitutional limits on prayer in the public sphere on which Lamar is writing his series. There is another debate on the prudence of public prayer within an individual religion or the direction thereon within texts of an individual religion. Selectively quoting a biblical passage speaks to the debate over the prudence of Christians praying in public, while Lamar is writing on Constitutional limits. Apples/Oranges. A discussion of prudence would be interesting as other texts would be weighed against Matthew 6, but such a discussion would likely not involve folks like Lamar or others who do not accept the authority of the text.

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