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.