Freethought San Marcos: A column
by LAMAR W. HANKINS
How Hays County Government Promotes Religion
Part 3: The Constitutionality of Its Religious Practice
In Part 1 on this topic, I explained how the Hays County Commissioners Court established religious worship as an integral part of its meetings one year ago. In Part 2, I described the content of its religious practice. In this third and final column, I address the constitutionality of the Court’s religious practices and explain how they deny equal protection to those in Hays County who are not religious. While I am indebted to both the Freedom From Religion Foundation (FFRF) and Americans United for Separation of Church and State (AU) for their analysis of Establishment Clause jurisprudence, some of which I have used and quoted, the views expressed here are my own.
Why anyone believes that having a governmental body promoting religion is a good idea baffles me. Our rich heritage of separation between government and religion has significantly reduced religious strife in this country. Some of our founders, such as Patrick Henry, wanted to provide public money to support religious education and more. Others – including George Washington, John Adams, and Alexander Hamilton – favored some minimal government promotion of religion. But founders Thomas Jefferson and James Madison saw that true religious freedom meant keeping the government completely out of religious exercises and practices. Our Constitution reflects Jefferson’s and Madison’s views.
The Supreme Court itself has created confusion with its ruling thirty years ago in Marsh v. Chambers, a case involving the Nebraska Legislature, which was sued by one of its legislators, Ernie Chambers, over its invocations practice. In Marsh, the court discussed the history of legislative prayer and got much of that history wrong in an attempt to use history as a counter-weight to its long-standing legal analysis of establishment clause jurisprudence.
As Timothy L. Hall wrote in 1993, in an article in the Iowa Law Review: “Marsh is the triumph of history over principle. It rendered the Establishment Clause unintelligible by substituting historical citation for principled adjudication.” In other words, the length of time a government practice has existed does not provide legal support for the constitutionality of the practice.
But even the Marsh decision, faulty as it is, hardly supports the Hays County Commissioners Court’s practices. As I noted in Part 1 of this series, invocation prayer in the Hays County Commissioners Court dates back 15 years to 1998, some 150 years after its creation as a county in 1848. In Marsh, the Nebraska Legislature was reported to have been engaged in legislative prayer for almost 200 years, though the length of the practice should be irrelevant under the Constitution.
If the long history of a government practice were a constitutional principle, racial segregation in schools still would be allowed; miscegenation laws still would prevent so-called inter-racial marriages; certain sexual practices between adults still would be prohibited; gay marriage still would be illegal; Bible-reading in public schools still would be the practice; prayer in public schools and at their graduation ceremonies still would be allowed; execution of children beginning at age 8 still would be constitutional; members of the “African negro race” (from the Dred Scott decision) still would be less than full citizens of the US; women still would be prohibited from becoming attorneys, working full-time at their jobs, and voting.
In Lemon v. Kurtzman, forty-two years ago, the Supreme Court devised a three-part test for determining whether a legislative act violates the Establishment Clause of the First Amendment. To be constitutional, the Court concluded,
1. The government’s action must have a secular legislative purpose;
2. The government’s action must not have the primary effect of either advancing or inhibiting religion;
3. The government’s action must not result in an “excessive government entanglement” with religion.
This analysis is known as the “Lemon Test.” If any of these parts are violated, the government’s action is deemed unconstitutional under the Establishment Clause. Were the Lemon Test applied to Hays County’s invocation practice, it would fail all three parts.
However, in Marsh, the court did not apply the Lemon Test, but instead used a flawed historical analysis and one basic legal principle, namely, that legislative prayer must not be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Even under this limited constitutional safeguard, Hays County’s invocation practice fails.
Because the invocation prayers allow each religious institution in Hays County, at least in theory, to give a sectarian prayer of its choosing, each prayer advances a faith. As it happens, all but one of the religious institutions are Christian or are derived from Christian beliefs, so Christianity is the religion nearly always advanced. In one instance out of 116, the faith advanced is one version of Hinduism. All of the other religious institutions – 99.1% – relate directly to Christianity, though some expound beliefs that include other religious ideas as well. Regardless of the faith advanced by the invocations, religious faith is both advanced and preferred by the Hays County Commissioners Court over other belief systems or life stances.
The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” As Cornell University’s Legal Information Institute has explained: “This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.” Yet this is precisely what the Hays County Commissioners Court has done.
Further, this action cannot be reconciled with the Supreme Court’s 1947 Everson decision, which held that the government must “be neutral in its relations with groups of religious believers and non-believers.” Nor can the action be squared with the Supreme Court’s 1985 decision in Wallace v. Jaffree, in which it held “. . .the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” Likewise, in its 1997 case Texas Monthly, Inc. v. Bullock, Justice Blackmun wrote in a concurring opinion, joined by Justice Sandra Day O’Connor, that five previous Supreme Court cases have held that the “government may not favor religious belief over disbelief.”
When we look for historical precedent for prayers before legislative bodies, as the Supreme court did in Marsh and Commissioner Will Conley did in his remarks before the adoption of the Commissioners Court’s invocations resolution and policy, there are many examples that do not provide support for what the Commissioners Court is doing. One relevant example concerns a suggestion made by Benjamin Franklin at the Constitutional Convention in 1887, held six years after the Articles of Confederation were approved.
At a point when deliberations on a new constitution were at an impasse, Franklin moved for a prayer. His suggestion was completely ignored by the convention. No vote was taken on Franklin’s motion, a greater rejection than a vote against it would have been. This is hardly evidence that this nation has a rich religious history of legislative prayer related to its founding, as the Marsh court suggested. Nothing relates more to the founding of this country than the very convention at which the Constitution was drafted.
The religious practices adopted by the five members the Hays County Commissioners Court last October represent the passionately-held personal and private religious views – mostly Christian fundamentalist views – of its five members and perhaps a majority of Hays County citizens (though we have no evidence of this). It is, however, an example of the tyranny of a religious majority over the liberty interests of the minority – a circumstance that our system of government was intended to prevent. It represents a failure to honor the religious liberty that we all claim as an inalienable right.
Andrew Seidel, an attorney with FFRF, recently expressed his views about a similar practice:
Calling upon Commission members and citizens to pray is coercive and beyond the authority of any government. The government should not perform religious rituals or exhort citizens, regardless of their beliefs, to participate in, or show deference to, a religious ritual.
But a particularly offensive part of the new policy is that it excludes all those not affiliated with an authorized, approved, legitimate religious group – one with “authenticity” in the language of the Commissioners Court – from giving an invocation. Such a practice violates the equal protection guaranteed by our Constitution.
It is true that thirty years ago, when Marsh was decided, religion held much greater sway over Americans than it does today, but that should not be relevant to a constitutional analysis. Now, with nearly 20% of our population unaffiliated with a religious institution, and one-third of young people under 30 claiming no religious affiliation (Pew Research Center report – 2012), it should be even clearer that the Commissioners Court’s policy is discriminatory, exclusive, and preferential. Without question, the Court’s new policy disparages all who claim no religious affiliation.
Now, whenever a non-religious person asks the Court for its approval of some public matter, it raises the question of whether the Court will treat that person fairly or treat him or her equally with a religious person making a similar request. This problem amplifies the significant difference between the legislative prayer permitted in the Marsh decision and prayers before local legislative bodies. Individuals do not appear before legislatures directly as they do with local governments. To treat city councils, commissioners courts, and school boards the same way state legislatures are treated is to ignore the obvious differences between the two kinds of legislative bodies.
One of the most constitutionally incorrect justifications for sectarian prayer offered by the Commissioners Court is its belief that scheduling prayer as a part of its meeting and inviting a religious leader to give that prayer creates a “public forum” that allows the supplicant freedom of speech. However, when the opportunity is given only to one government-selected religious leader to appear before the Court during its meeting, the Court has not created a public forum, but has created a forum for the expression of its own views. It is government speech, not private speech, because it is authorized by government policy, occurs on government property, and is part of the agenda for a government-sponsored event. See Santa Fe ISD v. Doe, decided in 2000.
There should be no doubt that the prayers sponsored by the Commissioners Court are government speech because the Supreme Court in Marsh treated the chaplain’s prayers before the Nebraska Legislature as government speech. If the Nebraska Legislature’s prayers were private speech, the Court would not have needed to do an Establishment Clause analysis.
The religious leaders who offer invocations before the Commissioners Court engage in praying on behalf of the government – their prayers are government prayers, not private speech. Therefore, their free speech rights are not involved – they can still pray on their own time. Because government-sponsored prayer is government speech, it is subject to the Establishment Clause.
As the FFRF explained in its “friend of the court” brief concerning the Galloway v. Town of Greece case now before the Supreme Court,
Greece has decided to speak through invited clergy during its “moment of prayer.” It seeks out prayer-givers, not speakers. Greece arranges for clergy – not to speak on a topic of their choice – but to pray at citizens.
Like the Town of Greece, the Hays County Commissioners Court has an actual “public forum” on the agenda of every meeting. It occurs usually as the fifth agenda item and allows citizens an opportunity for a three-minute public comment on a topic of their choosing. This is where free speech is exercised by all speakers.
One other justification for the Commissioners Court’s invocations prayer practice offered in its Policy is that the invocations “are meant to solemnize the proceedings of the Court.” However, what the Court fails to see, and the FFRF has pointed out, is the prayers solemnize its meetings only for those who follow the religion of the supplicant. Christian prayers solemnize the occasion for Christians, and Hindu prayers solemnize the occasion for Hindus. And so on. For those who do not believe in the religions whose adherents are praying, the government prayers merely exclude them. They become outsiders, unfavored members of the citizenry, whose views are judged wrong by the Commissioners Court. And as Part 1 of this series mentions, one does not need to be religious to speak in a way that solemnizes the occasion.
We did not elect these five people who sit as members of the Commissioners Court to religious positions. They were chosen to make decisions about governmental, not ecclesiastical, affairs. They are fifteen years late in making Hays County government a government of all the people, not just the religious people of Hays County. They seem to have decided that if religious ideas haven’t persuaded everyone, those ideas must need the government’s help to be successfully inculcated in the consciences of the people.
In short, the Commissioners Court’s invocations practice fails to satisfy the constitutional principles enunciated in even the narrow, and wrongly-decided, Marsh case. And it fails to comport with the constitutional principles enunciated in Lemon, Everson, Jaffree, and Santa Fe.
In eight months, perhaps less, we may know how the current Supreme Court thinks about some of these issues when it decides the invocations case Galloway v. Town of Greece, which will be argued before the court on November 6. Whatever they decide, I will continue to adhere to the principle that religious liberty is based entirely on the conscience of the individual and his or her relationship to God (or gods), and that no one should ever suffer opprobrium, exclusion, or second-class citizenship at the hands of government because of his or her religious beliefs.
Just like the Danbury Baptist Association members who wrote Thomas Jefferson seeking assurances that their religious liberty was an inalienable right, not a favor granted by the government, I want government to stay out of religion, thus preserving to the greatest extent possible the religious liberty of all.
© Lamar W. Hankins, Freethought San Marcos, October 28, 2013
LAMAR W. HANKINS is a former San Marcos city attorney.