ACLJ Defends Legislative Prayer in Local Government Body against Attack by Anti-Prayer Groups

Abigail A. Southerland : Jan 13, 2023
American Center for Law and Justice

Legislative prayer has been a mainstay of our nation since its founding. Contrary to the ongoing attacks on legislative prayer by anti-prayer groups, the Supreme Court has made quite clear that legislative prayer is consistent with tradition and history in our country and does not violate the Establishment Clause...

[ACLJ.org] Once again, the ACLJ is stepping in to protect the right of citizens and leaders in our country to pray. As we've already told you, we have filed a petition for writ of certiorari with the Supreme Court to defend public prayer. (Image: Unsplash-Ismael Paramo)

In addition, the ACLJ continues to provide legal assistance to local governing bodies to protect the First Amendment right to pray. This month, the ACLJ is advising a local governing body following an anti-prayer group's legal threat demanding that it change its practice of opening meetings with prayer.

Legislative prayer has been a mainstay of our nation since its founding. Contrary to the ongoing attacks on legislative prayer by anti-prayer groups, the Supreme Court has made quite clear that legislative prayer is consistent with tradition and history in our country and does not violate the Establishment Clause. See Marsh v. Chambers, 463 U.S. 782 (1983) (finding no First Amendment violation in the Nebraska legislature's practice of opening sessions with a prayer delivered by a chaplain); Town of Greece v. Galloway, 572 U.S. 565, 575 (2014) (finding no First Amendment violation in town's regular practice of opening its meetings with prayer even when it contained sectarian language).

Anti-prayer groups, nonetheless, continue to challenge this practice by nitpicking the way in which prayers are offered by legislative bodies. Common complaints by these groups include claims that legislators cannot offer prayers themselves and must utilize chaplains or laymen, or that the prayers offered must be completely sanitized and purely nonsectarian. Such claims ignore the instruction already provided by the Supreme Court and other courts.

For example, in 2017 the Sixth Circuit Court of Appeals rejected a challenge to legislator-led prayer. The court upheld the legislator-led prayer based on a historical analysis demonstrating a longstanding tradition of government leaders offering prayer.  870 F.3d, at 519. Notably, the Sixth Circuit criticized a recently issued decision by a sister circuit finding legislator-led prayer unconstitutional where the prayers offered only ever represented one faith—Christianity—and, over time, morphed into "overt proselytization" because the court failed to apply the proper test and consider history and tradition of legislator-led prayer.

In 2014, the Supreme Court in Galloway, rejected a legal challenge by complainants that prayers offered by local chaplains were many times sectarian in nature and thus violated the Establishment Clause. Evidence in the record demonstrated that the town made reasonable efforts to identify congregations in its area and indicated that it would "welcome a prayer by any minister or layman who wished to give one," 572 U.S. at 585, but that religious diversity was lacking in the prayers actually offered. Id. at 616 (Kagan, J., dissenting).

The Court rejected the notion that the prayers must be nonsectarian in order to be lawful and noted:

The prayers delivered in the town of Greece do not fall outside the tradition this Court has recognized. A number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a "spirit of cooperation" among town leaders.

Id. at 1823. The Court also noted that while its decision upholding the sectarian prayers should not imply that there are no constraints on content, "an insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court's cases." Id. at 1820 (explaining that "the Court found the prayer in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could ‘coexis[t] with the principles of disestablishment and religious freedom.'"). If, however, the course and practice over time shows that the invocations "denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court." Id. at 583.

We have just sent a legal memo to the local government body that has been targeted by opponents of prayer, and we stand ready to defend legislative prayer in court if necessary. We will also continue to work to educate our government leaders to prevent misinformation and threats by organizations seeking to undermine these longstanding practices in our country. Whether it is advising a local government on legislative prayer or defending a city at the U.S. Supreme Court in defense of public prayer, we stand ready, willing, and able to protect and defend our constitutional right to religious liberty. Subscribe for free to Breaking Christian News here

Abigail Southerland serves as Senior Litigation Counsel with the ACLJ.