End The Invocations

My city has adopted a policy by which its City Council devotes a few minutes after calling the meeting to order for the delivery of an invocation -- an invocation which permits of sectarian invocations, such as "...and this we pray in the name of Jesus Christ."  In fact, that conclusion to a prayer, or words to that effect specifically identifying the speaker as Christian.

It's also a very open secret that a coalition of three large churches in the area is a significant part of the political machinery that has elected four out of five members of the City Council.  Perhaps unsurprisingly, almost immediately after a majority of church-elected members took office, the city adopted a resolution changing the city's motto to "In God We Trust," and posting lettering of that phrase behind the dias upon which the Council sits during meetings.  The Mayor paid for the lettering and for it to be posted with his own money.

When the city began doing these things, a woman spoke out against the invocation policy, and said that it was exclusionary and discriminated against non-religious citizens.  Two days later, her house was vandalized, with the phrase "In God We Trust" spray painted all over all sides of her house.  The police effectively ignored her.  The city, to my knowledge, did not assist her in removing the paint or replacing the damaged glass.  (The city does, however, promptly and efficiently remove gang graffiti from anywhere it is publicly visible, a policy of which I approve and from which I have personally benefited.)

With one exception, every single invocation delivered since this policy was adopted (and many delivered before it was adopted) has been sectarian, and I have no doubt whatsoever that this is just how the City Council likes it as the majority faction on the board all wear their religion on their sleeves.  The one exception was a ten-year-old Girl Scout who was put on the spot by the Mayor three minutes before she delivered the invocation; it wasn't clear to whom she addressed her remarks.

The sum total of all of this is that I have decided that my periodic interest in public service needs to be diverted somewhere outside the aegis of the city in which I live because, as an atheist and as someone who advocates a strong separation of church and state, my participation in the politics and government of the city in which I live would not be welcomed and may even be punished.

My city has been sued for adopting and implementing this policy.  I am not a participant in that lawsuit in any way, not as counsel, not as a plaintiff, not as a witness.  I could have done this and considered doing it, but decided that the risk of retaliation against me and my firm was too great.  If I were independently wealthy and my actions would not cause other peoples' livelihoods to fall into jeopardy, then I probably would have stepped up to the plate.

The City of Greece, New York had a policy not unlike that of my own city.  And a Federal judge just issued an opinion affirming that policy as consistent with the Establishment Clause, the second such District Court ruling of which I am aware.  The policy adopted by my city is modeled very strongly after a policy written by the Alliance Defense Fund, the same group that recently was utterly crushed in Perry v. Schwarzenegger, much to the chagrin of other Christian legal advocacy groups like Liberty Counsel.  Perry, however, dealt with a different issue of law than the one this post addresses.

More to the point, Alliance Defense Fund also defended Greece, New York, and that is why the opinion upholding the policy is being touted as a great success by ADF, to the point that ADF has posted the opinion in Galloway v. Town of Greece for all to read.  The Galloway opinion relies heavily on the prior case upholding sectarian prayers, Pelphrey v. Cobb County (N.D.Ga. 2006) 448 F.Supp.2d 1357, affirmed, 547 F.3d 1263 (11 Cir. 2008).  There are a multiplicity of cases that reach the opposite result, many more in number than the Pelphrey line of cases,* but I want to address the adverse reasoning here rather than that which I find more favorable.

The policy in my city, in Pelphrey, and now in Galloway, all rest on the same basic concept:  the city assembles a list of eligible speakers from among local religious institutions -- usually referred to only as "churches," but I think it's fair to say most people understand a Jewish temple or synagogue to be a "church" or a Muslim mosque to be a "church," because there is a close equivalency there.  Nevertheless, it seems that the resulting list is very heavily dominated by Christian institutions.  Then, a staff employee of the city is directed to select a speaker from that list on a more or less random basis, with either formal or informal limits on the number of times a speaker from a particular institution can be invited to pray in any particular period of time.  (In my city, it's three times within two years.  At least two local religious institutions have already "maxed out" since I last looked at the issue).  The speaker may then deliver whatever invocation the speaker believes appropriate, including sectarian references at the speaker's discretion.  In my city, in Pelphrey, and in Galloway, the overwhelming majority of invocations given have been by Christian ministers of one kind or another, and have included explicitly sectarian Christian components.

Analyzing three of the leading governmental prayer cases from the Supreme Court (Marsh v. Chambers (1983) 463 U.S. 783; County of Allegheny v. Greater Pittsburgh ACLU (1989) 492 U.S. 573; and Lee v. Weisman (1992) 505 U.S. 577), the Galloway court found the following principles of law:

First, legislative prayer is acceptable in general, provided that the prayer opportunity is not exploited to proselytize or advance any one, or to disparage any other, faith or belief. Second, unless the prayer opportunity has been so exploited, courts should not “parse” the content of a particular prayer. Third, prayers in the Judeo-Christian tradition are acceptable, although legislative prayers that have the effect of affiliating the government with any one specific faith or belief are improper. Finally, the government may not compose official prayers or dictate the content of prayers.

I question the correctness of this distillation of the law.  The first and fourth principles are accurate and I do not quibble with them.  But in fulfilling the mandate that prayers not proselytize or advance any particular faith or belief, and in fulfilling the mandate that the prayers not affiliate the government with any one specific faith or belief, a governmental entity necessarily must analyze the content of the prayers.  The result is an inconsistency:  "You can pray, and pray as you like, except you can't pray in this way."

Put it another way:  Some faiths, particularly some sects of Christianity, mandate evangelism.  Can a city government, consistent with the Constitution as interpreted by the Galloway Court, undertake an analysis of the doctrines of a particular faith and should mandatory evangelism be found to be a doctrine of that faith, exclude speakers from the "list" of speakers?  If the answer is "yes," then that means the city is "parsing" the content of the prayer, or dictating its the content of the prayers.  (This may happen after the fact; a speaker may be invited to pray, allowed to give a prayer, and then the prayer is found to be evangelical in nature and the speaker is stricken from the list.)  If the answer is "no," then that means that the city is ignoring the legal mandate to not allow prayer that contain evangelical content.  There is no solution that is consistent with the Constitution.

In part, this isn't the Galloway court's fault.  It's the fault of the Supreme Court for using this reasoning in Marsh v. Chambers: "Congress has been holding prayers for a long time, and James Madison wanted to do have prayers in Congress, so it must be okay for a legislature to have some kind of prayer."  A principled application of the First Amendment would have reached the result of the four Justices who dissented in Marsh, which is "The First Amendment says what it says, and a legislature praying is an Establishment of religion, not the Free Exercise of the religious beliefs of its members."  Instead, five Justices ignored the plainly obvious fact that the legislators who feel the need to pray are perfectly free to do so on their own time.  They ignored the indisputable fact that Congress is not a church.

But in part, it is the Galloway Court's fault, because it fails to acknowledge that its construction of the law at once forbids and compel content-based analysis by a governmental body.  At minimum, Galloway fails to state that there are exceptions to the prohibition against content-based examination of prayers delivered at governmentally-sponsored functions.

Second, as applied, in the Galloway case, in the Pelphrey case, and as it's playing out in my own city, the result of the policy has always been that effectively only Christian speakers deliver these invocations.  Neither the Galloway nor the Pelphrey Courts have been bothered by this fact.  But they should be.  There seems to be no question that the "random sample" method of selection indeed produces a roughly random sample of representatives of houses of worship from the area sampled.  But by treating "houses of worship" as the units from which to sample, a disproportionately heavy representation of Christians is the inevitable result.

A look at the phone book in my city reveals about a hundred Christian churches, two mosques, one Jewish temple, one UU "church," and about four institutions whose major religious group I cannot identify but which are probably also Christians.  At least one invocation speaker whose church is outside of the city limits has delivered the invocation several times, but seeing as the pastor of that church is also a former Mayor of the city, perhaps that's an informal exception to the policy.  I put together a list of 25 invocation speakers and found that 24 of them were Christian and the 25th was that hapless and surprised (but brave) Girl Scout.  Within those 24 Christian speakers (I'm including the Mayor himself, because he gave an invocation "in Jesus' name") one was Catholic and 23 were Protestant.  Compare this result -- 96% Christian, 4% nondenominational Girl Scout -- to the likely demographics of the area.  A look at page 102 of the Pew Forum's survey of America's religious landscape reveals that California is 36% Protestant, 31% Catholic, 21% nonreligious, 2% Mormon, 2% Jewish, 2% Buddhist, and 1% or less of everything else.  My city may have some deviation from California's overall religious makeup, but if anything, it's going to deviate more heavily Catholic than anything else.

So the result may be proportionate as to houses of worship but it is not remotely representative of the demographics of the city.  I have to imagine the reason for this is the no-barriers-to-entry way Protestants have of simply starting up their own churches when they dislike doctrinal, attitudnal, or even administrative ways that other Protestant churches are being run.  Christian denominations with a stronger tradition of hierarchy like the RC or LDS churches strike me as more likely to have parishioners with a "we'll just take it" sort of attitude if they don't like how their pastors are treating them.  Maybe I'm way off base in saying that, but that's my impression.  And what's in the phone book shows that indeed, there are close to a hundred Protestant churches, some of which I see around town in beautiful, free-standing campuses of newly-constructed buildings, others in older class "B" and "C" commercial structures, some in strip malls, and some apparently run out of storage units or peoples' homes, and there are only three or maybe four Catholic churches in the city, although they are well-attended and seem to run Masses almost continuously from midnight to midnight on Sundays to service all their parishioners.

So if your selection criteria is based on houses of worship, you're going to be skewing the result heavily and disproportionately towards the Protestant Christians.  A Galloway-like policy produces a result that is not proportionate to the demographic makeup of the jurisdiction.

And all of this doesn't get us around some Supreme Court holdings that the Galloway Court, at best, gave short shrift to, if not outright ignored.  Most prominently, in Board of Education of Kiryas Joel Village School District v. Grumet (1994) 512 U.S. 687, the Court held that "government should not prefer one religion to another, or religion to irreligion." I suppose the use of the word "should" in Kiryas Joel was deliberate in that a majority of Justices on the Court would not sign off on the use of the word "may," but the principle is clear even if it is normative rather than prohibitive: religion itself may not be preferred to irreligion, consistent with the Establishment Clause. To be sure, the converse is true as well -- the government may no more favor irreligion than it may favor religion. It must be neutral.

Now, there are those who insist that the Free Exercise clause must be respected as well, that it is the flip side of the Establishment Clause and just as much a part of the rights of Americans with respect to religion.  The Free Exercise argument goes like this:  "Marsh v. Chambers tells us that we can have legislative prayer, and Marsh is still good law.  The Free Exercise clause tells us that if you're going to have a prayer, the government has no business saying what's in or out of that prayer, it's a matter of private conscience.  Ergo, if someone wants to give a sectarian prayer, even in a legislative forum, the government can't stop that from happening."

Which is why there should be no invocations at all. Not having invocations at all does not disfavor religion, it simply means that religious activities belong at a time or place other than the meeting of the City Council. The City Council, after all, is not a church. And most importantly, the city's failure to endorse a religion or engage in religious activity as an entity is not the same thing as suppressing the religion in question, or religion in general. A member of the City Council who wishes to pray and seek religious guidance before performing a governmental function is perfectly free to do so any may not be penalized for doing so -- as long as they do it on their own time and not on the city's time.

Just because you can have a legislative prayer doesn't mean it's a good idea.  Consider four possible policies:  A policy allowing sectarian prayers, a policy allowing some prayers but not sectarian ones, a policy of not having invocations at all, and a policy of formally eschewing religious belief.  Sectarian invocations and disavowal of religion are the least inclusive policies, and equally so, because they exclude constituents who do not share in the faith system of the speaker favored by the legislative body with the honor of delivering an invocation.  Non-sectarian invocations are still not very inclusive, because they still deliver a message that a particular speaker from a particular religious institution is favored, which means that others are disfavored. The most inclusive policy is to be silent on the issue and not have a period of time for invocations at all.  This also happens to be the policy which enjoys the strongest ground from a Constitutional perspective.

One suggestion I have seen somewhere is that atheists and other secular folks need to find a way to get on these lists and deliver secular invocations, or invocations critical of the policy of sectarian invocations. This seems wrong to me.  If it's wrong for the City Council to endorse Jesus (or Allah, or whatever other divinity you mention, but in practice it's pretty much always Jesus) then it's wrong to endorse anyone or anything.  An invocation endorsing atheism is as wrong as an invocation endorsing Jesus-worship or an invocation endorsing the moon cult.  And it's not OK for the city to endorse Jesus on Tuesday if the city turns around and then doesn't endorse Jesus on Thursday.  So I for one will not be signing up to deliver secular invocations (which would be unwelcome anyway and could subject me to economic retaliation).

What I would be willing to accept as a compromise would be a moment of silence.  If you wanted to pray silently during that moment of silence, more power to you.  If you wanted to use the time to meditate briefly, or gather your thoughts, or wait pensively for the moment to pass, that would be okay, too.  A couple of seconds to pause for breath and calm would probably be a good prelude to the sometimes fractious business of local government.  But what I can't accept is listening to my government, at any level, tell me that I'm not welcome to be a part of the body politic unless I worship the same deity that the Mayor does, and in the same way.


* Inter alia, Santa Fe Independent School Dist. v. Doe (2000) 530 U.S. 290; Board of Education of Kiryas Joel Village School District v. Grumet 512 U.S. 687 (1994); Doe v. Tangipahoa Parish School Board (5th Cir. 2006) 473 F.3d 188, vacated on jurisdictional grounds, 494 F.3d 494 (5th Cir. 2007); Wynne v. Town of Great Falls (4th Cir. 2004) 376 F.3d 292; Bacus v. Palo Verde Unified School District Board of Education (9th Cir. 2002) 52 Fed.Appx. 355; Cole v. Oroville Union High School Dist. (9th Cir. 2000) 228 F.3d 1092; Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194.