Written by Don Byrd
With one recent exception, courts have been fairly consistent in analyzing challenges to legislative invocations. The U.S. Supreme Court in Marsh set the standard by affirming the Nebraska legislature’s practice of opening sessions with prayer, but the Court emphasized in Alleghany that the nonsectarian nature of those particular prayers is what made them acceptable. The nonsectarian line has guided most courts since in evaluating the constitutionality of opening prayers. Policies that encourage invited clergy to offer inclusive prayers rather than prayer tailored to specific religions or deities are generally upheld, while those that “proselytize or advance one faith” are not.
The 11th Circuit, however, has seemed to reach a slightly different conclusion about the necessity that prayers be nonsectarian to pass the Supreme Court’s test. In Pelphrey, that Appeals Court ruled that a policy of rotating clergy involving some religious diversity is sufficient to avoid advancing one faith, preferring that test to one that considers the potential content of prayer.
The Baptist Joint Committee has encouraged against the Pelphrey reading and for the traditional, more narrow interpretation to maintain government’s appearance of religious neutrality. The 4th Circuit took that advice in Forysyth County, ruling last year that the Supreme Court’s acceptance of ceremonial government invocations in Marsh does require a policy of nonsectarian prayer, an interpretation the Supreme Court declined to revisit earlier this year.
For those states in the 11th Circuit, however, the more expansive reading of Marsh remains; and it is on that ground that a trial court judge in Florida this week upheld the Lakeland Commission’s practice of beginning meetings with largely sectarian prayer from a rotating group of clergy that on at least a few occasions has included a non-Christian. Will the U.S. Supreme Court eventually step in and choose between these 2 different readings of the law? Who knows. Plaintiffs in the Lakeland case, however – who, it should be noted, believe such prayers should be disallowed entirely, but nonsectarian if allowed – are vowing to appeal.
Thanks to Religion Clause for posting the decision.
