Lakeland, Florida used to have this ... thing. Before every city council meeting, they'd have a Christian chaplain lead a prayer. Obviously, this leaves out a lot of people. Tradition is one thing, but you've got to balance that with the feelings, rights, and religions of others, right?
So they changed it up. Each year, a staff member is supposed to mail out invitations to every recognized religious organization. The first to respond are invited to lead the invocation at one of the meetings. It's diverse, it's inclusive, it's all warm feelings and happiness.
Except they forgot to invite one group to the party: the atheists (and secularists, and humanists). Atheists of Florida, Inc. filed suit over the long-standing practice in 2010, merely a few months after the changes were made. They argued that the prior practices, as well as the present, violated the establishment clause of both the Florida and United States constitutions.
Fair enough, except they were pretty much wrong. The rule is not all-inclusiveness. Per the Supreme Court’s decision in Marsh and the Eleventh Circuit’s later decision in Pelphrey, we recognize the tradition of opening legislative or deliberative bodies with invocations. In Pelphrey, the court devised a three part test to evaluate these sorts of situations:
- the identity of the invocational speakers;
- the selection procedures employed; and
- the nature of the prayers
That case was nearly completely analogous to the present case. There were invocational speakers of numerous denominations, including Christianity, Judaism, and Islam, and the prayers were, when considered cumulatively, quite diverse and did not endorse a single faith. Where it differs, and where Pelfrey faulted, was the selection process.
In that case, during one of the years at issue, someone crossed Muslims, Jehovah’s Witnesses, Jews, and Latter Day Saints off of the list. That’s purposeful discrimination and not compliant with Marsh, Pelfrey, the Establishment Clause, and common manners.
This case is different, however. Not only did they reach out to nearly every religious group that they could find in the phone book and online, but they also checked with the Chamber of Commerce and allowed groups to themselves ask for inclusion, just in case anyone was overlooked.
Also, it should be noted that the occasional (or even semi-regular) mention of God, Jesus, Mohammed, Abraham, or any other religious figure will not make the prayers unconstitutional. The court is not supposed to analyze the prayers’ content, so long as there is no indication that the prayer is being used to proselytize any particular faith.
In the end, religion in public legislative bodies isn’t a case of “the expression of some is to the exclusion of others.” It’s more like, “the expression of many gives everyone the general idea that we’re accepting of all.”
As for the former all-Christian policies — they’re moot. The city took steps to resolve the issue once they became aware of it, and before litigation ensued. It’s therefore unlikely that the problematic conduct will repeat itself.
- Atheists of Florida v. Lakewood (Eleventh Circuit Court of Appeals)
- Is Justice Clarence Thomas Right About the Establishment Clause (FindLaw’s SCOTUS Blog)
- Wiccans Can Pursue Challenge to CA Prisons’ Five Faiths Policy (FindLaw’s Ninth Circuit Blog)