Public invocations: Should we or shouldn’t we?

Tonight Coeur d’Alene City Council considers changing its prayer policy to a lottery system, in the interest of fairness.

How about praying at public meetings in general? Where does freedom of speech meet the First Amendment’s establishment clause? That can’t be an easy thing for a local government to navigate and please everyone.

Should they, or shouldn’t they?

Many, but not all, Americans are religious, but they don’t share the same religious doctrines. The founders knew this and as is often repeated, shared a religion, but they also determinedly created what Jefferson called “a wall of separation between the church and state” to prevent the establishment of one in dominance.

No shades of theocracy for this country. This isn’t Iran.

They designed it to protect churches as much as the governed. Early Americans feared government involvement in churches (no surprise given the experiences in the countries they fled). Rhode Island’s founder and Puritan Roger Williams wrote that an authentic Christian church would be possible only if there was “a wall or hedge of separation” between the “wilderness of the world” and “the garden of the church,” lest one corrupt the other.

Yet through the years the U.S. Supreme Court and lower courts have made it clear that allowing the public to express its spiritual side in certain public settings is a free speech right, as long as it doesn’t rise to the level of “establishment” when sanctioned by government.

To sum up the cases, prayers in public parks and events: fine. School prayer: not fine, because the audience is too young, easily indoctrinated, and “captive.” Invocations to open meetings of city council or legislatures: fine, under the right conditions.

Public prayer is a longstanding American tradition which many local and state government bodies recognize with an invocation — a prayer to open proceedings. The ensuing debates are par for the course, as (a) it’s a religious activity in a government setting, and (b) unless multifaith, it ostensibly favors one religion over another.

Back the power of government with the unlimited authority of God and dissent becomes all but impossible.

Yet, the American public demands its spirituality be honored, and it has so many interpretations of that spirituality, each with equal right. Where lies the balance?

Through the years courts considering prayer in government settings applied a test from the 1971 SCOTUS case Lemon v. Kurtzman. The Lemon test essentially examined the “aid” the government body provided the religious institution and the “resulting relationship” between the two (there’s a third prong they typically just glazed over). As the court has become more conservative it has used the Lemon test less often, but it has always been applied inconsistently.

That’s likely because religion and people’s purposes in it are rarely, if ever, simple matters.

In the 2014 Town of Greece (NY) vs. Galloway case SCOTUS held that starting city council meetings with prayer doesn’t violate the Establishment Clause. It also ruled that requiring the invocation to be “nonsectarian” would force the governmental body to act as supervisors or censors of religious speech (while emphasizing governments should maintain a policy of nondiscrimination). So the only way to be fair and confidently avoid an “establishment” label is to invite as many religious groups as possible to participate.

As The Press previously reported, what’s at stake for Coeur d’Alene is an attempt to best strike this balance by changing their sign-up policy to a lottery system, giving more religious groups an opportunity to conduct the invocation. The city’s existing guidelines, much like the language from relevant court cases, allow prayers to be religion-specific as long as they don’t “seek affirmation,” “disparage other faiths” and are not “politically biased.”

As the Supreme Court stated in the Greece case,

“From the Nation’s earliest days, invocations have been addressed to assemblies comprising many different creeds, striving for the idea that people of many faiths may be united in a community of tolerance and devotion, even if they disagree as to religious doctrine.”

Here’s hoping for that community of tolerance.

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Email sholeh@cdapress.com.