Legal Status of Prayer At School Board Meetings – Part I
by Kemp Brinson
This is Part I. Part II has now been published.
Many of my post ideas come from issues covered by the local press and this is no exception. Relatively recently, the Ledger ran a fantastic article about prayer at government meetings in Polk County. The article focused primarily on the school board. The article includes opinions from several learned legal authorities , as well as comments from religious and community leaders.
The legal authorities who questioned the legality of the practice were exactly correct, but no explanation was given as to why. The religious leaders who supported it had interesting things to say about religion and why they they think prayers are OK, but displayed no insight into the state of the law or why it is the way that it is (at least not in the article.)
It’s clear to me that there is a disconnect between the law and public opinion. More people need to have a clear understanding of exactly what the law is on this particular topic and how we got here. Only then can we have a serious discussion about what, if anything, needs to change, who needs to change it, and how.
The question posed is simple: our local school board opens each meeting with a prayer offered by a member. The prayers often invoke the name of Jesus Christ. Do these prayers violate the law?
This will be an article in two parts. We’ll work our way about half-way through the establishment and free exercises clauses in Part I, and wrap it up in Part II.
Civics 101
Quick, answer this question: What is the meaning of the U.S. Constitution?
Answer: Whatever the Supreme Court says it means.
Love it or hate it, the U.S. Supreme Court is, in most cases, the final arbiter of what the text of the U.S. Constitution means. When the Supremes hear a case, they issue a lengthy opinion explaining the case and the reason for their decision. These decisions are binding on the courts below. So if a similar case comes along, the lower court is required to follow the precedent set by the higher court unless there is something that distinguishes the new case from the old one. Thus, the decisions of higher courts have the force of law in the lower courts. This system is enormously important to our justice system and is a fundamental part of the fabric of our nation. Even those jurists who have the most respect for the original meaning of the Constitution acknowledge the importance of following prior precedent.
Therefore, if you want to talk about the legal meaning today of any phrase in the U.S. Constitution, you simply must refer back to the historic cases that interpret that phrase. Otherwise, you are arguing about what you think the law should be in your perfect world, as opposed to what the law actually is. A lot of people make this error. There’s nothing wrong with pontificating about they way you think things ought to be, it’s just important that we recognize the distinction between opinion and reality.
Let me be absolutely clear by saying it again. This post is about what the law is. Not what the law should be.
I have laid this out in a gratuitously silly imitation of Genesis 1. This is not to imply that the jurisprudential developments happened in this order. It simply makes logical sense to present them in this order.
In the beginning… there was the Constitution.
The entire controversy stems from a line of text contained in the First Amendment to the U.S. Constitution.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
Simple enough, right? Ummmm, no. A few things immediately jump out.
Issue One: The Constitution seems to prohibit “Congress” from doing something. This is a local school board, not Congress! The clause does not apply!
Issue Two: This isn’t a “law” – it’s just a prayer! The First Amendment only prohibits “laws!”
Issue Three: The Constitution prohibits “respecting an establishment of religion.” Simple prayers before getting down to business don’t “establish” anything!
Issue Four: The Constitution expressly authorizes the “free exercise” of religion. Aren’t school board members allowed to exercise their own religion before meetings?
Aha! The text is clear! The clause only restricts Congress! There is no “law” at issue! There is no establishment of religion! And right there at the end – clearly the board members have the right of free exercise! Can’t you people READ! Why are we even arguing about this!!!!!!! I hate judicial activists!
Stop. Take a deep breath, count to 10. While at least one current Supreme Court justice would agree with you, that’s not the way things are right now. You are confusing reality with the way you think it ought to be again. I know it’s frustrating. Go back and read “Civics 101″ above and then return. …back with us? Good, let’s continue.
On the first day… the 14th Amendment was ratified.
The first thing we need to deal with is the pesky “Congress shall make no law” business. But to figure out how the school board of Polk County can possibly be considered included in any reasonable definition of the word “Congress” we have to digress a minute. Let’s talk about reconstruction.
From the beginning, the Bill of Rights only applied to the federal government. It did not really prohibit what the states could do. After the Civil War, it was pretty obvious that the states were using their nearly unlimited powers to make laws to deny black Americans numerous fundamental rights enjoyed by white Americans. As a result, the Constitution was amended several times to better protect the rights of black Americans. One of these Amendments, the 14th, says, in part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
So we are left with the First Amendment, which says that “Congress” can’t do something, and the 14th, which suggests that there are some fundamental things that the States can’t do, either. But what are those “privileges or immunities?” What does it mean to deny someone “due process of law” or “equal protection of the laws?”
The question left to the Supreme Court was this: Which rights, exactly, does the 14th Amendment guarantee to all Americans, regardless of their state of residences, and which Constitutional rights are states still free to impede upon?
It took a really long time to sort out, and the process continues to this day. But let’s return to the matter at hand.
On the second day… the Establishment Clause was incorporated.
Since the 14th Amendment was ratified, the Supreme Court has heard lots and lots of cases dealing with with 14th Amendment and its effect on the Bill of Rights. This process is called “incorporation.” The Court has made decisions determining which of the rights guaranteed by the Bill of Rights were “incorporated” against the states under the 14th Amendment, and which ones were not. Two of those decisions are most interesting to us in this instance.
In the first, Cantwell v. State of Connecticut, the Supreme Court said:
The fundamental concept of liberty embodied in [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. 310 U.S. 296, 303 (1940).
In other words, the Court, “incorporated” the establishment and free exercise clauses of the First Amendment into the 14th Amendment as enforceable against the states. For our purposes, at this point we can replace “Congress shall make no law…” with “Government shall make no law…” and Issue One, above, is addressed.
The Court elaborated further in a famous passage of Everson v. Board of Education:
The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’ 330 U.S. 1, 15 (1947), citing Reynolds v. United States, 98 U.S. at page 164.
Take careful note of the part about “preferring one religion over another.” You will see it again. Also, it is often said that the concept of separation of church and state is not contained in the Constitution. True, but it is contained in the Supreme Court decisions that interpret the establishment clause. Thus, it remains an extremely important fundamental concept for figuring out what the establishment clause does and does not prohibit.
Before I move on, I want to acknowledge that there is controversy about the wisdom of these decisions. Some would argue that the manner in which the establishment clause was incorporated is logically sloppy. Some attack the entire concept of incorporation as logically sloppy. There is some merit to these arguments. Be that as it may, until at least five members of the Supreme Court move over to that position, the text above represents the law as it stands today.
Interestingly, while some may see incorporation as a touchy-feely liberal type development, many conservatives today have advocated strongly for incorporation of the second amendment to prohibit states from restricting the right to bear arms. Just goes to show you that in jurisprudence, the “conservative” and “liberal” labels don’t often apply nicely.
On the third day… “state actions” were implicated.
Issue two is focused on an interpretation of the word “law.” In what sense is a prayer prior to a public meeting a “law?” To answer this question, we have to look again at the text of the 14th Amendment. It prohibits more than merely laws. Here is the text again, with the interesting bits in bold:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Not only can a state not make a law that violates the First Amendment, it also cannot “enforce” such a law, or “deprive any person” or “deny any person” rights guaranteed by the First Amendment. This language enables the Court to restrict state and local actions that do not rise to the level of “laws.” Early on in Fourteenth Amendment jurisprudence, the Court confirmed this authority under the Fourteenth Amendment to broadly regulate state actions, even if those actions were not laws:
We have said the prohibitions of the Fourteenth Amendment are addressed to the States…They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it. Ex Parte State of Virginia, 100 U.S. 339 (1879).
So now, in our dumbed down plain English version of the First Amendment, as interpreted by the Supreme Court by incorporation under the Fourteenth Amendment, the First Amendment really says: “Government can take no action respecting an establishment of religion, or prohibiting the free exercise thereof…”
Next time, we’ll talk about what it means to “establish a religion” and “prohibit the free exercise thereof” and then see if these concepts apply neatly to what the school board has been doing.
Questions or comments? Fire away.
How amusing! Now for the reality.
Perhaps Mr. Brinson would care to read http://www.acluofnorthcarolina.org/files/Joyner,%20et%20al.%20v.%20Forsyth%20County.pdf
A decision quite on point just filed in November by a District Court Judge a little more knowledgeable than Mr. Brinson in these matters.
Perhaps you may want to stick to Real Estate law
Oh, and public opinion has nothing to say about the law. Remember way back when public opinion supported separate water fountains and black people sitting on the back of the bus??? Separate has already been ruled inherently equal. Oh, but the US Constitution means little to ye.
Great post, Kemp! I am going to bookmark this for use in future debates/discussions/arguments.
I’d love to see your analysis of the 2nd Amendment.
Matt
Incorporation of the 2d Amendment is a much more controversial and less settled area of law. In fact, as you probably know, a big case on it is pending before the Supreme Court right now.
It would take me a lot of time to dig into it with a level of thoroughness that would make me comfortable enough to comment publicly with an air of authority. The establishment clause, by comparison, references older Supreme Court opinions and is more well settled law, making it easier for me to sort it out in a reasonable amount of time and summarize it for a non-lawyer audience. If we have a local issue that implicates the 2d Amendment, I might be inclined to dive in. To get a sense of how these sorts of discussions go among legal scholars, see: http://volokh.com/category/mcdonald-v-city-of-chicago/
Ms. Wachs: I am, quite honestly, baffled. You seem to have come to the conclusion that I think the local school board’s prayers are legal. I do not draw that conclusion in this post. I do NOT think the local school board’s practice is legal. I am in the process of explaining that point in detail via references to applicable precedent.
Is there something in my post that misled you? If so, I would appreciate you explaining what led you to believe that I think the prayers are legal so I can correct it. I would also appreciate an apology for insulting me.
And by the way, the North Carolina opinion seems well reasoned – I may use it in part II. Thanks for passing it along.
EDIT: I think I see what might be confusing. I have changed this part of the post:
to this:
Hopefully that makes it clearer.
Nice job, Kemp. That was helpful.
I would be not only be happy to apologize Mr. Brinson, I would like to invite you to come sit and participate at my next Lakeland City Commission appearance protesting their Invocations. You can catch my first on the Lakelandgov.net website. Let me properly introduce myself, EllenBeth Wachs, Director, Lakeland Chapter Atheists of Florida and also a Board Member. We are the group responsible for all the atheist billboards that have been popping up recently and are the ones all over the news lately about this issue in Tampa. I will say this, upon re-reading your blog, I will give you credit where credit is due. It certainly does now sound as if you will be outing the practice as the violation it most certainly is. I have no problem admitting if I am wrong and do certainly appreciate a good give and take. I appreciate the reference to the possible misleading section and your edit of it. You can easily find me on facebook.
Thank you. Although I would describe what I do as “explaining” rather than “outing,” I appreciate your apology and more careful reading. However, I will respectfully decline your invitation to participate in a protest.
First of all, I don’t know that what the Lakeland City Commission is doing is unconstitutional. My focus is on the school board. As detailed in the Ledger article, the school board’s practices are uniquely sectarian and therefore on shakier legal ground than other local government bodies. I will get into this in more detail in part II.
Second of all, my goal is for all sides of the debate on legislative prayer in Polk County to understand the law better so the discussion will take place on a higher level. I’m not here to push anyone’s agenda (I do that all day at work). If both your camp and the other side(s) see me as a reliable source of information about existing law and its application, then I have succeeded in my goal in this space.
Please do explain away then here. I’ll stay tuned. I gotta love an attorney that turns down the opportunity to self-promote with a possibility to appear on the news.
Obviously, we (the organization) do believe the Commission is in violation by the way they practice their invocations. They are purely christian throughout the recent history that I can find. Inviting one rabbi to perform an invocation before them does not make them an inclusive body. They actually revoked the invocation to a muslim imam after objections were raised that it was inappropriate in this day and age.
In light of the Joyner case, Lakeland has a problem; but aside from that, it is simply an issue of equality and fairness. We are trying to change the conversation and attitude of the country just as was done during the 1960s with the civil rights movement. We are “coming out of the closet” so to speak.
“I gotta love an attorney that turns down the opportunity to self-promote with a possibility to appear on the news.”
Ms. Wachs, are you really so shallow that you resort to comments that on their face look like nothing but projection? And this after you misread the point of Kemp’s blog? I am an atheist and know very well what it’s like living in Polk county with a minority view. Hopefully, we all want fairness and equality, and being subjected to someone at civil meetings spouting off their salvation fantasies makes me cringe at the nonsense of it. Unless life or limb was at stake, however, this doesn’t excuse letting your passion essentially dismiss another’s motives as superficial. At this point, I think you owe Kemp another apology. You might get in the habit of debating bad ideas rather than insulting people.
Rod, I think Mr Brinson has made it clear that he is quite capable of asking for his own apology if he feels insulted. But then the question becomes, why do you perceive that comment as an insult? It was intended as a compliment, certainly somewhat tongue in cheek, but, nonetheless, a compliment. Because I didn’t get belittled by My Brinson, I am guessing he got the gist.
Since you know nothing about me, I think YOU owe me an apology. When and where did I dismiss anyone’s motives as superficial?
For the record, one apology was enough for me, and it was graciously given and received. I took the self-promotion comment as impugning lawyers in general rather than me, personally. In fact, it could be read as a compliment. I disagree with the characterization of the bar as shameless self-promoters and publicity hounds, but we are all entitled to our opinions.
Rod, I genuinely appreciate you coming to my defense and your comments. Truly, thank you. But it’s all good. Let’s just shake hands and move on.
If anyone has anything interesting or insightful to say (or questions) about the actual legal cases I mentioned in this post, or incorporation doctrine, or the 14th amendment, or “substantive due process,” or relevant links, I’d love it if the thread continued in that direction rather than this one.
EDIT: I wrote this before I saw Ms. Wach’s latest post. Let me add this: I don’t think ANYONE owes ANYONE an apology at this point. Let’s move on.
Done. Kemp, what are your thoughts on things like a Mayor’s Prayer Breakafast or prayers at Chamber of Commerce meetings?
I’m almost 100% sure the law says that private organizations like chambers of commerce can do nearly whatever they want in this regard. Ditto a prayer breakfast as long as it is sponsored by a private organization and not an official government event.
As to the prayer breakfasts, I suppose someone could make an argument that these are de facto government events and somehow implicate the first amendment as a result. I think that would be an enormously difficult argument to make and win. I think the public officials’ own free exercise rights and rights of free association would trump any establishment law concerns. But if multiple public officials attend and confer on public policy matters during such gatherings (something unlikely to occur in Florida given our sunshine laws) the argument would have at least a little weight.
To the extent that private organizations like chambers or prayer meeting sponsors have employees who have to participate in the meetings, there might be a discrimination or harassment issue with respect to those employees, but that has nothing to do with the First Amendment – it would be something to take up under Title VII of Civil Rights Act of 1964 which prohibits discrimination based on religion – a whole different ball of wax.
That seemms like a good assessment of what is reality at this point. I may not like it, but it seems these groups do have the ability to say, “Who cares?” I guess my only wish would be that some day they would say, “We do. Let’s try to be really inclusive.”
Part II of this article has been published: http://www.polklawblog.com/?p=615