Monthly Archives: January 2006

MEMO

To: Mayor Jeff Holtzinger
From: C. Paul Smith
Date: January 24, 2006
Re: Invocation at Beginning of Mayor and Board of Aldermen Meetings

________________________________________________________________________

The invocation I offered at the beginning of the BOA meeting on January 19th has evoked some lively responses, especially from bloggers. Some people state that they are offended that I, as a City Alderman, would pray; that I would pray in the name of Jesus Christ; and some complain that my prayer was a violation of the Establishment Clause of the Constitution. While the criticisms are being directed at me, the pressure is being put on you to do something to change what these few complainers find offensive. As shown below, neither your acts nor mine were in violation of the Constitution. In addition, neither of us had any intention to offend, yet offense was taken by people who have the erroneous expectation that government officials should not make any reference to religion or God in their statements and actions. This notion is false, and it should not become the policy that governs what we say and do. I regret that offense was taken at my prayer, but no apology is in order. For the reasons stated below, I believe it is proper and good for the City to continue having a minute or two at the beginning of each legislative session to invite individuals from the city, including pastors, to pray.

1. The invocation was not a violation of the Establishment Clause of the First Amendment. While the Supreme Court has ruled that the Establishment Clause prohibits public schools from conducting prayers (e.g., Lee v. Weisman, 505 U.S. 577 (1992)[graduation services] and Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) [football game]), a different principle and rationale applies to prayers at the beginning of legislative sessions, which are not a violation of the Establishment Clause. Marsh v. Chambers, 463 U.S. 783 (1983). The United States Congress has opened sessions with prayers for 200 years. The Supreme Court has clearly held that the offering of these prayers, regardless of the particular religious content of the individual prayers, does not constitute the government's establishment of a religion. The continued applicability of Marsh was just confirmed by the Supreme Court in Van Orden v. Perry; 545 U.S. ____ (2005) [Slip Opinion, p.8] where Chief Justice Rehnquist wrote:

Recognition of the role of God in our Nation's heritage has also been reflected in our decisions. We have acknowledged, for example, that “religion has been closely identified with our history and government,” School Dist. of Abington Township v. Schempp, 374 U.S., at 212, and that “[t]he history of man is inseparable from the history of religion,” Engel v. Vitale, 370 U.S 421, 434 (1962). This recognition has led us to hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State. Marsh v. Chambers, 463 U.S., at 792. Such a practice, we thought, was “deeply embedded in the history and tradition of this country.” Id., at 786.

2. While having prayers at the beginning of a legislative session does not necessarily violate the Establishment Clause, how the governmental body organizes, directs or dictates such prayers could violate the Establishment Clause. For example, if only the adherents of one particular religion were allowed to pray, or if the City dictated what could or could not be said in a prayer–these actions would violate the Establishment Clause. Some have suggested that an “equal opportunity” rationale would have to be applied. I understand why one might want to apply this rationale, however, the Court does not evaluate Establishment Clause issues that way, rather the Court has annunciated a non-exclusionary rationale. In Good News Club v. Milford Central School, 533 U.S. 98 (2001), the Supreme Court held that a public school could not exclude religious clubs from using school facilities after school if the school makes the facilities available to other clubs. This case is an important case because it explains that the Establishment Clause does not mandate that public schools exclude religious discourse; rather the Establishment Clause prohibits public schools from endorsing any one religion.

3. In addition, the Free Exercise Clause of the First Amendment, protects a legislator's right and a citizen's right to pray or to say something that promotes a religion or a religious belief. This applies whether religion is overtly mentioned or whether it is merely an unspoken basis for what one says. Furthermore, what one legislator says in prayer or otherwise is not necessarily an act of the government; one legislator's words is different from the passage of a law. Just as the Free Exercise Clause protects the right of a student to pray in public school (see e.g., ____________[I think it is the Lee v. Weisman case], so does it protect the right of an Alderman to pray. If, as an Alderman, I chose to invoke God's blessings and pray in making comments about a piece of legislation, the First Amendment protects my right to do this. I have no plans to do this as a part of my Aldermanic duties, but there is no question that I have the constitutional right to do so.

4. At this point, neither the Mayor nor the Board of Aldermen, nor any of us as individuals has violated the Establishment Clause. But a policy should be established so that it is not violated in the future. There are several alternatives that would satisfy Establishment Clause requirements:

• a. Never have prayers again.
• b. Have a regular moment of silence in which people can pray or meditate.
• c. Have a paid chaplain to pray at the beginning of each meeting.
• d. Establish a policy of inviting individuals from different religions and belief systems to offer an invocation or words of inspiration at the beginning of BOA meetings.
• e. Perhaps there are other options, too.

At this point, since you, as the Mayor, have introduced the issue by calling for an invocation at the first official meeting of the Board, you will need to decide the course to take in the future. My suggestion would be to establish some policy of inviting people in the community from different religions and belief systems to offer words of inspiration or prayers at the beginning of Board meetings (at some regularity). If diversity has any value in our community, it must include the diverse religious and philosophical views of our citizens, most of whom do believe in a God. Those who would deny this, or who would like to pretend it does not exist, or who would like to silence the public expression of the religious and philosophical underpinnings of the citizens' views are not accepting the facts of life. The First Amendment's Establishment Clause has not yet been twisted and changed to mean “Freedom From Religion.” As the City invites citizens from a variety of religious and philosophical backgrounds to give invocations, we can truly recognize the rich diversity of our citizenry. We should not be offended at our religious differences. In fact, such a practice of showcasing our religious and philosophical diversity can help us to better understand and appreciate one another.

5. With regard to any offensiveness that one may have found in my prayer on January 19th, clearly no offense was intended. You asked me to offer an invocation. I was honored and happy to do so. My prayer was born of my beliefs and my convictions. I began by addressing my “Father in Heaven,” and I closed “in the name of Jesus Christ.” Obviously you did not dictate how and to whom I should pray. To some my prayer was too long, although I suspect it was less than two minutes in length. It consisted primarily of expressing gratitude for blessings and requesting God's help in addressing our city issues. Some would counsel that the City prohibit all future prayers because of the opposition or offense that such prayers would cause to a few people. I disagree with this rationale. I did not run for office to establish my religious views as the law in Frederick City. But my religious convictions are the foundation of who I am and what I am. I do not seek to compel or coerce others to believe like I do, but neither am I ashamed of my beliefs. I, like Benjamin Franklin, at the Constitutional Convention in 1787, believe that invoking God's help is beneficial to the operation of a legislative body. Whether or not the forces of political correctness are sufficiently strong to eliminate future prayers in City meetings, I do not know, but I favor their continuation.

6. As you know I never suggested or asked that you begin the BOA meeting with a payer. I had no plans to bring up this issue. I am aware that it was a point of contention four years ago, at the beginning of Mayor Dougherty's administration. But now that the issue has arisen, I do not feel to apologize for what happened or for what I said. What I did was motivated by goodness and virtue. Neither do I have any prejudices or antipathy for those who chose to take offense at my words. I will continue to do my best to make wise decisions for the City with prejudice for none, but with impartiality for all. I know that I have genuine concern and appreciation for my fellow citizens. One who's leadership philosophy is driven by the determination to not offend those who seek to be offended are destined to find frustration because it is impossible to prevent others from taking offense.

Now that the prayer issue has arisen, I believe it would be a mistake to say that you were wrong to do it in the first place. Your instincts were right and good. If you shrink from an important issue that others have initiated, I believe you could diminish yourself.

In Liam Farrell's column on January 26th, he reports that my prayer on January 19th was in violation of the Constitution and in violation of Frederick City guidelines enacted in August of 2002. His conclusions are ill-founded in both instances.

Mr. Farrell cites the Sixth Circuit case of Coles v. Cleveland Board of Education, 183 F.3d 538 (1999) for the opinion that praying by an alderman in the name of Jesus violates the First Amendment. That case is clearly inapplicable to our Frederick issue. The Court in Coles held that the Constitutional prohibition against state endorsed school prayers at graduations (Lee v. Weisman [1992]) and at football games (Santa Fe. v. Doe [2000]) should also be extended to prohibit prayers at board of education meetings. Frederick City Mayor and Board of Aldermen meetings have no connection with the board of education. In addition, rulings of the Sixth Circuit can have persuasive effect, but are not controlling in the Fourth Circuit (which covers Maryland).

With regard to the 2002 Frederick City Invocation Guidelines, it is not entirely clear what specific guidelines were passed by the previous Board. However, I have reviewed the one-page list of requirements and the three examples of “acceptable” prayers that are a part of those guidelines. Those guidelines are a clear violation of the Establishment Clause of the First Amendment. City Policy mandating only watered down, but all-inclusive prayers is unconstitutional. The basic flaw in them is that they attempt to dictate the substance of a prayer. But the state cannot dictate or proscribe any particular prayer or religion. The government cannot evaluate which prayers are acceptable and which are not. The guidelines were a futile attempt to regulate how one could pray at City Hall. One regulation required one to “use universal, inclusive terms for deity rather than particular proper names for divine manifestations.” The guideline approved of four references to God to begin a prayer: “Mighty God,” “Our Maker,” “Source of all Being,” and “Creator and Sustainer.” The guideline also approved four ways to end a prayer: “Hear Our Prayer,” “In Thy Name,” “May Goodness Flourish,” or “Amen.” These guidelines were apparently an attempt to allow prayers that could not possibly offend anyone. They failed at that, and they fail to satisfy the requirements of the Establishment and the Free Exercise Clauses of the First Amendment.

It seems to me that if the City of Frederick is serious about tolerating and celebrating the rich diversity of its citizenry, that we should want to learn and understand the religious and philosophical foundations of one another. By allowing someone to offer an invocation at a Board of Aldermen meeting does not mean that the City subscribes to the religious views of the one speaking or praying. It was my understanding when Mayor Holtzinger asked me to offer an invocation at our first meeting, that he would extend the same offer to others in the future, and without telling them how to do it. I hope that this happens. If we are a tolerant and inclusive people, we will appreciate learning about religious views of others.

Finally, it should be pointed out that the state and local legislators have first amendment freedoms in what they say. For example, if in debating a proposed law I were to say that I was in favor of a particular ordinance “because that's what Jesus would want,” this statement would not violate the Establishment Clause because it is not official government action, and it would be protected by the Free Exercise Clause. Freedom of speech in Maryland envisions open and robust debate of issues. However, that legislator's speech is protected, if the City should then pass a law including such language, that law would violate the Establishment Clause. (See Lemon v. Kurtzman, 1972.)

The happenings and discussion during the last week are evidence that many people do not understand the parameters of the Establishment Clause. I hope this helps a little. While I personally have strong religious bases for my beliefs and philosophy, I have always found it best to use facts and reasons to support my views. Especially in the political arena, an appeal to God as a basis for one's positions usually stifles debate rather than leads to understanding. While I would not promise that I would never argue in favor of something because I believe it to be God's will, I do believe that God can help one to understand reasons to take certain actions that in harmony with His will. Our state and federal constitutions guarantee legislators the right to be either overt or silent in disclosing the role of religious beliefs as a foundation for their votes.

The Constitution does not require a separation of church and state. The “wall of separation” phrase that was coined by Thomas Jefferson, does not exist in the Constitution and did not appear in Supreme Court jurisprudence until the 1946 case of Everson v. Walls, in which the Supreme Court upheld the right of New Jersey to use public funds to pay for transportation of children to a private, religious school. The more accurate standard to reflect the relationship between the two is that reasonable accommodation is allowed provided there is not excessive entanglement. Chief Justice Rhenquist addressed this on June 27, 2005 by Chief Justice Rhenquist in Van Orden v. Perry; 545 U.S. ____ (2005) [Slip Opinion, p.8] where the Supreme Court upheld the placement of a Ten Commandments monument on the grounds of the Texas State Capitol:

Recognition of the role of God in our Nation's heritage has also been reflected in our decisions. We have acknowledged, for example, that “religion has been closely identified with our history and government,” School Dist. of Abington Township v. Schempp, 374 U.S., at 212, and that “[t]he history of man is inseparable from the history of religion,” Engel v. Vitale, 370 U.S 421, 434 (1962). This recognition has led us to hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State. Marsh v. Chambers, 463 U.S., at 792. Such a practice, we thought, was “deeply embedded in the history and tradition of this country.” Id., at 786.

In his Thursday column, Liam Farrell cited the case of Coles v. Cleveland Board of Education, 183 F.3d 538 (6th Cir. 1999) for the proposition that praying in the name of Jesus at a board of education meeting violates the Establishment Clause. However, his application of that case to the Frederick City prayer situation is misplaced. The Coles ruling applies only to government boards dealing with the public education of minors. The Sixth Circuit (by a 2-1 votge) extended the school prayer prohibition at graduations (Lee v. Weisman [1992]) and football games (Santa Fe v. Doe [2000]) to local school board meetings. The dissenting judge in Coles disagreed with the extension; he felt that invocations at a school board meeting were permissible under Marsh v. Chambers (1983). That the Supreme Court did not review the Coles case is not dispositive of the issue. Rulings of the Sixth Circuit can have persuasive effect, but are not controlling in the Fourth Circuit (including Maryland).

This newspaper has published both favorable and critical comments on the prayer I offered at the new Board's first meeting in 2006. I wish to respond to several of the criticisms that as yet have not been addressed regarding the propriety and the constitutionality of an elected official's having offered a prayer in the name of Jesus at a legislative session.

In his January 26th column, Liam Farrell cited the Sixth Circuit case of Coles v. Cleveland Board of Education, 183 F.3d 538 (1999), as a legal precedent that my prayer violated the Constitution. But the facts and the rationale of that case do not apply to our Frederick City prayer situation. The Coles case is worthy of note because it is unique in extending the prohibition against state conducted prayers at local board of education meetings. The Supreme Court has prohibited state-conducted prayers at graduations (Lee v. Weisman [1992]) and at football games (Santa Fe v. Doe [2000]). To my knowledge, only the Sixth Circuit has endorsed extending the prohibition of state-conducted prayers to board of education meetings. Regardless, the Coles ruling is clearly inapplicable to the Frederick City situation since the City has no connection with board of education matters. Additionally, rulings of the Sixth Circuit can have persuasive effect, but are not controlling in the Fourth Circuit (which covers Maryland).

In his January 25th column, Liam Farrell also wrote that my prayer was “contrary” to the invocation guidelines enacted by the Board in August 2002. Having now reviewed those guidelines, I must confess that it does appear that my prayer has violated the set of rigorous requirements that the former Board sought to impose on those who might pray at City Hall. Further, my prayer clearly did not match any of the three prayers that former Board approved as acceptable prayers for City meetings. In addition, my prayer did not use one of the four “acceptable” references to God that have been approved: : “Mighty God,” “Our Maker,” “Source of all Being,” and “Creator and Sustainer.” Additionally, my prayer did not employ one of the approved endings. Neither was my prayer sufficiently watered down nor sufficiently all inclusive, and it obviously did not pass the all-important test of having offended no one. All of this I confess. However, the Board's 2002 invocation guidelines are unconstitutional; they are a clear violation of the Establishment Clause because they attempt to dictate the substance of a prayer. This the government cannot do. The guidelines were a failed attempt to regulate how one could pray at City Hall. I would encourage those interested in this issue to read the following case to understand a little about the Establishment Clause principles that govern prayers before legislative sessions. March v. Chambers, 463 U.S. 783 (1983). If you will compare the Marsh case to the Coles case, you will likely agree with me that two of the three judges in Coles have misinterpreted Marsh.

The constitutionality of my prayer was also questioned because it did not occur until after the Board meeting was called to order. This is a difference without a distinction.

In Liam Farrell's January 26th column he concludes by reciting the three-part test that the Supreme Court often applies in determining whether a particular state action violates the Establishment Clause. (State activity (1) must have a secular purpose, (2) must not advance nor inhibit religion; and (3) must not create excessive entanglement between state and religion. Lemon v. Kurtzman, 403 U.S. 602 [1971]). However, the Marsh case clearly demonstrates that this test does not apply to state-conducted prayers before legislative sessions.

The Court said in Marsh: “The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.” The Court wrote this after approving the Nebraska Legislature's practice of having selected only one clergyman to be its chaplain for 16 years, for paying the chaplain out of state funds, and despite the fact that this chaplain's prayers “were in the Judeo-Christian tradition.” The Marsh squarely supports the conclusion that my prayer did not run afoul of the Establishment Clause.

Some have contended that as an elected Alderman (a legislator) that it was improper for me to offer a prayer and to make reference to my belief in Jesus Christ. This contention is in error. First of all, the words of a legislator do not constitute state action. Secondly, the freedom of speech and the state policy of promoting an open and robust debate on important issues protects the individual legislator's right to speak freely. For example, if a legislator were to state in advocating for his county to place a Ten Commandments monument on the courthouse grounds because that's what Jesus wants, the legislator's words would not violate the Establishment Clause. However, if it is later shown that a majority of the legislators passed the law for that same reason, then the placement of the Ten Commandments monument would violate the Establishment Clause. (See McReary County v. ACLU, 545 U.S. ____ (2005).

But a legislator's words are different from the passage of a law.

Some people have the flawed understanding that the Constitution requires a complete separation of church and state. The “wall of separation” phrase that was coined by Thomas Jefferson, does not exist in the Constitution and did not appear in Supreme Court jurisprudence until the 1946 case of Everson v. Board of Education, 330 U.S. 1 (1947) in which the Supreme Court upheld the right of New Jersey to use public funds to pay for transportation of children to a private, religious school. The more accurate standard to reflect the relationship between the two is that reasonable accommodation is allowed provided there is not excessive entanglement. Chief Justice Rehnquist addressed this on June 27, 2005 in Van Orden v. Perry; 545 U.S. ____ (2005) [Slip Opinion, p.8] where the Supreme Court upheld the placement of a Ten Commandments monument on the grounds of the Texas State Capitol:

Recognition of the role of God in our Nation's heritage has also been reflected in our decisions. We have acknowledged, for example, that “religion has been closely identified with our history and government,” School Dist. of Abington Township v. Schempp, 374 U.S., at 212, and that “[t]he history of man is inseparable from the history of religion,” Engel v. Vitale, 370 U.S 421, 434 (1962). This recognition has led us to hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State. Marsh v. Chambers, 463 U.S., at 792. Such a practice, we thought, was “deeply embedded in the history and tradition of this country.” Id., at 786.

Finally, it seems to me that if the City of Frederick is serious about tolerating and celebrating the rich diversity of its citizenry, that we should want to learn and understand the religious and philosophical foundations of one another. By allowing someone to offer an invocation at a Board of Aldermen meeting does not mean that the City subscribes to the religious views of the one speaking or praying. It was my understanding when Mayor Holtzinger asked me to offer an invocation at our first meeting, that he would extend the same offer to others in the future, and without telling them how to do it. I hope that this happens. If we are a tolerant and inclusive people, we will appreciate learning about religious views of others.