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.