Recall my earlier post about an upcoming US Supreme Court case concerning the constitutionality of opening government meetings with a prayer, thus seeming to re-open an issue that it had addressed in 1983 in Marsh v. Chambers and which had served as the precedent for all subsequent cases.

City and local governments that want to start their meetings with prayers have been under pressure to diversify the religions represented so as to maintain that they are not promoting just one religion over the others. Some who oppose the practice altogether have suggested that what nonbelievers should do is propose their own ‘prayers’, to show up the hollowness of the claims that these bodies are not promoting religion.

But what kind of prayer would you propose? In researching this issue, I came across an interesting case. In 1993, the Utah Supreme Court ruled that the state constitution does not prohibit a city council from opening its meetings with a prayer. In response, Tom Snyder submitted the following prayer to the Salt Lake City council with the request that he be allowed to recite it.

OPENING PRAYER

OUR MOTHER, who art in heaven (if, indeed there is a heaven and if there is a god that takes a woman’s form) hallowed be thy name, we ask for thy blessing for and guidance of those that will participate in this meeting and for those mortals that govern the state of Utah;

We fervently ask that you guide the leaders of this city, Salt Lake County and the state of Utah so that they may see the wisdom of separating church and state and so that they will never again perform demeaning religious ceremonies as part of official government functions;

We pray that you prevent self-righteous politicians from misusing the name of God in conducting government meetings; and, that you lead them away from the hypocritical and blasphemous deception of the public, attempting to make the people believe that bureaucrats’ decisions and actions have thy stamp of approval if prayers are offered at the beginning of government meetings;

We ask that you grant Utah’s leaders and politicians enough courage and discernment to understand that religion is a private matter between every individual and his or her deity; we beseech thee to educate government leaders that religious beliefs should not be broadcast and revealed for the purpose of impressing others; we pray that you strike down those that misuse your name and those that cheapen the institution of prayer by using it for their own selfish political gains;

We ask that the people of the state of Utah will some day learn the wisdom of the separation of church and state; we ask that you will teach the people of Utah that government should not participate in religion; we pray that you smite those government officials that would attempt to censor or control prayers made by anyone to you or to any other of our gods;

We ask that you deliver us from the evil of forced religious worship now sought to be imposed upon the people of the state of Utah by the actions of misguided, weak and stupid politicians, who abuse power in their own self-righteousness;

All of this we ask in thy name and in the name of thy son (if in fact you had a son that visited Earth) for the eternal betterment of all of us who populate the great state of Utah.

Amen.

Rather than allowing him to read it, the Salt Lake City council decided to abandon altogether its policy of opening meetings with a prayer, which is what Snyder presumably wanted.

Snyder then sent his request to the Murray City council which denied his request. He promptly sued them and the case was argued before the full Tenth Circuit of the United States Court of Appeals, which in 1998 rejected his claim.

The Appeals Court pointed out that the US Supreme Court, in deciding Marsh, had abandoned its previous guidelines to determining Establishment Clause violations and had invoked purely historical reasoning and tradition to justify the practice of opening prayers. (This kind of ad hoc reasoning by the court to enable it to reach a decision it wants for other reasons is unfortunately not uncommon.) Although seemingly unconvinced by the reasoning in Marsh, nevertheless the Appeals Court said that it was bound by that precedent and its consequences, one of which was that not choosing a particular prayer did not automatically imply that the government was picking sides in religion.

[Snyder] alleges that in preventing him from reciting his prayer against government prayers, the government has established a religion. Despite its unusual posture, the essence of Snyder’s contention is straight-forward: Snyder claims that in branding his particular prayer “unacceptable” and preventing him from offering it as part of the official “reverence period” of the municipal council meeting, Murray City has impermissibly preferred one religion over another.
…
We are obliged, therefore, to read Marsh as establishing the constitutional principle that the genre of government religious activity that has come down to us over 200 years of history and which we now call “legislative prayer” does not violate the Establishment Clause. Furthermore, as a consequence of the fact that this genre of government religious activity cannot exist without the government actually selecting someone to offer such prayers, the decision in Marsh also must be read as establishing the constitutional principle that a legislative body does not violate the Establishment Clause when it chooses a particular person to give its invocational prayers. Similarly, there can be no Establishment Clause violation merely in the fact that a legislative body chooses not to appoint a certain person to give its prayers. The act of choosing one person necessarily is an act of excluding others, and as a result, if Marsh allows a legislative body to select a speaker for its invocational prayers, then it also allows the legislative body to exclude other speakers.

The court decided to rule narrowly, ignoring the issue of whether Snyder was sincere or not, and merely looked at whether what he proposed prayer belonged within the scope of ‘invocational’ prayers. It said it did not.

Snyder’s claim must fail as a matter of law because his proposed prayer falls well outside the genre of legislative prayers that the Supreme Court approved in Marsh and the record is devoid of evidence indicating an intent to promote or disparage any religion. Not only does Snyder’s prayer explicitly attack the genre itself, it also disparages those who believe that legislative prayer is appropriate.

I myself like Snyder’s prayer and it is likely that he would not object to other people adopting it. However, if you do decide to do so, it would be good to read this opinion carefully and modify the prayer accordingly because the court goes into some detail about how the prayer violates the genre of invocational prayer, which was why it was permissible to exclude it. Removing those elements would make it harder to do so.

The Marsh decision by the US Supreme Court is a logical mess going against much of its previous reasoning on Establishment Clause cases, seemingly done purely to preserve an old practice. This Appeals Court opinion pretty much says so, just in more polite terms. It will be interesting to see how the new case that it has decided to hear modifies the Marsh precedent.