When the US Supreme Court, in the case of Greece v. Galloway in 2013, issued a somewhat incoherent and confusing opinion that opening prayers could be allowed at the opening of town council meetings under certain conditions, many of us felt that this would be the thin edge of the wedge that would be used by religious public officials to increasingly introduce religion into the public square. And so it is proving. On March 20th, the Fifth Circuit Court of Appeals upheld a US District Court judge’s ruling that, following that Greece precedent, a Texas school board could also start its meetings with prayer, saying that the Galloway case set a new precedent.
In a 3-0 decision, the 5th U.S. Circuit Court of Appeals rejected an appeal by the American Humanist Association, which said the practice by the Birdville Independent School District violated the First Amendment’s prohibition of a government establishment of religion.
Birdville’s school board has since 1997 let students, typically in elementary or middle school, open meetings with statements that AHA said were usually prayers, often referring to Jesus Christ and asking audience members to pray. Board members often stand and bow their heads during the invocations.
Writing for the appeals court, Circuit Judge Jerry Smith said the matter involved legislative prayer, because a school board was “more like a legislature” than a classroom.
You can read the opinion here.
Of course, there should not be prayers at the opening of legislatures either but that decision was settled earlier in favor of allowing such ‘ceremonial prayer’ in the 1983 case of Marsh v. Chambers. Justice William Brennan’s dissent in that case accurately predicted that allowing prayers in some form and under some conditions in public institutions would lead to one Establishment Clause dilemma after another and that the best option would be to ban such prayers altogether to avoid having the judiciary become the arbiter of ecclesiastical matters. He wrote:
More fundamentally, however, any practice of legislative prayer, even if it might look “nonsectarian” to nine Justices of the Supreme Court, will inevitably and continuously involve the State in one or another religious debate.
The argument is made occasionally that a strict separation of religion and state robs the Nation of its spiritual identity. I believe quite the contrary. It may be true that individuals cannot be “neutral” on the question of religion. But the judgment of the Establishment Clause is that neutrality by the organs of government on questions of religion is both possible and imperative.
As I wrote earlier:
Brennan also argued that there is a big difference between things like mottoes and inscriptions on public buildings, and legislative invocations, in that the former were static expressions while the latter were unpredictable and could change. Even if one were able to set out parameters of what constitutes acceptable prayers, this raises the immediate and obvious problem of how, if the government cannot censor or design prayers or demand the ability to give prior approval, it can prevent prayer givers from going off the reservation, so to speak, and giving a prayer that is blatantly unconstitutional.
In short, once you allow prayer of any kind, however limited in its range, there seems to be no way of enforcing those limitations without the government acting as a censor and this is a question that the current Supreme Court also struggled with during the oral arguments in the Greece v. Galloway case last November.
Following Marsh and later Greece, we are going to see more attempts at creeping encroachment of religion into schools and legislatures and the Texas case is going to be one of many.