From the Desk of
County Commissioner Paul Smith

(6/11) New Frederick County Law Will Tell Us How to Pray

The Board of County Commissioners recently passed a policy to have prayer at the beginning of its BOCC meetings. In the last few days, several people have asked me why I voted against the prayer policy. I will explain.

The very thought that the government will regulate the content of our prayers is chilling. You would think that if freedom of speech means anything, it would mean that the government can’t tell you what you can and cannot say. You would also think that if the Establishment Clause means anything, it would mean that the government cannot establish specific criteria for what one can and cannot say in a governmental prayer.

I do believe in prayer, and I actually would support a policy of having prayers at some of our meetings. But it is a mistake to pass a law that regulates what you can and cannot say in a prayer. A preferable policy would be to allow individuals on a rotating bases from all faiths and persuasions to say or pray something for a limited time period at the beginning of meetings. This would entail no regulation of the content of speech, and it would not establish any religion over another. Federal courts have upheld such policies in New York, Georgia, Delaware, and Indiana. But the very process of prescribing an acceptable, non-sectarian prayer is the endorsement of one religious point of view.

The new prayer policy requires (1) That the invocation must be non-sectarian with elements of the American civil religion and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief; (2) That there be no references specific to any particular religion, denomination or sect; (3) That invocations are to be directed only at the County Commissioners; (4) That the County maintain a database of "known ordained religious

leaders of monotheistic religions with established congregations in Frederick County; and (5) That prayers "should not contain references that are specific to any particular religion, denomination or sect. As examples, invocations should not include references to religious figures such as Jesus Christ, to images such as a crucifix, or to teachings from such sources as the Koran or the Book of Mormon."

Some courts have already struck down prayer policies that sought to establish a non-sectarian legislative prayer. See e.g., Pelphrey v. Cobb County, GA, 547 F.3d 1263 (11th Cir. 2008). Two cases from the Fourth Circuit give some support to the constitutionality of our new prayer policy. Simpson v. Chesterfield County, 404 F.3d 276 (4th Cir. 2005) and Turner v. Fredericksburg, 534 F.3d 352 (4th Cir. 2008). Both of these cases rely on Marsh v. Chambers, 463 U.S.783 (1983), which upholds the right of legislatures to begin their sessions with prayer. But the Marsh case did not address the issue of whether legislative prayers must be "non-sectarian." I do not interpret Marsh to hold that legislative prayers must be non-sectarian.

In my opinion, anyone who will thoughtfully consider the implication of the elements of the above prayer policy will acknowledge that this attempt to regulate prayer content is infected with problems. First of all, the very defining of a "nonsectarian" prayer creates a "sectarian" prayer. Second, the prohibition from using references to a particular denomination or sect is impossible. Third, directing the prayers to be "directed only at the County Commissioners," necessarily means that the words would not be prayers, for prayers are directed at God. Fourth, maintaining a database of "known ordained religious leaders of monotheistic religion with an established congregation" necessarily excludes certain religions from the database. Fifth, prohibiting prayers that might contain references to a "particular religion, denomination or sect" creates an impossible standard to measure. Seventh, the specific prohibition from mentioning "Jesus Christ" or the "crucifix" specifically violates the standard stated in Marsh v. Chambers, because this prohibition disparages that particular faith. Id. at 794-795. Eighth, the prohibition from including "teachings from the Koran or the Book of Mormon" disparages Muslims and Mormons, and therefore also violates the Marsh standard, and it is also a vague standard that would be impossible to ascertain or enforce without prohibiting all prayer.

It is worthy to note that the Fourth Circuit is currently considering the constitutionality of a county’s prayer policy (in North Carolina) that made a regular prayer time available to people of all religions and persuasions, and which did not dictate the content of the permissible prayers. Joyner v. Forsyth County, Case No. 10-1232.

What the Supreme Court said in Lee v. Weisman, 505 U.S. 577 (1992) is certainly applicable here:

It is a cornerstone principle of our Establishment Clause jurisprudence that "it is no part of the business of government to compose official prayers for any group of the American People,"
                   Engel v. Vitale, 370 U.S. 421, 425 (1962).

If appreciating diversity in our society has any value, then we should certainly be broadminded enough to listen to and appreciate the religious beliefs and non-religious philosophies of other citizens. Personally, when I pray, I pray in the name of Jesus Christ. Should I pray differently when I pray in public? Should I change the way I pray any time my praying might offend someone? I normally begin my prayers by addressing "My Father in Heaven." Is this going to be acceptable now? Should the County generate a list of all the ways that one can legally address God in a prayer? The City of Frederick generated such a list, and no one has sued them yet. But this type of prayer law is currently being litigated around the country.

Again, my opposition to the prayer regulation is not an opposition to prayer; rather it is an opposition to government-controlled prayer that establishes one brand of prayer and prohibits all others.

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