Two different federal appeals courts have recently ruled on cases involving prayers offered at official governmental proceedings. These cases, and the questions they pose, are worth watching.
First, a unanimous 11th U.S. Circuit Court of Appeals panel in Gundy v. City of Jacksonville held that legislative prayer offered at the start of city council meetings in Jacksonville, Florida, is “government speech” and not “private speech,” overturning a district court finding to the contrary. The question arose out of a lawsuit filed by a minister who offered an invocation to open a council meeting but had his microphone cut off for using the invocation to attack the city’s executive and legislative branches. Pastor Gundy claims that the council violated his Free Speech and Free Exercise rights under the First Amendment. The appeals court dismissed his case, explaining that as government speech the prayers are not protected by Free Speech and Free Exercise principles.
The court explained that although the invocation giver is a private individual, he is acting as an agent of the council when offering the official invocation, which is thus not subject to Free Speech or Free Exercise protections. Here is an excerpt from the opinion:
[T]he invocation precedes the City Council’s official meetings, which members of the public participate in, making the invocation inherently “governmental in nature.” Further, the invocation speaker is chosen by an active member of the City Council. Thus, the speaker is an invited agent of the City Council praying on behalf of the City Council and symbolically expressing “who and what” City Council members represent before the City Council members engage in public lawmaking.
And even though the invocation speaker is a private party, the fact that a “private part[y] take[s] part in the . . . propagation of a message does not extinguish the governmental nature of the message…”
Recognition that legislative invocations are government speech reinforces the fact that such prayers are subject to Establishment Clause limitations, as the court pointed out. It also serves as a reminder of why clergy may want to think twice before agreeing to offer a prayer as an agent of the government in the first place. As this case makes clear, it is difficult to pray both as an agent of the state and retain your prophetic voice in calling it out.
In another important prayer case decided in recent weeks, a divided panel of the 5th U.S. Circuit Court of Appeals granted summary judgment to Judge Wayne Mack, a Justice of the Peace in Texas, dismissing a suit brought under the Establishment Clause that challenged his daily practice of opening courtroom sessions with a chaplain’s prayer. A 2-1 appeals court panel concluded that the practice fits within history and tradition and does not fall outside the guardrails set by the U.S. Supreme Court’s decision in Town of Greece v. Galloway (2014), which among other constraints suggested that the Establishment Clause would not permit a government prayer practice that was used to “coerce or intimidate.”
A dissenting opinion by Judge Grady Jolly argues that the majority failed to consider properly the coercive nature of Judge Mack’s practice, explaining that “[j]udicial ceremonies… present an even greater risk of coercion than legislative prayers.”
I invite the majority to step back and absorb the following picture painted by Plaintiffs’ evidence. When litigants enter Judge Mack’s courtroom, they must decide whether they will stay for the prayer ceremony or exit the courtroom for its duration. If they stay, thus aligning with Judge Mack, the courtroom is closed and the door is locked, leaving only the righteous with the judge. The litigants cannot sit back and observe: they are required to stand for the prayer ceremony. And when the actual prayer begins, the testimony indicates that Judge Mack scans the courtroom, leaving the impression upon litigants that he is indeed judging audience participation despite their supposed ability to abstain without consequence.
If a litigant who has chosen to stay in the courtroom does not participate, they risk upsetting Judge Mack, the decider of their cases, immediately before he hears their cases. … The testimony demonstrates that litigants recognize this risk and choose not to protest because of it.
Whether a particular government prayer practice violates the Establishment Clause continues to involve a highly fact-contingent analysis. Regardless of where those lines are drawn, when we have business before an official state proceeding – whether at a council meeting or a court hearing – our religiosity (or choice not to be religious) never should be taken into account.