Regardless, people disagree, and some are willing to go! All! The! Way! to the Supreme Court to be able to issue a prayer before a City Council meeting that specifically mentions Jesus Christ. A non-sectarian prayer is already ok (bastards), the only issue is making it exclusively Christian, which is, you know, not OK. The plaintiff, a Jesus-loving council member, has already lost the district case, but will not give up the (holy) ghost, claiming that he is exercising his right to free speech, that the official City Council prayer is not government speech, and therefore their failure to let him invoke Jesus infringes his "First Amendment rights of Free Speech, Free Exercise of Religion, and non-Establishment of religion and equal protection under the law". The district court sanely disagrees -- from their decision that his prayer is in fact government speech:
Plaintiff’s characterization of his speech ignores the primary purpose of the prayer, and the effect it has on others. First, the central purpose of the program in which the speech occurs is to conduct City Council business. Second, the local government can (and must, to comply with the Establishment Clause) exercise editorial control over the speech’s content. Third, the identity of the speaker, Councilor Turner is a government official, acting in his official capacity. Contrary to Councilor Turner’s assertions, the ultimate responsibility for the content of the speech, rests upon the City Council on whose behalf the prayer is offered. Additionally, the Mayor presides over the City Council meetings in his official capacity, and recognizes individual Council members to deliver the City Council’s opening prayer. The prayer may not be offered without the Mayor’s permission. The prayer by the City Council member is an official agenda item, listed on the meeting agendas.
Thanks! Everything else pretty much follows from there, based on Marsh v. Chambers which still allows legislative prayer based on historical precedent as long as they're not sectarian, and that's the end of that.
Except it's not, because a federal appeals court just heard arguments on this case last week. But whatever, lots of luck getting it to the Supreme Court. Of course Brennan who is still on the Court wrote the original dissent for Marsh, back in 83, saying:
The most commonly cited formulation of prevailing Establishment Clause doctrine is found in Lemon v. Kurtzman, 403 U.S. 602 (1971): [463 U.S. 783, 797] "Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute [at issue] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster `an excessive government entanglement with religion.'"
That the "purpose" of legislative prayer is pre-eminently religious rather than secular seems to me to be self-evident. "To invoke Divine guidance on a public body entrusted with making the laws," is nothing but a religious act. Moreover, whatever secular functions legislative prayer might play - formally opening the legislative session, getting the members of the body to quiet down, and imbuing them with a sense of seriousness and high purpose - could so plainly be performed in a purely nonreligious fashion that to claim a secular purpose for the prayer is an insult to the perfectly honorable individuals who instituted and continue the practice....
Damn skippy. This whole thing is an insult! To me, anyway, though I am not that honorable. But the decision to overturn the appeals court in favor of permitting legislative prayer is all predicated on tradition, and given special dispensation since there has always been a prayer before Congress, etc. Of course the original folk being prayed at and writing the Establishment clause in the first place also wore ridiculous wigs and rode horses and walked around in shit all the time, and we seem to have no problem with losing those traditions in favor of tasteful toupees, cars and indoor plumbing, but whatever. The main decision in Marsh justified itself and pointed out the special nature of opening prayers by including this:
In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, "God save the United States and this Honorable
Court." The same invocation occurs at all sessions of this Court.
Well then stop fucking saying it! Problem solved! I should be on the Court. Jesus Christ.
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