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Courts employ faulty logic to embrace 'civic prayer'

Commentary

By Douglas Lee
Special to freedomforum.org

09.29.01

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"Civic prayer" sounds like an oxymoron in a republic founded upon a separation of church and state. For courts struggling to balance the First Amendment's competing free-exercise and establishment clauses, however, "civic prayer" is becoming an increasingly popular refuge.

The most recent court to embrace the notion of civic prayer is the 7th U.S. Circuit Court of Appeals, which held in DeBoer v. Village of Oak Park, Ill., that the village could not prohibit National Day of Prayer activities in the town hall. To do so, the court ruled, would be to unlawfully discriminate against those who wished to express their political views through prayers and hymns.

In DeBoer, local National Day of Prayer organizers asked to conduct a prayer service in the hall. Pursuant to village policy, the hall could be used for non-village meetings only if, among other requirements, the primary purpose of the event was to provide a civic program, which the village defined as a program concerning a citizen's relationship to government. In their application, the organizers stated the agenda for the service was "prayer for our community, and our local, state, and national government leaders." The village, believing a prayer service could not be a civic program, denied the application.

The organizers sued, and the district court ultimately agreed with the village. Reasoning that "the line between civic and non-civic prayer is too fine to be drawn by the law," the judge concluded that all prayer was religious, not civic, in nature.

The judges hearing the case on appeal disagreed. Citing public prayers from George Washington's inaugural address to George W. Bush's cabinet meetings, the 7th Circuit panel held that "prayers and the invocation of divine guidance have been accepted as part of American political discourse throughout the history of this Republic." Accordingly, the court said, religious speech about civic issues is entitled to as much protection as partisan political speech.

The panel then dismissed any distinction between political speech from a religious perspective and worship. Relying on the Supreme Court's recent decision in Good News Club v. Milford Central School, the court said the difference in "form and tone" between these types of speech "does not alter the reality that worship and prayer directed toward the betterment of government and the enlightenment of civic leaders are methods of expressing a religious viewpoint about civic subject matter." The court therefore held that the village had violated the First Amendment when it determined that the organizers' prayer service was not a civic event.

As the decision in DeBoer makes clear, the concept of "civic prayer" is a compromise of both religion and logic. Prayer is religious because it presumes the existence of a divine being. While content can render a prayer more or less religious (a priest's solemn invocation, for example, versus a fan's prayer for a timely touchdown), prayer — by definition — cannot be free of religion. "Civic prayer" thus is not religion-free prayer. Instead, it is prayer that is not too religious.

The flawed logic of civic prayer, however, does not mean that prayer or other religious speech should be barred from village halls or other public places. As the court in DeBoer said, quoting the Supreme Court's decision in Capitol Square Review & Advisory Bd. v. Pinette, "government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince." If the free-exercise clause of the First Amendment is to have any meaning, religious speakers must have the same freedom as other speakers.

At the same time it ensures that freedom, however, government must guard against establishing religion. Ideally, this would mean remaining neutral not only among religions but also as to religion itself. Realistically, however, that neutrality never existed and never will. As the court in DeBoer observed, our government has supported and invoked religion since its founding. As proud as we are of our melting pot heritage, the United States is a Judeo-Christian nation that overwhelmingly believes in God and in praying to Him. Thus, as long as government-sponsored speech or prayer is not too religious, courts will allow it.

Obviously, the problem with this reality is determining when civic prayer becomes too religious. So far, judges seem confident they can make that determination fairly and consistently with the First Amendment. And, whether my plea is considered civic or religious, I'm praying they're right.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.

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