03/28/2013 07:16 pm ET Updated May 28, 2013

City Commission's Prayer Policy Upheld

The U.S. Court of of Appeals for the Eleventh Circuit on March 26, 2013, upheld the Lakeland City Commission's (Florida) pre-meeting prayer policy as not violating the Establishment Clause of the First Amendment or provisions in the Florida Constitution. The case, Atheists of Florida v. City of Lakeland, provides an example of how local legislative bodies might craft a prayer policy that a court could find constitutionally permissible.

Ignoring certain mootness and jurisdictional issues discussed in the opinion, the First Amendment essence of the decision is captured by the Court's reference to the 1971 U.S. Supreme Court decision Lemon v. Kurtzman. This famous decision provides a three-factor test to determine what governmental religiously related practices are permissible under the Establishment Clause. "First, the statute must have a secular legislative purpose; second, its principle or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." The application of these factors to specific situations has become commonplace in Establishment Clause litigation involving governmental actions.

Additionally the Lakeland case references Marsh v. Chambers, a 1983 U.S. Supreme Court decision involving prayer at the opening of Nebraska state legislature sessions. This decision observed a long history and tradition in the United States of opening legislative sessions with prayers spoken by appointed chaplains. The decision determined that there was no Establishment Clause violation, leading many commentators to see a form of secular religion practiced by governmental bodies being recognized as acceptable.

Perhaps the most legally significant thing that the Lakeland City Commission did was to extend the opportunity to all religious bodies in the area to have an opportunity to lead the opening prayer in question. The Eleventh Circuit in a previous case, Pelphrey v. Cobb County, in 2008 wrote a lengthy opinion addressing prayer conducted by volunteers of various religions on a rotating basis before two county commissions. That opinion noted the attempted distinction that some courts have made between sectarian and non-sectarian prayers by stating that this court would not evaluate the content of the prayers. Interestingly the Pelphrey decision spit 2:1 with the dissenting judge finding a violation of the Lemon test, previously noted. This judge viewed the Marsh decision as an "outlier in Establishment Clause jurisprudence," and would have limited prayer to invocations before the federal Congress and state legislatures.

Readers know the continual controversies that surround religious expression in a public setting and specifically prayer. The plaintiffs in the current Lakeland case had proposed a moment of silence rather than verbal prayers. The Lakeland opinion reproduces the operative language in the Commission's resolution establishing the protocol for inviting religious leaders to pray before meetings. At least in the Eleventh Circuit, covering Alabama, Florida, and Georgia, that procedure is approved. The Eleventh Circuit appears to be focused on the methodology utilized to allow the prayers. This is in contrast to other federal Courts of Appeal decisions looking for non-sectarian language.

The last U.S. Supreme Court decision to specifically address public prayer in a governmentally supervised setting involved prayer before a public school football game, Santa Fe Independent School District v. Doe, decided in 2000. By 6:3 the Court held that a student initiated and student conducted prayer under these circumstances violated the Establishment Clause. Given that courts tend to have greater concern for messages directed to minors than to adults, this precedent may be somewhat limited in application.

In any event, it may be time for the U.S. Supreme Court to revisit the Lemon and Marsh decisions in the context of public prayer before governmental bodies. This would settle whether Marsh is an "outlier" or has broader application than legislative prayer. Additionally, it would be helpful to understand what circumstances, if any, merit judicial consideration of the contents of a prayer.