Another skirmish in the legal contests about the constitutionality of legislative prayer — this time in a thoughtful district court decision.  The plaintiff sued a local Tennessee County to stop it from beginning its regular meetings with a prayer.  The stipulated facts indicated that prayers were given by members of various faiths through the years, but that “[s]ome of the invocations ‘referred to a deity in a way consistent with the Christian faith.'”  Most recently, the Lord’s Prayer was recited, and several commissioners “stood and joined in the spoken recitation of the prayer.”  After these incidents, the County adopted a policy indicating that its list of invocation-givers is drawn from a variety of religious traditions and is entirely voluntary, and that legislative prayer has been held by the Supreme Court in Marsh v. Chambers to be constitutional.  The Freedom From Religion Foundation nevertheless sued, seeking a preliminary injunction to stop the County from conducting the prayers pursuant to the policy and alleging a violation of the Establishment Clause.

The United States District Court for the Eastern District of Tennessee denied the preliminary injunction.  After remarking on the extremely murky status of the Lemon Test (and I loved this quote from a Sixth Circuit opinion: “[W]e remain in Establishment Clause purgatory.”), the court held that in the specific context of legislative prayer, the Lemon Test “simply does not apply.”  Instead, Marsh v. Chambers is the standard, in which the Supreme Court engaged in a historical examination of the practice of legislative prayer, concluding that it is “deeply embedded in the history and tradition of the country.”  The court quoted this specific language from Marsh:

Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination—Presbyterian—has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo–Christian tradition. Weighed against the historical background, these factors do not serve to invalidate Nebraska’s practice. 

The court recognized that Marsh’s holding had been qualified in City of Allegheny v. ACLU (a religious display case, not a legislative prayer case), where the Supreme Court had some limiting things to say about the force of history and tradition.  But the Sixth Circuit has not (yet) decided a case specifically about the constitutionality of legislative prayer.

In light of the holding and dicta in Marsh, as well as the recent legislative prayer decisions in the Second Circuit (discussed here), Fourth Circuit (particularly Joyner v. Forsyth County), and the Eleventh Circuit (Pelphrey v. Cobb County), the court distilled several broad “themes” relating to the constitutionality of legislative prayer:

1. “[L]egislative prayer has a unique and well-established history that, relative to the First Amendment, renders it unlike other types of government conduct. It presents a sui generis legal question[.]”
2. “I]n large measure due to the unique historical place it occupies, legislative prayer is, in general, permissible . . . . Legislatures may call upon—or even employ—ordained ministers to invoke divine guidance on a group of elected officials . . . . [T]o the extent a clear message can be heard from Marsh, it is this: as a basic legal principle, the Establishment Clause is not offended if a legislature formally invokes divine blessings on its official business.
3. “[D]espite its marked differences from other governmental involvement with the sacred, a legislature’s ability to call on the divine at public meetings is not limitless. Historical patterns, standing alone, cannot justify violations of constitutional guarantees, and the government may not express its allegiance to a particular sect or creed . . . . It is for that reason that the prayer opportunity cannot be used to proselytize listeners . . . . Likewise, such prayer practices may not be used to advance any one belief or to disparage any other . . . . Even when operating under a facially neutral policy, a legislature may not select invocational speakers based on impermissible motives or sectarian preferences.” 

Applying these themes, the court held that the County’s policy did not, on its face, violate the Establishment Clause.  The policy specifically states that it is not intended to proselytize or to promote any particular religion.  It is inclusive in its scope, extending to all religious congregations with an established presence in the County and open to all that wished to be included.  The court rejected as speculative and “unripe” FFRF’s allegation that the Policy is “a sham” and that, when applied, it will certainly be unconstitutional.  Neither, however, does the County’s policy insulate it from further review down the road.

The case is Jones v. Hamilton County, 2012 WL 3763963 (E.D. Tenn. Aug. 29, 2012).