Legal issues abound over city's prayer policy proposal

Who would have guessed that the issue of whether to pray at the opening of a city council meeting could carry so much importance? But given the recent turn of events in the city of Yakima and the number of lawyers lining up to litigate the matter, its gravity has suddenly taken on biblical proportions.

Last Tuesday, the Yakima City Council unanimously agreed to prepare a policy preserving the practice of public prayer. Council members want to adopt a statement drafted by the Alliance Defense Fund. It's an introductory disclaimer that asserts our Founding Fathers believed certain rights are endowed by a Creator and that courts have permitted prayers on the basis of custom and thus allow requests for "divine guidance."

The Alliance Defense Fund, a group of lawyers who seek to protect the freedom of religious expression, has also pledged to defend the city against any legal challenge to its continued practice of offering a prayer before each meeting.

"We must continue the fight for religious freedom and the right of conscience so that the life-changing message of Jesus Christ can be proclaimed and transform our culture," reads a plea for donations from the Alliance Defense Fund's website. "Each win for the Body of Christ is a loss for the opposition. It's that black and white. Will you help us win?"

Council members expressed relief that the Alliance Defense Fund is willing to foot the city's legal bills. They should, since a legal challenge is almost certain given the threats leveled by the Freedom From Religion Foundation, a national association of freethinkers, otherwise known as atheists and agnostics. The foundation, based in Madison, Wis., has already put the city on notice that its practice of praying at the start of meetings by invoking the name of "Jesus Christ" will be challenged in court.

Here's what Dan Barker, co-president of the foundation, had to say recently about a decision by El Paso County commissioners in Colorado to expand their use of prayers at public meetings: "Calling upon commissioners and citizens to rise and pray (even silently) is coercive, embarrassing and beyond the scope of secular county government. Commissioners are free to pray privately or to worship on their own time, in their own way. They do not need to worship on taxpayers' time."

It's fair to ask whether a prayer given in a public setting is actually coercive in nature as those from the foundation have argued. Do public officials seek to proselytize for a specific religion or are they merely recognizing, with humility, that they are human and, as such, don't have all the answers.

The U.S. Supreme Court weighed in on this matter in 1983 when the justices upheld the practice by the Nebraska Legislature of opening its session with a prayer given by its paid chaplain. The justices found the practice did not cross the line of the First Amendment's prohibition against "the establishment of religion."

"The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief," the majority opinion states. "That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer."

A number of city councils and county commissions have chosen to open their meetings with a nonsectarian, nondenominational prayer. This practice, too, has been upheld in a 2008 U.S. Court of Appeals ruling written by retired U.S. Supreme Court Justice Sandra Day O'Connor, who served on the three-member panel by designation.

The case involved the city council in Fredericksburg, Va., and its policy of having a council member read a nondenominational prayer before each meeting. One of its members, a Baptist minister, took exception to the fact he could not close his prayer with the words "Jesus Christ." When the mayor prevented him, the minister filed suit.

"The restriction that prayers be nonsectarian in nature is designed to make the prayers accessible to people who come from a variety of backgrounds, not to exclude or disparage a particular faith," O'Connor wrote.

Her opinion rests on the First Amendment's so-called establishment clause prohibiting the federal government from enacting laws "respecting an establishment of religion." It's important to note the actual words "separation of church and state" are not in the amendment.

That doesn't mean Americans believe religion has no place in public discourse. Far from it.

A recent State of the First Amendment poll showed a clear majority of Americans see nothing wrong with allowing religious expressions at public gatherings. And that includes students being able to speak about their religious beliefs at school events.

"There is an important constitutional difference between government actions endorsing religion (which the establishment clause prohibits) and religious expression by private citizens in the public arena (which the free-exercise and free-speech clauses protect)," writes Charles C. Haynes, director of the Religious Freedom Education Project, in a recent article for the Washington Post.

What should concern Americans is the effect this intermingling of church and state may have on the faithful, Haynes argues. It was not Thomas Jefferson but Roger Williams, theologian and founder of Rhode Island, who first popularized the notion of a separation of church and state when, in 1640, he called for "a hedge or wall separation between the garden of the church and the wilderness of the world."

In other words, Haynes writes, "Entanglement of church and state corrupts faith and violates conscience."

Maybe it's time for council members to step back and take a hard look at what they are pursuing. Do they really want to draw a line in the sand and fight in court for the right to pray in a public setting? Or instead should they leave the business of faith where leaders of religious expression, like Roger Williams, would prefer -- in the garden of the church?

Really, isn't the task of a city council about improving public safety and filling potholes in streets? I don't believe that kind of public service requires divine intervention.

* Spencer Hatton retired in September after 27 years at the Yakima Herald-Republic. He now lives on Easy Street.