“Freedom is never more than one generation away from extinction,” Ronald Reagan once observed. “We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.”
In the world of the law, precedent ought to do some of that inter-generational heavy lifting. Yet, even there, vigilance is required. Three examples from the past two weeks prove the point.
In Mt. Sterling, Ohio — a village of about 1,700 people — the village council decided to begin its meetings in prayer. But some questioned their freedom to do so, even going so far as to say that allowing sectarian prayers before public meetings would “chip away” at the First Amendment’s Establishment Clause.
Meanwhile, in DuPage, Illinois, a dispute broke out among the commissioners of the DuPage County Board. The Board previously welcomed an atheist to open their meetings with a moment of reflection. That caused some to wonder whether their practice of offering prayers is a wise tradition.
Then, the Weatherford Independent School District, outside of Ft. Worth, Texas, received a complaint that it permitted prayer before its school board meetings.
None of these should even be a question; of course they can pray. Americans have valued the role of prayer before public meetings since before we were even established as an independent country. But there is more than tradition for us to rest upon. The Supreme Court of the United States has twice upheld the practice of opening our public meetings in public prayer. Twice.
In 1983, in Marsh v. Chambers, the Justices lent approval to the practice of allowing paid chaplains to open the Nebraska state legislature with prayer. Chief Justice Burger, writing for the majority of the Court, explained that holding otherwise would be inconsistent with our founding, given that “the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment.”
If the authors of the First Amendment failed to see a conflict in opening their own meetings with legislative prayer, it is difficult to conceive how prayer before the village council of Mt. Sterling, Ohio could violate the Constitution in doing so.
In recent years, some argued that sectarian prayers were the problem. Prayers should reflect the values of the community, they reasoned, not be limited to one prayer-giver’s faith. But, in 2014, Justice Kennedy, writing for the majority of the Court in Town of Greece v. Galloway, disagreed.
“The decidedly Christian nature of these prayers,” Justice Kennedy wrote, “must not be dismissed as a relic of a time when our Nation was less pluralistic than it is today.” Sure, all prayers are welcome before public bodies, regardless of religion, but the prayers are the speech of the one praying, meant for the audience of the lawmakers. So the DuPage county commissioners can welcome prayers of any religious stripe, so long as they are respectful in tone.
Even school boards should not pose a problem for legislative prayer. As U.S. Court of Appeals for the Fifth Circuit Judge Smith wrote in Am. Humanist Ass’n v. McCarty, “the presence of students at board meetings does not transform [a legislative prayer matter] into a school-prayer case.”
Weatherford ISD is on solid legal grounds with its invocation policy, whether students offer them or the school board members themselves. “It would be nonsensical to permit legislative prayers,” Judge Smith concluded, “but bar the legislative officers for whom they are being primarily recited from participating in the prayers in any way.”
In each of these instances, with the freedom to open public meetings with prayer firmly established in decades of precedent, and over a century of tradition, activists tried to intimidate local elected officials into ending the practice. While we sent letters to all three entities, explaining the law to them, I wonder how many others we miss. I wonder how many times school boards or county commissions or city councils just stop doing something that the U.S. Supreme Court has said is perfectly permissible and an indelible part of our history because they misunderstand the law.
At one point, lawyers in 1983 fought for that freedom in Marsh v. Chambers. A generation later, attorneys once again mounted a defense of that freedom in Town of Greece v. Galloway. Yet more legal arguments flew in yet another battle over that freedom in 2017 and the McCarty case. And there are more legal efforts underway to preserve that freedom for future generations, including the letters we at First Liberty Institute sent over the last two weeks.
But lawyers cannot do it all. It falls to each American, of every generation, to preserve, defend, and uphold the freedoms of our Constitution against the onslaught of those who would drive freedom itself into extinction.
Jeremy Dys (@JeremyDys) is Deputy General Counsel for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all Americans. Read more at FirstLiberty.org.