It seems that the business of governing is always testy — fractious, even. When a legislative body of any sort acts with unanimity, it is notable.
As reported by the New Hampshire Union Leader, the Nashua, New Hampshire Board of Education (“Nashua BOE”) recently voted 7-0 to retain the practice of offering a prayer prior to its publicly meetings. The unanimous vote is remarkable for an age in which division rules the day.
More remarkable, the Nashua BOE faced stiff opposition from an out-of-state group that routinely complains about the presence of any sort of religion in public. This time, according to the Union Leader, the group sent not one, not two, but multiple letters — “once every six months for the past two years” — in an attempt to bully the Nashua BOE into ending the tradition of praying before a public meeting.
In all likelihood, the members of the Nashua BOE spent not a little time debating the topic. Whether in an open meeting or in the cloakroom, it is quite common to debate a topic — especially a topic as potentially divisive as prayer before public meetings. Regardless, the board members emerged unanimous. They are in good company.
This a common, almost daily practice across the country, and the U.S. Supreme Court has twice legally examined the practice of prayer before public meetings. In 1983, the justices explained in Marsh v. Chambers that the practice of the Nebraska Legislature of paying a chaplain to open its meetings with prayer presented no constitutional issues. Indeed, the Court explained 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” and, therefore, neither should any of us.
Several decades later, in Town of Greece v. Galloway, Justice Anthony Kennedy, writing for the Court’s majority, explained that the practice of having volunteers open public meetings in prayer also comports with the U.S. Constitution. Moreover, Justice Kennedy showed an understandable concern for the tone of such prayers. “Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing,” he explained, befits the function of such prayers: “[T]o lend gravity to the occasion and reflect values long part of the Nation’s heritage.”
And quite the tradition it is. One would be hard-pressed to find a more longstanding and treasured tradition of our republic. Indeed, Judge Jeffrey Sutton, concurring with a 2017 decision of the U.S. Court of Appeals for the Sixth Circuit that upheld the practice of the Jackson County (MI) Commission’s commissioners themselves offering prayer, noted that such prayers are no recent phenomena:
“For all of American history, such prayers have been allowed, whether invoking Jesus, God, or something else, whether by government-paid chaplains or by the elected officials themselves. And for all of American history, the United States Supreme Court has authorized such prayers. No one doubted the practice for most of our history.”
And no one should doubt it now. Indeed, according to the U.S. Court of Appeals for the Third Circuit in last month’s Fields v. Speaker of the Pa. House of Representatives decision, “the longstanding practice of theistic prayer in the United States” is entitled to a “presumption of constitutionality.”
In other words, the U.S. Supreme Court and its lower courts have repeatedly affirmed the constitutionality of prayer before public meetings — and have even gone so far as to establish a presumption that such practices are constitutional. While some may suggest that a fabled “wall separating church and state” forbids such a practice, the justices of the U.S. Supreme Court think otherwise. Not only is the practice of legislative prayer constitutional, but those who would challenge the practice of prayer before public meetings bear the nearly insurmountable burden of disproving the presumptive constitutionality of such a longstanding practice.
Hopefully, the letter-writing gadflies will now leave the Nashua BOE alone. But should those letters turn into a lawsuit, we at First Liberty Institute would happily defend the Nashua BOE.
There is a time and place for us to be divided. Matters of policy, questions of bond rates, and decisions over curricula will find vocal division throughout a community and even among the members of the Nashua BOE. Pausing to offer a prayer prior to such discussions need not be one of them.
The Nashua BOE is, therefore, deserving of commendation. They join a long line of legislative bodies, both large and small, that have sought to set a solemn tone before turning to the public’s business.
Well done, Nashua. May others follow your example of civility.
Jeremy Dys (@JeremyDys) is Special Counsel for Litigation and Communication to First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. Read more at FirstLiberty.org.