Hysteria, insults, denigration and threats of legal action are childish responses to prayers at County Commission meetings

By Seth Richardson

One of the interesting, if predictable things that has occurred as a result of Commissioner Peggy Littleton’s call for prayer at the start of meetings of the Board of County Commissioners has been the visceral and instant reaction of the radical Atheists and secularists to the notion that religion might be seen or heard in the public square.

The outrage was knee-jerk and immediate, with comments like, “Oh for crying out loud. not only an incompetent corrupt right wing Republican, but a religious fanatic to boot,” and “A good leader does not waste their time on the biggest lie in the history of the universe. The commissioners should all immediately removed from office because they are much too stupid to do any good for this city.” (We’ll ignore for a moment the fact that Littleton is an El Paso County Commissioner) And then there’s the ever-so-erudite and rational, “The Nazis had “Mein Kampf,” Chinese Communists had “Mao’s Little Red Book,” The Soviets had “Marx’s Communist Manifesto,” Cubans had the works of Che Guevara’” and American conservatives have “The Bible.”"

I could go on, and on, and on.

What’s mostly missing from this dialog is any attempt on the part of Atheists to respect or even tolerate the religious freedom of others while ensuring that the actions of the Commissioners don’t violate the Establishment Clause of the First Amendment. There’s no attempt at compromise, just radicalism and invective.

Now, it’s true that there is a Supreme Court case explicitly supporting pre-legislative religious invocations, Marsh v. Chambers, in which Justice Berger wrote,

“In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an “establishment” of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Marsh v. Chambers, 463 U.S. 783, (1983)

But as is the case with most law, one case does not always tell the whole story, and there are a number of lower court cases, which may or may not be binding in El Paso County, that narrow the scope of what’s permissible in such invocations. What’s broadly permissible as an invocation of “God” in general becomes impermissible when one particular god, let’s say Zeus, is called out and favored by a public official.

The objections should be obvious, and that is that while elected officials are free to practice religion on their own time, they cannot do so when they are “on the clock.” The Supreme Court has set out three tests that are to be applied to the actions of government agents and agencies in the case Lemon v. Kurtzman:

• Does the government act have a primarily secular purpose?
• Does the government act either advance or inhibit religion?
• Does the government act “excessively entangle” government in religion?

The corollary question that’s of equal importance here, but which goes unasked and unanswered by both Commissioner Littleton and the secularists is when, precisely, is Commissioner Littleton, or any other government employee “on the clock” for the purposes of applying the Lemon Test.

This is actually the most important question, because Commissioner Littleton has said, “I’d like to encourage my colleagues to have, at a minimum, prayer together every Tuesday and expand it to leaders, elected officials and citizens who would like to express their blessing over the board.”

Atheists and secularists are aghast and outraged at the notion, as demonstrated above, and in the comments both on the Gazette’s news article and Wayne Laugesen’s editorial on the subject. They are circling the ACLU and Freedom From Religion Foundation wagons and are preparing to lay siege to the Commissioners, and we can expect their trebuchets to be hurling truckloads of legal papers over the walls at any moment.

But, if I may be so bold, the devil’s in the details, as is so often the case.

First, Littleton merely expressed the wish that the Commissioners “have…prayer together every Tuesday.” She didn’t say when, where or under what circumstances that prayer would occur. The inference taken by the Atheists is that it will be lead by Littleton from the dais, with the power of the County Commission invoked at the same time. That conflation of public office and private religion is what the secularists and Atheists fear, and I must agree that it is neither an unfounded nor an irrational fear.

While there is no actual “wall of separation” between church and State mentioned in the Constitution, the homily presents a visualization of the notion that government can neither favor nor disfavor any particular religion, or irreligion, in its official acts. And it is true that government agents and officials have a duty to remain strictly neutral towards both religion and religious expression in the official performance of their duties.

But it must also be noted that government also has a duty and obligation to engage in positive actions that protect the right to freedom of religion when such rights are infringed upon or threatened. This duty extends to tolerating the peaceable expression of religious freedom by citizens even within the corridors of power and halls of legislation. What a government agent may not do while on duty, a citizen may do when and where it pleases him or her to do so, so long as it’s peaceable and does not disrupt official business.

Thus, in this case, the nuances of exactly how such prayers or invocations are directed, sponsored and held are of the highest importance, and figuring out how to allow the Commissioners, and anyone else who wishes to engage in free religious expression without contravening the Constitution or violating a prong of the Lemon Test is what people of good will and tolerance do, rather than spouting anti-religious bigotry and prejudice and threatening lawsuits.

A couple of other legal principles apply here. The most important one is that private persons are not, and indeed cannot be prohibited from freely exercising their religious beliefs by government officials. The next most important principle is that public officials do not lose their religious rights merely by taking office, but they do, in this case, check them at the dais, when the business of the public gets underway. Prior to that time, however, they are acting as private persons, and they have all the rights of any other citizen to express their religious faith.

With these principles in mind, and with a willingness to find a way to accommodate the reasonable and legitimate rights of members of the public, and public officials acting on their own time, to freely express their religion, while also acknowledging and defending the principles of the Constitution that require public officials to remain officially neutral towards religion, neither advancing nor inhibiting any religious beliefs, I submit the following:

1. Under no circumstances should any Commissioner lead, direct or participate in any prayer while engaged in the official performance of their duties. They must not engage in religious practice while seated on the dais or after a meeting has been called to order. That is when they go “on the clock.”
2. The Commissioners should not pass resolutions or motions calling for or prohibiting public prayer within the Commissioner’s Chambers while the Commission is in session, as this is a clear violation of the Lemon Test.
3. The Commissioners may, and indeed should, provide sufficient time before the meeting is called to order so that members of the public can offer prayers, blessings or curses without disrupting the meeting.
4. The Commissioners may, in accordance with Marsh v. Chambers, permit religious officials of different faiths, and representatives who hold no religious beliefs, to offer an invocation before the session begins, so long as that invocation neither advances nor denigrates any particular religion, and so long as it occurs before the Commission is called to order.
5. The Commissioners, on their own time, prior to convening or after adjourning the Board of County Commissioners as a public body, are free to meet with their fellow citizens at any convenient time and place, including the chambers of the Commission, which is public property, and engage in whatever prayer or other peaceable expression of religion they wish, because at that time they are private citizens and are not acting as public officials.
6. Members of the public, on their own initiative, at any time during a session of the County Commission when general public comment or input is solicited or permitted, are fully entitled to offer prayers, blessings, or curses, so long as they do so according to the general rules for citizen comments and they do not disrupt the lawful business of the Commission.
7. Those who object to public displays of religious freedom are likewise entitled to speak their minds and petition their representatives for redress of grievances at similarly appropriate times in a peaceable and non-disruptive manner.

These suggestions I believe comply with both Marsh v. Chambers and the Lemon Test, and will keep the Commissioners out of trouble while fulfilling the duty of the government to protect the free expression of religion that accrues to everyone, including elected public officials.

And that, in my opinion, is how rational, reasonable people who understand the Constitution and the foundations of our Republic seek to resolve such differences; through tolerance, mutual respect, compromise and careful planning.

© 2011 Altnews

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