Freedom of Religion

A federal district court in Indiana ruled that the practice of opening each session of the state legislature with prayer violated the First Amendment’s nonestablishment of religion clause.

Key point 14-02. The courts have ruled that the First Amendment allows chaplains and other ministers to pray before legislative assemblies.

A federal district court in Indiana ruled that the practice of opening each session of the state legislature with prayer violated the First Amendment's nonestablishment of religion clause because of the overt "sectarian" preference for Christianity.

Four Indiana residents sued the Speaker of the House of Representatives of the Indiana General Assembly claiming that most of the prayers the Speaker has permitted to open House sessions are sectarian Christian prayers, in violation of the nonestablishment of religion clause of the First Amendment to the United States Constitution. The evidence revealed that the official prayers repeatedly and consistently advanced the beliefs that define the Christian religion, and in particular the resurrection and divinity of Jesus. During the 2005 legislative session there were 52 prayers, 41 of them given by Christian pastors. Of these 41 prayers, 29 were offered in the name of Jesus. For example, one pastor's prayer concluded, "Father we are so grateful to you for your grace and mercy that you have allowed us to be able to have and Father I thank you for our Lord and Savior Jesus Christ, who died that we might have the right to come together in love." After this prayer the Speaker reintroduced the pastor, saying: "I understand he has a wonderful voice and he is going to bless us with a song." The pastor then proceeded to sing "Just a Little Talk with Jesus." A number of the legislators, staff, and visitors present in the chamber stood, clapped, and sang along at the invitation of the pastor. This event prompted some members of the House to walk out because they believed the sectarian religious display during the legislative session was inappropriate.

The court referred to the Supreme Court's 1983 ruling in Marsh v. Chambers, 463 U.S. 783 (1983), in which the Court permitted the practice of having a paid legislative chaplain offer invocations in a state legislature. After noting that the same Congress that approved the Bill of Rights (including the nonestablishment of religion clause) authorized the appointment of paid chaplains for the House and Senate, the Court concluded that "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." In addition, the Supreme Court concluded that "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. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer."

The federal court in Indiana concluded, based on the Marsh decision, that "prayers offered to open legislative sessions do not, without more, violate the establishment clause. Second, the fact that prayers are offered in the Judeo-Christian tradition also does not violate the establishment clause, at least where the prayers are not explicitly Christian or explicitly Jewish. Third, however, there are constitutional limits to legislative prayer. The clear implication is that where the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief, official legislative prayers would violate the establishment clause." The court concluded that the practice of the Indiana legislature exceeded the constitutional limits because of the frequent use of Jesus' name. However, the court noted that the legislature could continue legislative prayers so long as persons offering the prayers were informed that their prayer "must be non-sectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief, and (b) that they should refrain from using Christ's name or title or any other denominational appeal."

It observed, "We cannot adopt a view of the tradition of legislative prayer that chops up American citizens on public occasions into representatives of one sect and one sect only, whether Christian, Jewish, or Wiccan. In private observances, the faithful surely choose to express the unique aspects of their creeds. But in their civic faith, Americans have reached more broadly. Our civic faith seeks guidance that is not the property of any sect. To ban all manifestations of this faith would needlessly transform and devitalize the very nature of our culture. When we gather as Americans, we do not abandon all expressions of religious faith. Instead, our expressions evoke common and inclusive themes and forswear the forbidding character of sectarian invocations."

The court concluded by quoting from a recent federal appeals court decision: "When the Founders of this Nation set the boundaries on the power of government, the first words they wrote in the Bill of Rights were 'Congress shall make no law respecting an establishment of religion ….' The Founders recognized that we are a people of many strong and vigorous faiths. They acted to protect the liberty to practice those faiths. The Founders also knew centuries of history in which religious conflicts had caused war and oppression. They recognized that even the best intentions of people of faith can lead to division, exclusion, and worse. And they recognized that a majority who sees its faith as true and benign can be tempted in a democratic republic to try to use the power and prestige of government to advance that faith in ways that would actually divide and exclude." Hinrichs v. Bosma, (S.D. Ind. 2005).

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