2 Cases Threaten to Shut Down Public Prayer. Why the Supreme Court May Need to Act.

Ken Klukowski, The Daily Signal

Ken Klukowski is senior counsel for First Liberty Institute, a nationwide law firm dedicated to protecting religious liberty for all Americans. He represents Jackson County in Bormuth v. County of Jackson.

Two federal appeals courts are considering whether elected leaders throughout the Midwest and mid-Atlantic regions must abandon the 200-year-old practice of opening local meetings with an invocation.

Both cases could end up before the Supreme Court by Christmas time.

In one case, a self-described pagan sued the board of commissioners of Jackson County, Michigan, arguing that its tradition of beginning monthly board meetings with an invocation violates the Constitution’s Establishment Clause, the First Amendment provision disallowing government from establishing an official religion.

In 1983, the Supreme Court in Marsh v. Chambers examined Nebraska’s practice of employing a salaried Christian chaplain who offered the Legislature’s invocations for 16 years, and held that “legislative prayers” at policymaking-body meetings are constitutional.

The court noted that the first Congress wrote the Establishment Clause in the same week it passed laws to create a House chaplain and Senate chaplain, whose public duties included offering invocations every day that Congress is in session.

Over the next three decades, some lower courts and academics speculated that Marsh might be a one-off exception to normal Establishment Clause rules. Some argued that invocations must be generic, and therefore mentioning Jesus Christ or making other sectarian references would be unconstitutional.

In 2014, the Supreme Court addressed this confusion by taking another case concerning a New York town where the invocations are offered by local volunteer clergy—all of whom were Christian.