On May 5, the U.S. Supreme Court’s 5-4 decision to uphold a lower court ruling in the case of Town of Greece v. Galloway, found that legislative bodies, such as city councils, can begin their meetings with prayer.
That ruling made, the Sussex County Council has now requested that County Solicitor J. Everett Moore discuss what the federal court decision would mean for the local council, which has itself been involved in legal action over the issue.
Since mid-2012, the county council has opened meetings with the Old Testament’s Psalm 23, as part of an agreement made to resolve a June 2011 lawsuit filed against the council by Americans United for Separation of Church & State, on behalf of four Sussex residents.
The suit contended that the council’s recital of the “Lord’s Prayer” before meetings violated the establishment clause of the United States Constitution, as well as the Delaware Constitution’s corresponding provision.
In May 2012, U.S. District Judge Leonard P. Stark had issued a consent decree, ruling that the council’s recitation of the “Lord’s Prayer” was a violation. In September of 2012, council members approved an agreement with the plaintiffs that allowed the council to recite Psalm 23 at the beginning of each meeting, rather than the “Lord’s Prayer.”
At the council’s May 13 meeting, Moore explained that, although the Supreme Court had ruled to allow the Town of Greece, N.Y., to permit legislative prayer before meetings, the ruling was very specific to the facts of that specific case.
“The Town of Greece opened its meetings with prayer — not one specific prayer at every meeting, as was the case in Sussex County,” said Moore, noting that the policy in Greece had been for the town clerk to call local clergy listed in a directory and invite them to give an invocation prior to the meeting.
“They at no point excluded or denied the opportunity to a would-be prayer-giver. Its leaders maintained that a minister or layperson of any persuasion — including an atheist — could give the invocation; but nearly all the congregations in town were Christian, and from 1999 to 2007, all the participating ministers were, too.”
Moore said that, after respondents complained that Christian themes pervaded the prayers, to the exclusion of citizens who did not share those beliefs, the Town invited a Jewish layman and the chairman of the local temple to deliver prayers.
“A Wiccan priestess who had read press reports about the prayer controversy requested and was granted an opportunity to give the invocation. Thus, it was clear that the Town was open and nonexclusive in allowing other faiths to participate,” he explained.
Moore added that the Supreme Court had found that, as long as the Town of Greece maintains a policy of non-discrimination, “the Constitution does not require it to search beyond its borders for non-Christian prayer-givers in an effort to achieve religious balancing.”
Moore reiterated that the Greece case was different than that involving Sussex County.
“The court decision reads as follows: ‘The Town of Greece does not violate the First Amend¬ment by opening its meetings with prayer that comports with our tradition and does not coerce participation by non-adherents. The judgment of the U.S. Court of Appeals for the Second Circuit is reversed. It is so ordered.’
“That shows it is specific to this case and to the facts of this case. It says the Town of Greece does not violate the First Amendment by opening its meetings with prayers. … Though the Supreme Court affirms the right to have prayers in legislative cases, the Sussex County case was different in that the same prayer was given each week.”
Moore emphasized that the council had also entered into a Consent Order that did allow the council to continue its tradition of prayers before meetings.
“As such, if we change our practice, we do need to seek the Court’s permission,” he said.
As to whether or not the ruling would affect Sussex County Council, Moore said the council would have to decide if they want to change the prayer they are currently using.
“If the council as a body decides it does want to ask the court for relief from its Consent Order, the council needs to decide what kind of relief to ask for. If so, I would recommend Scott Shannon, Esq., of the firm of Marshall, Dennehey, Warner, Coleman, & Goggin be part of the strategy discussions.”
Councilman Vance Phillips noted that the Sussex County Council had a 30-plus-year tradition of giving the “Lord’s Prayer.”
“Was that ever recited in Greece?” he asked.
“I’m not sure. I’ve looked through a lot of the prayers, and many of the prayers were very decidedly Christian in nature,” responded Moore. “Some of them were very specific in invoking the name of Jesus Christ.
“During that period of time, the Court said it was important that the Town of Greece did not look specifically into the content of those prayers, because it did not tend to censor the prayers themselves… I did not see … in looking through the ones recited in the Court that they were the ‘Lord’s Prayer,’ but they were definitely Christian in nature.”
Phillips asked Moore how others are receiving the Court’s ruling, including Americans United.
“Even Americans United stated on their website that it is important that, if there is a decision to have prayers at any meetings, they cannot denigrate other faiths, threaten others with damnation or seek converts; local officials may not direct prayers or compel people to take part; and that the prayers may not be integrated into the policymaking periods of governmental meetings,” responded Moore.
Councilman Sam Wilson said he believed the Supreme Court’s decision would allow for the “Lord’s Prayer” to return to Sussex County Council meetings.
“I’ve been to Legislative Hall. They pray up there. Whoever is reading the prayer can say, ‘in Jesus’ name’ or whatever he wants to say. They’ve been practicing that for years. After school board has been open, they pray,” said Wilson.
“It seems like this is the only body right now that’s not permitted to do this. It kind of irritates me a little bit. This last line, it says we have to seek relief from the Court… As far as I’m concerned, [the Supreme Court] is the general. The general has handed down word that we have the right to pray, and we don’t need to go back and beg any difference.”
Moore stated that the Supreme Court’s ruling only affected the Town of Greece v. Galloway case, and not all cases that pertained to legislative prayer.
“What it did do — which I thought was very good — it gave a lot of guidance that is good for legislative bodies to look at to make sure that you’re inclusive in allowing everybody to have an opportunity to participate in prayers if you were opening it up,” he added. “It does give guidelines, which is very good.”
Wilson said that, if the audience doesn’t want to pray, that’s “their business,” and that the council is not proselytizing.
“I don’t see any holdback,” he said.
Councilman George Cole said he did see the distinction between the Greece case and the County’s previous litigation.
“When I read this, folks… the difference was we were giving the same prayer every week… My feeling is, I’m comfortable with what we’re doing. “We’re still saying the prayer… I don’t know if I want to get back into this chasing the tail.”
Phillips asked if it would be appropriate to discuss in executive session whether the Council wishes to take action regarding the Court’s decision.
“What is the end result? What’s the game plan?” asked Cole. “As of right now, I see no game plan. I think what we’ve got right now is good. I’m comfortable with it. I’m tired of spending money on this issue. Unless somebody comes up and says, ‘You’re saying the same prayer. You’re in trouble again…’ I just see this case was unique to that council. I’m fine with what we’ve got.”
Wilson said that Cole’s concern about legal fees was unfounded.
“As soon as we call in the next general above this general, it gets expensive again. These guys charge quite a bit by the hour, and they’re going to do research, and we’ll have a huge legal bill,” said Cole.
Wilson said it would “not cost a dime, and I think we should have more of a right here. After all, the Supreme Court has made a ruling here. Why should we bow down to a lower court? What’s wrong with the ‘Lord’s Prayer’?” asked Wilson.
“Sam, what’s wrong with the 23rd Psalm? I think they both send a good message,” responded Cole.
Phillips recommended the Council have a meeting in executive session with Moore and staff to see if the council wishes to pursue a relief from its Consent Order.
“I agree we have to be careful about spending much money on this. We had pro-bono services offered to us, and we utilized them during the first go-around, from the Beckett Fund,” he added. “I would suggest the administrator reach out to them and see if they would extend that pro-bono advice. It was very good the first time.”
The council did, in fact meet in executive session this week; however, once back in public session, no votes or other actions were taken regarding the issue. At that May 20 meeting, Seaford resident Bob Harrison spoke to the council, stating that he believes prayer should not be a part of legislative meetings, as they are “offensive” to non-believers.
He added that he was shocked to hear the council had been reciting the “Lord’s Prayer” for decades, stating that the use of the prayer by the council “cannot be morally justified by virtue of there being traditions.” Harrison cited slavery and segregation as long-standing traditions, and said, “All of these discriminations are or were against those who were politically powerless.”
He requested that the council change its rule and procedure by remove the invocation from its order of business.