Across the country, some legislative bodies at the state and local level choose to begin their sessions with an opening prayer. However, if not done right, this practice could result in legal action, as one Florida board of county commissioners found when the American Civil Liberties Union and citizens of Brevard County in Florida brought a lawsuit against them.
The case went to the U.S. Court of Appeals in 2018 and is still awaiting a decision.
The commissioners started their meetings with a prayer but barred nontheists, atheists and humanists from participating. In the lawsuit, religious activism groups and the ACLU allege that Brevard County’s rejection of anyone who does not profess monotheistic beliefs from delivering an opening prayer violates the Supreme Court precedent from Town of Greece v. Galloway, a similar case from 2014.
Frayda Bluestein, a professor at the UNC School of Government, said the issue is evolving as cases go on across the country.
“It’s not illegal to pray in a particular religious manner by invoking some particular deity, but the Supreme Court case seems to say, as I read it, specifically in the context of a local government situation, that there has to be an opportunity for other religions to be represented,” she said.
Legislatures across the country are more diverse after the 2018 elections, including those in North Carolina. Two Muslims were recently elected to the General Assembly, Sen. Mujtaba Mohammed and Rep. Nasif Majeed.
Verla Insko, Orange County's representative, said lawmakers can volunteer to lead the General Assembly's opening prayer, and there is a list of some people who rotate certain days or who can be called on if no one is available. Insko said she has spoken with Majeed many times, and she hopes he will volunteer to lead the opening prayer in the North Carolina House.
“I don’t have any problem with starting the session with a prayer. I think a reading of some kind would also be OK. I believe in the separation of church and state, and so I prefer that prayers not identify any denomination,” Insko said.
Bluestein said if the prayer at the beginning of the meeting invokes only one kind of religion every time, or if there is no opportunity for representation of other religions, the practice could be illegal because of legal precedent.
“People may be a little confused as to what they can and cannot do legally,” she said. “But there seems to be a pretty strong swath of those who feel it is an important thing to do, and they will keep doing it until somebody tells them not to.”
Bluestein said many people who get elected think an opening prayer is important. She said the courts have been allowing some types of prayer in government meetings, so the practice is more likely to adapt to changing circumstances than to disappear entirely.
Insko said one way to find a balance between religion and legality is to avoid praying to any specific god or in a way that promotes any specific religion.
“I would advise the Muslim not to pray in the name of Allah, for example, but to keep it as a prayer to the eternal power, which would be a neutral approach. I think any neutral approach would be acceptable," Insko said.
Bluestein said another way to be sure that the opening prayer is done in a lawful way, especially if community members are allowed to participate, is to enact a prayer policy that outline the rules and regulations for public prayers in each legislative body.
“It’s particularly important if they’re going to be inviting people from the community to make the prayers because it's difficult to know what they’re going to say, so it’s helpful to go ahead and say we want to make sure the prayers are appropriate and diverse,” Bluestein said.
Nancy Abudu, legal director of the ACLU of Florida, said on the ACLU website that if a governmental body decides to have a forum that is open to the public, it must be open to everyone, and the body may not pick and choose.
“When the Board of County Commissioners blocks one group from having their voices heard, they are essentially saying to these citizens that their beliefs make them unwelcome in their own community. It’s unfair, discriminatory and unconstitutional,” the website said.
Insko said said she believes the legislature does not have a choice in whether or not to include other religions in the opening prayer because of the doctrine of separation of church and state.
“They call on us to do what’s right for the people of North Carolina, so I think the concept of starting with some kind of brief statement of purpose is fine, and I think prayer does that. The prayer should do that. It shouldn’t be used to promote one religion over another one,” she said.
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