By Donald Scarinci | May 28th, 2014 - 9:08am
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Many New Jersey town council meetings, like the City of Passaic, begin their meeting with a prayer before the public and the council members say the most unspeakable and inhuman things about one another during the public portion of the meeting.

While the right to speak at a public meeting, even if what is said is abusive, rude and utterly offensive, has always been protected by the United States constitution. The right to open the slugfest with a prayer has been questionable until now.

The U.S. Supreme Court ruled in Town of Greece v. Galloway that prayer before a local town council meeting is constitutional. The decision makes it more difficult for plaintiffs to challenge legislative prayers, but it doesn’t eliminate the possibility entirely either. In examining the Court’s opinion, there are a few pointers for how to open a council meeting or school board meeting with prayer.

Avoid being overly sectarian or coercive

The majority opinion focused on the fact that the town meeting opened the opportunity to lead a prayer to everyone and allowed anyone to say anything during public comment. The fact that the large majority of the prayers were Christian was not the Town’s fault. The Court also did not feel that the fact that the citizens attending the meeting felt pressure to pray was significant. Kennedy stated that citizens who “feel excluded or disrespected” by such religious invocations should simply ignore them. “Adults often encounter speech they find disagreeable,” he wrote. 

Don’t preach conversion

The Court condemned invocations that, cumulatively over time, “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.” The Court warns that it would be inappropriate for town officials to direct citizens to participate in the prayers or suggest that their decisions would be affected by an individual’s participation in the prayer or disfavor would be shown to non-participants. The Court made it clear that its ruling does not protect legislative prayers that negate other religions or promote incivility. In other words, this type of prayer must meet the Court’s definition of civil standards.

Keep it traditional

The Court looked at the fact the prayers vary in their degree of religious focus because they also sought peace for the country, wisdom for lawmakers and justice for its citizens. These values are considered to be universal as well as religious traditions. Thus, the majority opinion appears to approve of prayers that abide by our country’s long tradition of universal values, even if they are also primarily Christian.

While the Court provided guidance, there is still not a bright line drawn. Perhaps this was the Court’s intention. Having an unclear test is often the best means for causing both sides to take pause.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs


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