Legal challenges to legislative prayer continue to play out in the courts. Most recently, in Barker v. Conroy, Williamson v. Brevard County, and Speaker v. Fields, atheists have brought a series of Establishment Clause actions against prayer practices that prohibit them from offering secular (as opposed to religious) invocations. Thomas Hungar joins us to discuss those cases and their important implications.
Thomas Hungar, Partner, Gibson, Dunn & Crutcher LLP
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.
Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Friday, October 25, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on "Legal Challenges to Legislative Prayer." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today we are very fortunate to have with us an accomplished litigator on this subject, Mr. Thomas Hungar, who is currently a Partner with Gibson, Dunn. He has argued the cases of Town of Greece v. Galloway and Barker v. Conroy, and previously, was General Counsel to the U.S. House of Representatives and is a former Deputy Solicitor General.
After our speaker has his remarks, we will have time for Q&A, so please keep in mind what questions you have for his comments today.
Thank you very much for sharing with us today. Tom, the floor is yours.
Thomas Hungar: Thanks very much, Wes. It's a pleasure to be here. I thought I would start by just sketching out a little bit of the background of the law in this area and then turn to the most recent set of legal developments.
So as many of you I'm sure already know, the issue of legislative prayer in the courts was addressed for the first time by the Supreme Court in 1983 in the case of Marsh v. Chambers which involved an Establishment Clause challenged to the Nebraska Legislature's practice of opening its sessions with a prayer, generally delivered by a chaplain who was a paid employee of the legislature and happened to have been the same chaplain from the same Christian denomination for 16 years. And he tended to deliver, at least for most of the time period in question, typically Christian prayers and certainly from a Judeo-Christian religious perspective.
In analyzing the constitutionality of this practice, the Supreme Court essentially ignored the Lemon Test, which was the traditional test for assessing Establishment Clause challenges at that time and, instead, looked to history and tradition. Chief Justice Burger and his opinion for the Court emphasized that legislative prayer is a practice deeply imbedded in the history and tradition of the country, part of the fabric of our society, therefore, a tolerable acknowledgment of beliefs widely held among the people of the country.
And he explained that while the fact that there was strong, historical practice and precedent for this didn’t necessarily mean it was automatically constitutional. He explained that history was highly relevant because it shed light on what the draftsmen of the Establishment Clause intended it and understood it to mean and how they thought it applied to the practice at issue, particularly since the very Congress that had drafted and proposed the Establishment Clause to the States had also authorized the practice of legislative prayer by chaplains selected by each house.
As he put it, "Their actions reveal their intent." And with respect to the particular activities and practice of the Nebraska Legislature, the Court said that the fact that they had selected the same Christian pastor from the same denomination to serve as chaplain for 16 years was not a constitutional problem in the absence of proof of impermissible motive.
The fact that there was Christian content in the prayers was not a constitutional problem because in the Court's view, the content of the prayer is not of concern to judges as long as there's no indication that the prayer opportunity has been exploited to proselytize or advance any one or disparage any other faith or belief.
So that was the law of the land as of 1983. But lower courts struggled in some cases, perhaps even resisted, some of the implications of the Marsh v. Chambers decision in a variety of areas over the years, including addressing questions whether the Marsh v. Chambers test, which had validated state legislature legislative prayer and by the content of its reasoning, had also clearly validated the congressional practice of legislative prayer, but it was seen as unclear whether the reasoning of that decision applied to local legislative bodies and quasi-legislative bodies.
And there were also questions that began to arise with some courts viewing the Establishment Clause as prohibiting prayers in the legislative context or at least in the local legislative context that had sectarian content. That is that it reflected a particular specific religious denomination or religious perspective as opposed to a generic prayer that might invoke God but not be specifically identified with a particular religion.
In 2014, the Supreme Court went back into this area in the Town of Greece v. Galloway case to resolve a conflict on these questions, particularly on the questions whether sectarian prayer is permissible in the legislative prayer context or whether there's some sort of requirement of non-sectarian generic prayers and also whether the Establishment Clause produces different results when the legislative body at issue is a local body like a town, a council, or county board as opposed to a state legislature or the Congress.
And in Town of Greece, the Court held that -- it reaffirmed the Marsh approach, that the Establishment Clause must be interpreted by reference to historical practices and understandings. And so it stated that the governing test in this context is whether the prayer practice fits within the tradition long followed in Congress and the state legislatures. And it applied that test to assess the constitutionality of legislative prayer in local legislative bodies as well.
With respect to the claim that the prayers in the Town of Greece were unduly sectarian because over 90 percent of them were delivered by Christian pastors or prayer givers, and many of them contained explicitly Christian content of one kind or another, the Court said that in light of Marsh, there's no requirement of non-sectarian generic prayers.
And in fact, the Court indicated that having judges try to censor and judge the content of such prayers would be highly problematic under the Establishment Clause and the country's traditions, for obvious reasons. The Court said, in words that have resulted in a lot of subsequent litigation, "So long as the town 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."
The Court noted that in this particular community, the vast majority of the houses of worship were Christian and the selection process for the pastors was simply to go through the phone book and identify and invite people in the area to see if they were willing to come deliver a prayer on a rotating basis. And the Court viewed that as a non-discriminatory practice, and there was no obligation to go outside to try and achieve some particular balance.
With respect to the issue of the local versus state boards or legislative bodies, the argument was -- by the plaintiffs was that because of the essentially more retail and intimate nature of local legislative decision-making and the fact that county boards and town councils and the like often have quasi-adjudicative functions as well as legislative, such as ruling on zoning petitions and the like, and the fact that just because the meeting space tends to be smaller and members of the body may be more likely to know the residents that are attending the particular meeting, and therefore, would allegedly -- the residents might feel more pressure to appear to be praying and participating in a prayer even if they found it objectionable because they would want to avoid antagonizing the members of the board. The theory was that this was coercive and, therefore, raised additional First Amendment concerns.
The Court rejected those arguments explaining that in light of the long-standing tradition of legislative prayer, which is understood as simply a tolerable acknowledgment of beliefs held by many citizens and of the historic role of religion in our country and as a means of solemnizing the occasion and serving the spiritual needs of the legislatures, it was not reasonable to conclude that people would feel coerced merely by a continuation of that long-standing practice.
Since Town of Greece was decided in 2014, the lower courts have continued to disagree about various interpretations and applications that arise in particular contexts. One issue that began arising not long after the decision and resulted in a circuit conflict is the question of how and to what extent the Town of Greece analysis applies when legislators, as opposed to invited outside prayer givers, are delivering the prayers.
The Fourth Circuit in 2016 in a case called Lund v. Rowan County rejected a challenge to a county board's practice of having the county commissioners deliver opening prayers on a rotating basis. All of the commissioners were Christian, and therefore, the prayers tended to be Christian in content.
The Fourth Circuit took that en banc. Judge Wilkinson had dissented from that panel decision. He'd also written one of the decisions that led to the Town of Greece case holding that sectarian prayers unconstitutional in the legislative prayer context. And he took a similar position in the Lund dissent.
And then the case was taken en banc, and he wrote the en banc majority opinion overturning the prayer practice in that case as unconstitutional, notwithstanding Town of Greece, which the Court essentially deemed inapplicable in the context of prayers delivered by members of the legislative body as opposed to invited prayer givers.
Meanwhile, the Sixth Circuit, in a case involving very similar facts called Bormuth v. County of Jackson, proceeded in precisely the opposite manner. The panel struck down the practice of having the county board members deliver prayer, and the case was taken en banc and overturned by the en banc Sixth Circuit in 2017.
In that case, again, the prayers were given only by the commissioners of the county. They were often explicitly Christian. The commissioners invited the audience to participate in the sense of saying, "Please stand," or the like. And it was allegedly coercive because of the intimate setting of the municipal board context – all of the grounds that the Fourth Circuit had said led to its unconstitutionality.
The Sixth Circuit reached the opposite decision in light of Town of Greece and Marsh v. Chambers. And in June of 2018, the Supreme Court denied cert in both cases. Justices Thomas and Gorsuch wrote a dissent expressing unhappiness with this decision, but at the moment, at least, that's where that issue remains with the law: unclear and divided. And members can pray in the Sixth Circuit but not in the Fourth.
And more recently, 2019 appears to have been the year of the atheist or non-theist prayer giver. No fewer than three court of appeals decisions this year have addressed that question. It appears to -- it may have been -- I don't know this, but I infer from the fact that these cases all came up at the same time. And at least a couple of them involved the same organization bringing the case. It seems to have been something of a concerted decision to press this issue post-Town of Greece.
The first case to be decided involved a challenge to the U.S. House of Representative's practice of legislative prayer, which the House of Representatives has a paid chaplain, is a full-time officer and employee of the House and whose job includes delivering the opening prayer at the beginning of each legislative day. But there is a long-standing practice of inviting guest chaplains to pray on occasion, particularly when it's just a pro-forma session. And the practice is that each member is entitled to propose a guest chaplain to the chaplain, who then has a set of criteria that he applies in determining whether to invite them to deliver a guest prayer.
And, not surprisingly, the guest chaplains tend to reflect the religious perspective of the member inviting them. But over the years, there's certainly been an array of religious faiths represented, predominantly Christian, not surprisingly, but also many Jewish rabbis have delivered opening prayers, actually dating back until before the Civil War and also representatives of a wide variety of other faiths, although certainly numbers much smaller than Christian prayer givers.
So in this case, the Freedom From Religion Foundation, which has brought a number of these cases, arranged to have one of its members ask his congressman to propose him as a guest chaplain. And Representative Pocan of Wisconsin wrote a letter to the chaplain of the house asking him to permit his constituent to deliver not a prayer but a secular invocation because as an atheist, his constituent was not willing to pray. But he asked to deliver a secular invocation.
The chaplain declined and so the lawsuit followed. And the D.C. Circuit held that the House was entitled to define its prayer practice as limited to religious invocations as opposed to secular invocations, and that this did not violate the Establishment Clause in light of the Supreme Court's long-standing recognition that, as one would expect, legislative prayer is by its nature a religious practice, nonetheless, permissible under the Establishment Clause in light of the history and the rationale of the Marsh and Town of Greece cases.
The plaintiff tried to argue that not only is prayer not necessarily religious, which the Court agreed with, but said, "But the House is entitled to define its own prayer practice and it's entitled to define it in a way that limits it to religious prayer."
But to try and get around that problem, the plaintiff argued that he hadn't been denied the opportunity merely because he wouldn't pray in a religious fashion invoking a higher power, but also because he was an atheist and that discrimination against atheists is discrimination against a particular religious sect within the meaning of the Establishment Clause and that this therefore violates the Establishment Clause and violates the non-discrimination principle that the Town of Greece Court had noted in the different context of upholding the sectarian nature of the prayers at issue in that case.
And the D.C. Circuit said well, we don't have to decide whether he was excluded because he was an atheist or not because whether he was or not is irrelevant since his refusal to deliver a religious prayer and the House's right constitutionally to insist on a religious prayer means that there's no relief he could be given in any event.
So that was the first court of appeals case on this question of whether someone who seeks to deliver, essentially, a secular invocation that doesn't invoke a higher power as a religious prayer has a right to do so under the Establishment Clause.
Another case that had been brought around the same time as this case, however, was in the Third Circuit, is called Fields v. Speaker of the Pennsylvania House of Representatives. The Pennsylvania House of Representatives has a somewhat similar practice to the U.S. House of Representatives in that there's a practice of invited guest chaplains.
But unlike the U.S. House of Representatives, instead of having a paid chaplain who delivers the majority of the prayers, interestingly, the majority of the prayers in the House are actually delivered by members of the House of Representatives, the Pennsylvania House.
For whatever reason, the plaintiffs in that case did not challenge that aspect of the practice but, instead, challenged the House of Representative's insistence that the guest chaplain opportunity is available only to people who are willing to pray to a higher power, that is theists of some kind. So thereby excluding atheists, of course, and also non-theists, that is someone who might have a religious faith and even be willing to pray but not to invoke a higher power.
And, of course, most of the prayers in the Pennsylvania House of Representatives by far had been Christian in nature, with a smaller number of Jewish prayers and a smattering of others, but no non-theist prayers.
So the plaintiffs in that case were a group of secular humanists, unitarian universalists, and free-thinkers claiming that they have no belief in a higher power but do have religious beliefs and therefore were being discriminated against. The Third Circuit, much along the lines of the D.C. Circuit and relying explicitly on the D.C. Circuit's decision, held that, for essentially the same reasons, it's permissible to limit legislative prayer to theistic prayer, that is the prayer invoking a higher power of some kind, because that fits within the historical tradition of legislative prayers that's been practice since before the founding.
And also, interestingly, the Third Circuit noted that this is the only approach that actually serves the full range of legitimate purposes of the legislative prayer practice that have been identified by the Supreme Court. Because in explaining what legislative prayer is and why it serves purposes that are permissible for a practice that is religious in nature, notwithstanding the Establishment Clause, the Court has said that among the purposes served by legislative prayer are that it's an appeal for divine guidance for lawmaking, an acknowledgment in the role of religion in our society, and intended to accommodate the spiritual needs of lawmakers. All of which the court reasoned are furthered by theistic prayer but not so well by other forms.
The court noted, for example, that in Marsh, the Supreme Court said legislative prayer invokes divine guidance on a public body. In Town of Greece, Justice Kennedy for the Court wrote that legislative prayer is acknowledgment of the divine. These are purposes that can't be achieved by a non-theistic prayer, in the court's view.
And so the court said that even if atheism or secular humanism, for instance, constitute religions for purposes of the Establishment Clause, the legislature's practice is not discrimination among religions in the sense forbidden by the Establishment Clause because non-theists simply can't engage in legislative prayer in the traditional sense of that term. And so it's not impermissible discrimination to exclude them from an opportunity for which, in a sense, they're not qualified because they don't have the set of beliefs that would enable them to participate in the practice.
And then finally, the third case in this area, also decided in 2019, is called Williamson v. Brevard County out of the Eleventh Circuit. That, likewise, involved a suit by atheists and secular humanists challenging the Brevard County commission's practice of legislative prayer, which had been exclusively Judeo-Christian in nature and almost exclusively Christian.
And this is a case that could be viewed as proof of the long-established principle that bad facts make bad law. The practice there was for the commissioners to invite local clergy to pray on a rotating basis. The judge ordered depositions of all the commissioners. And some of them testified that they would only consider inviting monotheistic religions, never deists or polytheists. They'd have to think long and hard before they would invite a Hindu or Sikh or some other non-majoritarian religion.
One commissioner testified that the purpose of the prayer practice was to honor the Christian community and that allowing secular humanists would dishonor the Christian community. Another one testified that the prayer practice was to show the board's support for Christianity. The commission had also passed a resolution in recognition of the traditional positive role that faith-based monotheistic religions play in the community.
So the Supreme Court -- I'm sorry, the Eleventh Circuit held that the -- in light of this evidence and the evidence of the people that were actually invited to pray, the selection process for the prayer givers was unconstitutional because it discriminated among religions, not merely against atheists and non-theists but also among theistic religions.
And the court held that the commissioners were obligated to employ belief neutral criteria in selecting prayer givers to invite. But the court very explicitly and repeatedly declined to address the question whether atheists or non-theists were protected against such discrimination.
It based its ruling on the fact that theistic religions were being discriminated against because the board members had suggested or indicated that they would be unlikely or might refuse to invite, for instance, a polytheistic religion such as a Hindu practitioner to deliver a prayer, seemed to be, at least arguably, focused solely on promoting Christianity.
So the court said it didn't need to decide whether atheists or non-theists would have any rights under this ruling. It was enough to invalidate the policy to say that it was discriminatory against other theistic religions. The court did not address how the plaintiffs in that case had standing to raise that particular challenge because, of course, the plaintiffs were limited to atheists and non-theists.
And, therefore, on the face of the court's opinion, it's not clear that the plaintiffs are able or entitled to obtain any relief. But the court didn’t touch on that issue, and so it remains to be seen whether the plaintiffs in that case will actually obtain any relief from the court's ruling.
So that's the current date of play based on the three recent court of appeals decisions on the atheists and non-theists prayer giver issue. And at this point, I guess I'm happy to open it up for questions.
Wesley Hodges: And while we wait for any audience questions, Tom, why don't you lead us through what you see coming down the pipeline in the courts for this issue.
Thomas Hungar: Sure. I think given the circuit conflict between the Fourth and Sixth Circuits on this question of whether the test is different when the members of the legislative body deliver the prayers themselves, I think we can almost certainly expect more litigation in that area, more percolation among the circuits as people try to get the Supreme Court to resolve that question by raising it in more circuits to widen the circuit conflict.
Another area where the, that I hadn't mentioned before, where the courts are divided on the question is whether and how the Town of Greece decision applies in the context of school boards, which are limited-purpose legislative bodies, but of course, focused on the educational process and the school systems. And the number of cases before Town of Greece had held that legislative prayer in that context is unconstitutional.
After Town of Greece, the Fifth Circuit held that in light of Town of Greece, and appropriately, structured legislative prayer practice for a schoolboard is constitutional. But the Ninth Circuit reached the opposite result, and so there's a circuit conflict on that question as well.
And then just more generally, the meaning and scope and content of the non-discrimination requirement for selection procedures and how that works if you have members praying or members inviting, say, their own selected pastors to pray versus staff members having some sort of procedure for selecting prayer givers. These are all areas that are ripe with potential for litigation going forward.
Wesley Hodges: Thank you, Tom. Here is our first audience caller.
Jordan Lorence: Tom, this Jordan Lorence from ADF, great presentation. I'm curious for your comments of the Lemon Test and the history coercion test. It seems to me that they're using it in the legislative prayer context, and they sort of used it in the Bladensburg Cross case. And so, I'm just asking where do you think this is all going? Are we going to see the tests that they used in these prayer cases expanding to other areas where the Establishment Clause is or is the Supreme Court still hesitant? What are your thoughts on that?
Thomas Hungar: Yeah. I think certainly, they're very firm in the legislative prayer context and I think now very firm in the religious symbols' context, if you will. Cases like the cross case, that they're going to follow a historical analysis. Whether and at what pace they're going to extend that more broadly and whether they will affirmatively, finally, and completely disavow the Lemon Test, I think, is a hard question.
That certainly seems to be a trend and it would not surprise me if they get there. But, obviously, some members of the Court that might even be inclined to go in that direction also tend to be reluctant to move more quickly than they have to. So I don't think we're necessarily going to see that happening any time soon. But I suspect we will probably see incremental movements in that direction and further expansions of the focus on history and coercion but perhaps not with a formal adoption of that as a test across the board for some time.
Wesley Hodges: We do have one more question in the queue. Here is our second caller.
Ken Conif (sp): Oh, hello. My name is Ken Conif, and while you were talking, I guess I was wondering if the definition of religion could ever be extended to other areas of our life that seem to have some of the same concepts or precepts of religion. Specifically, I'm talking about, for example, if you think the -- talk about the environmental issue, for example, they certainly -- many of the people involved in that use religious terms and I wonder if there's anything else that would perhaps surprise us and someone could make an argument that falls within the ambit of religion.
Because if you can argue that you have a right because you have no religion, then why couldn't you do the same thing if you were an environmentalist? And I could probably put together a prayer that might be useful.
Thomas Hungar: Yeah, these questions about what qualifies as a religion and for what purposes, they are fascinating and difficult and there's a lot of lack of clarity. The Court has not been entirely consistent, and I think has mostly -- the Supreme Court, that is, has mostly tried to duck these issues and lower courts have often tried to duck them as well.
So for instance, there are snippets of language in Supreme Court cases suggesting that things that one doesn’t normally think of as traditional religions like secular humanism or even atheism are maybe entitled to the protection against discrimination among religions that the religion clauses afford.
But of course, it's not clear how true that is and how far that principle goes because if, say, secular humanism or atheism is a religion, then you start getting into some very difficult questions about what can government do without endorsing or adopting or even proselytizing for a religion if, for instance, in the public schools you are going to teach some particular view that might be associated with secular humanism or atheism about, say, how the world came into existence.
One could see arguments -- the more atheism and secular humanism come to be defined as religions entitled to the protections of the religion clauses, the more easy it becomes to argue that government favoring of those views of the world is no more permissible than government favoring of Christianity or Hinduism or whatever it may be.
So those are difficult questions. In the fact of environmentalism, I suspect that as a practical matter, it's probably going to boil down to how advocates of a particular view want to characterize their own belief system. So I think as -- certainly as lower courts seem to be construing Supreme Court precedent, you can imagine an advocate of environmentalism, say, taking the position that their perspective on that is a religion.
The advocates of this view share a world view and they meet together to advance and discuss their objectives and their beliefs, and they feel very strongly about them and identify with them very closely in ways that are central to their character and their belief system and their world view.
And so I could see a court saying well that qualifies as a religion in the same sense that secular humanism does and is entitled to protection against discrimination on religious grounds. Of course, again, how far the courts are going to be willing to push that I think is an open question because it's a slippery slope that potentially leads to all sorts of difficulties.
Ken Conif: I guess you wind up with the opposite, too. I should -- if you're against human secularism or if you're against environmentalism, you argue it's a religion, and therefore, it's not entitled to any money or any protection, would that now turn it on its head?
Thomas Hungar: Right. That would be the end of the slippery slope, I suppose. When I was at the House, we had a case where a gentleman filed a lawsuit claiming some strange -- it was a crazy pro se lawsuit. But the judge actually struggled with how to get rid of it.
He was claiming that his religion was he believed he could marry his computer and then that it was a violation of the Establishment Clause for him to be denied that right. And the judge went on at some length in his decision dismissing the case just talking about what qualifies as a religion and what doesn't.
But, yeah, these are difficult issues. And there's a lot of opportunity for disagreement and confusion down the road in them, I think.
Wesley Hodges: Thank you very much, caller. We do appreciate your question. We have one more question in the queue. Next caller, you are up.
Caller 3: Hi. I'm just curious, if the Supreme Court moves away from the Lemon Test, what are the most likely alternative frameworks it might adopt and how would they apply in the legislative prayer context?
Thomas Hungar: Well, I think in the legislative prayer context that they've come pretty firmly down on the test being we look to history and to the traditional practicing of the legislative prayer practice and if the practice being challenged fits comfortably within and is reasonably analogous to the types of legislative prayer that have been a part of the nation's history since its founding and it's not done in a coercive discriminatory fashion, then it will be upheld. That seems to be what the Supreme Court is saying.
So I think in the legislative prayer context, they're likely to follow that and if they continue expanding or moving away from the Lemon Test in other areas, I would expect the most likely approach would be something similar to that. Although, the historical analysis in other areas may be depending on the particular practice at issue might become a little more difficult, just depending on whether it has a specific historical analog or not.
For instance, Justice Kennedy in his dissent in the County of Allegheny case, which served, I think, essentially as a source for him for the test that he applied in Town of Greece writing for the majority. He focused on coercion and an analogy to history that is if the practice at issue here is no more likely to lead to an establishment of religion than historical practices that have traditionally been understood as not rising to the level of an establishment and if it's not coercive, then it's permissible.
So it seems to me, to the extent that they continue moving away from the Lemon Test, they're likely to be moving more in the direction of that analysis of history and coercion. And non-discrimination, obviously, will remain an important part as well.
Wesley Hodges: Well, seeing no immediate questions from the audience, Tom, I'm curious if there's anything you'd like to dive into right now or if you'd just like to transition to closing remarks?
Thomas Hungar: I think I've covered it. Thank you for the opportunity to talk about these interesting issues.
Wesley Hodges: Absolutely, Tom. It really is our privilege. So on behalf of The Federalist Society, I would like to thank you for the benefit of your valuable time and expertise today. We welcome all listener feedback by email at email@example.com. Thank you everyone for joining us. This call is now adjourned.
Operator: Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.