Lamar W. Hankins : Government Plus Religion is No-Win Situation

Image from Change Comes Slow.
No one wins when government
forces religion on everyone

If public officials believe that religious worship is important, perhaps they should meet in a conference room before the meeting and pray together with their chosen clergy.

By Lamar W. Hankins / The Rag Blog / November 14, 2012

SAN MARCOS, Texas -- Those who see no harm in beginning a meeting of a city council, school board, or commissioners court with prayer owe it to the Constitution to take a few minutes and consider the perspective that the First Amendment’s prohibition against an establishment of religion means that the government is not allowed to force any religion -- or religion itself -- on its citizens.

For the moment, I will put aside the issue of sectarian versus nonsectarian prayer and focus on any prayer, whatever its content. Put simply, prayer is communicating with God or gods. Prayer is an act of religious worship. It is the most universal form of religious practice that I know of. There should be no doubt that prayer is a religious practice: people who are not religious or do not believe in the supernatural do not pray. Only religious people pray.

The prayer invocations regularly offered before meetings of government bodies are usually directed toward a deity, spirit, or amorphous supernatural being. They often express everyone’s reliance on the being and their desire to please said being. Usually they request guidance or help from the being and occasionally ask for special favors, such as rain or assistance for improving the performance of a favored athletic team.

When the government sponsors, promotes, or establishes prayer as a part of its activities, it is sponsoring, promoting, or establishing a religious practice, an integral part of religious worship. If any person wants to participate in the civic life of the community by attending, speaking at, or observing the meetings of elected officials who begin their meetings with prayer, that person must submit to a religious practice.

If the Supreme Court has been clear about anything in this area of jurisprudence, it is that the government may not sponsor, promote, or establish religion or religious practices, although it has permitted prayer not identified with a particular religion (nonsectarian prayer), because it views such prayer as insignificant, if not irrelevant.

For most elected officials, it seems that having an invocation before a meeting of a government body means offering a prayer. But “invocation” need not be so narrowly construed. Merriam-Webster defines invocation in other ways: “the act or process of petitioning for help or support” and “a calling upon for authority or justification.” Neither of these definitions necessarily suggests that an invocation be addressed to a god.

An invocation can be addressed to the governing body (rather than to a deity), to remind its members of their responsibility to serve the greater good; to respect the dignity of all citizens; to show no favoritism based on personal interest, race, religion, or party affiliation; to be open to the ideas of others; to use reason devoid of cant and deceit; to display compassion when that is needed; to seek answers to our problems through the ingenuity of our people; and to honor other ideals inherent in our history. An invocation need not be an act of religious worship or practice.

When it comes to fashioning an invocation for a home-rule city like the City of San Marcos, its charter will provide specific responsibilities of the city council that should be carried out, the goals of the city, the proper behavior expected of city officials, and any general standard that should always be kept in mind, such as “devotion to the best interest of the City.” There is no better way to help public officials always be aware of why they were elected than to regularly remind them of their proper role as found in their local constitution.

If an invocation is intended to set a tone for a meeting of our elected leaders, these suggestions seem to accomplish that purpose, and they do so without engaging in any religious practice or worship. If they express opinions about how the body or its citizens should act that the listener disagrees with, that listener should be able to get on the invocation list and offer a non-prayer invocation that he or she believes is more in keeping with our shared values and the purpose of the governing body.

Part and parcel of the prayer problem is limiting who may give invocations to clergy. Clergy are expected to pray. That is why they are invited to give the invocation. All of the official invocation policies that I have seen single out clergy to provide the invocations -- clear evidence that the purpose of the invocation is to engage in the practice of religion.

Many of our elected representatives are religionists first and public officials second. It should be the other way around. Religionists want to use the government to impose their religious beliefs on the rest of the population, ignoring the rights of all citizens to have the autonomy to make their own religious and moral decisions.

This was the case with both the Hays County Commissioners Court and the San Marcos City Council. When Jim Powers began his tenure as Hays County Judge and Susan Narvaiz began her tenure as Mayor of San Marcos, both decided for their own religious reasons to have their respective governmental bodies begin using prayers to start their meetings. They used their public positions to have the government promote their private religious beliefs. For many decades, both bodies had functioned just fine without the prayerful invocations.

Having the government force religious positions on other people has always created great turmoil in society, and it has corrupted both the government and the religious groups involved. For these reasons, the drafters of the Constitution sought to keep government out of religion.

They had seen what happened in England to religious liberty when the state and religion are intertwined, and they had witnessed the disorder, dissension, and destruction brought about in various colonies by an alliance between government and religion. James Madison was aware also of the example of Holland where religion and government were kept separate so that each person had full religious freedom and freedom of conscience.

Even the Texas Constitution, in spite of its frequently inappropriate religiosity (much of which has been invalidated by the Supreme Court as infringing on the guarantees and provisions of the U.. Constitution), provides that no one “shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship.”

This is precisely what religious prayers as invocations do to all the citizenry. They maintain a ministry without the consent of all those who want to participate in local government. They interfere with the right of conscience in matters of religion. They give preference to certain religious groups and subject those in attendance at meetings to religious worship.

Those who suggest that anyone who disagrees with the prayers can absent themselves from that part of the meeting have not thought fully about this suggestion. The way the San Marcos City Council functions, for instance, it is not possible to know when the invocation will be held. The Council often begins meetings with lengthy workshops, starts the business meeting by convening into executive session, delays the invocation until after other business is conducted, or waits until the clergy scheduled to give the invocation arrives at the meeting.

Should the Mayor announce in advance that a moment will be given for all those who don’t want to engage in prayer to leave the room? Will that person’s seat be saved or taken by another during the person’s absence? Avoiding the prayer requires leaving the building because the meeting is broadcast outside the council chambers for those who can’t find a seat or want to stay in the foyer. Who will tell those who have left the building when the prayer is over?

But the very suggestion that those not wanting to engage in a religious practice can leave the meeting is to acknowledge that the activity is religious activity, which should not be sponsored, promoted, or established by a government body under the Constitution.

I have never understood the mindset of public officials who believe that they have the right as elected officials to impose their religion and religious practices, or anyone’s religious practices, on the citizens by virtue of their public positions.

The author, editor, political commentator, and blogger Andrew Sullivan is a devout and ardent Roman Catholic. In a colloquy with atheist author and neuroscientist Sam Harris in 2007, they addressed the question of how a person of such strong belief as Sullivan can resist inflicting his religious beliefs on others. His answer is relevant to elected officials who assume the right to do this very thing to us all.

Sullivan responded to the question posed:

You ask legitimately: how can I, convinced of this truth (about Christianity), resist imposing it on others? The answer is: humility and doubt. I may believe these things, but I am aware that others may not; and I respect their own existential decision to believe something else. I respect their decision because I respect my own, and realize it is indescribable to those who have not directly experienced it.

That's why I am such a dogged defender of pluralism and secularism -- because I believe secularism alone does justice to the profundity of the claims of religion. The attempt to force or even rig laws to encourage others to share my faith defeats the point of my faith -- which is that it is both freely chosen and definitionally dealing with matters that cannot be subject to common consensus.

If public officials believe that religious worship is important, perhaps they should meet in a conference room before the meeting and pray together with their chosen clergy. Then, filled with righteousness from their religious worship, they can enter the meeting room in the frame of mind of their choice, gavel the meeting to order, and get on with doing the people’s business, without subjecting the people to forced religious worship.

In this way our elected officials can show respect for the pluralism of this society, the U.S. Constitution, and the conscience of every citizen.

The Bill of Rights became a part of our Constitution over 220 years ago. It is time that all of the First Amendment of that Constitution was followed. No one has a constitutional right to use the government to sponsor, promote, or establish religion; but everyone has the constitutional right to be free from government sponsorship, promotion, or establishment of religion.

It should not be too much to ask that this freedom be honored. That would be true religious liberty for all.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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Lamar W. Hankins : Playing Politics with Religion in Hays County, Texas

Photo by Alamy / The Telegraph.
Hays County officials play politics
with religious invocation

Individual rights of conscience and religious diversity cannot be maintained when the government promotes one religion over others.

By Lamar W. Hankins / The Rag Blog / October 1, 2012

SAN MARCOS, Texas -- On Tuesday, September 25, the Hays County Commissioners Court held a public discussion to receive comment from citizens about a legal and constitutional issue that none of the speakers knew much about, but they all had opinions, some quite emotional.
The issue concerned the court’s mostly Christian prayers used to open their meetings. Not surprisingly, those who spoke overwhelmingly favored having the court continue to promote Christian prayers at its meetings.

A little background might be helpful in sorting out the chafe from the wheat about this issue. This has not been a long-standing practice in Hays County. Some 150 years after Hays County was created, County Judge Jim Powers, in 1998, began the prayer practice. Several times since then, I have reviewed the invocations (mostly prayers, but sometimes a moment of silence) offered at Commissioner Court meetings.

In the prayer invocations, the use of the following phrases were common:

• “In the name of Jesus we pray;”
• “We pray all these things in Jesus’ name;”
• “In Jesus’ name;”
• “In Jesus’ name I pray;”
• “In His name;”
• “In God’s name;”
• “In the name of the Father, Son, and Holy Spirit;”
• “In the name of Jesus we ask;”
• “Our Father in heaven we thank you for Jesus, thank you for the precious blood shed on Calvary;”
• “Hope in Jesus and His precious name;”
• “We come in the precious name of Jesus;”
• “Where two or three are gathered, you are in the midst, in the precious name of Jesus.”

Clearly, these phrases and many others in the invocations create an appearance that the Commissioners Court is promoting Christianity, and in some cases, a particular brand of Christianity. Such actions also convey the message that the meetings of the Hays County Commissioner’s Court are in some way blessed by the God approved by the members of the Commissioners Court, but not by the gods that other Hays County citizens believe in and worship.

It is inappropriate for these county politicians to introduce their religion into the governing of Hays County in this way. While members of the Commissioners Court may decide issues that come before the court on the basis of many considerations, including their personal religious views, it is inappropriate to give the impression that the Commissioners Court acts in the name of the Christian God, which is the impression given when their meetings are opened in the name of that God.

The leading Supreme Court case dealing with what is often termed “legislative prayer,” Marsh v. Chambers, 463 U.S. 783 (1983), allowed prayer to open a session of a legislative body providing that it met certain criteria. The prayer must not “advance any one religion, disparage any other religion, or proselytize.”

In Marsh, the invocation prayers were directed only to legislators in the Nebraska Legislature and were offered by the Legislative Chaplain. The prayers never included any reference to Jesus or other Christian symbols or language, so they did not “advance” Christianity. Under these narrow circumstances, the Supreme Court concluded that the prayers did not violate the Establishment Clause of the U.S. Constitution.

Generally, these kinds of prayers are referred to as nonsectarian. But even nonsectarian prayers make clear that the sponsor of the prayers (the Hays County Commissioners Court in this case) favors religion over non-religion. When the prayers use the name of Jesus, or include Christian symbols and language normally identified with Christian doctrine or belief, a reasonable conclusion would be that the Commissioners Court favors Christianity over other religions.

When Jim Powers began this prayer practice, he set about to promote his own brand of religion through his elected position. He probably did not intend to attack the religious liberty of everyone who held different religious views, but that was the effect of his having almost exclusively Christian prayers at the beginning of each regular meeting of the Commissioners Court. Two subsequent Hays County Judges, with the acquiescence of a majority of the County Commissioners, have continued the practice.

By forcing the religious practices of a particular religion on those in the county who don’t follow the tenets of that religion, the Commissioners Court deprives those citizens of their religious liberty. While everyone under our constitution has the right to follow whatever religion they choose, the members of the Commissioners Court do not have the right to use their governmental power to force their religious beliefs on everyone.

Commissioners Court members have taken the position that they have the right to compel their favored religious practices on others and they use public funds, buildings, and resources to do so. In effect, the Commissioners Court says that if it is not allowed to open its meetings with mostly Christian prayers, the members’ own religious liberty will be harmed or will be at risk. But a person’s religious liberty is not at risk because that person can’t force others to participate in his or her religious practices.

They fail to appreciate that no religion should be given status as the official faith of the county or the country, even for one meeting. Neither the county government, nor the federal government can constitutionally elevate any religion to such a status.

But nothing about the Marsh decision prevents a person from praying or engaging in whatever religious practices suit them so long as the government is not promoting those practices. The government should be neutral in matters of religion, neither favoring nor disfavoring any religion.

Another aspect of the Marsh decision that should be noted is that the chaplain for the Nebraska Legislature directed the opening nonsectarian prayers to the members of the Legislature, not to other Nebraska citizens.

By contrast, those who pray mostly Christian prayers before the Hays County Commissioners Court direct their prayers not only to the members of the Commission, but also to the audience of citizens in attendance (and those watching on video) without regard for the audience’s religious beliefs.

Often those citizens in attendance are asked to stand, bow their heads, and even pray with the speaker. Sometimes they are asked to join in the prayer by saying “Amen” at the end of the prayer, as in, “And all God’s children said Amen,” a usual practice of one of the ministers who has given the invocation at Hays County Commissioners Court meetings several times in recent years.

In a constitutional democracy such as ours, the majority cannot run roughshod over the constitutional rights of a minority. Public opinion has no role in determining what is constitutional; otherwise, blacks, Jews, and other minorities would still be prohibited from living in many communities.

 So it is fair to ask what the purpose was of conducting a public hearing on whether citizens favor Christian prayer over other kinds of prayer? The only answer that comes to my mind is that County Judge Bert Cobb and others on the Commissioners Court are playing politics with the religious liberty of us all.

It doesn’t matter what the majority says about religion; each of us is entitled to our own religious beliefs, practices, and preferences, without interference, direction, influence, or promotion by county officials.

One of the clergy who sometimes offers public government-sponsored prayers in Hays County asserted that “it can’t hurt to have a prayer.” On the contrary, the freedom of religion guaranteed by the U.S. Constitution’s First Amendment necessarily carries with it the right to be free from religion imposed by the government, just as the freedom of speech does not permit the government to require me to speak, nor does the freedom of association require me to associate with those the government wants me to associate with.

When the government uses the religious practice of prayer while carrying out its civic functions, it compels all citizens who want to participate in our civic life or observe its government in action to partake of that religious exercise.

The late Republican Senator Barry Goldwater of Arizona had great insight about government sponsorship of religious practices:

Can any of us refute the wisdom of Madison and the other framers? Can anyone look at the carnage in Iran, the bloodshed in Northern Ireland or the bombs bursting in Lebanon and yet question the dangers of injecting religious issues into the affairs of state?...

By maintaining the separation of church and state, the United States has avoided the intolerance which has so divided the rest of the world with religious wars. Throughout our two hundred plus years, public policy debate has focused on political and economic issues, on which there can be compromise. ...

Most of those who cooperate with government bodies to promote prayer do so with noble intentions bereft of an appreciation of how their use of government to advance religion violates the rights of those who have different religious beliefs.

For instance, no one should have to participate in another’s religious practice in order to participate in their government, but this is exactly what the Hays County Commissioners Court compels them to do by its sanctioning of official prayer at its meetings.

The early American patriot, abolitionist, and Baptist minister John Leland said,

[W]henever men fly to the law or the sword to protect their system of religion and force it upon others, it is evident that they have something in their system that will not bear the light and stand upon the basis of truth.

Derek H. Davis, the former Director of the J.M. Dawson Institute of Church-State Studies, Baylor University, and author of Religion and the Continental Congress, 1774-1789: Contributions to Original Intent, wrote,

The framers [of the Constitution] sought to divorce religion from government. ... [T]o make religion dependent upon government was to depreciate true religion; to rely upon government to throw its weight behind religion was to declare God impotent to further his purposes through voluntary means.

A long line of America’s founders, patriots, and U.S. presidents from George Washington to Jimmy Carter appreciated the need to keep government out of religion, but that history is meaningless when no member of the Hays County Commissioners Court will rise to the defense of our forebears and the Constitution and oppose government sponsorship of religion in our civic life.

We live in a country that welcomes people of many faiths and of none. In countries where religion and government are commingled, the government usually oppresses those who do not follow the tenets of the dominant religion. Our history has shown that the principle of separation of church and state protects the religious freedom that we all have.

Individual rights of conscience and religious diversity cannot be maintained when the government promotes one religion over others. The neutrality toward religion that is found in our Constitution protects the freedom of us all.

One of the greatest ironies of this government prayer promotion is that the most prominent proponents of it are the Christian evangelicals, who believe most literally in the words of the Bible. None of them have ever explained publicly how their behavior can be reconciled with the teachings of Jesus to pray in secret and not in public where they can be seen by others as pious.

If all who call themselves Christian followed the admonitions of Jesus, we would not have a problem with sectarian prayers at government meetings in Hays County and throughout the United States. Any religion that needs the imprimatur of government to fulfill its purposes is trivial at best and tyrannical at worst.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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Lamar W. Hankins : Freedom of Conscience in Hays County, Texas

Kyle, Texas-area Constable James Kohler: "If they can't pledge allegiance to that flag, they need to get the hell out of the United States. Image from Hays Free Press.  Respect for freedom of conscience 
missing in Hays County

By Lamar W. Hankins / The Rag Blog / April 23, 2012

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” –– West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)

SAN MARCOS, Texas -- The San Marcos Mercury recently reported that  Hays County Commissioner candidate Sam Brannon refused to stand and participate in the Pledge of Allegiance at the beginning of a Commissioners Court meeting about a year ago.  

His inaction was challenged by Kyle-area Constable James Kohler, who called out Brannon publicly for standing silently without his hand over his heart during the ceremonial recitation of the pledge at the beginning of the court session.

Kohler is reported to have said, “I’ve never seen anybody not salute, not put their hand over their heart, when we pledge allegiance to the flag of the United States of America. If they can’t pledge allegiance to that flag, they need to get the hell out of the United States.” Kohler also noted that Brannon did not bow his head for the court’s invocation.

However Kohler’s official position is described -- high or petty, or perhaps somewhere in between -- he has no grounds for impugning the integrity of a citizen for exercising his or her conscience, as the Supreme Court opinion quoted above holds.

I know nothing about Brannon except what I have read in the local media. He may be a scoundrel or an upstanding person, or somewhere in between. Some have called into question Brannon’s lifestyle, past political activities, financial dealings as a former candidate, and whether he is a legitimate resident of County Commissioner Precinct 3, in which he is a candidate this year. But those matters are beside the point raised by Kohler. Perhaps a bit of background on the pledge can put this whole matter in context.

The Pledge of Allegiance was written in 1892 by the author, editor, Christian socialist, and Baptist minister Francis Bellamy as part of an advertising campaign to sell flags to schools and promote the magazine The Youth's Companion, for which Bellamy was an employee hired to participate in this promotion. The magazine even worked into its advertising campaign the celebration of the 400th anniversary of Columbus’s discovery of the New World, with the flag as the centerpiece -- it sold flags to 26,000 schools during the campaign. As written originally, Bellamy’s pledge read:

I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.

In 1923, the words were modified slightly from “my Flag” to "the Flag of the United States of America." That version lasted until the McCarthy era, when President Eisenhower, in 1954, was persuaded to join with the Knights of Columbus religious group to support having Congress adopt the pledge with the added words “under God” to distinguish the United States from the Soviet Union’s "Godless Communism," giving us the pledge as it exists today:

I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation, under God, indivisible, with liberty and justice for all.

Originally, Bellamy had prescribed a salute to the flag when the pledge was recited that resembled the Nazi salute. During World War II, this practice was largely abandoned in favor of a hand held over the heart, or in the case of a service man or woman, a military salute.

Of course, no law requires any particular behavior during the recitation of the pledge, but custom and social pressure have usually assured that standing at attention and gesturing as described during the pledge’s recitation are followed by most people.

In the 1930s, the expulsion from public school of the children of Jehovah’s Witnesses for their unwillingness to salute the flag and recite the pledge led to a Supreme Court decision that venerated patriotism over freedom of conscience.

The parents argued that as Jehovah’s Witnesses, the children’s allegiance was only to God; thus, to salute the flag and recite the pledge would violate their religious beliefs. But the Supreme Court held that the school district’s interest in creating national unity through a patriotic practice allowed school officials to require students to salute the flag in spite of their religious beliefs.

The 1940 decision was grounded in the shibboleth that “National unity is the basis of national security.”

Almost immediately after the decision was rendered, Jehovah’s Witnesses were set upon by mobs and beaten, and their children were expelled from public schools. According to the book Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution, by Shawn Francis Peters, by the end of 1940 “more than 1,500 Witnesses in the United States had been victimized in 335 separate attacks." Such attacks included beatings, tarring and feathering, hangings, shootings, maimings, kidnappings, castration, threats, and other acts of violence.

Attacks were reported in Ash Fork, near Prescott, Arizona; Crocker, Missouri; Jasper, Refugio, and Port Arthur, Texas; Hinton and Union City, Oklahoma; Jackson, Mississippi; Litchfield, Carlyle, and Greenville, Illinois; Kennebunk and North Windham, Maine; Connersville, Indiana; Harlan, Kentucky; and elsewhere. Expulsions were reported in Kentucky, Michigan, New Hampshire, Texas, and other states.

Details of the violence appeared in a 1941 report published by the American Civil Liberties Union and signed by well-known national figures, such as Dr. Reinhold Niebuhr, Dr. Harry Emerson Fosdick, Rev. Ernest F. Tittle, Rabbi Edward L. Israel, and several others.

The widespread barbarity engendered by the court’s opinion, in combination with the fear caused by the rise of totalitarianism in Europe, so shocked the court that it looked for a way to reverse its decision. In 1943, it found a way to do so. In West Virginia Board of Education v. Barnette, the Supreme Court held that mandating recitation “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

The behavior of Constable Kohler toward Sam Brannon is one kind of action that the Supreme Court may have had in mind when it wrote that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

 It is shameful that no public official who witnessed Kohler’s outburst toward Brannon challenged it. Reports indicate that Hays County Judge Bert Cobb seemed beguiled by Kohler’s behavior. Perhaps all of our public officials are as petty as was Kohler. Certainly, they could all stand to learn something about our constitutional history.

But these are the same public officials who routinely use their public offices to force their preferred religious practices -- Christian prayers -- on all our citizens at public meetings. I can’t imagine that any of them will ever be able to appreciate the importance of the right of conscience that we are guaranteed by the Constitution. They have no problem forcing their theocratic views on us all, and they treat obeisance to the state no differently.

They would be wiser leaders if they heeded the words of Thomas Jefferson written to Benjamin Rush in 1803:

It behoves every man who values liberty of conscience for himself, to resist invasions of it in the case of others; or their case may, by change of circumstances, become his own.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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Lamar W. Hankins : Praising Jesus at the Hays County Courthouse

Hays County Courthouse. Image from tripadvisor.
'In Jesus' name':
Hays County Commissioners Court
promotes sectarian prayer

By Lamar W. Hankins / The Rag Blog / January 23, 2012

SAN MARCOS, Texas -- No principle is more fundamental to the founding of this country than the right of all people to follow their own religious beliefs without interference from or influence by government. Last summer, the United States Court of Appeals for the 4th Circuit issued an opinion in Joyner v. The Forsyth County Board of Commissioners, which found unconstitutional the largely sectarian prayers given before meetings of the board of county commissioners in Forsyth County, North Carolina.

A similar practice has been going on in Hays County, Texas, for about the last eight years, subjecting all Hays County citizens to indoctrination in one primary religion.

For the last three years, I have communicated with Hays County officials privately about this constitutional issue. I hoped that my private efforts would end the practice of sectarian prayers before county commissioners meetings, but they have not.

The first three meetings of the Hays County Commissioners Court in 2012 have included prayers from Christian clergy “in the name of Jesus Christ, our Lord and Savior,” “in Jesus’ name,” and “in the name of Jesus Christ.” These invocations are hardly non-sectarian as required by the United States Supreme Court’s First Amendment jurisprudence. That Court has not prohibited all prayers before government meetings -- just the sectarian kind.

All citizens who have business before the Hays County Commissioners Court, regardless of their religious beliefs, are compelled to endure proselytizing nearly exclusively by Christians. All who are other than Christian are required to endure Christian religious practice in order to bring their business before the court or participate in their rights of citizenship.

I wrote to the court in February 2009:

Citizens of all religions or no religion are compelled to come before the Hays County Commissioners Court on civic, secular matters: variances, permits, licenses, contracts, subdivision approvals, etc. They should not be subjected to a religious show or test, or be expected to bow heads and demonstrate religious obeisance at a government function.”

Of equal importance, this sectarian practice is a potential affront to county employees who are required to attend some or all meetings. It cannot be expected that employees offended by the practice will feel free to object to attending a public meeting in which they will be subjected to indoctrination in a religion they may not follow or accept. Or perhaps, like me, they believe the government promotion of religious practice is offensive to constitutional principles.

My 2009 letter to the court made other points, as well: It is not necessary to pray on taxpayers’ time. Members of government bodies are free to pray privately or to worship on their own time in their own way. When government bodies lend their power and prestige to religion, this amounts to a governmental endorsement that excludes the 14% of the population that is nonreligious (Religious Identification Survey 2001). This practice inevitably turns minorities, including atheists, Jews, Muslims, Hindus, Buddhists, Wiccans, Humanists, and others into second-class citizens.

Even when prayers are nondenominational or nonsectarian, there is no conceivable way for a government body to conduct prayers that will not inevitably exclude, divide, and embarrass various taxpayers and constituents.

Of course, it is not necessary for invocations to be in the form of prayers. They can be solemn requests on behalf of the citizens to their public officials to follow the principles embodied in our founding documents in their decision-making, rather than prayers for help from the deity of one’s choice. It should be sufficient that public officials make decisions on the basis of equality, equity, fairness, justice, and the public good, rather than on an individual’s religious beliefs.

The practice of having sectarian prayers before government meetings is wholly unnecessary to the functioning of county government. I met with the county’s attorney in 2009 to discuss this sectarian prayer problem. He agreed that the Supreme Court has been clear in prohibiting sectarian prayers to open government meetings.

Last August, I met with County Judge Bert Cobb to discuss the matter. He assured me that it was a matter that greatly concerned him and he would work to find a way to eliminate sectarian prayers from the invocations at Hays County Commissioners Court meetings. I was asked for and provided a nonsectarian invocation appropriate for opening government meetings.

Last week, the United States Supreme Court declined to review the 4th Circuit’s decision in Forsyth, allowing it to stand. In response to the Supreme Court’s action, the Rev. Barry W. Lynn, executive director of Americans United for the Separation of Church and State, explained the impact of the Forsyth decision: “

When government meetings are opened regularly with Christian prayer, it sends the unmistakable message that non-Christians are second-class citizens in their own community. That’s unconstitutional, and it’s just plain wrong. All Americans ought to feel welcome at governmental meetings. The Constitution clearly forbids government to play favorites when it comes to religion.

This view is supported by the Forsyth opinion. Judge J. Harvey Wilkinson wrote,

Faith is as deeply important as it is deeply personal, and the government should not appear to suggest that some faiths have it wrong and others got it right."

Judge Wilkinson’s opinion explains further,

...prayer in governmental settings carries risks. The proximity of prayer to official government business can create an environment in which the government prefers -- or appears to prefer -- particular sects or creeds at the expense of others. Such preferences violate "[t]he clearest command of the Establishment Clause": that "one religious denomination cannot be officially preferred over another." (citing the 1982 case, Larson v. Valente, 456 U.S. 228, 244). After all, "[w]hatever else the Establishment Clause may mean . . . it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed." (citing the 1989 case, County of Allegheny v. ACLU, 492 U.S. 573, at 605).

More broadly, while legislative prayer has the capacity to solemnize the weighty task of governance and encourage ecumenism among its participants, it also has the potential to generate sectarian strife. Such conflict rends communities and does violence to the pluralistic and inclusive values that are a defining feature of American public life.

Judge Wilkinson writes further that

...legislative prayer must strive to be nondenominational so long as that is reasonably possible -- it should send a signal of welcome rather than exclusion. It should not reject the tenets of other faiths in favor of just one. Infrequent references to specific deities, standing alone, do not suffice to make out a constitutional case. But legislative prayers that go further -- prayers in a particular venue that repeatedly suggest the government has put its weight behind a particular faith -- transgress the boundaries of the Establishment Clause.

As further explanation, Judge Wilkinson quotes approvingly the position taken by the American Jewish Congress in opposing the sectarian prayers practiced in Forsyth County:

To... Jewish, Muslim, Bahá’i, Hindu, or Buddhist citizens[,] a request to recognize the supremacy of Jesus Christ and to participate in a civic function sanctified in his name is a wrenching burden.

Other groups that supported the position taken by the original plaintiffs in the 4th circuit include the Baptist Joint Committee for Religious Liberty, the Anti-Defamation League, the Blue Mountain Lotus Society, the Guru Gobind Singh Foundation, the Hindu American Foundation, and the Sikh Council on Religion and Education.

The court further explained that a county’s policy that does

...not discourage sectarian prayer will inevitably favor the majoritarian faith in the community at the expense of religious minorities living therein. This effect creates real burdens on citizens -- particularly those who attend meetings only sporadically -- for they will have to listen to someone professing religious beliefs that they do not themselves hold as a condition of attendance and participation.

The court found that

Public institutions throughout this country manage to regularly commence proceedings with invocations that provide all the salutary benefits of legislative prayer without the divisive drawbacks of sectarianism.... And religious leaders throughout this country have offered moving prayers on multitudinous occasions that have managed not to hurt the adherents of different faiths. In the end, the constitutional standard asks of the County no more than what numerous public and governmental entities already meet.

In an important distinction, the court wrote that the county’s practice

...resulted in sectarian invocations meeting after meeting that advanced Christianity and that made at least two citizens feel uncomfortable, unwelcome, and unwilling to participate in the public affairs of Forsyth County. To be sure, citizens in a robust democracy should expect to hear all manner of things that they do not like. But the First Amendment teaches that religious faith stands on a different footing from other forms of speech and observance.

Because religious belief is so intimate and so central to our being, government advancement and effective endorsement of one faith carries a particular sting for citizens who hold devoutly to another. This is precisely the opposite of what legislative invocations should bring about. In other words, whatever the Board’s intentions, its policy, as implemented, has led to exactly the kind of "divisiveness the Establishment Clause seeks rightly to avoid."

Drawing from the views of our first president in a letter from him to Edward Newenham, dated June 22, 1792, the court wrote,

George Washington once observed that "[r]eligious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause.’"... As our nation becomes more diverse, so also will our faiths. To plant sectarian prayers at the heart of local government is a prescription for religious discord.

In churches, homes, and private settings beyond number, citizens practice diverse faiths that lift and nurture both personal and civic life. But in their public pursuits, Americans respect the manifold beliefs of fellow citizens by abjuring sectarianism and embracing more inclusive themes.

That the Board and religious leaders in Forsyth County hold steadfast to their faith is certainly no cause for condemnation. But where prayer in public fora is concerned, the deep beliefs of the speaker afford only more reason to respect the profound convictions of the listener. Free religious exercise posits broad religious tolerance. The policy here, as implemented, upsets the careful balance the First Amendment seeks to bring about.

For nearly three years I have been fooled by political cleverness into thinking that the matter of sectarian prayers at Hays County Commissioners Court meetings was being dealt with forthrightly and in keeping with current jurisprudence. I can no longer live with that delusion. The new year has brought us ample evidence that government officials are pursuing a sectarian agenda in Hays County. For that, they should be ashamed and should be held accountable.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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