"Equal Access Prayers"

[Joan Del Fattore]

     I'm not sure whether this is the event you had in mind, but I recall
an instance some time ago where a Wiccan priestess gave an invocation at
a town council meeting.  (I don't think Wiccans cast spells on town
councils or anyone else, although if one DID cast a spell on the council
in my town, it could only be an improvement.)  Anyway, the council
prevented a repetition by saying that only clergy from religious groups
that had appropriately zoned and recognized and approved houses of worship
within the township limits were eligible to give the invocation.
Apparently that excluded all but familiar religions in that particular
instance.


On Mon, 13 Mar 2000, Gates, Sean wrote:

> A few years ago, the city council in Antioch, California (or some nearby
> city) had an "equal access" policy.  There was a big stink when a couple of
> Wiccans cast a spell over the council.  I don't recall the outcome, but I
> believe the council decided to forego any invocation in the future.  So it
> appears that an "equal access" policy is not politically viable in Antioch
> (note the irony of the city's name).
>
> I also note that many in the religious community have called for the
> abolition of the congressional chaplain position.  Not because of
> constitutional concerns, but because the chaplain is so restrained as to
> hardly be religious and for many of the concerns raised by Prof. Brownstein.
>
> For those who espouse allowing "real" prayer before public bodies, I wonder
> whether we would regret true equal access policy.  From my theological
> perspective (Protestant), I'm not so sure I would want the outcome.  As this
> is off topic, any responsive thoughts should be off-line.
>
> Sean Gates
> Munger, Tolles & Olson LLP
>
> -----Original Message-----
> From: Volokh, Eugene [ mailto:VOLOKH at mail.law.ucla.edu
> <mailto:VOLOKH at mail.law.ucla.edu> ]
> Sent: Monday, March 13, 2000 4:35 PM
> To: RELIGIONLAW at listserv.ucla.edu <mailto:RELIGIONLAW at listserv.ucla.edu>
> Subject: "Equal Access Prayers"
>
>
>
>         I agree with Sean Gates that if "open-access" prayer is allowed, it
> would be constitutionally impermissible "to restrict the prayer to certain
> deities or religions."  But say Florida does this, and then it turns out
> that one day a Satanist minister opens a Florida Legislature session by
> praying to Satan, another day an Aryan Nations minister gives the prayer
> (even one that doesn't mention racism as such), and so on.  Do you think
> such a true open access policy would remain politically viable, or would
> Florida just close the whole thing down?
>
>         Vance Koven's proposal, under which only people proposed by
> legislative members are invited, would avoid this problem, since presumably
> no member would invite a Satanist or an Aryan Nations representative.  But
> would this really be an equal access policy?  It seems to me that any policy
> under which only those people chosen by government officials are allowed to
> speak is hard to call "equal access" or "open access."  Certainly such a
> policy would "restrict the prayer to certain deities or religions" -- those
> deities or religions who are favored by the members of the Florida
> legislature.
>
>         So I thus continue to wonder:  Is there some equal access
> prayer-to-the-legislature policy that is (1) genuinely equal access, (2)
> constitutional, and (3) politically viable?  My suspicion is that the answer
> is "no."
>
>
>
>         -----Original Message-----
> From:   Gates, Sean [SMTP:GatesSP at MTO.COM]
> Sent:   Saturday, March 11, 2000 4:31 PM
> To:     RELIGIONLAW at listserv.ucla.edu
> Subject:        Re: Religion and Prayer in the Florida Legislature
>
>         I think Prof. Volokh identifies two related concerns.  First,
> there's the concern that the invited clergy would pray to "whatever gods
> they like."  I don't see a problem with that.  We have a pluralistic
> society.  If we sectarian prayer is allowed (assuming there is such a thing
> as non-sectarian prayer), I cannot imagine that it would be constitutionally
> permissible to restrict the prayer to certain deities or religions.  Seems
> like impermissible content or religious discrimination.
>
>
> I see the second concern as opening the door to allow the invited clergy to
> speak on "whatever topic they like."  As he points out, wouldn't we expect
> some "fringe" clergy to espouse racist/sexist/etc. ideas.
>
>
> The question is whether the State may invite prayer but restrict its
> content.  Perhaps because the purpose of the prayer is to solemnize the
> occasion, the State could seek to limit the prayer to merely an invocation
> that does not go into "political" topics.  But I would be hard pressed to
> draw the line.  And I'm not sure that you do not have content based
> discrimination.  (Whether such discrimination would be permissible in this
> circumstance is another question.)
>
>
> Perhaps this would be a good compromise.  Assuming that the legislature
> allowed sectarian prayer on an "equal access basis," are there other
> safe-guards that would need to be in place to make the system
> constitutionally permissible?  Would such a system foster greater religious
> liberty and equality?
>
>
>
>
>
>
>         -----Original Message-----
> From:   Vance R Koven [SMTP:vrkoven at WORLD.STD.COM]
> Sent:   Saturday, March 11, 2000 6:15 AM
> To:     RELIGIONLAW at listserv.ucla.edu
> Subject:        Re: Religion and Prayer in the Florida Legislature
>
>         On Fri, 10 Mar 2000, Volokh, Eugene wrote:
>
>         >         My apologies for repeating myself, but how exactly would
> an equal
> > access policy work?  Would the Florida legislature really allow open the
> > doors to all people to deliver any prayers they like, to whatever gods
> they
> > like and more importantly on whatever topic they like?  I assume this is
> > *not* the Florida Legislature's current policy, but can it really ever be
> > the Florida Legislature's policy?
>
>         Why not adopt a "neutral" access policy such as a rotation, whereby
> every
> member may either him/herself or through an invited proxy make a
> convocational statement at the beginning of the day's session? A member
> can get up on the floor and say anything (s)he wants anyway; this is
> certainly not ascribed to the state as an official policy matter. Thus,
> the prayer, harangue, silence or poetry slam offered at the beginning of
> the session would likewise not be official state policy. If one member
> didn't like what another member said, well, that happens dozens of times
> every day in the legislature.
>
>         ******************************************************************
> * Vance R. Koven                  * phone: 617-482-3852          *
> * attorney at law                 * fax: 617-482-4972            *
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