Discrimination Against Wiccans; Simpson v. Chesterfield Count y

A.E. Brownstein aebrownstein at ucdavis.edu
Fri Apr 15 17:48:24 PDT 2005


I was going to express similar thoughts, but Tom sent his post first (and 
probably did a better job in expressing this analysis than I would have.) 
County boards, city councils, school boards and the like conduct 
interactive sessions. The public addresses the board directly. On some 
occasions, the board will operate as an administrative tribunal rather than 
a legislature. Prayers are typically addressed not to the board members 
alone, but to the entire audience and everyone is expected to stand. Anyone 
bringing a matter to the board who decides to leave or refuse to stand 
through the prayer does so at their peril. Whatever one thinks of Marsh, 
this is an entirely different context.

In a governmental meeting to which the public is invited as participants 
and petitioners, there is an especially strong reason for holding public 
prayer to be unconstitutional. To the extent that it is permitted at all, 
decisions about the nature of the prayer and the individuals selected to 
offer it should be as inclusive as possible and reflect the religious 
diversity of the community.

Alan Brownstein
UC Davis






At 06:10 PM 4/15/2005 -0500, you wrote:
>The Marsh opinion justified legislative prayer on the basis of a very crude
>version of a historical argument -- the first Congress did this, and it's
>been done consistently since -- not really on the basis of a coherent,
>generalizable analytical principle such as "it's just solemnization" or
>"it's just a personal act by the legislators, not directed at the public."
>For that reason, it's difficult to know how to apply Marsh in a principled
>or convincing way, as I think this decision dramatizes.
>
>With respect to the "it's just for the legislators, not directed at the
>public" rationale, I have more trouble accepting it in this kind of case
>than in Marsh.  At a county board meeting, unlike a session of Congress,
>regular citizens often must attend in order to present some kind of proposal
>or petition to the board:  so they have to listen to the prayer (and
>probably refrain from walking out on it, so as not to offend the board
>members).  And if the prayer is really just for the board members, then
>since there's typically only a few of them (again unlike Congress), they
>could have it together before entering the room and starting the public
>meeting.  Finally, if the prayer is truly just the board members personally
>asking for guidance together, then they ought to be able to have a highly
>"sectarian" prayer if they all agree on it, rather than being constrained by
>the "nonsectarian monotheism" requirement that the Fourth Circuit has set
>forth in its cases.
>
>Tom Berg, University of St. Thomas (Minnesota)
>
>
>   _____
>
>From: David Cruz [mailto:dcruz at law.usc.edu]
>Sent: Fri 4/15/2005 1:13 PM
>To: Law & Religion issues for Law Academics
>Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield County
>
>
>
>On Fri, 15 Apr 2005, West, Ellis wrote:
>
> > [snip]  If, however, the reason for these prayers
> > is because the members of the Board truly want divine guidance or
> > blessing from the deity in which they believe, the God of the
> > Judeo-Christian faith, [snip]
>
>Does that count as a *secular* purpose??  I thought legislative prayers
>were typically justified on solemnization rationale.
>
>David B. Cruz
>Professor of Law
>University of Southern California Law School
>Los Angeles, CA 90089-0071
>U.S.A.
>
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