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Prayer Before City Council Meetings and Legislative Sessions
November 16, 2000
Due to a pivotal United States Supreme Court case in 1983, the constitutionality of legislative
prayers, at least for the federal Constitution, has been firmly established. In Marsh v. Chambers,
463 U.S. 783 (1983), the Court held that a state legislature’s practice of opening each legislative
day with a prayer performed by a state-selected and paid chaplain did not violate the Establishment
Clause of the First Amendment. Rather than examining the case under the usual Establishment
Clause framework, the Court looked to the history of the use of prayer before legislative sessions,
in both the state and federal systems, and relied on this history when finding these prayers to be
constitutional. (1) “This unique history leads us to accept the interpretation of the First Amendment
draftsmen who saw no real threat to the Establishment Clause arising from the practice of prayer
similar to that now challenged.” Id. at 791. The Court was not troubled by the fact that a
Presbyterian chaplain had been selected for the past 16 years. “Absent proof that the chaplain’s
reappointment stemmed from an impermissible motive, we conclude that his long tenure does not
in itself conflict with the Establishment Clause.” Id. at 793–94. In addition, the Court was not
concerned that the chaplain was paid with public funds, because “remuneration is grounded in
historic practice initiated … by the same Congress that drafted the Establishment Clause of the
First Amendment.” Id. at 794. Finally, in response to the plaintiff’s claim that the prayers were in
the Judeo-Christian tradition, the court explained it would not “embark on a sensitive evaluation” or
“parse the content of a particular prayer” unless “the prayer opportunity has been exploited to
proselytize or advance any one, or to disparage any other, faith or belief.” Id. at 794–95.
In Utah, city council prayers have been upheld under both the state and federal constitution. In
1993, the practice of an opening prayer before Salt Lake City Council meetings was challenged
under the state constitution’s provisions that “[t]here shall be no union of Church and State” and
“[n]o public money or property shall be appropriated for or applied to any religious worship, exercise
or instruction, or for the support of any ecclesiastical establishment.” Society of Separationists,
Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993) (quoting Utah Const. art. I, § 4). The court held
that the city’s practice of requesting area religious and civic organizations to present an opening
“thought, reading, or invocation,” did not offend either part of the state constitution. Id. at 918.
Similar to Marsh, the court reached this holding by conducting a thorough examination of the
“unique history of church-state relations in Utah,” but did not rely on Marsh itself. Id. at 921. (2)
First, the court found that a literal reading of the “no public money or property” clause would cause
the government to discriminate against religious groups. “If the constitution were read to bar this
activity, it would mean that while the government could allow a political group to use a public park
for a rally, it could not allow a religious group to use the park for a revival.” Id. at 934. The court
found that this would “evidence an affirmative hostility toward religion” that would be impermissible
under the state’s history, the federal Free Exercise Clause, and possibly federal free speech
rights. Id. Instead, the court opted to find a middle ground where the government would be neutral
in the use of public money or property. Id. at 937. To qualify as neutral, the court established a
two-part test: “First, the money or property must be provided on a nondiscriminatory basis. …
Second, the public money or property must be equally accessible to all.” Id. at 938. This would
mean that the government could not discriminate based on a group’s belief system and requires
that “all users have a realistically equal opportunity to receive the benefit based on criteria that are
unrelated to their belief systems.” Id. The court concluded that the city’s policy passed both parts
of this test.
As for the challenge under the language “there shall be no union of Church and State,” the court
held that the language is “a particularistic command directed at the Mormon Church as an
institution and was intended to forever bar the sort of theocracy that existed in the early days of the
State of Deseret by preventing that church, or any other church as an institution, from interfering
directly in or dominating state government.” Id. at 939 (internal quotations omitted). The court
refused to interpret the language so as to bar prayer before government meetings, since this
“positive hostility” would not be what the Utah framers had intended. “This is a state, after all, that
was settled by people with primarily religious motivations.” Id. at 939–40.
More recently, a city council has been granted the power to review and reject prayers based on
their content. In Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998) (en banc), cert.
denied, 526 U.S. 1039 (1999), an individual citizen wrote a prayer, the essence of which criticized
all prayers before city council meetings, and requested the opportunity to deliver his prayer before a
Murray City Council meeting. Id. at 1228. (3) Snyder was requested to submit his prayer to the
city attorney, who then rejected it as not being within the guidelines for a prayer. These guidelines
were outlined in a letter to Snyder: “The purpose of the ‘prayer’ is to allow individuals that
opportunity to express thoughts, leave blessings, etc. It is not a time to express political views,
attack city policies or practices or mock city practices or policies.” Id. at 1230.
When deciding the case, the Tenth Circuit first recognized that “the constitutionality of legislative
prayers is a sui generis legal question.” Id. at 1232. “Furthermore, as a consequence of the fact
that this genre of government religious activity cannot exist without the government actually
selecting someone to offer such prayers, the decision in Marsh also must be read as establishing
the constitutional principle that a legislative body does not violate the Establishment Clause when it
chooses a particular person to give its invocational prayers.” Id. at 1233. Based on this reasoning,
the court held that there was not an Establishment Clause violation when a legislative body chose
not to appoint a certain person to give its prayers. “The act of choosing one person necessarily is
an act of excluding others, and as a result, if Marsh allows a legislative body to select a speaker for
its invocational prayers, then it also allows the legislative body to exclude other speakers.” Id.
Consequently, there is only an Establishment Clause violation when a legislative prayer
“proselytizes a particular religious tenet or belief, or that aggressively advocates a specific religious
creed, or that derogates another religious faith or doctrine.” Id. at 1234. Because the court believed
that Snyder’s prayer proselytizes his religious views and disparages others, the city was allowed to
reject it. Id. at 1235.
In sum, the federal Supreme Court has carved out an exception for legislative prayer based on the
unique history of the practice, firmly resolving the constitutionality of the practice. In addition, the
Utah Supreme Court has interpreted the state constitution in such a way so as to allow prayer
before meetings, so long as all groups are given access to the forum. Finally, cities now clearly
have the power to regulate who may give the prayers based on the content of the prayer itself, to
ensure that it does not advocate or disparage a particular religion.
1. Although the Court upheld the legislative prayer in this case, its exclusive reliance on the history
of this practice serves to limit this case to its unique facts. “The Court makes no pretense of
subjecting Nebraska’s practice of legislative prayer to any of the formal ‘tests’ that have traditionally
structured our inquiry under the Establishment Clause. That is fails to do so is, in a sense, a good
thing, for it simply confirms that the Court is carving out an exception to the Establishment Clause
rather than reshaping Establishment Clause doctrine to accommodate legislative prayer.” Id. at 796
(Brennan, J., dissenting).
2. “While we agree that the Marsh decision might control here if the Council’s practice were being
challenged as a violation of the federal constitution, it does not control our analysis under the Utah
Constitution, with its broader and more detailed prohibitions.” Id. at 930. The court went on to add
that Marsh could be distinguished from this case due to the differences in public involvement in city
council meetings as opposed to legislative sessions, as well as the fact that there was not the
same long unbroken tradition of having prayers in Salt Lake City as there was in Marsh. Id.
3. Snyder had originally requested to give his prayer before the Salt Lake City Council meeting, but
the officials there decided to discontinue the city’s practice of opening their meetings with a prayer.
Id. at 1229.