Religion and Government Officials Acting Badly: What Madison Might Think of Delegate Orrock’s Bill to Encourage Sectarian Prayers at Government Meetings

By Kent Willis, Executive Director, ACLU of Virginia

To “employ religion as an engine of Civil policy,” wrote James Madison in his Memorial and Remonstrance, is “an unhallowed perversion of the means of salvation.”

Madison‘s 1784 warning shot across the bow of the Virginia General Assembly was based on his study of the ruthless use of religion by the monarchies in the old world --“a spiritual tyranny on the ruins of Civil authority,” according to Madison-- and his firsthand observation of abuses by the state-established church in Virginia at the time.

If only Madison were here now to reload and fire again. For he would surely take aim at the scheme cooked up recently by Delegate Robert Orrock to ensure that Christian prayers will remain part of Culpeper Town Council meetings despite a court ruling prohibiting them.

Culpeper, which typically opens its meetings with a prayer from a member of the local clergy, found itself in a pickle last year when the Fourth Circuit Court of Appeals ruled that formal prayers used to open government meetings must be non-sectarian. That is, such prayers may include references to a supreme being but not invoke a particular faith.

A review of news accounts following the court ruling reveals that it provoked some touchy discussions, but that public officials in most localities went along with it. Fortunately, the ruling seemed to awaken local officials from a kind of Rip Van Winkle stupor to notice that their constituencies had changed while they slept.  The homogenous Christian communities to which they had directed their prayers for so many years no longer existed--if indeed they ever did.  Not only were there Christians of many different stripes out there, but also Jews, Hindus, Buddhists, Muslims and people of many other faiths.

For most government officials in Virginia , it simply made good sense to solemnize meetings attended by diverse populations with broad inclusive prayers that welcome everyone, rather than exclusive prayers that divide people along religious lines and suggest government favoritism for one religion over others.

Certainly this was the Supreme Court’s point when it first put its official stamp of approval on legislative prayers in 1981. In order to validate such prayers, the high court abandoned the strict separationist line of reasoning it had used in church/state cases for 40 years previously -- and that it would continue to use for the next 25 years -- by embracing, rather than fighting, the indomitable spirituality that permeates American society. The court made it clear, however, in this case and a later one that even a hint of a preference for any particular faith by government threatened the bedrock principle of religious equality -- which is why the Fourth Circuit’s decision explicitly banning sectarian prayers came as no surprise.

None of the pragmatism of the other local governments in Virginia or the legal principles set forth by the Supreme Court rubbed off on the Town of Culpeper , which soon after the Fourth Circuit’s ruling began to plot ways to circumvent the ban on sectarian prayers.  To be fair, Culpeper has complied with the court’s ruling, first telling the ministers who pray at their meetings to avoid sectarian references and, when that proved unacceptable, substituting a moment of silence format.

But the plot to bring back Christian prayers continued to hatch, and it took final form in Delegate Orrock’s HB 2615, a bill that passed the recently completed 2005 session of the Virginia General Assembly and has been signed by the Governor.  This affront to free expression mischievously awards “First Amendment” rights to anyone present prior to the “actual call to order or convening of business” of a government meeting.

If not for the context, most of us would celebrate a measure that appears to expand First Amendment protections.  Unfortunately, this bill has nothing to do with the precious expressive rights so brilliantly articulated in the First Amendment. Rather, it exploits the First Amendment in order to fit sectarian prayers into a tiny legal cranny left undefined by the court ruling.

Here’s how:  The Fourth Circuit’s ruling prevents government officials from opening their meetings with a sectarian prayer, but is silent on what they can do during the time when everyone is assembled prior to the official opening of the meeting.  Therefore, so the reasoning goes, if local officials merely move the “actual call to order” of their meeting from just before to just after the opening prayer, then the prayer can be sectarian without violating the ruling.

Orrock’s bill provides a basis in Virginia law for arguing that the free speech and exercise clauses of the First Amendment protect sectarian prayers prior to the official opening of a government meeting--even when the prayer is for all practical purposes part of the meeting.

The defect in the law is that any court with a fully conscious judge will see it for what it really is. HB 2615 may create a First Amendment-protected period before the start of government business, but if it results in governing bodies offering the same sectarian prayer in pretty much the same way they always have, the courts will not allow it.

Were Madison alive, he might revise his Remonstrance to cite the Orrock-Culpeper plan as yet another example of why government officials should not “employ religion as an engine of Civil policy.”