Regardless of the limits on what can consitutionally be said during prayers before government meetings, it's pretty well settled that the government cannot discriminate against followers of a specific religions. Such discrimination often happens subtly—invocations are frequently led by Christian ministers, and unless a rabbi or imam asks, they are not included. But that is not, the Supreme Court has said, necessarily a problem. Motive matters. Thus, unconstitutional discrimination in legislative prayer cases may be difficult to prove.
However, it can be less challenging when a government institution flat out proscribes members of of non-monotheistic religions. And that is what the ACLU accuses a Virginia county Board of Supervisors of doing.
Raw Story reports:
A state appeals court upheld the county’s policy in a 2005 ruling, and the board has invited local clergy whose names are drawn from an official county list.
Almost all of those religious leaders have represented Christian denominations, and the county has denied a Wiccan’s request to be added to the list.
Officials defended that decision, saying the “neo-pagan” faith does not fall within the Judeo-Christian tradition and “invokes polytheistic, pre-Christian deities.”
That pretty strongly suggests discrimination on the basis of religion. Even under the more limited judicial role outlined in Town of Greece v. Galloway a few weeks ago, in which he Supreme Court said that it would not analyze the content of pre-meeting prayers except to see if they were coercive, this policy might not fly because it both gives the appearance of favoring Abrahamic religions and because it seems to discriminate against polytheism.
That might seem in some tension with the Fourth Circuit Court of Appeals 2005 ruling on the Chesterfield County Board of Supervisors policy, in which the court applied the legislative prayer case of Marsh v. Chambers that held it was permissible to select one minister to the exclusion of others. In fact, the Fourth Circuit said, the Chesterfield County policy appear more inclusive than the one in Marsh.
I'm not sure I agree with the court's interpretation of Marsh, which was not so much about whether the government could exclude members of certain religions from legislative prayer but about whether the government could (a) have legislative prayer at all and (b) select the prayer giver.
But even accepting the Fourth Circuit's take on Marsh, the facts, at least as presented in the ACLU's letter to the county board, suggest that the circumstances have changed since 2005. To my reading, a ban on non-monotheistic religions simply because they would invoke polytheism seems to have an improper motive—one that is concerned with the content of the prayer, not just about administrative ease in selecting prayer givers.
I'll be interested to see the county's response.
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