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City Councils May Sponsor Generic Prayer, Appeals Court Rules.

City councils may exclude non-traditional prayers before meetings and limit devotionals to genetic language that is non-divisive and non-controversial, a federal appeals court has ruled.

In an 11-2 en banc decision Oct. 27, the 10th Circuit Court of Appeals upheld a lower court decision approving the prayer policy of the Murray, Utah, City Council.

The dispute started in 1994 when Murray resident Tom Snyder requested permission to address the council during its "reverence period." Snyder, an opponent of city council invocations, wanted to say a prayer opening, "Our Mother, who art in Heaven, if indeed, there is a Heaven." He also wanted to pray to stop "self-righteous politicians" from misusing God's name and for the preservation of the separation of church and state.

Murray officials refused to give Snyder time to speak, arguing that his prayer was political in nature and designed to disparage other faiths. The city said its policy did not obligate it to include prayers from all different perspectives,

The appellate panel agreed. Writing for the majority, Judge David Ebel cited the Supreme Court's 1983 Marsh v. Chambers decision, which upheld the right of state legislatures to hire chaplains and open sessions with prayers.

"[A]s a consequence of the fact that this genre of government religious activity cannot exist without the government actually selecting someone to offer such prayer, 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," wrote Ebel. "Similarly, there can be no Establishment Clause violation merely in the fact that a legislative body chooses 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 invocational prayers, then it also allows the legislative body to exclude other speakers."

The court majority went on to declare, "What matters under Marsh is whether the prayer to be offered fits within the genre of legislative invocational prayers `that has become part of the fabric of our society' and constitutes a `tolerable acknowledgement of beliefs widely held among the people'.... The genre [of prayer] approved in Marsh is a kind of ecumenical activity that seeks to bind peoples of varying faiths together in a common purpose."

Judge Mary Beck Briscoe dissented, writing, "In the end, the city cannot have it both ways: it cannot purport to open the reverence period to a broad cross-section of the community without restrictions, while at the same time limiting a particular speaker's access to the reverence period because of its distaste for the speaker's proposed message. Thus, I believe it must either allow Snyder the opportunity to give his tendered prayer or cease its currently-formatted reverence period altogether."

Snyder's attorney, Brian Barnard, said he is considering appealing the Synder v. Murray City Corporation case to the U.S. Supreme Court.

In other news about civil religion:

* Two non-Christian members of the Dallas City Council have requested that visiting clergy deliver more generic opening prayers instead of ones that refer to Jesus Christ.

Council member Laura Miller, who is Jewish, told The Dallas Morning News, "Every week that I've been there, we talk about Jesus Christ, and I flinch. We're at City Hall, why are we hearing about Jesus Christ?" Lois Finkleman, a council member who is also Jewish, said she raised the issue a year ago with a fellow council member and was told the issue wasn't worth fighting over.

Dallas Assistant City Secretary Barry Davis, who is responsible for selecting the guest ministers, said he tried eight years ago to persuade religious leaders to deliver "non-denominational" prayers, but most refused. "Most of them will say, `Don't tell me how to pray,'" Davis said. "The majority of them will tell you to go fly a kite."
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Publication:Church & State
Date:Dec 1, 1998
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