Government is generally forbidden to deliver, sponsor, orchestrate, or encourage prayers. Since the nation’s founding, however, many legislatures have traditionally opened their meetings with prayer. Given this historical tradition, the U.S. Supreme Court has held that legislative prayers are constitutionally permissible if, but only if, they do not use language or symbols specific to one religion. (Courts have held, however, that elected school boards are different than legislatures, and are forbidden to open their sessions even with nonsectarian prayers.) Furthermore, prayergivers at legislative sessions may not exploit the prayer opportunity to proselytize or advance any one, or to disparage any other, faith or belief. A number of federal courts of appeals have thus held that sectarian prayers (i.e., prayers using language specific to one faith) before legislatures or other representative bodies are unconstitutional. One court, with jurisdiction over Alabama, Georgia, and Florida, has taken a more limited view, concluding that sectarian prayers in legislatures are permissible as long as they do not proselytize.
Even apart from using sectarian language, there are many ways that legislative prayer might impermissibly proselytize, advance, or disparage a particular faith. Those who do not wish to be present for a prayer must be allowed to leave and may not be excluded from participating in the rest of the meeting. And those who do not wish to stand or bow their head for the prayer must be allowed to remain seated and must not otherwise be penalized for their nonconformity. A prayer practice may also be unconstitutional if a legislative body selects prayergivers based on their faith or excludes some faith groups from offering prayers. Thus, if a legislative body invites clergy to deliver prayers, it should strive to invite a wide variety of faiths and should instruct the prayergivers to make their prayers nonsectarian, ecumenical, and inclusive of minority faiths.
If your representative body offers a prayer and one or more of the following statements is true, the prayer practice may be unconstitutional:
- Clergy or other invited guests offer the prayers, but minority faiths are excluded from being prayergivers.
- The prayers often contain explicit references to a particular deity, symbolic religious language, quotations of religious texts, or statements that promote, advance, or denigrate a particular religion.