11th Circuit Upholds County Legislative Prayers With Sectarian References

In Pelphrey v. Cobb County, Georgia, (11th Cir., Oct. 28, 2008), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, upheld the practice of the Cobb County Commission and the Cobb County Planning Commission to open their meetings with a prayer offered by local clergy or other members of the community, now invited randomly. The clergy have represented various faiths, and sometimes include in their prayers sectarian references. However the vast majority of clergy offering invocations have been Christian. Relying on the Supreme Court's decision in Marsh v. Chambers, the majority of the court held that county boards are not limited by the Establishment Clause to non-sectarian invocations so long as the prayers are not "exploited to proselytize or advance any one, or to disparage any other, faith or belief."

The appellate court, however, agreed with the district court that the prayer policy of the Planning Commission during 2003-04 was unconstitutional because it excluded certain faiths from the list of potential invitees. It agreed that nominal damages could be awarded for the violation. The majority opinion was written by Judge William Pryor who, before joining the court, was attorney general of Alabama. In that role he was part of a high profile church-state controversy involving the removal of Alabama's Chief Justice Roy Moore.

Judge Middlebrooks dissenting argued that the prayer policies of the county violate the Lemon test because they have both a religious purpose and effect and involve excessive entanglement of the state with religion. He argued further that the Marsh exception for legislative prayer should be limited to "invocations before the United States Congress and the state legislatures." He added:

I concur with the majority that judges, as representatives of the government, have no business editing or evaluating the content of prayer. However, I also believe that sponsorship of prayer by these commissions presents a similar, although less direct, danger. When state sponsored prayer is a perfunctory and sterile exercise marking the beginning of a commission agenda, religion becomes the casualty.

Americans United issued a press release criticizing the decision. Yesterday's Columbus (GA) Ledger-Enquirer reported on the decision. [Thanks to Alliance Alert for the lead.]