Challenges to prayer policies in state more common
By Benjamin Wermund and Ciara O’Rourke
Austin American-Statesman
CEDAR PARK, Texas (AP) — Texas might not be a battleground state in Tuesday’s presidential election, but it is home to a number of fights — some ongoing and some already decided — that could have a bearing nationally on the place of God in government.
National advocacy groups have focused much of their efforts in Texas, most recently over Hays County commissioners opening their meetings with prayer, the Cedar Park Police Department putting a cross on its chaplain’s seal and Kountze High School cheerleaders carrying Christian signs at football games.
Jeff Mateer, general counsel for the Liberty Institute, a group that launches court fights on behalf of Christian priorities and issues, said challenges to prayer policies in local Texas governments have become more common.
Of the 1,700 complaints received by the Freedom From Religion Foundation from January to September, nearly 10 percent were filed by Texas residents. The advocacy group sent 54 letters of complaint to Texas governmental entities this year, including five complaints to Central Texas agencies.
Gregory M. Lipper, an attorney with Americans United for Separation of Church and State, which sought a ban on sectarian invocations in Hays County, said that about one in eight of the 120 letters the group has sent so far this year went to Texas.
“We certainly get a significant number of Texas-related complaints,” Lipper said. The group would not say to whom it has sent letters, he said, because it wants to give entities an opportunity to resolve issues “without having a lot of pressure on them.”
Jonathan Saenz, director of legislative affairs at the Plano-based Liberty Institute, said his group has taken a defensive stance against what he said is a “coordinated effort by outside groups to try to change the way things are done in Texas.”
“These groups are more actively targeting our state for change,” Saenz said, and the institute has offered to advocate on behalf of Hays County commissioners, as it has for the Kountze cheerleaders.
America’s religious roots can sometimes make it difficult to draw the line on separation of church and state, said Jeffrey D. Kahn, an associate professor of law at Southern Methodist University.
“The First Amendment has an internal tension to it. On one hand it wants to protect our free exercise of religion. At the same time, it wants to protect us from state establishment of the religion of the majority,” Kahn said.
As the country diversifies, more cases come to light and are fought out in the courtroom, Kahn said. And the judicial decisions have become a guide for entities navigating church and state issues, as well as for advocates.
“Judicial institutions are passive by nature,” Kahn said, noting that courts cannot act until cases are filed. “It does require the vigilance of an active and informed citizenry.”
A 1963 Supreme Court ruling found that school-sponsored prayer was unconstitutional, but a 1983 ruling cites the country’s “unique history” in finding that government entities can hire chaplains for prayers at meetings.
Locally, Madalyn Murray O’Hair, the late atheism activist, famously challenged prayer at Austin City Council meetings in the 1970s. Austin council meetings today are opened with prayer, with spiritual leaders from various religions leading the invocations.
A number of more recent cases have cropped up in Central Texas, though none have made it to the courtroom.
Hays County commissioners adopted a new prayer policy last month after Americans United complained. The policy creates a volunteer chaplain position, who is instructed to randomly invite religious leaders of all faiths to open a meeting with an invocation. The policy does not ban sectarian prayer, however, and Americans United has warned that it will still consider legal action if such prayer continues.
More recently, the Cedar Park City Council received a letter from Freedom From Religion complaining that the city’s police chaplain seal boasts a Latin cross.
“By displaying a Christian cross on the chaplain’s seal, the city alienates adherents to religions other than Christianity,” a letter sent July 5 said.
Cedar Park officials have declined to comment, and the council took no action after discussed the matter in executive session in late October.
Texas schools are particularly fertile ground for such battles, with both sides pointing to court rulings and state laws and policies they say contradict one another.
Advocates for separation of church and state cite a 2000 Supreme Court ruling that said a Galveston-area school district violated the First Amendment by permitting student-led, student-initiated prayer at football games. They argue that a Texas law passed seven years later that prohibits discriminating against religious viewpoints given by students during public forums creates room for confusion.
“That seems to be inviting school districts to disobey the Supreme Court decision,” Lipper said.
Advocates on the other end argue that the 2000 case relates to a specific incident and cannot be applied with a broad brush. They argue private, student-led prayer — rather than government-funded school-sanctioned prayer — is allowed, pointing to a 2011 ruling in the U.S. 5th Circuit Court of Appeals that found a judge was wrong to bar public prayers from a graduation ceremony at Medina Valley High School in Castroville.
Harim Sasser, director of litigation at the Liberty Institute, pointed to rulings in the U.S. 9th and 7th Circuit Courts of Appeals. According to the 2003 9th Circuit Court ruling: “The school’s proper response is to educate the audience rather than squelch the speaker.”
“Schools may explain that they do not endorse speech by permitting it. If pupils do not comprehend so simple a lesson, then one wonders whether the schools can teach anything at all,” the ruling continues, quoting a ruling from the 7th court.
Sasser said many districts look to the Texas Association of School Boards for guidance on prayer in school policies.
“At least in my experience they’re mostly a particular political persuasion that believes very strongly in limiting religious activity. They want to err on the side of shutting down religious exercise,” Sasser said.
Locally, Hutto, Wimberley and Liberty Hill school districts this year received various complaints from the Freedom From Religion Foundation.
Officials with the local school districts that received letters all said they looked into the potential violations and found they weren’t cause for action.
“We’re very careful,” said Dee Howard, assistant superintendent at the Wimberley school district. “I do feel like we try to make sure we respect many different sides and beliefs.”
The Kountze cheerleader controversy is scheduled to go before a full court in June, but in the meantime, a judge filed a temporary injunction that allows the cheerleaders to bring their signs to football games.
