ACLU: Fountain Valley's Public Prayer Is Bad Policy, Not Necessarily Illegal

The Fountain Valley City Council's policy of holding sectarian prayers before its meetings, while seemingly bad policy, is not necessarily illegal, the ACLU said Wednesday.

"As a policy matter I have to ask myself why do legislative bodies that represent peoples of all religions and faiths, and no faith at all, think it's a good idea to start their meetings with an invocation to a specific deity?" said Peter Eliasburg, legal director for ACLU Southern California. "I just can't understand, even if it's legal to do that, why they think it's a good idea. I really don't get it, unless you're basically saying, 'We think this is a Christian nation, and we think that those who aren't Christians among us are lesser citizens.' I don't think that should be a position that legislative bodies should take."

Case law, Eilasburg said, loosely supports a legislative body's right to conduct non-sectarian prayer, and in the landmark 1983 case involving the Nebraska legislature, the Supreme Court held that prayer didn't directly violate the First Amendment's establishment clause because Thomas Jefferson and James Madison didn't object to prayer in Congress.

Other cities have argued to continue pre-meeting prayer on the grounds that members of any faith are welcome to participate. In the case of Fountain Valley, the city has a regular roster of 11 such leaders, 10 of whom are Christian. Eliasburg said such disparities are not uncommon in cities that advocate sectarian invocations.

"In the types of communities where this is done, there's a dramatic majority of that particular religion," he said. "People who are in the minority feel like, 'Hey, I don't want to raise a stink. I don't want to be seen as difficult. I don't want to be harassed for doing this.' And so they stay quiet, and you wait for somebody who's courageous enough to step forward and say, 'This is not OK.'"

In the case of public schools, Eliasburg said, the case law takes in interesting turn. Courts have held that when legislative bodies and schools overlap, the right to prayer is almost never upheld, and school boards have historically been forbidden from pre-meeting invocations.

"Once you go inside the halls of a school, you can't do that," Eliasburg said. "And you certainly can't do a sectarian prayer."