Special to the Journal
Attorney General Sam Olens has joined a bipartisan coalition of 23 attorneys general in filing an amicus brief with the United States Supreme Court supporting the long tradition of legislative prayer. The friend-of-the-court brief, filed in the case of Town of Greece N.Y. v. Galloway, asks that the Court overturn a lower court ruling that legislative prayer at the beginning of a government assembly violates the Establishment Clause.
“The legality of legislative prayer is a major Constitutional question before the United States Supreme Court, which will impact every government in Georgia,” said Olens. “The same Congress that drafted the Free Exercise and Establishment Clauses of the Constitution also regularly opened in prayer. Our Nation has a centuries-long tradition of balancing religious freedom and public prayer, and I believe that tradition must be protected.”
The States also argue in the brief that guidance is needed from the Court clarifying that legislative prayer is permissible without requiring the prayers be screened for sectarian references. Nearly thirty years ago, the Supreme Court upheld the practice of opening legislative sessions with prayer in Marsh v. Chambers, 463 U.S. 783, 792 (1983). In that case, the Court based its holding on the “unambiguous and unbroken history” of legislative prayer dating back to the First Congress.
Since then, several rulings from lower courts have reached conflicting conclusions about the precedent set by Marsh. The ambiguity surrounding legislative prayers has led to costly litigation for all levels of government. One such case was Pelphrey v. Cobb County, which was litigated while Olens was Chairman of the Cobb County Commission. In this case, the Eleventh Circuit accepted the position advanced by the States in the brief that where a legislative body provides an opportunity for prayer without advocating a particular faith or being governed by an improper motive, there is no violation of the Establishment Clause.
Attorneys General from Alabama, Alaska, Arkansas, Colorado, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Virginia and West Virginia also joined the amicus brief.
The brief is attached.