On June 6, 2023, Pastor Travis Johnson opened the Mobile City Council meeting with a prayer asking God to protect children who are “inundated and targeted by harmful agendas and social media from peers,” especially when they are faced with “sexualized merchandizing, conversation and interactions.”
Ten days later, the Wisconsin-based Freedom From Religion Foundation (FFRF) sent the Mobile City Council a letter claiming this action was unconstitutional, urging it to drop prayer and adopt a moment of silence instead. The FFRF specifically claimed the prayer targeted the LGBTQ community. Fortunately, the City Council ignored their advice and continued with prayer anyway.
I commend the Mobile City Council for ignoring the FFRF’s letter. I’ve dealt with the FFRF a lot over my career, and I consider them the legal equivalent of the boy who cried wolf. In my experience, they bluff most of the time, and most of their legal arguments are shoddy. The precedents they cite are often weak, outdated, or inapplicable. Meanwhile, they completely ignore the more relevant precedents that cut the other way. Their demand letters often seem to cross the line from good-faith arguments into outright lying by omission.
I believe there is nothing to the FFRF’s latest attempt to drive God out of the public square, particularly because of a 2014 U.S. Supreme Court case decision in Town of Greece v. Galloway. In that case, a New York town regularly invited ministers from the community to open city council meetings with prayer. Predominantly Christian, the ministers often concluded their prayers in Jesus’ name. The plaintiff found the prayers “offensive” and “intolerable,” suing the city and arguing that they violated the Establishment Clause of the First Amendment.
Fortunately, the Court rejected her arguments. In a 5-4 decision, the Court held that legislative prayer holds a special place in American tradition. The fact that the ministers were predominantly Christian did not matter because there was no evidence that the city discriminated against minority faiths.
More to the point here, the Court noted that several ministers had made allegedly disparaging remarks during their prayers. However, the Court held that the Constitution was not violated because taken as a whole, this was not the usual practice during opening prayers.
Applying Town of Greece to this case, there appears to be no problem at all for Mobile. Contrary to the FFRF’s demand that the Mobile City Council drop its practice of opening sessions in prayer, Town of Greece held that this practice is constitutional.
Furthermore, the crux of the FFRF’s claim is that this prayer targeted the LGBTQ community. I find it interesting that Pastor Johnson never mentioned them, yet the FFRF apparently thinks that the LGBTQ community is the one “innundat[ing],” “target[ing],” and “sexualizing” innocent children. There are plenty of people within the LGBTQ community who are against sexualizing children.
Even if this remark was “disparaging” towards the entire LGBTQ community in Mobile, Town of Greece held there is no constitutional violation as long as it is not a persistent problem. The reason is obvious: the government cannot know in advance what every minister is going to say in his opening prayer. Consequently, it cannot be held liable every time a minister says something that offends someone.
Finally, I think the Mobile City Council’s case is even stronger after the Supreme Court’s decision last term in Kennedy v. Bremerton School District. In that case, the U.S. Supreme Court finally held that the bad Establishment Clause jurisprudence plaguing the country since at least the 1970s is dead and that the Establishment Clause must be interpreted according to history and tradition. Because the limitations on making “disparaging” remarks or “discriminating” against minority religions are relatively new rules, I think there’s a good case that those limits do not fit within the historical understanding of the Establishment Clause.
That is not to say that local governments should actively discriminate on sectarian grounds, which might cause Free Exercise problems. However, when it comes to the FFRF’s threat, the one tooth left in the tiger’s mouth has significant tooth decay and is close to being pulled.
I think Kennedy and Town of Greece were death sentences for the FFRF’s business model. All it takes is a little education for the folks who receive the FFRF’s toothless threats, and most of the FFRF’s power evaporates.
When choosing between pleasing an omnipotent God and appeasing a toothless tiger, one should choose the former. I commend the Mobile City Council for doing so. May God bless their work.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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