The legal case against prayer at government meetings isn't nearly as clear-cut as the Freedom From Religion Foundation would have Rapid City officials believe.
The national nonprofit with 18 members in Rapid City fights for separation of church and state and has twice asked the Rapid City Council to end its prayers before meetings. In urging an end to prayer, the group's attorney cited a wide range of case law that seems to indicate the city would have a tough time defending its prayers in court.
But a Journal review of pertinent cases shows that most of the citations made by the group come from nonbinding lower court decisions.
When considering a wider range of legal opinions, a different picture emerges than the strident separation of church and state the foundation uses to threaten communities to end public prayers. A look at U.S. Supreme Court precedents is much murkier on the matter and may not support the foundation's argument as much as their warning letters indicate, according to legal experts.
"When it comes to public expression of religion cases, the Court has not done a very good job," said Patrick Garry, a professor of law at the University of South Dakota. "I don't mean to be critical of the Court, because it's divided and society is divided."
The Rapid City Council is already gearing up to defend itself against possible litigation Freedom From Religion could launch. At the council's behest, the city attorney is drafting a policy formalizing the prayers but explicitly not limiting their content.
At the same time, Freedom From Religion is planning on initiating litigation over government prayer somewhere in the country in the next year. Whether it will choose Rapid City or some other city is unclear.
Equally opaque is whether Rapid City or Freedom From Religion would win such a lawsuit. In either case, the side that loses would likely have to pay the other side's legal fees, putting at stake possibly tens or even hundreds of thousands of dollars.
At least three groups or individuals have already offered to fund Rapid City's legal expenses in the event of a lawsuit, though City Attorney Joel Landeen declined to name which groups had offered.
One such group that commonly funds that sort of legal battle is the Becket Fund, which is dedicated to the free expression of Christianity and other religions.
The Becket Fund and Freedom From Religion have frequently sparred in court, with one Becket Fund spokeswoman dubbing Freedom From Religion "bullies," a label some Rapid City residents might agree with. But a Becket Fund attorney took a slightly softer stance.
"I'd characterize them as very devoted to separation of church and state and trying to keep all references to religion out of government, regardless of whether or not their argument is constitutional," said Luke Goodrich, a Becket Fund attorney. He added, "We've defeated Freedom From Religion in several cases."
The most definitive case on government prayer was decided by the Supreme Court three decades ago, and it allowed government prayer.
In the case Marsh v. Chambers (1983), Nebraska State Sen. Ernie Chambers sued State Treasurer Frank Marsh and the state generally, claiming the invocations that opened the Nebraska Legislature were unconstitutional. The Presbyterian chaplain who gave the invocations had done so for more than 15 years and was paid a $319.75 monthly stipend, funded by taxpayers.
Though the U.S. 8th Circuit Court of Appeals, the circuit that includes South Dakota, found the funding of legislative prayers unconstitutional, the Supreme Court said the prayers as well as the funding of a chaplain were acceptable. The argument was that legislative prayers had long been part of the state's, and the country's, "unique history."
Since then, the Supreme Court has not taken on another case of legislative prayer in a significant way. It has made rulings on other state-church intersections, such as displays of religion on public property and school prayer, but even those rulings have at times been unclear.
For instance, on the same day in 2005, the Supreme Court issued two seemingly contradicting rulings on whether displays of the Ten Commandments on government property are constitutional.
In Van Orden v. Perry, the court ruled a display of the Ten Commandments in front of the Texas state capitol was constitutional because the display had historical value. In McCreary County v. American Civil Liberty Union of Kentucky, the court ruled a display of the Ten Commandments in the McCreary County Courthouse in Kentucky was unconstitutional because it advanced Judeo-Christian religion to the detriment of other religions.
Decisions from the lower courts on government prayer have been equally contradictory. Some appeals courts rule one way, others rule another, and the Supreme Court has yet to settle the issue. Goodrich, the Becket Fund attorney, reckons the court will do so within five to 10 years.
"Sometimes the Supreme Court just likes to let issues percolate in the lower courts and allow the lower courts to consider lots of different factual scenarios," Goodrich said.
Freedom From Religion likes to cite some of the more recent lower court case law. The Marsh v. Chambers decision from 30 years ago needs to be interpreted in light of more recent decisions, said the group's attorney.
Relying on the 1989 case County of Allegheny v. American Civil Liberties Union, which mentions the Marsh case, many federal appeals courts have reinterpreted Marsh to restrict the content of prayers.
"Some form of nonsectarian prayer is permissible, but sectarian prayers, especially repeated sectarian prayers, are unconstitutional," Freedom From Religion staff attorney Patrick Elliott said.
Most of the Rapid City pre-meeting prayers have a decidedly Christian tone; the Freedom from Religion Foundation in the past has backed off when communities hold only a moment of silence before government meetings.