A ruling in Utah is a setback for state-church separation -- and the tactic of combatting questionable public prayer by demanding equal time for fringe religious groups.

he 10th Circuit Court of Appeals has ruled that cities may be selective in allowing citizens to recite prayers, and regulate the content of any religious invocations performed in front of official bodies such as municipal councils. The 11-2 ruling turned down an appeal from Tom Snyder, who says that he was not permitted to conduct an opening prayer at a city council meeting in Murray City, Utah.

    The ruling has a double effect of setting more precedent upholding the constitutionality of government prayer, and undermining a strategy advocated by some Atheists or other groups who had hoped to discourage the practice by having "secular prayer," "humanist prayers" or similar invocations by unpopular or fringe religious groups.

    Mr. Snyder was successful in 1994 when he requested to recite the opening prayer of the Salt Lake City council; the practice was discontinued. Snyder's invocation called upon "Our Mother who are in heaven (if indeed there is a heaven)," to discourage "self righteous politicians from misusing the name of God in conducting government meetings." Another version read: "Our Mother, who art in heaven (if indeed there is a heaven and if there is a god that takes a woman's form): hallowed be thy name..."

    Other portions of the prayer stated: "We ask that you deliver us from the evil of forced religious worship now sought to be imposed upon the people of the State of Utah..."

    Mr. Snyder's original call that he be permitted to lead a pre-meeting invocation came after a Utah Supreme Court ruling that upheld the constitutionality of that practice. When Salt Lake City discontinued the prayer, though, Snyder requested that nearby Murray officials permit him to open their meetings with his special invocation. Officials demurred, saying that the prayers must not "express political views, attack city policies or practices or mock city practices or policies." In 1997, Snyder's lawsuit against the city was dismissed by a three-judge panel in a 2-1 vote. District Court Judge J. Thomas Greene found that the prayer composed by Snyder was a substantially political rather than religious statement. That ruling was then affirmed by the 10th Circuit, which declared, "The establishment clause (of the Constitution) does not give any individual the right to establish his religion by guaranteeing an opportunity to pray during public meetings, and certainly does not require Murray to permit all comers to speak during the reverence portion of the City Council meeting."

    Separationist attorney Brian Barnard, however, warned that allowing a city council to censor one invocation in favor of another did amount to an establishment of religion. "You have a potential if not an actual violation of the Establishment clause," Barnard told the First Amendment Center web site.

    In February, the 10th Circuit agreed to rehear Snyder's case before the full panel of 13 judges. This time, however, the Court was even more adamant, saying that any city council had the proper authority "to open its meetings with the kind of legislative prayer that our nation over the course of more than 200 years has come to see as 'tolerable.'" Crucial in this case was the justices' noting of the 1983 CHAMBERS case. That decision spoke of prayer in a state legislature as constituting "simply a tolerable acknowledgment of beliefs widely held among the people..." and declared that such an invocation did not violate the First Amendment.

    The 10th Circuit decision is a clear setback for those who argue that government orchestrated public prayer violates the rights of Atheists and even minority religious groups, and constitutes an establishment or endorsement of religious belief. It also jeopardizes the strategy of using "religious pluralism" as a weapon against such practices, by encouraging fringe groups to participate in demanding a form of "equal time" to pray. The decision also refers to "beliefs widely held," a strong endorsement of certain majoritarian faiths such as Christianity, and finds that the Constitution does not mandate any legislative body to provide equal, public access in reciting prayers.

    Barnard told CNN, "It's a sad day when government will be allowed to make a decision of what tolerable prayer is." But Alan Larson, who represented Murray, Utah, praised the Circuit Court ruling as one reflecting "balance and common sense."

    An appeal to the U.S.Supreme Court is hoped for.

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