ACLU: City’s invocation order an ‘improvement’

By Ronica Shannon

A recent order adopted by the Richmond City Commission involving prayer before public meetings is a bit less libelous, but still has a few problems, said William Sharp, attorney for the American Civil Liberties Union (ACLU) of Kentucky.

The invocation was taken off the city commission agendas after receiving an Aug. 31 notice from the ACLU.

“While the ACLU of Kentucky strongly supports the rights of individuals to freely exercise their chosen religion, we also believe that government officials — when acting in their official capacities — are required to observe constitutional limitations upon their ability to engage in behavior that has the purpose or effect of endorsing religion,” the letter reads.

The ACLU referred to the commission’s action as “legislative prayer.”

The order adopted Tuesday includes several steps to try to ensure there is no violation of constitutional rights.

“The invocation shall not be listed or recognized as an agenda item for the meeting or as part of the public business,” the order reads. “No member of the commission, no employee of the city, and no other person in attendance at any meeting shall be required to participate in any invocation as may be offered prior to the commencement of a meeting.”

The fourth step mandates that the invocation be delivered by a community volunteer who is a member of the clergy in Madison County, and dictates how the city should go about making sure all clergy members are invited.

The order calls upon the city clerk to compile an up-to-date list of all local clergy members using the Yellow Pages and the church directory featured in Saturday editions of the Richmond Register.

This list also should contain a contact person for each church/entity, and be updated on an annual basis.

“The city, nor its officers or employees, shall not engage in any prior inquiry, review of, or involvement in, the content of any invocation to be delivered,” the order reads. “Shortly before the opening gavel that officially begins the meeting, the mayor shall introduce the invocation speaker and invite only those who wish to do so to participate in the invocation.”

A disclaimer will be placed on all city commission agendas that reads: “Any invocation that may be offered before the official start of the commission meeting shall be the voluntary offering of a private citizen. The views or beliefs expressed by the invocation speaker have not been previously reviewed or approved by the commission, and the commission does not endorse the religious beliefs or views of this, or any other speaker.”

The commission’s new order “ ... does represent an improvement from earlier practices, but still falls short given the inherent problems raised by its implementation,” Sharp said. “For example, the City’s order requires that invitations to participate must state that ‘in order to maintain a spirit of respect and ecumenism, the Commission requests only that the invocation opportunity not be exploited as an effort to convert others to a particular faith, nor to disparage any faith or belief different than that of the invocation speaker.’ In doing so, the commission appears to reserve for itself some degree of editorial control over the content of the invocations despite specifically disclaiming such control elsewhere in the order.”

However, the order raises two questions, Sharp said. Who determines whether a specific invocation is within the “spirit of respect and ecumenism” identified by the commission? What are the repercussions for those whose speech is inconsistent with the commission’s pronouncement?

“The ACLU of Kentucky maintains that where government officials seek to exert control over the content of speakers’ messages, it is inevitable that the right of individuals to engage in free speech is impermissibly burdened,” Sharp said. “And if, as the commission states, it does not (and will not) exercise editorial control over speakers’ invocations, what happens when the invocations violate the ‘spirit of respect and ecumenism’ (as determined by the Commission)? While the commission’s order tends to alleviate some of the concerns we raised regarding the Establishment clause, it appears that the order may do so at the expense of the Free Speech clause.”

A recent Letter to the Editor from Richmond resident Beverly Wickersham noted that the Richmond City Commission should not continue to put itself in the way of a potential lawsuit, taking into consideration the city’s current financial strains.

“As for the financial risk, a successful plaintiff who challenges unlawful government actions is generally entitled to recover ‘attorney fees’ for the litigation,” Sharp said. “These fees vary in amount depending upon the reasonable hourly rate for the legal services and the amount of time invested in the litigation.”

Ronica Shannon can be reached at rshannon@richmondregister.com or 624-6608.