May 21, 2018
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Outside of schools, separation of church and state in Maine gets blurrier

By Judy Harrison, BDN Staff

An elementary school’s decision to end its traditional “blessing” of small student-made wooden rowboats by a local Congregational minister has put prayer in Maine’s public square in the spotlight.

South Bristol Elementary School ended the 16-year tradition this year after receiving a letter from Washington, D.C.-based Americans United for Separation of Church and State informing the school that student involvement in public prayer violated the First Amendment.

The letter and the school’s response raise questions about other venues where church and state routinely intersect.

The Maine Senate and House open every session with a prayer delivered by a member of the clergy.

“We ask your blessing upon the assembly of the Senate and upon all to whom this authority of government is given,” the Rev. Natalie E. Blake of Gray prayed Thursday.

No public school in Maine began its day in a similar fashion.

Courts have interpreted the constitutional guarantee of separation between church and state very differently depending on where and when a prayer is said and its content.

“In public, anyone can pray anytime they want, anywhere they want,” Zachary Heiden of the American Civil Liberties Union of Maine said Tuesday. “In school, students themselves can pray all they want as long as it’s not taking them away from school work. They can pray together as groups or as a club, but the school administrators and teachers can’t lead prayer and can’t encourage students in prayer without running afoul of [the U.S. Constitution.] Students have to be in school and it could be considered coercive to make them pray in a particular way or tradition.”

Courts also have forbidden prayer in public schools because students, especially younger children, are more impressionable, more susceptible to peer pressure and pressure from teachers and principals to participate in activities including public prayer than adults and older students, Gregory M. Lipper, attorney for Americans United for Separation of Church and State, said Tuesday.

“That is why the courts have been especially protective of students’ religious freedom in the context of schools,” he said.

Heiden said that if a student spontaneously blessed the fleet or said a prayer, that would be constitutional. The problem was that the administration or a teacher arranged for a member of the clergy to lead the prayer.

“Nobody has to be in the Legislature,” Heiden said. “No one is forced to be in the Legislature the same way they are forced to be in school. The courts have said it’s OK for there to be prayer in the Legislature or other government meetings as long as the prayer is not overtly sectarian.”

The U.S. Supreme Court carved out an exception for prayer before governing bodies based on tradition, Lipper said.

“The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country,” then Chief Justice Warren Burger wrote in the 1983 decision. “From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”

That ruling would not cover every event sponsored by a government entity, Lipper said. A prayer at a Memorial Day parade sponsored by a municipality might not be constitutional depending on its content. A prayer at a parade sponsored by an organization such as the Veterans of Foreign Wars would be constitutional. Lipper also said that a prayer before a faculty convocation at a state college or university would not be allowed but one at a private institution would.

A prayer said during the christening of ships might fall under the Marsh decision, but neither Heiden nor Lipper were aware of any court decisions specifically addressing the issue.

Jim DeMartini, manager of communications at Bath Iron Works, said Tuesday that an invocation always is offered before the champagne is broken on the bow of a government-purchased military ship.

“It’s part of the tradition of christening a ship going back to the days of the Viking ships,” DeMartini said.

Since 1983, courts subsequently have ruled that prayers offered prior to meetings of governing bodies such as town councils, county boards and state legislatures should “be wide-ranging, tying its legitimacy to common religious ground.” Such prayer should “transcend denominational boundaries and appeal broadly to the aspirations of all citizens,” according to established case law.

Millicent M. MacFarland, clerk of the Maine House for more than a decade, sends similar guidelines to clergy who deliver invocations before each session opens.

“As you prepare, please keep in mind that the House is composed of members of many different denominations and religious backgrounds and represents the entire diverse population of Maine,” the guidelines state. “I respectfully request that your message be nondenominational and appropriate for people of all beliefs. Also I ask that you keep your prayer brief, limited to the prayer, and that it refrain from invoking language that would be taken as exclusionary.”

The Rev. Stan Moody, pastor of Columbia Street Baptist Church in Bangor and a former legislator, often has said the opening prayer in the House. Moody said Tuesday that he begins such prayers with: “Father, God, creator and sustainer of life.”

“My concern is to focus on the idea that the institution that I am blessing can’t function on its own, that it needs divine guidance,” he said. “The body of my prayer will ask for that guidance, then I will close with a verse from the Psalms.

“People of faith, they get it,” Moody said. “Those who are not are not offended by it. If you lean too hard in favor of your own faith expression, you can get in position where it’s going to become a public issue and you don’t want it to be.”

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