"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The U.S. Supreme Court first decided in the 1925 case Gitlow v. New York that the First Amendment applies to the states and their subdivisions through the Fourteenth Amendment's Due Process clause.
Though Thursday's hearing is only preliminary, both sides likely will have to explain their Marsh arguments. A motion for preliminary injunction on a First Amendment issue requires plaintiffs to show, among other things, their likelihood of success on the merits of a case.
Both parties in a federal lawsuit over prayer at Hamilton County Commission meetings claim the First Amendment is on their side.
In the six weeks since Brandon Jones and Tommy Coleman sued Hamilton County over the commission's regular Christian prayers during meetings, the county courthouse has drawn dozens of people expressing their thoughts and emotions through silent protest, prayer, public comment and, occasionally, verbal confrontation.
Still, at its core, the dispute is a legal struggle between two parties over two clauses in the first 16 of 45 words in an amendment to the U.S. Constitution passed by Congress in 1789 and ratified by the states in 1791.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..."
Though the U.S. Supreme Court has ruled a number of times on the conflict between the two clauses in public school prayer situations, one decision stands out on the issue of legislative prayer -- Marsh v. Chambers -- a 1983 case in which the Supreme Court upheld legislative prayer in a 6-3 decision.
In the Hamilton County case, lawyers for both the plaintiffs and the county use Marsh to help make their cases in briefs filed ahead of a Thursday hearing before U.S. District Judge Harry S. "Sandy" Mattice on Coleman and Jones' motion for preliminary injunction, which would halt the commission's invocations until Mattice can rule in the case. The motion argues that the invocation policy and practice establishes religion.
The county's case relies on Marsh and makes a number of other constitutional arguments against the injunction.
"In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society," Chief Justice Warren Burger wrote for the majority in Marsh. "To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an 'establishment' of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."
Charles Haynes, director of the Religious Freedom Education Project at the Newseum and a senior First Amendment Center scholar, said none of the country's circuit courts of appeal have signaled they would be willing to strike down legislative prayer.
"There are a lot of cases over the years about this issue, and Marsh is still good law," Haynes said.
Nonetheless, "people are still pushing the envelope at what Marsh means," he said.
In the past five years, two U.S. circuit courts have split on how to apply Marsh. But the 6th Circuit, which includes the federal district courts in Tennessee, hasn't ruled directly on legislative prayer.
Brett Harvey, an attorney representing Hamilton County and senior counsel for the Alliance Defending Freedom, which defends legislative prayer cases around the country, said he is unaware of any other active legislative prayer cases in this circuit.
THE ESTABLISHMENT CLAUSE EXCEPTION
In the Marsh case, Justice William Brennan, joined by Thurgood Marshall, concluded that the decision "is carving out an exception to the Establishment Clause, rather than reshaping Establishment Clause doctrine to accommodate legislative prayer."
Many lower courts, including the U.S. Court of Appeals for the 6th Circuit, which oversees Tennessee's federal courts, also have interpreted legislative prayer as an exception to the Establishment Clause.
Courts have struck down other governmental practices, including holding nativity scenes in town squares, posting the Ten Commandments as a religious statement and displaying crosses on government land.
All levels of federal courts also have consistently ruled that school-sponsored religious activity, including prayer, is unconstitutional.
In 1999, the 6th Circuit decided a major case at the cross-section of legislative and school prayer -- Coles v. Cleveland Board of Education. The court decided that the school board in Ohio could not hold public prayer because a school board is an integral part of the public school system and does not "neatly fall under the unique and narrow exception articulated in Marsh."
The Coles decision is important, Haynes said.
"It was, for a long time, the only circuit that said legislative prayer, as defined by Marsh, did not apply to school boards," Haynes said. "That does signal what the circuit is thinking."
"A PANDORA'S BOX"
Now that legislative prayer has been upheld, some federal courts are examining the constitutionality of government invocation policies and the content of the prayers said in public meetings.
"In my opinion, the Marsh decision has opened a Pandora's box, and you just can't put a lid on it," Haynes said.
He said people should be able to pray freely, not constrained by a "neutral" policy that limits them in what they can say.
"This, to me, is the problem with state prayer," Haynes said. "It ends up being inauthentic."
Harvey said the government shouldn't "tell people how and to whom to pray" and points Pelphrey v. Cobb County, an 11th Circuit decision in 2008 to uphold the prayer policy of the County Commission in Cobb County, Ga.
"In Pelphrey, I think 96.6 percent of the people who gave prayers were identified as coming from the Christian faith, and over 70 percent of the prayers made specific reference to Jesus," Harvey said. "Pelphrey looked at the prayers and said there's no proof of exploitation. They didn't try to manipulate it to make sure only Christians prayed."
"The prayers, taken as a whole, did not advance any particular faith," wrote 11th Circuit Court Judge William H. Pryor in the Pelphrey opinion.
In Joyner v. Forsyth County, the 4th Circuit in 2011 struck down a commission's neutral prayer policy in a case against Forsyth County, N.C., home to Winston-Salem. Earlier this year, the U.S. Supreme Court declined the county's petition to hear the case.
Though another circuit's decision is not binding on a district or circuit court, it can be persuasive. Robin Flores, who represents Coleman and Jones, argues heavily from Joyner v. Forsyth County in his brief supporting his motion for preliminary injunction.
In the 2-1 Joyner opinion, the majority acknowledges the Marsh exception, but said "both the Supreme Court and this circuit have been careful to place clear boundaries on invocations. That is because prayer in governmental settings carries risks."
"The Marsh Court only endorsed such a hands-off approach to situations where 'there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief,'" wrote Fourth Circuit Judge J. Harvie Wilkinson.
In Joyner v. Forsyth County, commissioners passed a neutral prayer policy after two residents filed a federal suit against them. Both before and after the policy passed, the vast majority of the invited speakers included in their prayers some type of Christian reference.
"None of the prayers mentioned any other deity. And at no time after the adoption of the policy did a non-Christian religious leader come forth to give a prayer," the majority opinion said. "The record thus reflects that the prayers here, taken as a whole, 'advance[d one] single faith' to the exclusion of all others."
Mike Meno, spokesman for the ACLU of North Carolina, which represented the plaintiffs against Forsyth County, said the two women objected to the prayers because they "felt compelled to participate, especially as one of the plaintiffs in the case said, that not participating would negatively impact the business they as citizens would bring before the board."