SOCIETY OF SEPARATIONISTS, INC., a Maryland nonprofit corporation, Richard Andrews, and J. Walker, Plaintiffs and Appellees, v. Ron WHITEHEAD, Tom Godfrey, Nancy Pace, Alan Hardman, Roselyn Kirk, and Don Hale, Salt Lake City Council members, Defendants and Appellants.
No. 920233.
Supreme Court of Utah.
Dec. 10, 1993.
865 P.2d 1298
Roger F. Cutler, Bruce R. Baird, Salt Lake City, for defendants.
Paul D. Lyman, Richfield, for amicus Utah League of Cities & Towns and amicus Richfield City.
Kathryn D. Kendell, Salt Lake City, for amicus American Civ. Liberties Union.
Defendants Ron Whitehead, Tom Godfrey, Nancy Pace, Alan Hardman, Roselyn Kirk, and Don Hale, members of the Salt Lake City Council as of September 1991 (collectively referred to as “City Council” or “Council“), appeal from a district court order denying their motion for summary judgment and granting summary judgment to plaintiffs Richard Andrews, J. Walker, and the Society of Separationists (collectively referred to as “Separationists“). The district court ruled that the City Council had violated the portion of
We conclude that the City Council‘s practice does not offend
The material facts are not in dispute. On January 8, 1980, members of the newly constituted Salt Lake City Council unanimously agreed on a policy of opening each meeting with the Pledge of Allegiance and prayer.1 In September 1987, an assistant city attorney advised the council by letter that opening ceremonies which included prayer were probably permitted by the United States Constitution as interpreted by the United States Supreme Court in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The letter also indicated, however, that in light of a subsequent opinion by the United States Court of Appeals for the Fifth Circuit, any prayers offered should be nondenominational. See Stein v. Plainwell Community Sch., 822 F.2d 1406, 1410 (5th Cir. 1987). In other words, the prayers should not attempt to proselytize or prefer one religion over another.
The city attorney suggested that two procedures be implemented to achieve the goal of nondenominational prayer. First, the invitations should be extended to a variety of community members, including not only ministers and religious officials, but representatives of civic organizations as well. Second, those selected should be advised to offer invocations that were nondenominational and nonproselytizing if at all possible.
As a result of the city attorney‘s opinion, opening prayers were suspended for several months while the issue was debated. On May 17, 1988, the practice was reinstated, but only pursuant to a policy consistent with the city attorney‘s opinion. During 1990 and 1991, this policy resulted in opening remarks by civic community leaders and representatives of the Greek Orthodox Church, the Baha‘i Faith, the Japanese Church of Christ, the Church of Scientology, and the Eckankar Faith, among others.
In September 1991, the Society of Separationists, a nonprofit Maryland corporation dedicated to preserving and maintaining separation of church and state, requested that the City Council stop the practice of permitting opening prayers. The Council discussed the matter at its September 19th meeting and decided to continue the practice. In a letter dated September 25, 1991, the city attorney advised the Separationists that the opening remarks would continue and include, but would not be limited to, prayer. A draft policy was submitted to the group for review and comment.
On September 26, 1991, the Separationists filed this action in Third District Court, alleging that the City Council had expended public funds for a religious exercise in violation of
On March 2, 1992, the district court denied the City Council‘s motion and granted that of the Separationists. The court concluded that2
The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment. No property qualification shall be required of any person to vote, or hold office, except as provided in this Constitution.
The inclusion of prayers in City Council meetings results in the expenditure of public funds, assets and resources of Salt Lake City Corporation. City facilities (meeting rooms, etc.), City equipment (microphones, podiums, stages, etc.), City resources (electricity, printing of programs, etc.), and City employees’ time (in supervising, attending, etc.), are used and expended in programming, witnessing and/or reciting said prayers. Said funds, assets and resources of Salt Lake City Corporation are utilized to aid in the recitation of said prayers with the knowledge, approval, concurrence and ratification of the defendants.
On the basis of these undisputed facts, the district court declared that the policy violated
The City Council argues that we should uphold its practice unless the Separationists show that the practice is unconstitutional “beyond a reasonable doubt.”3 We agree with the Council that the burden of showing the unconstitutionality of the practice is on the Separationists. See State v. Rio Vista Oil, Ltd., 786 P.2d 1343, 1349 (Utah 1990). However, we do not agree that the showing must be made “beyond a reasonable doubt” as that phrase has been interpreted in the criminal law context, despite language to that effect in Salt Lake City v. Savage, 541 P.2d 1035, 1037 (Utah 1975), cert. denied, 425 U.S. 915, 96 S.Ct. 1514, 47 L.Ed.2d 766 (1976). We think that the City Council has read the Savage standard out of context and without reference to the cases upon which it was grounded4 or our decisions since then.5 We therefore restate the burden to be met by one who challenges an enactment on constitutional grounds: The act is presumed valid, and we resolve any reasonable doubts in favor of constitutionality. In re Criminal Investigation, 754 P.2d 633, 640 (Utah 1988); Snow v. Keddington, 113 Utah 325, 336, 195 P.2d 234, 240 (1948).
With this standard in mind, we examine the City Council‘s claim that the district court‘s legal conclusion of unconstitutionality was in error. The parties do not agree on the proper approach to be taken in determining the meaning of
The Separationists claim that any resort to history is inappropriate and contend that it is entirely proper to examine the constitutional language alone. They focus on the two sentences in
There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.
The Separationists make two claims based on this language: (i) that the City Council‘s policy constitutes a union of church and state; and (ii) that the city‘s use of public funds and property in effecting the Council‘s policy violates the prohibition against the use of such for the religious exercise of prayer.
Any decision in this case turns on the proper interpretation to be given
Although it may not be the only starting place for an analysis of the language of
Mormon7 pioneers first entered the Salt Lake Valley in July 1847. They sought refuge in what was then Mexican territory from religious persecution which they and their newly founded religion had successively encountered in Ohio, Missouri, and Illinois. See Thomas v. Daughters of Utah Pioneers, 114 Utah 108, 197 P.2d 477, 510 (1948) (Wolfe, J., dissenting), cert. denied, 336 U.S. 930, 69 S.Ct. 739, 93 L.Ed. 1090 (1949). The Mormons were the first substantial group of pioneers to settle in the territory. They constituted an overwhelming majority of the population during the almost fifty years Utah was a territory and remain so today. For that reason, Utah is the “only state in the Union which is known primarily because of the religion of its leading denomination” and is the sole state “that traces its origin to the founding of a new Faith” on American soil. Andrew L. Neff, History of Utah 1 (1940) (hereinafter “Neff“]; see Thomas, 197 P.2d at 488 (opinion of Pratt, J.).
Upon arrival, necessity, practicality, and the religiously cohesive nature of the settlers led them to look to the Mormon Church hierarchy for leadership in all aspects of their lives.8 Neff, at 107-08. As a result, an exclusively theocratic system administered
From the outset, Mormon leaders sought statehood for their new home, referred to as the “State of Deseret,” and the self-government that such a status would bring. Clifford L. Ashton, The Federal Judiciary in Utah xii (1988) [hereinafter “Ashton“]; see Brad C. Smith, Comment, Be No More Children: An Analysis of Article I, Section 4 of the Utah Constitution, 1992 Utah L.Rev. 1431, 1441-42 [hereinafter “Smith“]. Deseret, as proposed in the statehood petition, encompassed nearly all of Utah and Nevada, most of Arizona and Colorado, portions of New Mexico, Wyoming, and Idaho, a small part of Oregon, and Southern California. Neff, at 117. This vast acreage had become part of the United States on February 2, 1848, when the Treaty of Guadalupe-Hidalgo was signed. Id. at 113. When the Deseret Legislature met for the first time on July 2, 1849, it petitioned Congress for statehood. Smith, at 1443. That petition, however, foundered over the national issue of slavery when Congress designated Utah as a “slave” territory in the Compromise of 1850.11 John J. Flynn, Federalism and Viable State Government—The History of Utah‘s Constitution, 1966 Utah L. Rev. 311, 316 [hereinafter “Flynn“]; Smith, at 1444.
Utah‘s designation as a territory meant that those holding the most important government positions could not be chosen in local elections, but would be appointed by federal officials in Washington, D.C.12 The first group of territorial leaders consisted of Mormons and non-Mormons, Utah residents and nonresidents, the most prominent territorial official being Governor Brigham Young, who was also president of the Mormon Church.13 Neff, at 169. However, this
In its 1856 platform, the newly created Republican Party denounced polygamy and slavery as the “twin relics of barbarism,” insisting that it was Congress‘s right and duty to outlaw both practices in the territories. Eugene E. Campbell, Governmental Beginnings, in Utah‘s History 153, 165 (Richard D. Poll et al. eds., 1978) [hereinafter “Campbell“]. Seeking to deprive the Republicans of their anti-Mormon monopoly as well as to divert attention from the slavery issue, the once supportive Democratic party also adopted a policy of hostility toward the Mormons.
Despite growing national opposition to polygamy, residents of the territory once again sought statehood. A constitutional convention was held in March 1856, and delegates adopted a document closely paralleling the Deseret Constitution of 1849. Hickman, at 45; Smith, at 1446. However, with the anti-Mormon Republican party winning control of the United States House of Representatives for the first time, delegates from the Utah territory decided against petitioning for statehood at that time. Hickman, at 45; Neff, at 457-59; Campbell, at 165.
Other developments added to the strain between Mormons and non-Mormons, as well as between Utah and the federal government. As one historian characterized it:
Letters and verbal reports from three Indian agents, Utah surveyor general David H. Burr, former U.S. mail contractor W.F.M. McGraw, and territorial supreme court justices George P. Stiles and William W. Drummond alleged that the Mormons in Utah were unwilling to accept and cooperate with non-Mormon officials; that they were alienating the Indians from the federal government; that they had destroyed the supreme court records and had so dominated the lower courts that there was no justice for non-Mormons; that Brigham Young and other leaders were disrespectful of federal officials, both living and dead; that the priesthood government was violent and despotic; and that a state of rebellion existed.
Campbell, at 165-66; see Ashton, at 11.
Reports such as these led President James Buchanan, Democratic victor in the 1856 election, to replace Brigham Young as Governor of the Territory of Utah. Campbell, at 165. Believing that the Mormons were in a state of rebellion, Buchanan was convinced that a new governor would not be accepted without force. Id. Consequently, in 1857, when Alfred Cumming of Georgia was appointed as the new territorial governor, the President ordered a military force of 2500 troops to accompany him to Great Salt Lake City. Id. at 166. Brigham Young responded. On September 15, 1857, Young declared martial law and proclaimed that any invasion of Utah would be forcefully resisted. Id. at 168; Ashton, at 13.
While the approaching Army wintered at nearby Fort Bridger, Wyoming, negotiations began in an effort to prevent an armed confrontation. Campbell, at 167-69. Some hostilities did occur, however, with Mormons burning army supplies and interfering with military communications. Id. at 168. On April 12, 1858, Governor Cumming, accompanied only by Mormon troops, arrived in Great Salt Lake City to negotiate.15 Id. at
A peace commission appointed by President Buchanan arrived in Utah on June 7, 1858, and despite a threatening movement of federal troops soon after, the parties reached a settlement ending the hostilities on June 12. Campbell, at 169-70; Neff, at 507, 510-11. While this incident served as a reminder of federal sovereignty, the Mormon Church still dominated every aspect of life—political, social, and economic—in the Utah territory. Gustive O. Larson, Government, Politics, and Conflict, in Utah‘s History 243, 243 (Richard D. Poll et al. eds., 1978) [hereinafter “Larson“]. And polygamy continued to be practiced. Id.
With the start of the Civil War, the federal government‘s attention was temporarily diverted from the problem of polygamy. This distraction, combined with Mormon loyalty to the North, led those seeking statehood to believe that such a status could be attained during the war. Hickman, at 46. Another constitution, similar to those of 1849 and 1856, was drafted and submitted to Congress on June 9, 1862. Id. at 47; Flynn, at 316. The Utah territory‘s petition, however, was buried in the House Committee on Territories. Hickman, at 46.
The Civil War did not distract the opponents of polygamy for long. Despite the belief by many in the country that matters of religious practice were not subject to legislative authority, Congress moved to attack polygamy and the Mormon Church. Neff, at 866. On July 1, 1862, the Morrill Antibigamy Act16 was passed. Hickman, at 46; Neff, at 677; Flynn, at 317. “The new legislation struck at both polygamy and church power by prohibiting plural marriage in the territories, disincorporating the Mormon Church, and restricting the church‘s ownership of property to $50,000.”17 Larson, at 244. The law, however, was not enforced in the Utah territory because Mormons controlled the judicial system. Id. at 244, 249; Neff, at 868. Probate courts functioning as local tribunals had jurisdiction over most criminal offenses, and federal indictments for polygamy could not be obtained from grand juries composed of Mormons. Larson, at 249; Neff, at 490. Thus, despite Congress‘s efforts, the Mormon Church still exercised considerable control in the territory.18 Larson, at 246.
In 1867, a special election was held at which the territorial legislature submitted an amended version of the constitution of 1862 to the people for ratification. Hickman, at 47. Upon ratification, Utah‘s territorial delegate then introduced a bill in Congress to provide for statehood. Id. at 48. This bill, like other statehood attempts, died in the Committee on Territories. Id. In 1872, a new approach was taken. Instead of submitting a version of the Deseret Constitution of 1849, which was said to be tainted with defeat, the Utah delegation submitted a constitution modelled after that of the state of Nevada, which had been recently admitted. Flynn, at 317; Smith, at 1447-48. Although
Opposition to the Mormon Church was also growing within the territory. Non-Mormons, who now made up ten to fifteen percent of the population, sought to break down the Church‘s domination of governmental, educational, and economic affairs. Larson, at 247. Economics, in particular, became a crucial issue following the organization of Zion‘s Cooperative Mercantile Institution (“ZCMI“). See O.N. Malmquist, The First 100 Years: A History of the Salt Lake Tribune 1871-1971 9 (1971) [hereinafter “Malmquist“]. ZCMI was designed to be “the sole merchandising facility for members of the Mormon Church wherever their number was large enough to justify a branch.” Id. at 15. Mormon merchants could either join ZCMI or leave the territory and the Mormon Church. Id. at 14. As Brigham Young said regarding those Mormons who did not join the cooperative, “[W]e shall leave them out in the cold, the same as the gentiles [non-Mormons], and their goods shall rot upon their shelves.” Id. To the non-Mormon merchants, the cooperative was a threat to their very existence. Id. As feared, ZCMI was a success from the outset with its opening followed by a sharp decline in the sales for non-Mormon and noncooperating Mormon merchants. Id. at 16.
In response, non-Mormons and excommunicated Mormons known as the “Godbeites”19 formed a temporary alliance resulting in the establishment of the Liberal Party in 1870. Larson, at 248. The Mormons then organized their own political group, known as the People‘s Party. Both political groups used the media to assert their viewpoints. Id. The Mormon Tribune, later called The Salt Lake Tribune, was established by the Godbeites and became the voice of the Liberals, while the Deseret News, owned by the Mormon Church, represented the views of the People‘s Party. Id.; Malmquist, at 6, 21. Interestingly, during this time, business rebounded for non-Mormon merchants such that they found their stores “so crowded during church conferences that it was difficult for them to serve their patrons.” Malmquist, at 17.
The vitriolic and slanderous nature of the public debate between Mormons and non-Mormons is difficult to exaggerate.20 With
In the midst of this increasingly bitter confrontation, Mormons looked to the United States Supreme Court to support the free exercise of their faith. In Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878), however, the Court upheld the constitutionality of the Morrill Antibigamy Act of 1862. With antipolygamy laws now deemed constitutional, in 1882, Congress passed the Edmunds Act,21 which amounted to a series of amendments to the Morrill Antibigamy Act. See Hickman, at 56; Flynn, at 318-19 n. 56. Targeting the control the Mormons held over institutions of public power, such as probate courts and grand juries—control of which had made the Morrill Act ineffectual—the Edmunds Act disenfranchised polygamists, declared them ineligible for public office, and forbade their service on juries. Gustive O. Larson, The Crusade and the Manifesto, in Utah‘s History 257, 259 (Richard D. Poll et al. eds., 1978) [hereinafter “Larson II“]. As a result of this new legislation, the antipolygamy campaign gained energy in the Utah territory.
Despite this renewed antagonism toward the Mormon Church, yet another constitutional convention met in Salt Lake City in April 1882. Flynn, at 319. The resulting constitution, substantially similar to that of 1872, was introduced in the House of Representatives on June 23, 1882. Id.; Hickman, at 57. From the Mormon viewpoint, statehood would be a means of avoiding the enforcement of antipolygamy legislation which did not apply in the states, only in the territories. Smith, at 1449-50. Furthermore, admission as a state would free the Mormons from judicial interpretations of the First Amendment, which had yet to be applied to the states through the Fourteenth Amendment. Id. at 1450 n. 87. Like its predecessors, however, this latest bid for statehood also died in the Committee on Territories. Flynn, at 319.
As a result of the Edmunds Act, many Mormons were not permitted to vote or serve on juries, and polygamists faced criminal indictments in the federal courts. Again, the Mormons looked to the United States Supreme Court for help. The Court, however, upheld the disenfranchisement of polygamists, Murphy v. Ramsey, 114 U.S. 15, 44-47, 5 S.Ct. 747, 763-65, 29 L.Ed. 47 (1884), as well as criminal convictions for polygamy and cohabitation, Cannon v. United States, 116 U.S. 55, 78-79, 6 S.Ct. 278, 290-91, 29 L.Ed. 561 (1884); Clawson v. United States, 114 U.S. 477, 487-88, 5 S.Ct. 949, 954, 29 L.Ed. 179 (1884). See Larson II, at 261-63.
The final, devastating blow to the Mormon Church and the practice of polygamy was struck on March 3, 1887, when Congress passed the Edmunds-Tucker Act.22 Flynn, at 319. This legislation was designed to eradicate polygamy by attacking its source—
for the annulment of the charter of incorporation of the Church of Jesus Christ of Latter-day Saints and for the appointment of trustees to care for the property of the Church. All property not exclusively devoted to the worship of God was to be sold and the proceeds used for the support of the common schools in the territory.
Hickman, at 59.
Three months after the passage of the Edmunds-Tucker Act, a new call was made for statehood. The People‘s Party called upon Democrats, Republicans, and Liberals to nominate delegates for a convention to be held in Salt Lake City on June 30, 1887. Flynn, at 319; Hickman, at 60; Smith, at 1461. The Republicans refused to support statehood until the Mormon Church renounced its civil power, while the Liberals saw the move as a Mormon trick to gain control of the local government, something that could not be done while Utah remained a territory. Hickman, at 60. The Democrats refused the offer, claiming there was insufficient time to prepare for a convention. Id. Nonetheless, a constitution was adopted on July 7, 1887, by delegates representing only the People‘s Party. Id. at 61; Flynn, at 319-20.
With this constitution, the Mormons made a critical concession to Congress on the issue of polygamy. For the first time, polygamy was prohibited and criminalized. Hickman, at 62. The 1887 constitution also provided that any amendment to the polygamy ban would have to be approved by the President and Congress of the United States. Id. While Mormon Church leaders publicly stated that this constitution did not violate God‘s laws, the Church itself still had not banned the practice of polygamy. Larson II, at 269. It was apparent that the constitution of 1887 was a compromise: the Mormon Church was willing to surrender the practice of polygamy while maintaining it as a religious doctrine. Hickman, at 63.
The effort was not good enough. In early 1888, when the Senate Committee on Territories reviewed the 1887 constitution and accompanying memorial, the Committee submitted a resolution to the Senate, stating in part:
[I]t is the sense of the Senate that the Territory of Utah ought not to be admitted into the Union as a State until it is certain beyond doubt that the practice of plural marriages, bigamy, or polygamy, has been entirely abandoned by the inhabitants of said Territory and until it is likewise certain that the civil affairs of the Territory are not controlled by the priesthood of the Mormon Church.
19 Cong.Rec. 433, 2391 (1888).
Further pressure was brought to bear on the Church in 1890 when two United States Supreme Court decisions upheld anti-Mormon legislation,23 and the Senate considered a bill that would disenfranchise all Mormons. Flynn, at 321; Hickman, at 65-66. The Mormon Church had failed in its efforts to win statehood without renouncing polygamy or abandoning a substantial degree of overt control over the instruments of political power. Hickman, at 67. More importantly, the Church‘s policies now threatened its very existence.
On September 24, 1890, Mormon Church President Wilford Woodruff announced the official end of polygamy in what is known as the “Manifesto.” Official Declaration-1, in Doctrine and Covenants 291-92 (1987 ed.) (Mormon scripture). While some doubted the sincerity of this proclamation, in 1891 the Church took the opportunity to show its good faith by disbanding the People‘s Party and encouraging its members to divide themselves between the Republican and Democratic Parties. Hickman, at 68-69. In 1892, the Mormon-dominated territorial legislature further attested to the Church‘s sincerity by criminalizing polygamy and similar offenses
On July 16, 1894, President Grover Cleveland signed the Utah Enabling Act,26 which authorized the election of delegates for a constitutional convention.27 Flynn, at 323; Smith, at 1453. One section of the Act required Utah‘s constitution to include various provisions, collectively known as the “ordinance,” which were irrevocable without the consent of the United States and the people of Utah.28 Flynn, at 323; Gustive O. Larson & Richard D. Poll, The Forty-fifth State, in Utah‘s History 387, 394 (Richard D. Poll et al. eds., 1978) [hereinafter “Larson & Poll“]. The ordinance included the following:
That perfect toleration of religious sentiment shall be secured, and that no inhabitant of said State shall ever be molested in person or property on account of his or her mode of religious worship; Provided, That polygamous or plural marriages are forever prohibited.
The Legislature shall make laws for the establishment and maintenance of a system of public schools, which shall be open to all the children of the State and be free from sectarian control.
Ch. 138, 28 Stat. 107 (1894);
The constitutional convention convened on March 4, 1895, in Salt Lake City. 1 Official Report of the Proceedings and Debates of the Convention 3 (Salt Lake City, Star Printing Co. 1898) (hereinafter “Proceedings“].29 Of the 107 delegates, only 28 were non-Mormons.30 Hickman, at 71; Larson & Poll, at 393; Malmquist, at 158. The delegates drew much of the final document from previous Utah constitutions and the constitutions of other states—Nevada, Washington, Illinois, and New York in particular.31 Flynn, at 323;293031
It is relevant to note here that
The rights of conscience shall never be infringed. Perfect toleration of religious sentiment is guaranteed. The state shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test or property qualification shall be required for an office of public trust, or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. There shall be no union of church and state, nor shall any church dominate the state, or interfere with its functions. No public money or property shall be appropriated for or applied to any worship, exercise, or instruction, or for the support of any ecclesiastical establishment.
1 Proceedings, at 230 (emphasis added). The convention modified this draft by moving the perfect-toleration-of-religious-sentiment phrase, which was part of the required ordinance, to article III and by modifying and moving the property qualification language to the end of the provision. See id. at 231-33, 806-07. The final result was the same version of
With this prologue, we now turn to the central issue before us: whether the district court correctly concluded that the City Council‘s policy violated
We will address the Separationists’ alternative grounds in turn but first focus on the rationale relied on by the district court. To uphold that court‘s “no public money or property” ruling, we must reach two conclusions: (i) Prayer given before council meetings as part of a program of opening remarks constitutes “religious worship, exercise or instruction“; and (ii) the use of public resources in support of the presentation of opening remarks that include prayer constitutes an “appropriat[ion]” or “applicat[ion]” of “public money or property” to the forbidden ends.
We first address whether prayer is “religious worship, exercise or instruction.” The City Council asserts that whatever the common understanding of the words “religious worship” or “exercise,” the framers of the Utah Constitution did not intend prayer before legislative bodies to constitute “religious exercise” within the meaning of
While we agree that the Marsh decision might control here if the Council‘s practice were being challenged as a violation of the federal constitution, it does not control our analysis under the Utah Constitution, with its broader and more detailed prohibitions. Furthermore, we think the situation presented in Marsh is arguably distinguishable from the case before us, as are the carefully ecumenical prayer practices of those attending the 1895 constitutional convention. First, Marsh involved prayer before a state legislature whose floor sessions do not involve participation by the public to the degree found in city council meetings. The constitutional convention proceedings similarly had limited public participation. Second, the practice at issue in Marsh was part of a longstanding and unbroken tradition. Here, Salt Lake City did not have prayer at council meetings from 1911 to 1979, the period of time during which the executive and legislative branches merged into a commission form of government.35 Consequently, we find our history less persuasive on this topic and decline to rely on the analogy to the facts of Marsh or to the practices of the 1895 convention participants.
The City Council also argues that Utah case law supports the assertion that prayer, when it is part of opening remarks, is not a “religious exercise” under
Using Thomas, the City Council argues that its stated public, nonreligious purposes of providing for moments of reflection and civility, encouraging high-mindedness, recognizing cultural diversity, and fostering sensitivity remove the Council‘s policy from the constitutional definition of “religious exercise.”36 We do not agree. Thomas and our other cases interpreting
With no real guidance in our case law on the question of what constitutes “religious worship, exercise or instruction,” we consider the Separationists’ argument that prayer, by its very nature, is religious worship or exercise. Webster‘s Dictionary defines prayer as “[a]n earnest request to someone (for something); an entreaty.” Webster‘s New International Dictionary 1940 (2d ed. 1954). While the dictionary definition provides that prayer may be addressed to any person or body invested with power or authority, including a divinity, we note that the prayer at issue here was directed to a divinity. Such prayer seems undeniably religious. Our views echo those of the United States Court of Appeals for the Fifth Circuit:
Prayer is perhaps the quintessential religious practice for many of the world‘s faiths, and it plays a significant role in the devotional lives of most religious people.
Prayer is an address of entreaty, supplication, praise or thanksgiving directed to some sacred or divine spirit, being or object. That it may contemplate some wholly secular objective cannot alter the inherently religious character of the exercise.
Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir.1981), aff‘d mem., 455 U.S. 913, 102 S.Ct.1267, 71 L.Ed.2d 455 (1982). We conclude that the prayerful address of a deity, by its very nature, is a “religious exercise.” Therefore, a religious exercise occurs at City Council meetings when prayer is given as an opening thought.
In an attempt to dissuade us from this relatively straightforward conclusion, the City Council has raised a parade-of-horribles argument. It contends that if we find prayer to be a religious exercise, similar findings would be required for a performance of “The Hallelujah Chorus” from Handel‘s Messiah, Beethoven‘s Ninth Symphony, or the singing of Christmas carols, and that such results would be fundamentally at odds with all our cultural traditions. We do not agree with the Council‘s premise. None of the examples cited by the Council, including the use of the phrase “In God We Trust” on our money and the reference to God in the “Pledge of Allegiance” or any other of the usages referred to, amount to “religious exercise, worship or instruction” within the meaning of
Similarly, the references to God described by the City Council are just that—references—not religious “exercise” or “worship.” Again, such references might occur in a religious service, but they are not intrinsically religious worship or exercise and may fall outside these relatively narrow constitutional categories when removed from that context. Prayer, however, is unique. It is a portable, yet inherently religious, exercise. It need not occur within a group of celebrants to take on religious character, although it may arise there. One person praying, silently or aloud, alone or in a crowd, among nonbelievers or believers, is still participating in a religious exercise. We think to hold otherwise would demean prayer and those who practice it.
Given that prayer is a religious exercise, we must address the next question: Does the City Council‘s practice violate the portion of
The Separationists support the district court‘s ruling but argue for an even stricter standard: They claim that the “no public money or property” language allows no exceptions for indirect or de minimis expenditures by the government for religious worship, exercise, or instruction. Under this reasoning, even if we were to conclude that the public support here was de minimis, it would still be unconstitutional.
In support of this absolutist position, the Separationists rely on the plain language of
Having found little guidance in the cases relied on by the Separationists and much evidence to suggest that their rigid, absolutist construction of “no public money or property” is unworkable, we turn to the City Council‘s contention that the “no public money or property” language should be construed as applying only to non-de minimis support for religious exercise. As noted earlier, the relevant constitutional language is not helpful on this point, we have found no direct expression of intent by the framers that is of assistance, and our prior case law is silent on the issue. Consequently, to develop an analytical model for determining if and when public support for activities that might include religious exercise violates the “no public money or property” language, we resort to thematic threads running through the constitution. Our model is woven from those threads.
We first look to the constitution‘s text for a dominant theme that may underlie the various provisions on freedom of religion and conscience. Several provisions furnish material for this exercise. Article III, which incorporates the required ordinance from the federal Enabling Act, reads in relevant part:
First: —Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.
....
Fourth: —The Legislature shall make laws for the establishment and maintenance of a system of public schools, which
shall be open to all the children of the State and be free from sectarian control.41
[i] The rights of conscience shall never be infringed. [ii] The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; [iii] no religious test shall be required as a qualification for any office of public trust or for any vote at any election; [iv] nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. [v] There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. [vi] No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment. [vii] No property qualification shall be required of any person to vote, or hold office, except as provided in this Constitution.
A general characterization of all these provisions, when read together, is that they are designed to protect religious exercise and freedom of conscience in general, to separate government from active financial support of religion, to prevent one religious denomination from dominating the public schools or the government itself, and to prevent the imposition of civil limitations based on one‘s religious beliefs or lack thereof. With these textual themes in mind, we return to the history detailed earlier for its lessons and bring text and history together in crafting an interpretation of
Our survey of Utah‘s history leads us to some tentative conclusions about the perspective of the delegates at the constitutional convention on the issues of religion and conscience that are dealt with in the constitution. Mormon delegates likely viewed the territorial government—controlled by federally appointed non-Mormons—as oppressive. They had experienced the attempted control and suppression of their religious beliefs and practices by the federal government, often operating through territorial officials. On the other side, non-Mormon delegates had lived under social, economic, and political domination by the Mormon Church. They had experienced the oppression that can occur when one religious group has unfettered control over the political machinery of local government. Both groups of delegates could claim that some form of authority, be it federal or local, had denied them freedom of conscience, and both were acutely aware of the threat government power presented to that freedom.
We also conclude that the Mormon majority at the 1895 convention acted deliberately to distance itself from any suggestion that
The convention‘s delegates manifested a parallel intention to put behind them the struggles of the preceding half-century and to bring all Utahns together. Opening prayer was held daily during the convention, but it was offered by ministers of various denominations displaying far more diversity than chance or the heavily Mormon membership of the convention would lead one to expect. Among the denominations or groups represented were the Catholic Church, the African Methodist Episcopal Church, the Episcopal Church, the Unitarian Society, the Presbyterian Church, the Congregational Church, the Christian Endeavor Society, the Salvation Army, the Methodist Episcopal Church, the Scandinavian Methodist Episcopal Church, the Army Chaplain Corps, and the Mormon Church. One delegate even requested that the minutes of the proceedings reflect this openness:
I find by reference to our minutes of the first day, the name of the gentleman who offered prayer and also the church with which he is associated was given [Mormon Church President George Q. Cannon], and I think this should be done in each case, the object of the mover of the motion having been to show to the public that a freedom of religious sentiment prevailed in the Convention.
1 Proceedings, at 105 (emphasis added). In short, the 1895 constitution appears to have been a coming together of adversaries ready to bury old conflicts and make common cause of their newly granted right to self-government.
Reading the text of the constitution‘s religion and conscience clauses in light of this history, we identify three complementary themes: (i) a distancing of government from involvement with religion, (ii) nonsectarianism to the extent there is government involvement with religion, and (iii) government neutrality—the maintenance of a level playing field in civil matters—as between religious and nonreligious sentiments. See Angela C. Carmella, State Constitutional Protection of Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L. Rev. 275, 321. These themes find expression in the “rights of conscience” and the “perfect toleration of religious liberties” language in
With these themes as background, we return to the question of whether the portion of
We first dispose of the City Council‘s suggestion that if prayer is considered a religious exercise, as we have held, we should find a de minimis exception to the “no public money or property” sentence in
Our construction is not without precedent. See, e.g., Community Council v. Jordan, 102 Ariz. 448, 432 P.2d 460 (1967) (en banc).44 Furthermore, the City Council‘s interpretation would be at odds with the constitutional themes of no direct governmental involvement with religion, governmental nonsectarianism, and neutrality toward conscientious sentiments, religious or irreligious. Finally, our history convinces us that direct expenditures for religious purposes are not to be permitted lest the old wounds of church-state entanglement be reopened.
We move to the question of whether
The middle ground we seek rests on the concept of governmental neutrality we find underlying our constitution‘s religion and conscience clauses, which in this instance means neutrality in the use of public money or property. When the state is neutral, any benefit flowing to religious worship, exercise, or instruction can be fairly characterized as indirect because the benefit flows to all those who are beneficiaries of the use of government money or property, which may include, but is not limited to, those engaged in religious worship, exercise, or instruction. We
We now undertake to describe the analytical elements of neutrality, elements that must be present before a benefit can be found to be constitutionally indirect. Under our analytical model, use of public money or property that benefits religious worship, exercise, or instruction or any ecclesiastical establishment qualifies as an indirect benefit and survives constitutional scrutiny only if it meets two requirements.45 First, the money or property must be provided on a nondiscriminatory basis. Some examples may be of assistance. If a city permits groups to use city-owned facilities, that use must be permitted without regard to the belief system of the user. Lutherans or Latter-day Saints who wish to use the facilities must have access on exactly the same terms as the Loyal Order of Moose, the American Atheist Society, or the Libertarian Party. The same would be true for services. The nondiscriminatory provision of police and fire protection and garbage pickup to all structures in the city are examples. Mormon chapels, Republican Party headquarters, and the A.C.L.U. offices must be able to obtain such services on terms that are not affected by the beliefs of the users.
Second, the public money or property must be equally accessible to all. Although this requirement may sound similar to the first, it has a different emphasis, one designed to ensure that the purpose of the first requirement is not subverted and the state‘s neutrality compromised. For example, if the services or facilities being provided are those for which demand exceeds supply, such as fewer spaces in city parks than the number of groups requesting their use, the terms of access must be such that all users have a realistically equal opportunity to receive the benefit based on criteria that are unrelated to their belief systems. In other words, the government must implement a system that awards the benefit so that each group, religious or secular, has a realistically equal opportunity for the use of the public resource. For if government allows all groups to apply for the benefit but then discriminates in the selection process, it would be preferring one group over the other in violation of the constitutional principle of neutrality.
With this analytical approach in mind, we address the City Council‘s policy. The first step in our analysis is determining whether public money or property has been used for religious worship, exercise, or instruction or for the support of any ecclesiastical establishment. As stated earlier, we recognize that religious exercise does occur during some of the opening remarks and that the City Council does arrange for and provide the forum for those remarks. Therefore, religious exercise receives some sort of benefit from the use of public money or property. We must next determine whether the benefit here is direct, thereby triggering the bar in
In reaching this conclusion, we follow the two-step analysis of constitutional neutrality articulated above. First, we conclude that the expenditures made in connection with the arrangement for and provision of facilities for opening remarks were provided on a nondiscriminatory basis. The expenditures were not for the religious exercise itself, but for the meeting and that portion of the agenda
Based on the foregoing, we conclude that any benefit the City Council‘s use of public money or property provides to religious exercise by furnishing a forum for the expression of prayer is constitutionally indirect. As a result, the expenditures made are not within the reach of
We next address the Separationists’ claims that the City Council‘s policy violates the command of
We do not agree. Referring again to our history, we conclude that the “no union of Church and State” and “no Church shall dominate or interfere” language of
On a deeper level, we do not agree with the Separationists that the framers of the
We hold that the City Council‘s policy does not violate
A few concluding remarks are in order by way of recapitulation. Both the City Council and the Separationists have urged us to follow cases from other jurisdictions—jurisdictions with different constitutional provisions and different histories than Utah. The Separationists advocate that we follow the approach of one group of states. The City Council proposes that we look for guidance to another and also urges upon us the United States Supreme Court‘s precedent in the area of legislative prayer, Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), or the Court‘s analytical framework developed in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
We have followed neither party‘s course. The federal rulings set the floor for federal constitutional protections which we must respect in interpreting the scope of our own constitution‘s provisions. But the federal courts have an entirely different task before them than do we. They have only a cryptic
As for the decisions of the courts of our sister states, we have referred to them when they elucidate provisions that seem to be similar to our own. However, the basic fact remains that even when the documents are similar in language to ours, these courts take divergent approaches in construing them, a fact that is illustrative of the almost trite observation that different meanings and different nuances can be read into the same language by different courts working within different historical contexts.
Ultimately, our construction is the one most consistent with the
In Utah, these lessons were learned at a steep price. We think that the drafters of the
The judgment of the district court is therefore reversed, and the case is remanded with directions to enter judgment for the City Council.
HALL, C.J., and DURHAM, J., concur.
HOWE, Associate Chief Justice, concurring with reservation:
I concur with one reservation. The majority opinion rests on grounds other than Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). Consequently, I find it unnecessary to analyze Marsh and attempt to distinguish it from the instant case as does the majority. In that case, the Court recognized that “the opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” 463 U.S. at 786, 103 S.Ct. at 3333, 77 L.Ed.2d at 1024 (emphasis added). The City Council here is a “deliberative body,” a legislative body. In my opinion, public participation in the state legislature, particularly through its committees, is just as intense as it is on the local level in city councils. Arguably, it is immaterial that Salt Lake City did not have prayer in its commission meetings from 1911 to 1979 because any newly formed state or city should be able to draw upon the history and tradition recognized in Marsh.
Thus, I prefer to reserve my judgment on the application of Marsh to the facts here presented. It is unnecessary for us to analyze and attempt to distinguish Marsh because we dispose of the case on other adequate grounds.
STEWART, Justice, dissenting:
I dissent. The majority, in a decision unparalleled in Utah jurisprudence, refuses to enforce the plain meaning of
I.
The rights of conscience shall never be infringed. [1] The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. [2] There shall be no union of Church and State, nor shall any church dominate the State, or interfere with its functions. [3] No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment. No property qualification shall be required of any person to vote or hold office, except as provided in this Constitution.
(Emphasis added.) The critical language is “No public money . . . shall be appropriated for . . . any religious . . . exercise.”
The language in section 4 following “[1]” in the text set out above adopts verbatim the establishment and the free exercise language of the
The Framers of the
In construing section 4, it is important to recognize that the anti-establishment provisions in the
Recently, the United States Supreme Court addressed the importance of the Establishment Clause in protecting religious freedom and its relationship to the Free Ex-
The
First Amendment protects speech and religion by quite different mechanisms. Speech is protected by insuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as [its] own. The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all. The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of theFirst Amendment , but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions. The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce.
(Emphasis added; citations omitted.) The danger that tolerant expression of religious views by the state “may end in a policy to indoctrinate and coerce” becomes greater as the dominance of one religious group increases.
Thomas Jefferson, the great sage of American religious freedom, understood, perhaps better than any other, the exigent necessity of preventing the entanglement of government and religious denominations, if freedom of religion was to be a reality. The principles articulated in
Almighty God hath created the mind free. . . . [T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves in and abhors, is sinful and tyrannical. . . . [T]ruth is great and will prevail if left to herself.
Nathan Schachner, Thomas Jefferson: A Biography 159-60 (1957) (emphasis added).
Those who opposed the Bill for Religious Freedom and the disestablishment of the Anglican Church adopted the cynical but appealing tactic of arguing that to avoid “hostility” to religion, all Christian churches, except the Catholic church, should be established and receive state monetary support. Nathan Schachner, a biographer of Thomas Jefferson, wrote:
[The opponents] now insisted, with but few honorable exceptions like the Baptists, that all Christian churches be considered as established and entitled to support; that toleration be extended only to those believing in “one God, and a future State of rewards and punishments;” and that every freeholder and possessor of tithables be compelled to enroll and declare to which of the established churches he chose to contribute. Not even the Roman Catholic Church would have come within the definition.
Id. at 160.
Today, a majority of this Court argues, not unlike those who opposed the disestablishment in Virginia, that the state may, contrary to the express language of
II.
The exact language in
The majority also admits that the City‘s sponsorship of prayer is sponsorship of “a religious exercise” as that term is used in section 4. And the majority admits that “public money” is “appropriated” for that purpose. Indeed, the majority concedes that the City‘s use of funds for the sponsorship of prayer is not de minimus. As the majority recognizes, such an exception would “fundamentally alter the ban of
The majority refuses, however, to enforce the plain and unambiguous meaning of section 4, despite its sworn duty to uphold the language of the constitution. The Court not only shrinks from its duty, but, worse, it ascribes a completely contrary meaning to section 4 under the guise of a constitutional “interpretation” that it argues is necessary to avoid “hostility” toward religion. The majority argues that “our analysis should [not] be limited to the literal reading of two sentences of that provision (i.e., section 4), particularly when . . . such a literal reading produces practical consequences that seem at odds with other provisions in the constitution.”
The majority is flatly wrong; other provisions in the constitution are not at odds with section 4, and the majority fails to prove that proposition. The Court also seeks to justify its abandonment of the plain language of the constitution on the ground that “to refuse to permit religion to benefit from public expenditures would be to adopt an absolutist reading of ‘no’ public money or property.” (Emphasis added.) Thus, according to the Court, to say that the word “no” in the constitution means “no” is to take an unacceptable “absolutist” position, a position from which the Framers did not shrink.
Having decided that the word “no” does not mean “no,” the majority rewrites the constitution in favor of a so-called “middle ground” by concocting a distinction between public expenditures and uses of property that provide a “direct” benefit to religion and
To assert that the plain language of
The language of section 4 precludes public expenditures for “any religious worship, exercise or instruction.” For the majority to assert that that language would not allow religion to benefit “from [any] public expenditures” is absurd. Asserting such an erroneous argument and extreme position appears to be for the purpose of making the departure from the language of section 4 seem justified. Section 4 simply and plainly does not prohibit religion from benefiting in general from public expenditures or public property, as do all other entities and persons. This Court has never construed section 4 in a fashion that supports the majority‘s in terrorem argument. Doing so would clearly run afoul of not only the language of section 4, but also numerous other constitutional provisions, both state and federal. It is simply wrong that section 4, read literally, would prohibit government from allowing religion to benefit from general public expenditures and property used by the public. The Court‘s “governmental neutrality” among religions in the use of “public money or property” for purposes other than religious worship, exercises, or instruction adds nothing to what the law is now and always has been.
The plain language of section 4 cannot reasonably be read to provide that religious denominations cannot benefit from public safety and fire protection, public parks, roads, and utilities, or other government properties established for furthering the health, safety, and welfare of the public generally. See Manning v. Sevier County, 30 Utah 2d 305, 309-10, 517 P.2d 549, 552 (1973). Nor does section 4, reasonably construed, bar any religious group from using a public park that is open to the public generally, or from using a microphone or soapbox outside city hall to speak on political or social issues.
The literal language of section 4 requires the Court to look to the purpose for which tax money and government property are used. Only government appropriations for worship, religious exercises, and instruction are banned, as is the exclusive use of government property for such practices. Pratt v. Arizona Board of Regents, 110 Ariz. 466, 520 P.2d 514 (1974) (en banc). Government property available to the public generally is available for religious activities within appropriate limitations that make clear that government is not a sponsor of such activities. Id.; see also Manning v. Sevier County, 30 Utah 2d 305, 517 P.2d 549 (1973); Thomas v. Daughters of Utah Pioneers, 114 Utah 108, 197 P.2d 477 (1948), cert. denied, 336 U.S. 930, 69 S.Ct. 739, 93 L.Ed. 1090 (1949); Gubler v. Utah State Teachers’ Retirement Bd., 113 Utah 188, 192 P.2d 580 (1948).
This Court on numerous occasions has adhered to an interpretation of section 4 that belies the majority‘s argument that public monies and property cannot be used for religions when the purpose is not to further religious worship, exercises, or instruction. For example, in Thomas v. Daughters of Utah Pioneers, 114 Utah 108, 197 P.2d 477 (1948), cert. denied, 336 U.S. 930, 69 S.Ct. 739, 93 L.Ed. 1090 (1949), the Court held that the construction of the Daughters of Utah Pioneers Museum with state funds did not violate
The majority also incorrectly asserts that its direct-indirect test is supported by Pratt v. Arizona Board of Regents, 110 Ariz. 466, 520 P.2d 514 (1974) (en banc). It is not. Pratt dealt with language in the
The Court‘s deletion of the word “no” from the “no public money or property” for “religious worship, exercise or instruction” language in
The Framers of the
Today, the Court by its rewriting of
Michelle SCOTT, Plaintiff,
v.
Steven LeRoy HAMMOCK, Defendant.
The Church of Jesus Christ of Latter-day Saints, Intervenor.
No. 910112.
Supreme Court of Utah.
March 4, 1994.
Notes
Although the majority opinion addresses a wide range of issues under
The Salt Lake City Council has traditionally invited the presentation of thoughts, readings and invocations, along with the Pledge of Allegiance to the Flag, as an Opening Ceremony before certain of its meetings. This opening to the City‘s legislative process is solely for a secular purpose, among other reasons, to: (1) provide a moment during which Council members and the audience can reflect on the importance of the business before the Council; (2) promote an atmosphere of civility; (3) encourage lofty thought and high-mindedness; (4) recognize cultural diversity; (5) foster sensitivity for and recognize the uniqueness of all segments of our community. The presentations shall be done on a volunteer basis and without cost to the City. The presentations are intended to be non-denominational and non-proselytizing in character; however, the City will not dictate the form or content of any such presentation.
It is the formal policy of the Salt Lake City Council to seek out a wide variety of community organizations, churches and individuals to offer thoughts, readings and invocations at Council meetings to achieve its stated purposes.
The resolution also provided a procedure:- Thoughts, readings and invocations, together with a Pledge of Allegiance to the Flag, will be given at the beginning of regular Tuesday Council meetings.
- Police Chaplain Max Yospe or a successor designated by the Council will coordinate the presentation of thoughts, readings and invocations, as he has done in the past. When the scheduled individual does not attend the meetings, the Council will not make any last minute substitutions and the meeting will begin without any such presentation, except for the Pledge to the Flag.
- Council staff will mail a letter every six months to a very wide variety of churches and other civic organizations, inviting them to contact Mr. Yospe to be scheduled for presenting a thought, reading or invocation. Enclosed in the mailing will be a copy of the thought/reading/invocation suggestion sheet. Individuals who have not received a written invitation from the Council, but who want to participate are also welcome to present a thought, reading or invocation at a Council meeting by requesting, in writing, an opportunity through Chaplain Yospe or Council staff.
- Every six months, Council staff will ask the City Recorder to give the City Attorney, Police Chaplain and City Council a listing of the individuals giving thoughts, readings and invocations and their religious or other relevant affiliation, if available.
- The attached “Suggestions for Presenters” will be given to each person who is designated to give a thought, reading or invocation as a memorilization of the Council‘s objectives and desires regarding this issue.
- In order to better inform those attending Council meetings that thoughts and readings, as well as invocations, are welcome at Council meetings, the title on the section of the Council agenda will read “Invocation/Reading/Thought.”
The trial court ruled: The inclusion of prayers in City Council meetings results in expenditure of public funds, assets and resources of Salt Lake City Corporation. City facilities (meeting rooms, etc.), city equipment (microphones, podiums, stages, etc.), City resources (electricity, printing of programs, etc.), and City employees’ time (in supervising, attending, etc.), are used and expended in programming, witnessing and/or reciting said prayers. Said funds, assets and resources of Salt Lake City Corporation are utilized to aid in the recitation of said prayers with the knowledge, approval, concurrence and ratification of the defendants.
At least two, and perhaps three, council members stated publicly that the asserted secular purpose of the city ordinance was false and that prayers were in part offered for religious purposes.
Having rejected the de minimis exception on the ground stated, it is acutely ironic that the Court adopts in lieu thereof a “direct-indirect analysis” that leads to the conclusion that public money may in fact be used for religious worship or exercises. In truth, the determination of what is direct and what is indirect will be nothing more than what the courts think reasonable. In any event, I would fear less the adoption of a de minimis exception than I do a wholesale rewriting of the constitutional language at issue.
In Pratt, the court stated: We believe that the framers of the Arizona Constitution intended by this section to prohibit the use of the power and the prestige of the State or any of its agencies for the support or favor of one religion over another, or of religion over nonreligion. The State is mandated by this constitutional provision to be absolutely impartial when it comes to the question of religious preference, and public money or property may not be used to promote or favor any public religious sect or denomination or religion generally.
[Brigham Young] was illiterate and has made a frequent boast that he never saw the inside of a school house. His habit of mind was singular-ly illogical and his public addresses are the greatest farrago of nonsense that ever was put in print. He prided himself on being a great financier, and yet all his commercial speculations have been conspicuous failures. He was a blarophant, and pretended to be in daily intercourse with the Almighty, and yet he was groveling in his ideas, and the system of religion he formulated was well nigh Satanic. Yet with this grossness, the illiteracy, this entire ignorance of the art of government, he has succeeded, during an entire generation, in holding absolute sway over a hundred thousand followers, in directing their confidence and affections as to stand to them a very Deity. His death is regarded as the fall of a great man in Israel, and thousands mourn his loss as a personal bereavement.The Salt Lake Tribune, Aug. 30, 1877, quoted in Malmquist, at 45-46. The Deseret News was also known to express its viewpoints with equal exuberance. On March 31, 1880, the following comments appeared:Yet we believe that the most graceful act of his life has been his death.
There are certain would-be witty persons who think they are uttering a good joke at the expense of the Mormons by repeatedly quoting the words of the late Brigham Young—“We can produce the greatest and smoothest liars or any other shade of character you can mention.” The fun of it is they are quoting against themselves. They and their tribe—the manufacturers of anti-Mormon sensations; the scavengers of the press; the slanderers of the living and defamers of the dead; the garblers of public speeches; the blasphemers of sacred things; the cowardly libellers of women and children; the dirty-minded scandal mongers; the craven dastards who fling their filth at those they know will not retaliate; the pen-stabbers; the character assassins; the authors of false telegraphic dispatches; and their aiders and abetters—are the characters referred to. We have had such things among us from the beginning of Utah‘s settlement. They have multiplied upon us as opportunities have increased for the paying exercises of their perverted faculties. Produce them? Yes we could point them out at any time. But no respectable Mormon recognizes their presence or would be seen in their society, and they are permitted to lie on, and fill the cup of their iniquity, unnoticed.Deseret News, March 31, 1880, quoted in Malmquist, at 42-43.
Hickman, in his dissertation on Utah constitutional law, articulated a reason worth noting for the framers’ reliance on other state constitutions:
[T]he settlers of the territory did not live in a political vacuum; nor did those who followed them as pioneers, or those who were born as natives of the territory. The first constitution of Deseret was not an unusual document. It bore a great resemblance to the Illinois constitution of 1818, and it served unchanged as a model for the constitutions of 1856, 1862, and 1867. It is remarkable that although the social development of the Mormons varied from the usual cultural pattern, their political development tended to parallel that of the rest of the nation. In 1872 the constitutional convention borrowed the constitution of Nevada as the basis for its proposed constitution. This introduced into Utah constitutions the changes in constitutional development that were taking place in the nation. The constitution of 1872 was the model of the constitutions of 1882 and 1887. The development of Utah constitutional thought thus shows familiarity with constitutional development in other states, and demonstrates that Utah, despite her experiments in marriage and economic relationships, was not ready to depart from the traditional forms of American government. This can be traced directly to Joseph Smith‘s attitude toward American government. He taught that the American Constitution was written by wise men chosen of God for that purpose, and that its weaknesses lay not in its structure but in the men who operated the machinery of government. ... When, therefore, it became the task of the people of Utah to write a constitution they constructed a document that reflected the patterns of state constitutionalism. Hickman, at 73-74.The rights of conscience shall never be infringed. The state shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. There shall be no union of Church and State, nor shall any church dominate the State, or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment. No property qualification shall be required of any person to vote, or hold office, except as provided in this Constitution.
No money shall be drawn from the treasury for the benefit of any religeous [sic] or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly.
The Arizona courts have distinguished between direct and indirect appropriations in interpreting
The same analysis is not necessarily true for negative expenditures. For example, although a tax exemption might run afoul of the general language of
We note that such conflict has occasionally resurfaced in the years since statehood. For example, in 1902, Reed Smoot, one of the Twelve Apostles of the Mormon Church, was elected as a United States senator. Because of his position with the church, the polygamy fight was renewed, and the old Liberal Party was revived under the name of the American Party. Malmquist, at 225.
Apparently, for perhaps the first time, the Deseret News and The Salt Lake Tribune agreed on an issue: The convention delegates had done a good job in drafting the