Ms. Lear:
Thank you for your reply of December 9, 2004. Thanks also for
encouraging the development/review of policies and practices concerning opening
remarks/prayers at public meetings. The "USOE analysis" that was attached
provides a good start.
While we are confident the Utah Supreme Court would approve of
these efforts, we see some problems and offer some criticism. We do not agree
that the analysis or the current practice of the Utah State Board of Education
are consistent with Society of Separationists v. Whitehead. Much of the
deference you give to neutrality, non-discrimination, equal access, and
diversity is merely cosmetic.
First we must correct a common mis-representation. Separation of
state and church is a restriction on government, not on the public. To protect
the freedom of conscience of citizens, government officials are constrained from
using their official power to promote their personal religious agendas. Their
oath of office to enforce the Constitution officially constrains them. We are a
government "of the people", but when citizens are part of the government, they
are bound by that obligation.
The supposed "hostility toward religion" referenced in your letter
concerned a presumed restriction on the public at government meetings. (SOS v.
Whitehead, 870 P.2d 934) The entire decision permitting prayer at government
meetings turned on the facts of that one situation.
The limited forum in effect at meetings of the Utah State Board of
Education does not conform to those facts. Only government officials and
employees are currently allowed to give the "reverence", and only the Board
members choose to have one. We can find nothing in SOS v. Whitehead supporting a
limited forum.
On the contrary we find many references specifying a completely
open forum:
*
Concerning the practice of the Salt Lake City Council, "First,
the invitations [to those offering prayers] should be extended to a variety of
community members, including not only ministers and religious officials, but
representatives of civic organizations as well." (SOS v. Whitehead, 870 P.2d
918)
* Concerning the Utah constitutional convention of 1895 as a
precedent, "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". (ibid 936)
* Concerning an indirect benefit to religion, "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 to religious worship, exercise or instruction."
(ibid 937)
* Concerning the Court's two prong test, which you refer to, the
first prong is non-discrimination. "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."
(ibid 938)
* The second prong is equal access. "... the terms of access must
be such that all users have 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."
It is not enough to claim that atheists could be elected to the
Board. Avowed [sic] atheists do not have a "realistically equal opportunity" to
participate when the great majority is religious.
We are not suggesting that "welcoming thoughts" be opened to the
public, since that leaves the door open to uncontrollable confrontation.
(Snyder v. Murray, 2003 UT) The "standards" you recommend
in your attachment stating "remarks must be civil and not defamatory" would
probably not be legally acceptable.
We merely suggest that the welcome be restricted to appropriate
secular greetings consistent with conducting the business of the Board. Since
the Board already has one public forum in its "public participation/comments"
segment, it would look suspiciously contrived for the Board to open a second
one-person forum just to accommodate an opening prayer.
Our second concern is a serious lack of neutrality with respect to
religion in government. You give lip service to non-discrimination, equal
access, and diversity, but the current practice and performance of the State
Board of Education, which you claim is "consistent" with the Utah Supreme Court
in SOS v. Whitehead, strongly trumpets the opposite.
In the SOS case, SOS charged that article I section 4 of the
constitution was violated where it states, "there shall be no union of Church
and State, nor shall any church dominate the State or interfere with its
functions." (SOS v. Whitehead, 870 P.2d 939) While the Court found insufficient
evidence in that case, there is abundant evidence of such violations in the Utah
public schools today.
School leadership seems determined to demonstrate that they are
religious people who cannot function without Christian (Mormon?) ritual. The
clear implication is that they will be prejudiced by such values in running the
schools, and will discriminate against non-religion.
The Mormon's have no need of private Mormon schools when they
control the public schools. There is no embarrassment at the convenient close
proximity of Mormon seminaries to Utah public high schools when those schools
are sited. When a seminary burned in the Salt Lake valley, the public schools
welcomed the seminary classes into their buildings. The Office of Education, the
Legislature, and the LDS Church cooperate to support an ongoing program to train
teachers how to teach uncritically "about" religion in the classroom. The only
public entrance to your building even sports a large "God Bless America" sign on
the back of the security guard's computer monitor.
The Utah Supreme Court incorporated fifteen pages of Mormon history
into SOS v. Whitehead, and then based its decision on the "hostility to
religion" concept outlined in the LDS First Presidency's 1979 statement on
"America's Religious Heritage". Salt Lake City got along for decades without
opening prayers in their meetings, but after that statement was released
endorsing opening prayers, suddenly the prayers were necessary. The Utah Chamber
of Commerce might as well state for all the world to see that Utah schools are
dominated by religious leaders who will subtly but steadily pressure students to
become Mormons and go on missions for the LDS Church.
One would think school leaders might be concerned about this, but
no. In addition to all the foregoing, you seem determined to find a way to
rationalize or legalize the continued practice of opening prayers.
Your letter refers to "welcoming remarks" and "opening remarks", but they were
never identified as such until we showed up. We have examined the openings in
the meetings archived on the internet
usoe.k12.ut.us/ADMIN/projects/live.htm.
Every one is a sectarian prayer to Heavenly Father in the name of Jesus Christ.
Every one is identified in religious terms as a "reverence" (worship,
sanctification) or "invocation". There are no exceptions. The Board has
routinely preferred religion over non-religion. This is not a forum that has
been equally accessible to all - it is simply an instrument for demonstrating
religious prejudice.
This custom is so well established that it constitutes a religious
test for public office. Every board member must be prepared to participate in
ritual worship at meetings or face political retribution from the religious
majority.
We hope you will find these comments constructive in
formulating a sound policy for the smooth operation of public school meetings.
We look forward to seeing such a policy. As far as local school boards are
concerned, we will follow up separately with them.
Respectfully,
Julian Hatch
For the Board of Directors
cc: Utah State Board of Education
Dr. Patti Harrington,
State Superintendent of Public Instruction
John S. McAllister,
Assistant Attorney General
