COLUMBUS, Ohio — Ohio's House speaker will ignore a 12-year-old guideline that prayers given by visiting clergy before legislative sessions be nonsectarian and non-denominational, although he asks that they not mention specific legislation or advocate certain positions.
The policy could rest on uncertain legal ground, as some courts have ruled that legislative prayer should not proselytize or reference a specific deity. Other courts, however, have said sectarian prayer is constitutional — as long as legislators allow prayers from various religions.
House Speaker Jon Husted, a Republican from Kettering, spent the summer mulling over the prayer policy after a prayer by a visiting clergy member in May caused two Democrats to walk off the chamber floor. The prayer invoked Jesus' name, spoke favorably of church-sponsored schools and referenced pending legislation clamping down on strip-club operations.
Each House session starts with a prayer. The new policy went into effect when legislators returned to the House in September after the summer recess.
"I'm not going to get in the business of censoring people's prayers," Husted said. "The most important goal was to make sure we preserve prayer in a way that made sure people had their freedom of expression."
Husted decided against hiring a chaplain, which the House had until 1995, when guest clergy began giving the prayer according to the nonsectarian guidelines. He said he wanted to err on the side of providing an open environment for prayer without censorship.
Chris Redfern of Catawba Island and Bob Hagan of Youngstown, the two House members who walked out during the May prayer, declined to comment on Husted's new policy.
The new policy won't immediately inspire litigation, but could eventually lead there, said Chris Link, executive director of the American Civil Liberties Union of Ohio.
"The only solution is one that no one will have the political courage to embrace, which is to do away with prayer in government bodies," Links said. "Once you put your foot in the water you start to drown."
The ACLU has initiated lawsuits in multiple states, including Indiana, Louisiana and Georgia, on the issue of prayer in governmental bodies. On the opposite side are ideological rivals such as the Alliance Defense Fund, which submitted a model prayer policy to the Ohio House and praised Husted's change in policy.
In a 1983 decision, the U.S. Supreme Court carved out an exception for prayer to be allowed in Congress and state legislatures, even though the policy would seem to violate the separation of church and state, said Charles Haynes, senior scholar at the First Amendment Center, a forum for the study of First Amendment issues that is part of the Freedom Forum.
The decision was an effort to recognize the tradition of prayer in public bodies, Haynes said.
"The Supreme Court ruled legislative prayers constitutional in Marsh v. Chambers, but left it vague as to how 'nonsectarian' such prayers have to be to pass muster,” he said.
“It's likely that the new guidelines in Ohio are within current law. But the ongoing fight over the content of legislative prayers underscores the problem with any attempt to have government-sponsored prayers.
Since the Supreme Court decision, the legal disputes in lower courts have hinged on what should be allowed in those prayers.
In Indiana, a federal district judge ruled in December 2005 that prayers in the Indiana House of Representatives could no longer mention Jesus or advance a religious faith — a ruling that casts doubt on the Ohio House's latest move. A federal appeals judge refused to lift the injunction while Indiana's House speaker appealed.
But in Georgia, a federal district judge ruled that Cobb County commissioners could have sectarian prayer as long as prayers from different religions were allowed.
Given the variety of lower court decisions and the lack of a definitive Supreme Court ruling on the content of legislative prayers, most governmental bodies have taken the middle road of having nonsectarian prayer, Haynes said.
"It avoids the fight," Haynes said. "It's a model that's avoided controversy many places."
First Amendment Center Online staff contributed to this report.