(A) For purposes of this section:
(1) "Public invocation" means a prayer or invocation delivered in a method provided pursuant to subsection (B) to open the public meeting of a deliberative public body. In order to comply with applicable constitutional law, a public invocation must not:
(a) be exploited to proselytize or advance any one, or to disparage any other faith or belief; or
(b) coerce participation by observers of the invocation.
(2) "Deliberative public body" includes, but is not limited to, a state board or commission; the governing body of a county or municipal government; a school district board; a branch or division of a county or municipal government; and a special purpose or public service district.
(B) A deliberative public body may adopt a policy to permit a public invocation as defined in subsection (A)(1) before each meeting of the public body, for the benefit of the public body. The policy may allow for a public invocation to be offered on a voluntary basis, at the beginning of the meeting, by:
(1) one of the public officials, elected or appointed to the deliberative public body;
(2) a chaplain elected by the public officials of the deliberative public body; or
(3) an invocation speaker selected on an objective basis from among a wide pool of religious leaders serving established religious congregations in the local community in which the deliberative public body meets. To ensure objectivity in the selection, the deliberative public body may, but is not required to, compile a list of known, established religious congregations and assemblies, and invite a "religious leader" from each congregation and assembly to give a public invocation on a first-come, first-served basis. The invitation may contain, in addition to scheduling and other general information, the following statement: "A religious leader is free to offer a public invocation according to the dictates of his own conscience, but, in order to comply with applicable constitutional law, the [name of deliberative public body issuing the invitation] requests that the public invocation opportunity not be exploited to proselytize or advance any one, or to disparage any other faith or belief; or coerce participation by observers of the invocation".
(C) In order that deliberative public bodies may have access to advice on the current status of the law concerning public invocations, the Attorney General's office shall prepare a statement of the applicable constitutional law and, upon request, make that statement available to a member of the General Assembly or a deliberative public body. As necessary, the Attorney General's office shall update this statement to reflect any changes made in the law. The Attorney General's office may make the statement available through the most economical and convenient method including, but not limited to, posting the statement on a website.
(D) The Attorney General shall defend any deliberative public body against a facial challenge to the constitutionality of this act.
(E) Nothing in this section prohibits a deliberative public body from developing its own policy on public invocations based upon advice from legal counsel.
HISTORY: 2008 Act No. 241, Section 2 eff May 27, 2008; 2016 Act No. 198 (S.233), Section 2, eff June 3, 2016.
Editor's Note
2008 Act No. 241, Section 1 provides as follows:
"This act may be cited as the 'South Carolina Public Invocation Act'."
2016 Act No. 198, preamble and Section 1, provide as follows:
"Whereas, state and local governing bodies across the nation have long maintained a tradition of solemnizing their proceedings by allowing for an opening invocation before each meeting for the benefit and blessing of those public bodies; and
"Whereas, such invocations before deliberative public bodies have been consistently upheld as constitutional by American courts, including the United States Supreme Court and the United States Court of Appeals for the Fourth Circuit; and
"Whereas, in Marsh v. Chambers, 463 U.S. 783, 786 (1983), the United States Supreme Court rejected a challenge to the Nebraska Legislature's practice of opening each day of its sessions with a prayer by a chaplain paid with taxpayer dollars, and specifically concluded, 'The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom'; and
"Whereas, the United States Supreme Court clarified in Marsh, 463 U.S. at 794-795, 'The content of [such] prayer is not of concern to judges 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'; and
"Whereas, in Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (4th Cir. 2004), cert. denied, the United States Court of Appeals for the Fourth Circuit reviewed and specifically approved the policy of a county board in which various clergy in the county's religious community were invited to present invocations before meetings of the board; and
"Whereas, the Fourth Circuit's ruling in Simpson can be distinguished from its earlier decision in Wynne v. Town of Great Falls, 376 F.3d 292, 298 (4th Cir. 2004, cert. denied) (citing Marsh, 463 U.S. at 794), where the court found a town council 'improperly "exploited" a "prayer opportunity" to "advance" one religion over others'; and
"Whereas, in Town of Greece v. Galloway, 134 S.Ct. 1811 (2014), the United States Supreme Court subsequently held a town's practice of opening its town board meetings with sectarian prayers by guest religious leaders expressing the beliefs of one faith did not violate the Establishment Clause; and
"Whereas, the Galloway Court rejected an argument that the Establishment Clause requires nonsectarian or ecumenical prayer, holding the explicitly sectarian nature of the prayers was not outside the tradition recognized in Marsh and reasoning a rule that requires prayers to be nonsectarian would force the legislatures and courts to act impermissibly as 'supervisors and censors of religious speech'; and
"Whereas, the Galloway Court held that prayer practice is permissible so long as it is consistent with the tradition of lending 'gravity to public business'; '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'; the town does not discriminate against minority faiths in determining who may offer a prayer; and the prayer does not coerce participation by nonadherents; and
"Whereas, the Galloway Court explained that '[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation'; and
"Whereas, the General Assembly passed Act 241 of 2008 before the United States Supreme Court issued Galloway and now wishes to amend the act to incorporate Galloway's holding; and
"Whereas, this act signifies the General Assembly's belief that deliberate public bodies in this State may adopt policies that will permit public invocations in a constitutionally permissible fashion. This act does not signify the General Assembly's belief in the limits of constitutional law, nor preempt the deliberative public body from exercising a constitutional right to permit public invocations pursuant to a policy other than that set forth in this act."
"SECTION 1. This act may be cited as the 'South Carolina Public Prayer and Invocation Act'."
Effect of Amendment
2016 Act No. 198, Section 1, rewrote (A) through (B).