PHOENIX — A Republican challenger for state attorney general is using the hot-button issue of prayer at public meetings to raise money for his campaign.
Mark Brnovich is accusing incumbent Tom Horne of refusing to add his voice to arguments before the U.S. Supreme Court that there is a constitutional right to have prayers at things like city council meetings. What's at stake, he said, is whether the high court will erode religious liberty at the behest of “groups like the ACLU.”
“Join us today in support of religious liberties,” Brnovich told those who he hopes will donate money “to help us spread our message and protect public prayer!”
Horne countered that he did sign on to a legal brief, filed by Indiana Attorney General Gregory Zoeller, urging the high court to review that lower court ruling.
Brnovich argued that brief simply asked the justices to intercede to provide clarity so that governments know what is and is not allowed. He said Horne did not sign on to a subsequent legal brief, also prepared by Indiana, which had a more detailed defense of prayer at public meetings.
Horne said these kind of multi-state briefs are traditionally handled by one or two attorneys general and others are asked to sign on. Horne said he cannot explain why he is not on the second brief but said he never “refused,” as Brnovich is accusing, saying it may simply be that he was not asked or something fell through the cracks.
And Horne insisted he does support prayer at public meetings — something he said is reflected in that first legal brief he signed. Horne called the accusation, made in a Brnovich fund-raising e-mail, an attempt to get noticed.
“No one's paying attention to him,” Horne said.
Hanging in the balance — beyond who is the GOP nominee for state attorney general — is the legality of prayers that regularly begin the sessions of the Arizona Legislature along with many city council, county supervisor and school board meetings.
It was presumed the issue was settled when the high court ruled in 1983 that prayer before public meetings is “part of the fabric of our society.” More to the point, the justices said nothing about such prayers ran afoul of constitutional provisions barring the state from establishing a religion.
But federal appellate judges ruled last year that the practices of the Town of Greece “must be viewed as an endorsement of a particular religious viewpoint” and therefore unconstitutional. The judges said they reached that conclusion based on the process for selecting who gives the prayers and the content of what is actually prayed, all of which “virtually ensured” that “a Christian viewpoint” would be represented.
Foes of the appellate court ruling said its big flaw is that it essentially puts courts in the position of analyzing specific prayers and second-guessing whether the content crosses some line.
The Supreme Court heard arguments earlier this week from those directly involved. But the justices also have more than three dozen amicus briefs filed by various interests.
Brnovich had no problem with Horne, along with other attorneys general, asking the Supreme Court to look at the issue. He said such petitions are important because the high court grants review of very few cases.
He said, though, that Horne “refused” to be a signer on a subsequent brief Zoeller filed, one he said more forcefully argues to preserve prayer.
“Once the Supreme Court accepted the case, our attorney general was MIA,” Brnovich complained. “It's the equivalent of asking someone out on a date and then failing to show up.”
Horne, however, accused Brnovich of misrepresenting the situation.
“It's a full-throated defense of prayer in legislative matters,” he said of the first legal brief, the one he signed. And that brief does argue that the federal appellate court decision was wrong.
“A prayer does not necessarily proselytize or aggressively advocate a particular faith merely by making a few distinctly Christian references,” reads the belief filed by Zoeller. It also said courts should not try to parse the content of particular prayers to determine if the go over some line.
And despite Brnovich's complaints that Horne did not sign the second brief filed by Zoeller, even that is not an absolute defense of all prayers at all meetings. In fact, Zoeller suggested the justices come up with a new test to determine whether prayer at public meetings is legal: Does it amount to coercion.
Horne is trying to keep his office and beat back the challenge by Brnovich, the former state gaming director, to again become the Republican candidate in 2014. At this point the only Democrat in the race is Felecia Rotellini who lost narrowly to Horne in 2010.
Brnovich said siding for public prayer should be a no-brainer for all public officials. He pointed out that even the Obama administration urged the justices to reverse a federal appellate court ruling which had found the prayers offered by an upstate New York community were illegal.
Donald Verrilli, the solicitor general for the Obama administration, said there is no constitutional violation “merely because most prayer-givers are Christian and many or most of their prayers contain sectarian references.” And he said the daily prayers at Congress include a “large majority” of Christian prayer-givers.
But Verrilli also cautioned against the kind of test suggested by the federal appellate court in determining whether a prayer is legal.
“Neither federal courts nor legislative bodies are well suited to police the content of such prayers,” Verrilli wrote.