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TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 6-1-160 SO AS TO ENACT THE "SOUTH CAROLINA PUBLIC PRAYER AND INVOCATION ACT" TO ALLOW A GOVERNING BODY OF A STATE OR LOCAL GOVERNMENT TO ADOPT, BY ORDINANCE OR RESOLUTION, A POLICY THAT PRESERVES THE TRADITION OF SOLEMNIZING PUBLIC PROCEEDINGS BY ALLOWING FOR AN OPENING INVOCATION USING ONE OF THREE METHODS AND TO DEFINE "PUBLIC INVOCATION" AND "DELIBERATIVE PUBLIC BODY".
Whereas, state and local governing bodies across the nation have long maintained a tradition of solemnizing their proceedings by allowing for an opening prayer before each meeting for the benefit and blessing of those public bodies; and
Whereas, such prayer before deliberative public bodies has 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 (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 not 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 recently reviewed and specifically approved the prayer 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 (4th Cir. 2002), cert. denied, where the court found a town council "improperly 'exploited' a 'prayer opportunity' to 'advance' one religion over others"; and
Whereas, this act signifies the General Assembly's belief that deliberate public bodies in this State may adopt policies that will permit legislative prayer or 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 legislative prayers or invocations pursuant to a policy other than that set forth in this act. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "South Carolina Public Prayer and Invocation Act".
SECTION 2. Article 1, Chapter 1, Title 6 of the 1976 Code is amended by adding:
"Section 6-1-160. (A) For purposes of this section:
(1) 'Public invocation' means an invocation delivered in a method provided pursuant to subsection (B) to open the public meeting of a state or local deliberative public body. In order to comply with applicable constitutional law, a public invocation must not be exploited to proselytize or advance any one, or to disparage any other, faith or belief.
(2) 'Deliberative public body' means a state board or commission, the governing body of a county or municipal government, a school district, a branch or division of a county or municipal government, and a special purpose or public service district.
(B) A state or local deliberative public body, by ordinance or resolution, may adopt a policy to permit a public invocation as defined in subsection (A) before each meeting of the public body, for the benefit of the public body. The policy may allow for an 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, so long as the opportunity for invocation duty is regularly and objectively rotated among all of that body's public officials;
(2) a chaplain elected by the public officials of the deliberative public body; or
(3) an invocation speaker selected on an objective and rotating basis from among a wide pool of the religious leaders serving established religious congregations in the local community in which the deliberative public body meets. To ensure objectivity in the selection, the clerk of the deliberative public body shall compile a list of all known, established religious congregations and assemblies by reference to local telephone books or similar sources, or both, and on an annual basis shall mail an invitation addressed to the 'religious leader' of each such congregation and assembly. The clerk shall schedule respondents to the invitation to deliver the invocations at upcoming meetings of the public body on a first-come, first-serve basis. The clerk's letter must contain, in addition to scheduling and other general information, the following statement: 'A religious leader is free to offer an invocation according to the dictates of his own conscience, but, in order to comply with applicable constitutional law, the governing body requests that the prayer opportunity not be exploited to proselytize or advance any one, or to disparage any other, faith or belief'."
SECTION 3. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 4. This act takes effect upon approval by the Governor.
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