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South Dakota Joins Federal Litigation in Support of Legislative Discretion on Prayer Practice

PIERRE (KELO AM) – Attorney General Marty Jackley announces that South Dakota has joined 23 states in a multi-state Amicus or “friend of the court” brief filed in the United States Supreme Court.  There is no additional cost to South Dakota to act as Amici curiae counsel.  The United States Supreme Court has granted certiorari to determine whether the U.S. Constitution allows for prayer during legislative session, and if so, the extent of Constitutional limitation on such prayer practice.

“The framers of our South Dakota Constitution opened their sessions with a prayer in 1883, and this practice continues today with our duly elected legislators,” said Jackley.  “The U.S. Constitution is a shield to protect our rights, not to be turned into a sword through judicial interpretation to strike down our rights and freedoms.”   The brief challenges a federal appellate decision that a township practice of opening each board meeting with a prayer violated the Establishment Clause of the U.S. Constitution.  Although the township had selected volunteers to give prayers by rotating among various religions, the federal appellate court found that the town leaders had never discouraged the clergy from preaching and had referred to the prayers as “our prayers”.

The Amici States advocate that “The American people deserve an Establishment Clause jurisprudence that is clear, workable, and faithful to the text and history of the First Amendment.”  The brief further points out that “All fifty States follow, in some fashion, the longstanding American practice of opening each legislative session day with a prayer.” 

In 1983, the United States Supreme Court recognized in the Marsh decision that having prayers before meetings are permissible so long as they do not amount to preaching and are undertaken in a manner that does not endorse or disparage a particular religion.   The Amici States urge the U.S. Supreme Court to reaffirm the central holding of Marsh that legislative prayers are permissible as “simply a tolerable acknowledgement of beliefs widely held among the people of this country.” 

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