Just minutes before the start of a floor session on Jan. 26, nine Hawaii state senators gathered in a circle in Senate chambers and bowed their heads in prayer.

The prayer was organized by Will Espero and included eight other Democrats: Glenn Wakai, Suzanne Chun Oakland, Clarence Nishihara, Michelle Kidani, Gil Kahele, Ron Kouchi, Pohai Ryan and Mike Gabbard.

The symbolic action — reporters were tipped off by Espero — came less than a week after the Senate voted to end the practice of invocations after senators have been gaveled into session. It is said to be the first time a legislative body in the United States voted to end invocations.

The state House is considering doing the same with its rules. On the same day the Senate adopted its new rules, Jan. 20, the House opened with Rep. Pono Chong, a Democrat, delivering a brief “ecumenical” invocation that did not overtly praise a particular deity.

“It’s unusual,” said Charles C. Haynes, senior scholar for the First Amendment Center and director of the Religious Freedom Education Project at the Newseum in Washington, D.C.

“In many parts of the United States, it would be a political death,” Haynes told Civil Beat. “I don’t know how it’s going to play in Hawaii, but I know in most of the country the Legislature would not get away with doing that and survive because this practice is very popular, I think, in public opinion.”

The Senate’s voice vote didn’t spark a controversy in Hawaii, although religious groups have been a force at the Legislature in recent years and played a significant role in last year’s elections.

House invocations have continued, but by lawmakers, not religious leaders: Rep. Joey Manahan on Jan. 24, for example, and Rep. Cindy Evans on Jan. 28. All are Democrats.

Invocations have long been a part of Hawaii legislative sessions, but they have been criticized in the past by groups supporting strict separation between church and state.

Those groups appear to be gaining ground.

On Jan. 3, the Honolulu City Council adopted new rules that include the following:

Before the commencement of a council meeting, the presiding officer may permit a councilmember or other speaker to deliver a message of aloha or invocation pursuant to
this subsection or a subsequent policy established by the council by resolution.

Any such message or invocation shall be in compliance with Marsh v. Chambers, 463 Us. 783, shall not name any sectarian faith, and shall not be used either to proselytize or
to disparage any particular faith. This provision shall not preclude the council chair or other councilmember introducing the speaker from identifying the speaker by his or her faith, congregation or institution.

Marsh v. Chambers is a 1983 U.S. Supreme Court ruling that found that the Nebraska Legislature practice of opening each legislative day with a prayer by a chaplain paid by the state did not violate the Establishment Clause of the U.S. Constitution. It’s this decision that sets the precedent for all legal opinions on the matter.

Many lawmakers, especially devout ones, are uncomfortable with getting rid of invocations.

After the Jan. 26 prayer, Espero, a Catholic, told reporters he would like to amend Senate rules to allow a voluntary moment of silence before sessions. Senate President Shan Tsutsui indicated that the Senate may still invite religious leaders to deliver occasional messages to the Senate.

Majority Leader Brickwood Galuteria said on the Senate floor during a brief debate on ending invocations before the vote on the 20th that new rules will allow the Senate to hold invocations “when we so determine. … We will continue to explore the issue to make sure we are constitutionally sound.”

But Republican Sam Slom, the lone Republican in the 25-member body, objected to the rule change, arguing that the U.S. Supreme Court had long ago determined that invocations are legal.

Slom said he preferred to hold the invocations prior to gaveling in a session, giving senators an option.

“I feel something would be missing without the invocation, and that the Senate must stand for something and not back away when there are challenges like these organizations and their objections … As smart, as intelligent as we may be, we can still call on someone higher to help and guide us.”

The Rules

What the Senate did on Jan. 20 was amend its 2011-2012 Rules of the Senate. Specifically, it removed Rule 8 that was in the 2009-2010 Rules of the Senate.

Rule 8 reads as follows: “Each day’s sitting of the Senate shall open with an invocation.”

Senators toyed with the idea of changing the word “shall” to “may,” but ultimately removed the rule completely.

There is nothing in the new rules that prohibits invocations. But since Jan. 20, the Senate has not opened any session with an invocation.

The Lawsuit

The Senate was pushed into changing its rules by two actions: a lawsuit and a complaint. Several senators have told Civil Beat they hope their rule change will make both matters moot.

The lawsuit was filed by Mitch Kahle and Kevin Hughes, who allege they were physically assaulted by Senate and Capitol security after the two men disrupted a Senate invocation on April 29, 2010.

Kahle leads Hawaii Citizens for the Separation of State and Church, and a video of the incident can be viewed on its website.

In addition to awarded damages to the plaintiffs for the alleged incident, the lawsuit (filed Nov. 30 in 1st Circuit Court) seeks judgment that the Senate invocations violate the Establishment Clause and so should be ended.

In an e-mail to Civil Beat Jan. 22, Kahle said the Senate rules change would not halt his lawsuit.

The Complaint

The complaint from the ACLU of Hawaii came in an Aug. 16 letter from senior staff attorney Daniel Gluck to House Speaker Calvin Say and then-Senate President Colleen Hanabusa.

Gluck said the ACLU had received complaints about the invocations, in particular “about decidedly Christian prayers — with references to Jesus Christ — in contravention of clear judicial mandates regarding the separation of state and church in legislative invocations.”

Gluck identified several examples and added, “We are particularly troubled that some of these invocations were given by members of the Legislature themselves.” Gluck provided a link to Senate archives of webcasts. (House videos are not currently online.)

Gluck then asked both the House and Senate to review guidelines for invocations, show them to the ACLU and make sure that they are followed.

“Overtly Christian prayers(for example, those with references to Jesus Christ) have no place in the Legislature,” wrote Gluck. He also wrote, “Even seemingly benign invocations may violate the Establishment Clause if they advance one religion at the expense of another.”

Haynes, the First Amendment scholar, said he doubted the Senate’s decision would have impact elsewhere.

“In most places in the country, political leaders are going to be very reluctant to change the practice that they have unless somehow they are forced to,” he said. “And I think the only reason they would be pushed to by a lawsuit that would be successful, would be if they erred on the side of being too sectarian. I don’t think they’re going to abandon their practice unless that’s the issue. And that’s rarely now the issue.”

The Committee

Hanabusa acknowledged Gluck’s concerns in a letter and promised to examine her chamber’s policy on invocations.

She also sent a memo to senators saying she would form a committee to look into the ACLU’s concerns.

Hanabusa soon named the committee: Slom, the Republican, and Democrats Les Ihara and Russell Kokubun.

(Hanabusa is today serving in the U.S. House of Representatives while Kokubun is Director of Agriculture in the Abercrombie administration.)

The committee last fall sought a legal opinion from the Senate Majority Research Office and the Hawaii Attorney General’s Office.

Their conclusion, according to a memo to Tsutsui from Rebecca Anderson, an attorney with the Senate Majority Research Office, is that “it is possible to conduct an invocation in a constitutionally permissible manner, should the Senate decide to do so.”

Anderson cited Marsh v. Chambers “and its progeny”: “Those cases recognize that while the practice of a legislative prayer is a facial violation of the Establishment Clause prohibition on state-sponsored religious practice, the long-standing tradition of beginning official business with an invocation or prayer creates an exception for invocations that otherwise avoid state-enforced religious orthodoxy.”

However, deputy attorneys general expressed concern that any policy guidelines developed by the Senate could risk litigation from either side of the public religion debate. They proposed a highly detailed policy they admitted would not be foolproof, either.

The advice came in two confidential memos that Civil Beat has viewed.

The first, an Aug. 26 letter to President Hanabusa from Deputy Attorney General Girard Au, recommended that the Senate establish guidelines that avoid reference to any sectarian deity, god or other central religious figure.

The second, an Oct. 18 letter from Au to Sens. Slom, Kokubun and Ihara, offered a “rotational model” that would allow “official solemnization” of a session to be delivered by Hawaii clergy. No member of the Senate would be forced to attend, and politics and proselytizing would not be allowed.

The Solution

With legal assistance, by late December a new Rule No. 8 on invocations was drafted:

Each day’s sitting of the Senate may open with an invocation which shall be nonsectarian and nonpolitical in nature. The invocation shall not be used to proselytize, to advance, or to disparage any religion of point of view or believe systems. Attendance at and participation in the invocation shall be voluntary for all persons.”

An Invocation Policy was also drafted and a sample invitation letter to deliver invocations.

The Senate Majority Caucus was then given three options: keep Senate rules as they are, although it would invite lawsuits; accept the recommendations of the invocation committee; or end mandatory invocations altogether.

(The possibility of hiring a chaplain to deliver a nonsectarian invocation was not believed financially viable.)

By a 12-4 vote (several members were absent), the caucus voted to end the invocations but with the understanding that they could hold them periodically.

The ACLU of Hawaii’s response:

“The Supreme Court has stated that the Establishment Clause ‘means at the very least that government may not display a preference for one particular sect or creed’ over others,” said Legal Director Lois Perrin. “The Senate’s action in discontinuing invocations does not conflict, and clearly aims at creating an environment where all will feel welcome regardless of spiritual beliefs. This is in keeping with Hawaii’s commitment to respect diversity.”

Said Gluck, “We have encouraged the Senate — and the House and City Council — to adopt invocation policies that are inclusive, rather than divisive; this doesn’t mean that the Senate needs to do away with the invocations altogether. We remain willing to work with the Senate to devise a policy that is constitutional, should the Senate wish to pursue that option.”

The House

Gluck sent a follow-up memo to House Speaker Calvin Say Jan. 26.

“What we told him was the same as the Senate, that you don’t have to do away with invocations altogether but you do have to make changes in a way that does not violate the First Amendement,” Gluck told Civil Beat. “One way is to get rid of them.”

Rep. Blake Oshiro, the majority leader, told Civil Beat Friday that he was still working through the rule changes and expected to have recommendations by next week.

“We are still looking at different alternatives to pose to the caucus, and that will be up to the caucus and then the body to decide on which approach,” he said.

The House has yet to adopt new rules for the 2011-2012 sessions, so the 2009-2010 rules ostensibly apply. Those rules only say this about invocations: “At the option of the Speaker, every session shall be opened with an
invocation.”

Asked to describe the invocations that had been delivered over the past week or so by his colleagues, Oshiro called them “spiritual” and not specific to a denomination.

Haynes, the First Amendment scholar, said, “I think what happened in Hawaii demonstrates the confusion right now about what is constitutional and what isn’t. And part of the confusion, of course, is rooted in the fact that it actually doesn’t make a lot of sense that government-sponsored prayers on a regular basis in a government setting somehow is not an establishment of religion. So, in a sense it’s sort of grounded in an oddity, in something that’s an exception to most of how the Supreme Court has understood the Establishment Clause. It’s hard then to get it right.”

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