Commissioner Smith pushes plan to return invocations before County Commission meeting

Brevard County Commissioner Curt Smith wants to bring invocations back at commission meetings — or at least just before them.

Commission meetings haven't had an invocation since November 2017, as a result of the county being sued in federal court in 2015 by three atheist, agnostic and humanist organizations and five individuals for its previous invocation policy. That policy, in effect, excluded non-theists from delivering the invocation at the start of meetings.

The county lost the case in U.S. District Court, as well as losing an appeal, and had to:   

• Pay the groups and individuals who sued the county $60,000 in compensatory damages.
• Pay the plaintiffs $430,000 to cover their attorney and litigation expenses.

The two federal courts found that the county's previous practice of having clergy give the invocation at the start of County Commission meetings violated the First Amendment to the U.S. Constitution by discriminating in favor of certain monotheistic religions. 

More:County invocation settlement: Pay atheist, agnostic plaintiffs $490,000 in damages, legal fees

More:Lawsuit by atheists, agnostics against county over invocations settled for $490,000

The County Commission for the last three years has been observing a moment of silence at the start of its meetings, rather than having an invocation.

Smith has been working with the county's legal staff to craft a new policy on the selection of invocation speakers, and says the legal staff believes the proposal is "bulletproof" to withstand legal challenge.

Brevard's proposed policy on invocation speakers is modeled after one used in Lakeland that was found to be constitutional in 2013 by the U.S. Court of Appeals for the 11th Circuit.

It is scheduled to come up for discussion at Tuesday's County Commission meeting.

Smith said his intent for the policy is to be inclusive, allowing not just clergy from of Brevard-based religious organizations to give the invocations, but also representatives of Brevard-based atheist, agnostic and similar groups to do so if they want to be part of the rotation.

"We're not excluding anybody, but they have to be part of a group that's in Brevard," Smith said.

However, David Williamson, the lead plaintiff in the previous lawsuit against the county, says, by his initial reading of the proposed policy, it appears only clergy would be invited.

So he will be monitoring Tuesday's meeting to assure that non-theists also will be eligible to give invocations. And he will hope that the county modifies its proposed written policy to reflect that.

"If the Brevard commissioners want to initiate an invocation program, they should not be targeting just religious organizations and religious leaders," said Williamson, a director of the Central Florida Freethought Community. "This amounts to unconstitutional discrimination, in my mind. They are very aware that non-religious organizations and non-clergy will be requesting inclusion in their list of congregations. The language in this proposed policy is concerning."

 Under the proposed policy, as initially submitted:

• The invocation and Pledge of Allegiance actually will take place "shortly before the opening gavel that officially begins the meeting."
• The invocation will not be listed or recognized as an agenda item for the meeting or as part of the public business.
• The county manager or designee will compile and maintain a database of the religious congregations with an established presence in Brevard County or which have members from Brevard County, as well as chaplains of Brevard law enforcement agencies and fire departments.
• Clergy on the list will be invited by mail, email or fax to offer an invocation before a future County Commission meeting, and will be scheduled  on a first-come, first-serve basis.
• The letter will indicate that clergy will be "free to offer the invocation according to the dictates of your own conscience. To maintain a spirit of respect and ecumenism, the commission requests only that the invocation opportunity not be exploited as an effort to convert others to the particular faith of the invocation speaker, nor to disparage any faith or belief different than that of the invocation speaker." 

In a seven-page legal memo to Smith on the invocation issue, Assistant County Attorney Christine Schverak wrote that the County Commission "should expect individuals of many faiths to apply to provide invocations. The humanists and atheists are also likely to apply. Declining to allow such invocation speakers could result in new litigation over the right of atheists or humanists to offer an invocation."

After the County Commission in 2014 refused to change its policy of inviting only representatives of religious groups to give the invocation at the start of County Commission meetings, several organizations and individuals sued the county in U.S. District Court in 2015. 

Plaintiffs included the Central Florida Freethought Community, the Space Coast Freethought Association and the Humanist Community of the Space Coast, plus five individuals.

Attorneys for the American Civil Liberties Union, the Freedom From Religion Foundation, and the Americans United for Separation of Church and State also represented the plaintiffs in the case.

Under terms of the agreement, Brevard County was permanently banned from continuing its previous invocation speaker selection procedure because those practices "resulted in discrimination in favor of certain monotheistic religions."

Dave Berman is government editor at FLORIDA TODAY.  

Contact Berman at 321-242-3649 or dberman@floridatoday.com. Twitter: @bydaveberman

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