The act of prayer is open to interpretation, as long as it’s not in the Arizona Legislature. A new policy sure to spur controversy on both sides defines prayer as a “solemn request for guidance and help from God.”

Those remarks – from House Majority Leader Steve Montenegro, a Republican, got our First Amendment bulbs going, so we put it to a fact-check.

Here’s the expanded statement in a memo sent to state representatives on January 27:

“Prayer, as commonly understood and in the long-honored tradition of the Arizona House of Representatives, is a solemn request for guidance and help from God. A Member’s request to lead the prayer, or to invite a member of the clergy to lead the prayer, is an avowal that the request is for the stated purpose. Members who wish to observe a moment of silence, recite a poem, express personal sentiments or speak rather than pray, should rise to a point of personal privilege to do so.”

Montenegro’s memo suggests that any prayer that does not involve God, such as a moment of silence, isn’t a prayer.

Not just the man upstairs

Arizona House of Representatives press secretary Stephanie Grisham said Montenegro wanted to give members written guidance on prayer during meetings. Before his policy, she said invocations varied with leadership.

“In the absence of a written policy, the Majority Leader wanted to give members written guidance, that guidance is based on controlling U.S. Supreme Court interpretation of the First Amendment,” Grisham said.

She cites Justice Anthony Kennedy’s opinion in a 2014 U.S. Supreme Court case, Town of Greece v. Galloway, in the which the court, in a 5-4 ruling, upheld prayer at public meetings in the town of Greece, New York:

“Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government, to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgement of their belief in a higher power, always with due respect for those who adhere to other beliefs."

However, the operative word there is “can.” Justice Kennedy also makes it clear in his opinion that restricting religious speech to certain “religious words” such as “Lord God” would be unwise:

“Because it is unlikely that prayer will be inclusive beyond dispute, it would be unwise to adopt what respondents think is the next-best option: permitting those religious words, and only those words, that are acceptable to the majority, even if they will exclude some. The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech.”

American Civil Liberties Union of Arizona Executive Director Alessandra Soler said Montenegro is redefining prayer with his memo.

“The Supreme Court says people should be able to pray the way that they want to pray,” Soler said. “They shouldn’t have to fit into a definition of what prayer means, which is exactly what this memo does.”

While the memo notes that “no particular faith will be excluded,” it restricts moments of silence to “personal privilege,” which is when a lawmaker is able to speak about a personal topic without discussion or debate.

Montenegro’s policy precedes the Phoenix City Council’s removal of verbal prayer at their meeting last week, instead opting to start the traditional invocation with a moment of silence prayer.

The move allowed the council to avoid having The Satanic Temple, which signed up to the invocation at the city’s Feb. 17 meeting, from doing the invocation.

So what is prayer?

Montenegro said, “Prayer, as commonly understood and in the long-honored tradition of the Arizona House of Representatives, is a solemn request for guidance and help from God.”

According to the Supreme Court, he’s wrong. Prayer during public meetings can involve God and/or a higher power, but it is not a requirement.

Atheist politician fighting to deliver prayer

Representative Juan Mendez has given the invocation twice since taking office and says it used to be the practice of the House for each representative to give the invocation once a year.

The last time he participated was in 2014 and since then he says there never seems to be room for him to give the opening words and he believes it’s because he’s an atheist.

"I feel disenfranchised, my constituents feel disenfranchised," said Mendez.

Mendez says it comes down to wording and though his invocation doesn’t acknowledge God he is trying to invoke inspiration.

"I’m asking everybody to recognize a higher power in themselves," he said.

Mendez says he is speaking with lawyers to find out if a line has been crossed. He says he doesn’t want to see the invocation disappear he just wants to make sure everyone is given an equal opportunity to take part.