Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Lately there have been a number of cases of non-Christians objecting to prayers of invocation at local government gatherings, benedictions at school assemblies, placing religious objects on campus, etc.
While I agree these are problematic and need to be fought, I don't see anything in the wording of the First Amendment which applies beyond the Federal level.
In fact, it can be interpreted that the Feds should stay out of such disputes.
On what basis do we invoke the First Amendment to keep a prayer from being said at a county land use hearing, for example, if it's okay with the majority of those present or even if the chairperson decides to do it on his/her own?
And, once again, I'm not saying I agree it should be allowed, but that I can't see the basis in the wording of the amendment itself. And if you want to invoke it, there's that pesky free speech provision. Which aspect of the First Amendment trumps the other, the part about religion or the freedom to speak?
You are right as far as you've gone. The first amendment does indeed read "Congress shall make no law..." and says nothing about the states, and it was understood that way for decades. In fact Massachusetts had a state religion (congregational) until 1833. And in that same year the Supreme Court held that the Bill of Rights applied only to the federal government, not the state governments. This continued to be the case until 1925.
However, the fourteenth amendment (ratified in 1868) has since been interpreted, especially in the 1940s-1960s, as causing parts of the Bill of Rights to be applied to state governments (known as "incorporating" those rights). They've been doing this piecemeal; some parts of the fifth and seventh amendments have not been incorporated. The operative clause under which all this has been hung was "[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . ." (the Due Process Clause).
(In reading the text I am surprised the Privileges and Immunities clause didn't do this instead; the connection seems more direct to me--and apparently at least one Supreme Court justice (Hugo Black) agrees with that--not that it really matters. Hugo Black also wanted to quit the piecemeal stuff and incorporate the entire BOR in one fell swoop.)
Now I suppose one could argue that the Fourteenth Amendment doesn't in fact do any such thing and that the Supremes overstepped their bounds. (In fact Ron Paul made such an argument and I refused to support him largely for that reason.) The author of the fourteenth apparently did intend it to have this effect.
So that is why people presently assume the first amendment applies to the states.
Now let's focus on something we all absolutely agree on, by way of moving on to your second point. No one here is disputing, not even as a devil's advocate, that the First Amendment applies to the Federal government, so when considering your question of whether forbidding a government from opening its meetings with a prayer in fact violates freedom of speech, I will stick to talking about the Federal government (so that we don't end up with wrangling over the state government issue simultaneous with this one).
When someone is acting as an agent of the federal government, he is only permitted to do what the federal government is allowed to do. And the Federal Government is not allowed to either establish or restrict religion. Thus, he can't pray while "wearing his government hat." Now conceivably one could argue whether praying from the speaker's rostrum constitutes an establishment (and therefore a violation) but that's a very different question--and one that was at issue in the recent supreme court ruling which I emphatically disagree with. Assuming that it is an establishment, the apparent conflict of rights is resolved by the fact that citizens rights are in fact restrictions on the government, and this guy proposing to pray is the government and is proposing to violate rights. He'd be free to pray his head off if he were acting as a private citizen, as he'd then be infringing no right. The instant he puts on that "government hat," he's restricted to doing what the government is allowed to do. That is a point that is lost, by the way, on people who make the complaint that not being allowed to open a government meeting with a prayer is a violation of their religious rights. I believe the Supremes' recent ruling doesn't even try to use that logic, instead arguing it's somehow secular and historic and therefore shouldn't be touched--though I am relying on GM's post on the subject in making this statement.
If the first amendment does apply to the states, then what I just said applies to that level as well (and local, since local governments are part of the state governments).
I just scanned because it is so long (I might comment further later), but I did run into this:
Thus, he can't pray while "wearing his government hat."
The question might be, then, can he do it before he actually starts the meeting's business ("Before we begin, I'd like to say a prayer").
If the Supreme Court interprets the amendment to include government at all levels, then it would seem they went beyond the plain wording of the amendment.
I've already agreed that they've gone beyond the plain wording of the first amendment taken in isolation, but it does exist in a larger context and is affected by other amendments. (That's the tl;dr of the first part of what I wrote above.)
As for your specific question: He has gaveled the meeting to order (presumably) so the government body is in session, and the fact that he's trying to slip something in before item 1 on the agenda doesn't change that fact. He is speaking as the head of that body for that reason. He's wearing the government hat, and began wearing that hat certainly no later than picking up that gavel and giving it a whack, and possibly quite a bit before.
I'd have to ponder whether negotiations with other members of that body while the body is not in session would count. (Which I would guess is what you really were trying to ask here.)
He has gaveled the meeting to order (presumably) so the government body is in session,
Well, clearly I think that would be one of the arguments. I know what your interpretation is, but someone else might say that the meeting hasn't begun until the actual business at hand is brought before the body. And suppose instead of a gavel all he says is "May I say something?" and waits for silence before praying, followed by "Now let's begin this meeting by hearing arguments on the proposal to open up the Deer Run area to residential development."
...but someone else might say that the meeting hasn't begun until the actual business at hand is brought before the body.
U, you have exited the constitutional arena and entered the parliamentary arena.
Meetings, upon being opened, don't immediately take up business. They do several things, including some or all of the following and perhaps more, not necessarily in the order here, before they take up business.
Presiding officers introduce guests.
Secretaries call the roll of members and tell the presiding officer whether a quorum are present.
Members approve or amend-and-approve the agenda.
Officers and committees report.
Meetings then take up postponed motions and finally new motions.
If you doubt the above, read Robert's Rules of Order -- a fate worse than hell -- and present your findings.