In Marsh v. Chambers, the U.S. Supreme Court upheld the practice of prayers given in legislative chambers by state-paid chaplains. Marsh is a significant case in the Court’s establishment clause jurisprudence because it exempts a government practice that might otherwise be considered to violate a central religion clause value: the prohibition on the government employing a member of the clergy to conduct worship services. The question raised by Marsh is whether it is a legal anomaly or has greater application in related areas such as prayer in public schools or other government acknowledgements of religion.
Marsh was a challenge to the constitutionality of the state-paid chaplain in the Nebraska legislature. The chaplain—at the time, a Presbyterian minister who had held the position for sixteen years—received an annual salary paid by the state and regularly offered prayers at the daily openings of the unicameral legislature. Thus, the challenge involved two related issues: the constitutionality of prayer or other devotional activity as part of an official government function and the constitutionality of state-paid chaplains. The federal district court found that the existence of a chaplain and the saying of prayers in legislatures constitutional, but that the state paying for such services was not. The court of appeals found that all practices violated the establishment clause.
By a six-to-three vote, the Supreme Court upheld the constitutionality of the legislative prayers and the state-paid chaplain. Significantly, the majority opinion, written by Chief Justice Warren Burger, declined to apply one of the Court’s established analytical tests (for example, the Lemon test) for assessing the constitutionality of religious practices. Instead, the Court majority appealed to ‘‘the unambiguous and unbroken history of more than two hundred years’’ of legislative chaplains. Specifically, the Court looked to actions of the First Congress which passed a law authorizing the appointment and payment of chaplains only three days before finalizing the wording of the First Amendment. The majority reasoned that the Constitution’s framers could not have ‘‘intended the establishment clause to forbid what they had just declared acceptable.’’
Turning to the case before them, the Court majority found that the appointment of a chaplain from one denomination for sixteen years did not, on its own, indicate state preference for one faith over others. Rather, the majority noted, the long tenure merely indicated that the legislature found the chaplain’s services satisfactory. Moreover, the chaplain regularly invited ministers of other faiths to give invocations, further indicating the lack of denominational preference in the practice. As for the prayers, the majority noted that the customary practice was for the prayers to be of a nondenominational and ecumenical nature. However, the majority wrote that the particular content of the prayers ‘‘is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited or proselytize or advance any one, or to disparage any other, faith or belief.’’ Consequently, the majority did not rest its holding on the fact that the prayers could be considered more solemnizing than worshipful.
In dissent, Justice William Brennan criticized the majority’s reliance on history, arguing that the practices were unquestionably unconstitutional if one applied ‘‘settled doctrine’’:
Legislative prayer clearly violates the principles of neutrality and separation that are embedded within the Establishment Clause . . . . It intrudes on the right of conscience by forcing some legislators either to participate in a prayer opportunity, with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate. It forces all residents of the State to support a religious exercise that may be contrary to their own beliefs. [And] it requires the State to commit itself on fundamental theological issues.
The questions left unanswered by Marsh are several. Are legislative prayers constitutional only if they are nondenominational and nonproselytizing? On one hand, the opinion suggests that a sectarian, proselytizing prayer would fail constitutionality, but then the opinion goes on to say that ‘‘it is not for [courts] to embark on a sensitive evaluation or to parse the content of a particular prayer.’’ However, following the Marsh decision, lower courts have upheld government limitations on the types of prayers that may be given.
A second question concerns the reach of the Marsh holding outside the particular context of legislative prayers. Lower courts have generally extended the rule to allow prayers at city council and county commission meetings, but have been less willing to do so for school board meetings, particularly if public school students are in regular attendance. In Lee v. Weisman, 505 U.S. 577 (1992), striking invocations and benedictions at public school graduations, the Court refused to rely on Marsh as grounds for upholding the practice, noting that the historical pedigree supporting legislative prayer was relatively unique. Finally, whether the historical rationale used in Marsh applies to other government acknowledgments of religion—for example, the national motto on currency and ‘‘under God’’ in the Pledge of Allegiance— remains unclear. In the 2005 Ten Commandments case, Van Orden v. Perry, 125 S. Ct. 2854 (2005), the Court majority applied a historical analysis to uphold the display on the Texas Capitol grounds, but also found that other factors mitigated against the religiosity of the display.
STEVEN K. GREEN
References and Further Reading
Cases and Statutes Cited
See also Legislative Prayer