Legislative Prayer

State-sanctioned prayer given in legislative chambers, often led by state-paid chaplains, likely represents one of the more curious anomalies in federal Establishment Clause jurisprudence. In other contexts, the Supreme Court has indicated that few practices strike closer to the heart of the nonestablishment principle than state-sanctioned and organized worship activity. As the Court wrote in 1962, the Framers of the First Amendment ‘‘tried to put an end to government control of religion and prayer . . . . [G]overnment should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.’’

Despite this frequently repeated admonition, the Court in 1983 upheld the practice of prayers given in legislative chambers by state-paid chaplains. In Marsh v. Chambers, the Court relied on an ‘‘unambiguous and unbroken history of more than 200 years’’ of both state-paid legislative chaplains and devotional legislative prayer. Significant for the Court was the fact that the First Congress enacted 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 Framers could not have ‘‘intended the Establishment Clause to forbid what they had just declared acceptable.’’ In so ruling, the high court declined to apply the more traditional analytical standard for evaluating alleged Establishment Clause violations, the ‘‘Lemon test,’’ which asks whether the government action has the purpose or effect of advancing religion or excessively entangles government with religious matters. Critics of the decision charged that the Court adopted a historical analysis because legislative prayer ‘‘clearly violate[d]’’ any other legal standard. As Justice William Brennan wrote in dissent, the practice:

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. It requires the State to commit itself on fundamental theological issues . . . . And it injects religion into the political sphere by creating the potential that each and every selection of a chaplain, or consideration of a particular prayer, . . . will provoke a political battle along religious lines and ultimately alienate some religiously identified group of citizens.

Justice Brennan’s critique aside, the Supreme Court has never reconsidered its Marsh ruling. Additionally significant, the Marsh holding did not turn on whether the prayers could be considered more solemnizing than worshipful. Although the decision seemed to assume that legislative prayers would usually be nondenominational and nonproselytizing (and that a sectarian purpose behind a prayer practice would be unconstitutional), the opinion went on to say that ‘‘it is not for [courts] to embark on a sensitive evaluation or to parse the content of a particular prayer.’’ This aspect of the ruling has created some confusion among lowers courts as to whether legislative bodies can impose limitations on the content and tone of allowable prayers. After the Marsh decision, lower courts have generally upheld government limitations on the types of prayers that may be given. In Snyder v. Murray City Corp. (1998), the city invited individuals from a ‘‘broad cross section of religious faiths’’ to open city council meetings with a short prayer. However, a city attorney blocked a proposed prayer that criticized city policies, including the prayer opportunity, a move upheld by the U.S. Tenth Circuit Court of Appeals. The court read Marsh as approving a ‘‘religious genre’’ of prayer, such as ‘‘the traditional kind of invocational legislative prayers . . . and traditional governmental invocations.’’ The plaintiff’s proposed prayer was appropriately excluded because it ‘‘aggressively proselytized for his particular religious views and strongly disparaged other religious views.’’ More recently, the Fourth Circuit Court of Appeals upheld a county’s denial of a proposed Wiccan prayer to be given at the beginning of its public meetings, even though the county had a policy allowing invocations by residents scheduled on a first-come, firstserved basis. The court held that Marsh authorized prayers that ‘‘fit broadly within ‘the Judeo-Christian’ tradition’’ that ‘‘bring the unifying aspects of our heritage to the difficult task of public deliberation.’’

Lower courts have also struggled with how far to apply the Marsh holding outside the particular context of legislative prayers. Courts have generally extended the rule to allow prayers at city councils and county commissions—those entities with legislative functions—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 (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.

STEVEN K. GREEN

References and Further Reading

• Chemerinsky, Erwin, History, Tradition, the Supreme Court, and the First Amendment, Hastings Law Journal 44 (1993): 901–919.
• Epstein, Steven B. Rethinking the Constitutionality of Ceremonial Deism, Columbia Law Review 96 (1996): 2083.
• McConnell, Michael W. On Reading the Constitution, Cornell Law Review 73 (1988): 359.
• Note. Constitutional Law—Establishment Clause—Tenth Circuit Holds that City May Deny Opportunity to Deliver Proselytizing Legislative Prayers, Harvard Law Review 112 (1999): 2025–2030.

Cases and Statutes Cited

• Lee v. Weisman, 505 U.S. 577 (1992)
• Marsh v. Chambers, 463 U.S. 783 (1983)
• Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (4th Cir. 2005)
• Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998)

See also Marsh v. Chambers, 463 U.S. 783 (1983)