Academic journal article Harvard Law Review

First Amendment - Establishment Clause - Legislative Prayer

Academic journal article Harvard Law Review

First Amendment - Establishment Clause - Legislative Prayer

Article excerpt

Over three decades ago, in Marsh v. Chambers (1), the Supreme Court upheld the constitutionality of a state legislature's practice of opening each session with a prayer by a chaplain paid with state funds (2). Rather than applying its at-the-time customary Establishment Clause test, the Lemon test (3), the Court based its decision on the long, unbroken history of legislative prayer dating back to the time of the drafting of the First Amendment (4). Since Marsh, the Court has taken a bewildering array of different approaches to the Establishment Clause, leaving it unclear which test should govern Establishment Clause inquiries generally, as well as how the Court might approach, specifically, another legislative prayer case (5). Last Term, in a 5-4 decision in Town of Greece v. Galloway (6), the Court reaffirmed Marsh and again relied on history in upholding a town's practice of opening its monthly town board meetings with a prayer offered by volunteers from the local community (7). While the decision did little to alleviate the doctrinal muddle of the Court's Establishment Clause jurisprudence, Greece highlights the deep divisions among the Justices on a central question underlying the Establishment Clause: what the government is required to do, or even permitted to do, to accommodate religious pluralism in an increasingly diverse society.

In 1999, Greece, a town in upstate New York, began a practice of inviting local members of the clergy to lead prayer sessions to open its monthly town board meetings (8). Employees from the town's Office of Constituent Services initially selected these volunteer "chaplains of the month" by calling congregations within town limits based on a list in a local directory; over time, town employees began to rely on a list of "Town Board Chaplains" who had previously accepted those invitations and had agreed to return in the future (9). Because "nearly all of the congregations in town were Christian, " all of the participating ministers between 1999 and 2007 were Christian. (10) The town provided no guidelines or restrictions on the content of the prayers, and the ministers composed prayers that contained both civic and distinctly Christian themes. While the town never denied anybody the opportunity to give prayer, neither did it publicize its all-comers policy. (12)

In 2010, two local residents brought suit alleging that the town's prayer practice violated the Establishment Clause for two reasons: the town intentionally excluded non-Christian prayer, and the town impermissibly permitted sectarian prayer. (13) The district court awarded summary judgment to the town on the basis that the town's clerical employees exercised no impermissible preference for Christianity in selecting prayer-givers, (14) and that Marsh did not require legislative prayers to be nonsectarian. (15)

The Second Circuit reversed. Writing for a unanimous panel, Judge Calabresi found that, under the totality of the circumstances as viewed by a reasonable objective observer, the town's prayer practice conveyed an impermissible "official affiliation" with Christianity. (17) The fact-specific decision relied on "the interaction of the facts present in this case" rather than "any single aspect of the town's prayer practice." (18)

The Supreme Court reversed. Writing for the Court, Justice Kennedy (19) began by emphasizing the long tradition of legislative prayer in the United States. He referred to the Court's previous case on legislative prayer, Marsh, in which the Court held that, "[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society." (20) In particular, the appointment of official chaplains in the First Congress was evidence that legislative prayer was "accepted by the Framers." (21) The Court's inquiry, then, was "whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures. …

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