The Establishment Clause and Legislative Prayer: Differentiating Tradition from Religion: Pelphrey V. Cobb County
Walsh, Kathleen, Faulkner Law Review
George Washington rightly observed that "[r]eligious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause." (1) In Pelphrey v. Cobb County, Georgia, the Eleventh Circuit held that the court will not evaluate or parse any portion of legislative prayer, unless outside evidence shows that the prayer is used to proselytize or advance any one particular faith. (2) Relying heavily on the Supreme Court's holding in Marsh v. Chambers, the Pelphrey ruling allows room for risking imbalance between the separation and neutrality principles derived from the Establishment Clause of the First Amendment. The result in Marsh was correct, but the rationale has raised significant questions, which eventually resulted in the incorrect ruling in Pelphrey. First, the rationale in Marsh raises the question whether the Supreme Court properly recognized the purpose of legislative prayer at the time the Founding Fathers constructed the Constitution of the United States. Second, through its historical analysis, the Marsh rationale raises the question whether the Court properly determined when an establishment of religion occurs. Third, the Marsh rationale raises the question whether the Court may parse or evaluate the content of legislative prayer regardless of outside evidence showing an impermissible governmental motive. Finally, the rationale in Marsh raises the question whether the Court correctly ignored Lemon v. Kurtzman in evaluating the constitutionality of legislative prayer. (3)
Due to the Supreme Court's incorrect reasoning in Marsh, the Court failed to set out a clear standard for future guidance, and it established a rule that inherently violates the Establishment Clause of the First Amendment. In saying so, the court in Pelphrey properly applied the Marsh rationale, but the result was incorrect because the Marsh rationale was erroneous. In addition, although the Marsh Court accurately set out the historical analysis approach, the Court should have made a more thorough overall analysis. Through a more in-depth application, the Court could have reached a better result by recognizing that legislatures can conduct prayer as a traditional ceremony serving to solemnize legislative sessions, without any substantial religious purpose or effect. Courts should deem such prayers permissible. On the other hand, courts should not deem all legislative prayers permissible. The only way legislative prayers can survive within the parameters of constitutional limits is for the speaker to limit the invocations to prayers of thankfulness and relief, including generic references to God to promote tradition, unity, hope, and national pride for those attending the legislative sessions. Under this more analytical approach, in determining both the purpose of legislative prayer and whether a violation of the Establishment Clause has occurred, the Court would have accurately found congressional invocations that preserve hope, unity, national pride, and the Framers' traditional practice as constitutional.
Furthermore, the Court should have applied the three-prong test in Lemon v. Kurtzman. Even under the more thorough historical and originalist approach of the Lemon test (4), the Marsh legislative prayer would have survived constitutional challenge. Therefore, the Court ultimately should have applied Lemon and concluded that legislative prayer does not violate the Establishment Clause when (1) it is conducted to preserve the patriotic tradition carried on by the Founding Fathers and (2) it contains only generic references to God in relation to national hope and pride, in a somewhat similar fashion to that of the Founding Fathers. Thus, the Court may parse or evaluate the content of legislative prayer, regardless of outside evidence showing that the government is trying to proselytize or advance a particular belief. When the true nature of the prayer is not to seek divine guidance but rather to preserve the tradition long engrained in the fabric of our society, such prayer is constitutional. …