Mired in the Marsh: Legislative Prayers, Moments of Silence, and the Establishment Clause

Abstract

In numerous communities throughout the United States, the American people are fighting over legislative prayer, and the circuit courts of appeals are struggling over how to handle the problem. Part of the reason there has been so much litigation over the validity of legislative prayer is the incomplete treatment the Supreme Court gave this issue in Marsh v. Chambers, where the Court upheld Nebraska's long time use of a legislative chaplain to deliver prayers before conducting official business. Applying no doctrinal test, the Supreme Court simply said that the Founding Fathers began their meetings with legislative prayers, there have been such prayers ever since, and therefore the Court would not rule them unconstitutional. This purely historical test was not reflective of Establishment Clause doctrine at the time, and is still not today. The Court in Marsh failed to articulate any nonhistorical legal principle supporting its decision and also failed to lay down specific rules distinguishing constitutional from unconstitutional legislative prayers. Thus, it has been up to the lower federal courts to devise guidelines to govern the constitutionality of legislative prayer. The result has been, in a word, chaos.

Twenty-six years after Marsh, it is now clear that the Supreme Court must revisit this issue. The Circuits are struggling over whether legislative prayers must be sectarian or nonsectarian, and there are many different procedures used by state legislatures and local commissions to choose their clergy, some of which seem constitutionally problematic. Unless the Supreme Court provides clearer guidance, there will continue to be significant, expensive, and divisive litigation on these questions in the lower courts throughout the United States.

Part I of this article reviews the Eleventh Circuit's recent decision in Pelphrey v. Cobb County, which upheld sectarian legislative prayer. Part II discusses one of the difficult issues left unanswered by Marsh - whether legislative prayer has to be nonsectarian to be constitutional. Part III argues that the Court should overturn Marsh otherwise numerous core Establishment Clause values will be infringed by state and local governments favoring religion over nonreligion and some religion (almost always Christianity) over other religions. In its place, legislatures could constitutionally start their sessions with moments of silence allowing those who wish to pray that opportunity without restriction and without offending those members of the public and governmental bodies who do not wish to appeal to divine guidance before they conduct official government business.

Keywords: Constitutional Law, Establishment Clause, First Amendment, freedom of religion, legislative prayer, Marsh v. Chambers, Pelphrey v. Cobb County

JEL Classification: K10, K30, K39