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http://ssrn.com/abstract=1106546
 
 

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Breaking Away from the 'Prayer Police': Why the First Amendment Permits Sectarian Legislative Prayer and Demands a 'Practice Focused' Analysis


Robert Luther III


United States Court of Appeals for the Seventh Circuit; William & Mary Law School

David B. Caddell


The Rutherford Institute

Fall 2008

Santa Clara Law Review, Vol. 48, p. 569, 2008

Abstract:     
This article discusses the reasons why the invocation of sectarian references is permissible under the seminal case regarding the constitutionality of legislative prayer, Marsh v. Chambers, despite the confusion within lower federal courts generated by reliance on the dicta of County of Allegheny v. ACLU, a plurality opinion that concerned religious symbols and not religious speech. In adherence to Marsh, courts should continue to enforce the constitutional and historical policy that permits individuals in the public square to choose their own words when engaging in religious speech that does not proselytize or disparage the faiths of others, as disallowing those permitted to pray the right to mention Jesus, Allah, Jehovah, or another deity in his or her prayer undermines diversity and the free speech rights of the speaker and renders these traditionally solemn occasions meaningless. The article analyzes all of the federal court opinions that have confronted this controversy, and after recognizing the strengths and weaknesses to the variety of approaches these Courts have applied, the article ultimately suggests a roadmap that encourages future courts to engage in a practice focused analysis. This approach draws judicial inquiry away from the actual language of the prayer and instead directs judicial attention to the facts that have culminated in the prayer opportunity. By enforcing the fundamental right to pray according to ones conscience, courts promote religious liberty and pay homage to the religious pluralism that is as much a part of America's past and present as the practice of legislative prayer itself.

Number of Pages in PDF File: 36

Keywords: First Amendment, Free Exercise of Religion, Sectarian Legislative Prayer, Religion in the Public Square, Marsh v. Chambers, Religious Speech, Public Prayer

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Date posted: March 18, 2008 ; Last revised: June 1, 2010

Suggested Citation

Luther, Robert and Caddell, David B., Breaking Away from the 'Prayer Police': Why the First Amendment Permits Sectarian Legislative Prayer and Demands a 'Practice Focused' Analysis (Fall 2008). Santa Clara Law Review, Vol. 48, p. 569, 2008. Available at SSRN: http://ssrn.com/abstract=1106546

Contact Information

Robert Luther III (Contact Author)
United States Court of Appeals for the Seventh Circuit ( email )
301 Robert A. Grant Federal Building
204 S. Main St.
South Bend, IN 46601
William & Mary Law School ( email )
P.O. Box 8795
Williamsburg, VA 23187
United States
HOME PAGE: http://www.robluther.com/
David B. Caddell
The Rutherford Institute ( email )
P.O. Box 7482
Charlottesville, VA 22906
United States
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