36 Pages Posted: 18 Mar 2008 Last revised: 1 Jun 2010
Date Written: Fall 2008
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.
Keywords: First Amendment, Free Exercise of Religion, Sectarian Legislative Prayer, Religion in the Public Square, Marsh v. Chambers, Religious Speech, Public Prayer
Suggested Citation: 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: https://ssrn.com/abstract=1106546