'Unity Through Division': Religious Liberty and the Virtue of Pluralism in the Context of Legislative Prayer Controversies

Abstract

In Marsh v. Chambers (1983), the U.S. Supreme Court upheld the constitutionality of the practice of legislative prayer. While the high Court has been silent on the issue of legislative prayer ever since, in 2008, the United States Courts of Appeal for the Eleventh and the Fourth Circuits issued decisions on the hot-button constitutional question of whether the government may censor non “proselytiz[ing] or disparage[ing]” religious speech a prayer-giver wishes to reference during his or her delivery of legislative prayer. In Turner v. The City Council of Fredericksburg, the Fourth Circuit held that the council did not run afoul of the First Amendment by its imposition of a “nondenominational” prayer policy on prayer-givers. Shortly thereafter, in Pelphrey v. Cobb County, the Eleventh Circuit held that the Court could not pass judgment on the religious content of the prayer-giver’s prayer and that the council could not restrict the prayer-opportunity to prayer-givers of certain faiths – a point that directly conflicts with Simpson v. Chesterfield County (4th Cir. 2005), which held that the council could restrict the prayer-opportunity to members of faiths in the Judeo-Christian tradition.

With these thoughts in mind, this Article will first lay a theoretical foundation for the argument that the government may not censor non “proselytiz[ing] or disparage[ing]” religious speech during the delivery of legislative prayer by issuing an informal response to Professor Christopher C. Lund’s thought-provoking article on legislative prayer, Legislative Prayer and the Secret Costs of Religious Endorsements, forthcoming in 94 Minn. L. Rev. (February 2010). A discussion of reasons the Turner case was wrongly decided follows in Section III. Support for the argument that Pelphrey, as informed by Snyder v. Murray City Corp., (10th Cir. 1998) is the model “second generation” legislative prayer decision is offered in Section IV. This Article concludes in Section V, arguing that when the United States Supreme Court next grants certiorari in a legislative prayer controversy, it should affirm the Eleventh Circuit’s rationale. By doing so, the Court will restore the principles of religious freedom implicit in Marsh. The author of this Article was part of the team that represented Councilor Hashmel C. Turner, Jr., in the case of Turner v. The City Council of Fredericksburg.