When the Exception Becomes the Rule: Marsh and Sectarian Legislative Prayer Post-Summum
Scott W. Gaylord
Elon University School of Law
University of Cincinnati Law Review, Forthcoming
Elon University Law Legal Studies Research Paper No. 2010-08
Across the country, federal, state, and local legislative bodies begin their meetings with prayer. Yet, as recent challenges to sectarian legislative prayer demonstrate, legislative prayer rests uneasily at the intersection of the Free Speech and Establishment Clauses. While the government has the right to speak for itself, many contend that it is precluded from engaging in paradigmatic religious activity, such as sectarian prayer. As a result, although legislative prayer has been part of the “fabric of our society” since at least the First Continental Congress, sectarian prayer teeters on the brink of unconstitutionality. Despite the pervasiveness of legislative prayer and the importance of the constitutional issues it raises, the United States Supreme Court did not decide a legislative prayer case until Marsh v. Chambers in 1983. In Marsh, the Court upheld legislative prayers generally but did not explain how Marsh fit within its larger Establishment Clause jurisprudence. Subsequent Supreme Court and lower court decisions, therefore, have treated Marsh as a narrow exception to the Court's general Establishment Clause rules.
This Article examines recent developments that undermine the traditional view of Marsh as a limited exception and place Marsh at the center of the Court's current view of facially religious government speech. In particular, after analyzing the Court's discussions of legislative prayer in Marsh and Allegheny, the Article focuses on the recent flood of challenges to sectarian legislative prayers, comparing the widely divergent conclusions reached by the seven Circuit Courts that have heard such cases. It then explores how the Court's 2009 decision in Summum v. Pleasant Grove City provides a new lens through which to interpret Marsh, contending that the Court's “recently minted” government speech doctrine (i) is inconsistent with the endorsement test and, in fact, (ii) mandates the Establishment Clause test the Court first developed in Marsh. In the last section, the Article considers the constitutionality of sectarian and nonsectarian legislative prayer in light of Marsh and Summum, arguing that, under this “new” standard, federal, state, and local governments can continue to engage in legislative prayer, even if those prayers contain sectarian references.
Number of Pages in PDF File: 57
Date posted: September 24, 2010 ; Last revised: October 31, 2010