‘Well, but that System Has Failed Entirely’: Using Theological and Philosophical Methods to Resolve Jurisprudential Confusion Over Legislative Prayer

Abstract

In general, Marsh v. Chambers (1983) is thought of as a brazen exception to the Court’s wider Establishment Clause jurisprudence, marking out legislative chaplaincies as a special case of permitted religiosity. Lower courts have attempted to apply Marsh to other legislative chaplaincies, but have created a muddled jurisprudence that mistakes the institutional employed chaplain in Marsh with rotating volunteer chaplains in other cases, treating the two as essentially the same before the Constitution. Marsh’s reasoning does not, and should not be interpreted to, extend to rotating chaplaincies. The difference between rotating chaplaincies and the type of institution approved in Marsh can only be seen clearly once excavated using tools made available by a particular style of theological inquiry (the descriptive submovement of fundamental practical theology) and philosophical background concepts. Once thoroughly understood, legislative chaplaincies become simpler to analyze: the rotating chaplaincies that have caused so much jurisprudential confusion should be considered unconstitutional, while the situated chaplaincies of the sort approved in Marsh should continue as a valuable and important part of the institutional life of legislatures.

Methodologically, this article explores the potential of a novel field of inquiry: law and theology. While such analysis will not be appropriate for every case with a religious aspect, there are some applications where an understanding of theological methods can illuminate legal analysis in a substantive manner.

Keywords: law and religion, chaplain, first amendment, establishment, theology