'Disparate Impact' and the Establishment Clause

10 Pages Posted: 8 Jun 2013

See all articles by Robert Luther

Robert Luther

George Mason University - Antonin Scalia Law School, Faculty

Date Written: 2012


In Marsh v. Chambers (1983), the U.S. Supreme Court upheld the constitutionality of the practice of legislative prayer, yet in the last decade, no other Establishment Clause topic has seen as much litigation. Despite the limitations of the Court’s opinion, the question 25 years later is not so much whether Marsh was correctly decided, but how to interpret Marsh in practice today. Over the last decade, a series of fact-intensive legislative prayer decisions resulting from Establishment Clause challenges to the prayer practices or policies of deliberative bodies have provided little definitive guidance to answer this question and while a host of fresh legal scholarship has attempted to discern the direction courts are headed, both doctrinal and normative questions linger unanswered. For example, who may offer prayer? What denominations (if any) must be represented? May specific deities be mentioned, and if so, at what point is the Establishment Clause implicated? What sort of prayer policy or practice developed and/or implemented by a legislative body passes constitutional muster? Are prayer policies subject to both facial and as-applied challenges?

On May 20, 2013, the U.S. Supreme Court granted a petition for a writ of certiorari to the U.S. Court of Appeals for the Second Circuit in Town of Greece v. Galloway, No. 12-696, and by June 2014 is expected to render a decision that will address the substance of the permissible boundaries of legislative prayer for only the second time in the Court’s history. This article provides a tailored capsule summary of the more nuanced issues the U.S. Supreme Court is likely to confront in Town of Greece, - issues that are akin to those the U.S. Court of Appeals for the Fourth Circuit previously confronted in 2011 in Forsyth County, North Carolina v. Joyner - a virtually indistinguishable case.

Portions of this article were delivered by the author at Pepperdine University School of Law’s Religious Legal Theory Conference - “The Competing Claims of Law & Religion: Who Should Influence Whom?” in February of 2012.

Keywords: legislative prayer, Marsh v. Chambers, Town of Greece v. Galloway

Suggested Citation

Luther, Robert, 'Disparate Impact' and the Establishment Clause (2012). Georgetown Journal of Law & Public Policy, Vol. 10, p. 529, 2012. Available at SSRN: https://ssrn.com/abstract=2276290

Robert Luther (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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