Let Us Pray: The Case for Legislator-Led Prayer

32 Pages Posted: 2 Jul 2019

Date Written: October 1, 2018

Abstract

The annals of American history paint the picture of a government influenced by religion. The Founders of this nation believed in the nonpreferential treatment of religion, which entailed rigid neutrality amongst the various denominations but did not eliminate religion from the public square. For the last sixty years, the Supreme Court’s capacious reading of the Establishment Clause brought a great divide between religion and government. Case-by-case and brick-by-brick, courts continue to raise Thomas Jefferson’s metaphorical wall of separation between church and state.

This faulty interpretation of the Establishment Clause led to the current split between the Fourth and Sixth Circuits over legislator-led prayer. The split correlates with the Supreme Court’s failure to set an interpretive standard for the lower courts to follow on the issue. Now, judicial declarations of opposition to legislator-led prayer threaten to halt a tradition that has echoed through the chambers of legislatures and town halls since the founding of the United States.

This paper proposes that there is a constitutional analog between legislative prayer and legislator-led prayer. I argue that antiquated Establishment Clause tests such as “Lemon,” “Endorsement,” and “Psychological Coercion,” bear no constitutional footing in evaluating legislator-led prayer. Rather, the Court should look to a test that connects with the historical underpinnings of the First Amendment and reflects the original meaning of the Establishment Clause regarding government prayer. The evaluation includes: 1) a look to the history and tradition of legislator-led prayer in this country; and 2) an actual legal coercion standard, which is congruent with the original meaning of the establishment of a religion. This historically accurate inquiry proves that legislator-led prayer invokes a tradition intricately embedded in the fabric of this nation.

Suggested Citation

Hunt, Nicholas, Let Us Pray: The Case for Legislator-Led Prayer (October 1, 2018). Tulsa Law Review, Vol. 54, No. 49, 2018, Available at SSRN: https://ssrn.com/abstract=3413052

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