Legislative prayer

By Dave Roland, Contributing Writer

September 16, 2002

In the 1983 case of Marsh v. Chambers, the Supreme Court squarely addressed the question of whether it was a violation of the establishment clause for either Congress or the several state legislatures to provide for and pay a chaplain whose responsibility it would be to open their sessions with prayer. By a 6-3 vote, the Court found the practice to be constitutional.

The Court began its decision with a recitation of the history of legislative prayers in the United States. The majority noted that the first Congress authorized the appointment and payment of a chaplain just days before settling on the final wording of the First Amendment. The Court also pointed out that in the first two states not to embrace an established religion, Rhode Island and Virginia, the legislatures had adopted a policy of opening their sessions with prayer, which they did not see as a violation of the no-establishment principle. Because the men who crafted the pioneering state and federal constitutional provisions against the establishment of religion did not seem to consider legislative prayers to constitute an establishment, the majority in Marsh refused to hold otherwise.

Next the Court addressed three other concerns in Marsh, which arose from official ceremonial practices in the Nebraska Legislature: using a chaplain from a specific denomination, using public funds to pay for the chaplain and using Judeo-Christian prayers.

The justices in Marsh found that unless there were “impermissible motives” in choosing the chaplain, drafting clergy from a specific denomination did not create a constitutional violation. The 16-year tenure of the Nebraska Legislature’s chaplain did not rise to the level of “impermissible” in this situation. The high court found that because the Legislature was routinely led in prayer by numerous other religious leaders, the faith of the paid chaplain was not shown any unique deference. As to the question of pay, Chief Justice Warren Burger looked once again to the history of legislative chaplains and found “remuneration (of chaplains) grounded in historic practice.” Finally, the prayers at issue were found to be non-coercive and not intended to persuade their hearers into adopting the speaker’s form of belief. The Court commented that the chaplain had gone out of his way to avoid offending those of different faiths, even making a point of avoiding references to Jesus after a Jewish legislator had expressed discomfort in the matter.

Therefore, because the facts in the case failed to demonstrate any tendency to favor one religious faith over another, the majority determined to be unfounded any concerns that the practice of legislative prayer was just the first step to “an establishment of religion.” The practice was therefore held to be constitutional.

In his lengthy and passionate dissent, Justice William Brennan pointed out that the Court’s opinion disregarded the test articulated in its 1971 decision Lemon v. Kurtzman for analyzing establishment-clause cases. The Lemon test stated that there should be three considerations in such cases: 1) Does the act have a secular purpose?, 2) Is its primary effect to advance or inhibit religion?, and 3) Does the act foster an “excessive government entanglement with religion”? The practice of providing for legislative prayers with state funds ran afoul of all three, according to his analysis, and Brennan suggested that the most plausible explanation for the majority’s refusal to apply the test indicated nothing more than that they intended to carve out a narrow exception for legislative prayers from the establishment clause.

Since Marsh, lower courts have continued to wrestle with the question of legislative prayer. Some courts have elaborated on the principles declared in Marsh. The 10th U.S. Circuit Court of Appeals (in Snyder v. Murray City Corp.) expanded the Supreme Court’s holding in regard to state legislatures, explicitly stating that legislative prayers would be unconstitutional if their wording acted to advance or attack any particular religious faith, and also holding that a body’s refusal to allow such proselytizing prayers would not violate the establishment clause. A similar result was reached by the D.C. Circuit in Kurtz v. Baker, in which the court found no obligation on the part of Congress to permit nontheist philosophers to address the body during the time set aside for morning prayer.

The lower courts are divided on the extent to which Marsh can be applied to other government bodies. The 6th Circuit has held (in Coles v. Cleveland Board of Education) that the exemption for legislative prayer does not extend to school board meetings. That court found school board prayers to be more similar to prohibited school-related prayers (as in Lee v. Weisman and Santa Fe I.S.D. v. Doe) than to the prayers in Marsh. The 4th Circuit declined to extend the prayer exemption to the judiciary in North Carolina Civil Liberties Union v. Constangy, a 1991 case. finding that a state judge violated the establishment clause when he opened sessions of the court with a prayer. Meanwhile, the 4th Circuit also found the Illinois Legislature to have acted constitutionally when it planned for the establishment of a “prayer room” in the Capitol building — because such an action would encourage individual exercise of First Amendment liberties, while not suggesting the advancement of any religious faith, and because (unlike in Marsh) the project would not require the use of public funds.