United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
The practice of opening legislative sessions with prayers by paid chaplains was upheld in Marsh v. Chambers,1 a case involving prayers in the Nebraska legislature. The Court relied almost entirely on historical practice. Congress had paid a chaplain and opened sessions with prayers for almost 200 years; the fact that Congress had continued the practice after considering constitutional objections in the Court's view strengthened rather than weakened the historical argument.
Similarly, the practice was well rooted in Nebraska and in most other states. Most importantly, the First Amendment had been drafted in the First Congress with an awareness of the chaplaincy practice, and this practice was not prohibited or discontinued. The Court did not address the lower court's findings,2 amplified in Justice Brennan's dissent, that each aspect of the Lemon v. Kurtzman tripartite test had been violated. Instead of constituting an application of the tests, therefore, Marsh can be read as representing an exception to their application.3
The Court likewise upheld the use of legislative prayers in the context of a challenge to the use of sectarian prayers to open a town meeting. In Town of Greece v. Galloway,4 the Court considered whether such legislative prayers needed to be ecumenical and inclusive.
The challenge arose when the upstate New York Town of Greece recruited local clergy, who were almost exclusively Christian, to deliver prayers at monthly town board meetings. Basing its holding largely on the nation's long history of using prayer to open legislative sessions as a means to lend gravity to the occasion and to reflect long-held values, the Court concluded that the prayer practice in the Town of Greece fit within this tradition.5 The Court also voiced pragmatic concerns with government scrutiny respecting the content of legislative prayers.6
As a result, after Town of Greece, absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, First Amendment challenges based solely on the content of a legislative prayer appear unlikely to be successful.7 Moreover, absent situations in which a legislative body discriminates against minority faiths, governmental entities that allow for sectarian legislative prayer do not appear to violate the Constitution.8
1. 463 U.S. 783 (1983). Marsh was a 6-3 decision, with Chief Justice Burger’s opinion for the Court being joined by Justices White, Blackmun, Powell, Rehnquist, and O’Connor, and with Justices Brennan, Marshall, and Stevens dissenting.
3. School prayer cases were distinguished on the basis that legislators, as adults, are presumably less susceptible than are schoolchildren to religious indoctrination and peer pressure, 463 U.S. at 792, but there was no discussion of the tests themselves.
4. 572 U.S. No. 12-696, slip op. (2014).
5. Id. at 9–18. The Court did suggest that a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose could establish a constitutional violation. Id. at 17.
6. Id. at 12 (To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve the government in religious matters to a far greater degree than is the case under the town's current practice . . . .).
7. Id. at 17.