Justice Action Center Student Capstone Journal Project No. 11/12-11

Transcription

1 Justice Action Center Student Capstone Journal Project No. 11/12-11 Legislative Prayer: A Practical Guide Harleigh S. Tensen New York Law School Class of 2012 This paper can be downloaded without charge from: Copyright 2012 by Author THIS PROJECT IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR LEGAL ADVICE. BECAUSE THE LAW CHANGES QUICKLY, WE CANNOT GUARANTEE THAT THE INFORMATION PROVIDED IN THIS PROJECT WILL ALWAYS BE UP-TO-DATE OR CORRECT. IF YOU HAVE A LEGAL PROBLEM, WE URGE YOU TO CONTACT AN ATTORNEY.

2 Legislative Prayer: A Practical Guide By Harleigh S. Tensen May 2012 Introduction My interest in the topic of Religion and the Constitution is longstanding. My personal experiences have made me aware of how much religious references are a part of public life. I attended a Jewish elementary and middle day school. As an undergraduate at Franklin & Marshall College I double-majored in Government and Religious Studies in an effort to understand the interplay between two governing institutions: the church and the state. The culmination of my undergraduate and legal studies came last summer when I had the opportunity to author the fact pattern for New York Law School s Charles W. Froessel Moot Court Competition. Naturally, I looked to an issue arising out of my interest and, after some persuasion, my partner and I settled on the question of whether a local government body may incorporate the practice of religious prayer into its sessions. Religion has played a central role in American society from the time of its founding to the present day, and continues to remain a contentious topic in American life and politics. While most Americans are familiar with the concept of separation of church and state, few understand what is constitutionally permissible regarding religion in the public sphere. This confusion is exacerbated by the growing number of adherents of different faiths in twenty-first century America. The presence of religious references in everyday life, such as In God We Trust on our currency, and One Nation Under God in our pledge of allegiance, 1 have made it increasingly difficult to determine what is secular and what is religious. Religious references can also be found in each branch of 1 It is important to note that the original pledge did not include the phrase One Nation Under God until

3 our government. For example, Congress opens its sessions with a prayer by a taxpayerfunded chaplain; the Supreme Court begins its sessions with the cry, God Save the United States and this Honorable Court; witnesses swear on a bible before testifying in lower courts; the president annually declares a National Day of Prayer; and presidential inaugurations prominently feature prayers. These religious references take despite the fact that the Establishment Clause of the First Amendment to the United States Constitution prohibits government establishment of religion. While I do not advocate the practice of legislative prayer, this paper accepts that prayer has become an accepted, or at least an expected, practice for many legislative bodies. Therefore, the purpose of my Capstone is to explain the history of legislative prayer in America, to illustrate the inherent conflict between legislative prayer and the constitutional prohibition on the establishment of religion, and to provide guidance to local governments should they decide to engage in the practice of legislative prayer. 2 I hope that this will be a useful guide to both lawyers and non-lawyers alike since many individuals participating in local government are unfamiliar with this area of constitutional law, particularly, the Supreme Court s Establishment Clause jurisprudence. The History of Legislative Prayer There is little clarity when it comes to the practice of legislative prayer. The Supreme Court has addressed the issue of opening a legislative session with prayer only once, in Marsh v. Chambers, 3 recognizing a legislative prayer exception to traditional Establishment Clause doctrine. Although Marsh was decided in 1983, the lower courts 2 This guide will not address the issue of standing or any issues stemming from the Free Speech Clause of the First Amendment, particularly the government speech doctrine. 3 Marsh v. Chambers, 463 U.S. 783 (1983). 2

4 have only recently confronted the constitutional problems presented by the practice of legislative prayer. These courts have struggled to address many of the issues left unanswered by Marsh and remain deeply split on the constitutionality of legislative prayer practices. The evolution of the Supreme Court s Establishment Clause jurisprudence suggests that the constitutionality of legislative prayer is a unique legal issue. It is clear that in order for a government to be fairly representative and respectful of minority beliefs, there are areas of society over which the government s influence should be limited. One of those areas is religion. This principle is embodied in the Establishment Clause of the First Amendment, which states: Congress shall make no law respecting an establishment of religion. 4 At a minimum, the Establishment Clause guarantees that a government may not coerce anyone to support or participate in religion or its exercise or otherwise act in a way which establishes a [state] religion or religious faith. 5 Despite these well-established principles, Establishment Clause jurisprudence interpreting the validity of legislative prayer practices remains complex and unresolved. In fact, the absence of a specific rule or standard distinguishing the constitutional from the unconstitutional is part of the reason for the increase in litigation concerning legislative prayer. The Court upheld the prayer practice in Marsh as consistent with the requirements of the Establishment Clause. However, Marsh is an outlier and remains an exception to the Court s traditional Establishment Clause jurisprudence. 4 U.S. CONST. amend. I. See generally, Everson v. Bd. of Educ., 330 U.S. 1, (1947) ( In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between Church and State. ). 5 Lee v. Weisman, 505 U.S. 577, 587 (1992) (quoting Lynch v. Donnelly, 465 U.S 688 (1984)). 3

5 Marsh v. Chambers Almost three decades ago, in the seminal case of Marsh v. Chambers, the Supreme Court upheld the constitutionality of Nebraska s taxpayer-funded chaplaincy practice, despite the fact that a state-funded prayer practice would appear to violate the Establishment Clause. 6 The Court suggested that the practice of legislative prayer was an exception and upheld the state-sponsored practice based on the history and tradition of opening legislative sessions with prayer. 7 In reaching its determination, the Court found that the practice of opening legislative sessions with an invocational prayer is deeply rooted in this nation s history and tradition and has coexisted with the principles of disestablishment and religious freedom. 8 The Court compared Nebraska s prayer practice to that of the United States Congress where, since the First Congress, prayer has been offered every session. The Court explained: On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights... Clearly the men who wrote the [Establishment] Clause did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. 9 By relying solely on the history and tradition of the practice since the First Congress, the Court made clear that its traditional Establishment Clause jurisprudence is inapplicable in the context of legislative prayer. In reaching its determination, the Marsh Court identified the special status of legislative prayer: 6 Marsh, 463 U.S. 783 (1983). 7 Id. 8 Id. at Id. at

6 In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of religion or a step towards establishment; it is simply a tolerable acknowledgement of beliefs widely held among people of this country. 10 The Supreme Court has also observed that, it would be difficult to identify a more striking example of the accommodation of religious belief intended by the Framers [than legislative prayer]. 11 This is the only instance in which the court upheld a challenged practice based on history and tradition under the Establishment Clause. Marsh has been interpreted as establishing the principle that, absent a showing of an impermissible motive, legislative prayer does not violate the Establishment Clause as long as the invocation does not serve to proselytize or disparage a particular religion or religious faith. 12 Under the Marsh standard, the court will not dissect the content of legislative prayers that do not clearly proselytize, advance, or disparage any one faith or belief. 13 It is important to note the narrow scope of Marsh. The sole issue before the Supreme Court was whether the practice of opening legislative sessions with a prayer offered by a state-paid chaplain was unconstitutional. Therefore, a legislative prayer practice that does not involve an established paid chaplaincy could be found to fall 10 Marsh, 463 U.S. at 792; see also Lynch v. Donnelly, 465 U.S. 668, 693 (1984) (O Connor, J., concurring) (These types of government acknowledgements of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. ). 11 Lynch, 465 U.S. at 674 (majority opinion). 12 Marsh, 463 U.S. at See also Snyder v. Murry City Corp., 159 F.3d 1227, 1233 (10th Cir. 1998). 13 Marsh, 463 U.S. at 795 ( [I]t is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer. ). 5

7 outside the purview of Marsh. If, for example, the invocations are offered by citizens or legislators, rather than paid clergy, a court is more likely to subject the practice to the Supreme Court s traditional Establishment Clause jurisprudence a much more rigorous standard. As Justice Brennan recognized in his Marsh dissent, if a court were to judge legislative prayer through the lens of the Supreme Court s traditional Establishment Clause doctrine, a court would have no choice but to strike down the practice as a clear constitutional violation. 14 Thus, the threshold question in determining the constitutionality of a legislative prayer practice is whether the practice falls within the singular category of legislative prayer. If the practice falls within the Marsh category of legislative prayer, then a court is likely to uphold the practice as long as it does not serve to advance or disparage any particular faith or belief. Under Marsh, absent an impermissible intent to advance a particular religion, or disparage another, a court must find the prayer practice constitutional. 15 The Problem of Legislative Prayer Twenty-nine years after the Supreme Court s decision in Marsh v. Chambers, communities throughout the United States remain conflicted over the practice of legislative prayer, leaving the lower courts struggling to address many of the issues raised by litigants in light of Marsh. While Marsh resolved the narrow issue of whether an established state-funded chaplaincy prayer program is intrinsically unconstitutional, by 14 Id. 795 (Brennan, J., dissenting) ( I have no doubt that, if any group of law students were asked to apply the principles of Lemon to the question of legislative prayer, they would nearly unanimously find the practice to be unconstitutional. ). 15 Id. at

8 answering in the negative, the Supreme Court left many questions unanswered. The Marsh Court failed to articulate any non-historical legal principle justifying the practice. The Court also failed to establish specific rules distinguishing constitutional from unconstitutional legislative prayer, specifically, whether prayers must be sectarian or nonsectarian, what constitutes proselytizing or disparaging, and what selection procedures are constitutionally permissible. 16 According to the Court, there is a point at which legislative prayer could become so overtly divisive and denominational that the practice would be rendered unconstitutional. However, the Marsh Court failed to articulate when a prayer practice crosses, or even approaches, the unconstitutional line, leaving lower courts and local governments to arbitrarily decide what types of prayers are constitutional. Until the Supreme Court revisits this issue and provides clear guidelines, there will continue to be significant, expensive, and divisive litigation in lower courts throughout the United States.! FREQUENTLY!ASKED!QUESTIONS! What purpose does legislative prayer serve? Despite its apparent conflict with the Establishment Clause, both the Supreme Court and lower courts, have upheld the value of legislative prayer as a unifying factor in local legislative bodies and communities. 17 Legislative prayer has the secular purpose of 16 Eric Segall, Mired in Marsh: Legislative Prayers, Moments of Silence, and the Establishment Clause, 63 U. MIAMI L. REV. 713, 714 (2009). 17 See, e.g., Marsh 463 U.S. at 792 (discussing the unifying value of legislative prayer); Turner v. City Council of Federicksburg, 534 F.3d 352, 356 (4th Cir. 2009) (O Connor J., retired, sitting by designation), cert. denied, 129 S. Ct. 909 (2009) (legislative prayers share[] a common characteristic: they recognize[] the rich religious heritage of a country in a fashion that is 7

9 solemnizing public lawmaking occasions and, at the same time, expressing confidence in the future. 18 When does a prayer practice fall within the scope of Marsh v. Chambers? The sole issue before the Marsh Court was whether the practice of opening legislative sessions with prayer offered by a state-paid chaplain was unconstitutional. 19 Thus, a prayer practice falls under the special category of legislative prayer if the prayer is being offered by a state-funded chaplain. However, lower courts have upheld practices in which ordinary citizens offer invocational prayers as falling within the Marsh standard. At one end of the Marsh spectrum is a practice permitting legislators to offer prayers. A court is likely to find such a practice unconstitutional as it could be interpreted as a government endorsement of religion since a member of the legislature is offering the prayer at the opening of a lawmaking session. At the opposite end of the Marsh spectrum is a taxpayer-funded established chaplaincy. While Marsh might arguably be read to extend to situations involving rotating clergymen or unpaid chaplaincies, the Court s historical treatment of legislative prayer should be limited to established positions. Until the Court steps in and defines the scope of Marsh, the outer boundaries of the decision are unclear and local governments should exercise caution when approving a practice not specifically approved by the Court in Marsh. designed to include members of the community. ); see also Christopher Lund, Legislative Prayers and the Secret Costs of Religious Endorsements, 94 MINN. L. REV. 972, 1000 (2010) ( [t]he value of legislative prayer thus lies in its capacity to bring legislators and citizens together. ). 18 Lynch, 465 U.S. at Marsh, 463 U.S. at

10 What is nonsectarian? non sec tar i an: not having a sectarian character : not affiliated with or restricted to a particular religious group. 20 Nonsectarian means void of prejudice, discrimination, or hatred towards any other religious faith or belief. 21 Sectarian can be understood as a religious viewpoint that emphasizes the unique legitimacy of the adherents creed and practices, and that heightens tensions with those non-adherents by engaging in boundary-maintaining practices. Does a prayer have to be nonsectarian to be upheld? While lower courts have differed as to when a prayer practice crosses the constitutional line from permissible to so overly divisive and disparaging that the practice must be rendered unconstitutional, most courts agree that sectarian prayer cannot be upheld. However, the lower courts do not agree on how to define sectarian. The Establishment Clause does not automatically bar a state from regulating conduct solely because it harmonizes with majoritarian religious beliefs. The Supreme Court has held that simply having a religious tone or promoting a message consistent with religious doctrine does not automatically run afoul of the Establishment Clause. 22 In the context of legislative prayer, what matters is whether the prayer to be offered fits 20 Nonsectarian Definition, MERRIAMWEBSTER.COM, (last visited March 27, 2012). 21 A sect is a distinctive system of beliefs or observances; party or school within a religion. Sect Definition, (last visited March 6, 2012). 22 Lynch, 465 U.S. at

11 within the genre of legislative invocational prayer that has become part of the fabric of our society. 23 The Court in Marsh focused primarily on the issue of whether legislative prayer was intrinsically constitutional under the Establishment Clause. 24 In Marsh, the respondent claimed that because the invocations were based on the Judeo-Christian tradition, the prayers were incompatible with atheism and other well-established faiths, such as Buddhism. 25 The Supreme Court responded by stating, [t]he content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one or to disparage any other, faith or belief. 26 However, the Court failed to define proselytizing, advancing, or disparaging any faith or belief, leaving courts and legislators without a bright-line rule on which to gauge the constitutionality of legislative prayer. Furthermore, in upholding the prayer practice under the Establishment Clause, the Marsh Court assumed that all Americans hold a common belief in God. While reference to God may appear nonsectarian and seem inclusive to members of religions such as Christianity or Judaism, this is not true for all religions. For example, many Buddhists do not worship any deities, many Hindus envision three main manifestations of the Divine, and Muslims, who do worship a singular Supreme Being, generally refer to their Supreme Being as Allah not God. Additionally, atheists do not share a common belief in any supreme being. 23 Snyder, 159 F.3d at 1233 (quoting Marsh, 463 U.S. at 792) (internal citations omitted). 24 Marsh, 463 U.S. at Id. at Id. at

12 In 1989, the Supreme Court had the opportunity to revisit the Marsh decision in County of Allegheny v. American Civil Liberties Union. 27 The ACLU brought suit against the county claiming that two holiday displays on government-owned property violated the Establishment Clause. The first display, a nativity scene, was placed on the staircase of the Allegheny County courthouse. The staircase was described as the main, most beautiful, and most public, part of the courthouse. The second display, an 18-foot menorah, was erected outside a government building next to a 45-foot Christmas tree. Both displays were donated by private religious groups but were maintained, stored, and erected by the city on government property. The Court found the nativity scene unconstitutional under the Establishment Clause but upheld the menorah display. In reaching its decision, the Court examined the setting of each display and what, if anything, it communicated about the government s endorsement of a particular religion. The nativity scene was viewed as endorsing Christianity because it stood alone on the staircase and was accompanied by a sign stating the patently Christian message of Glory to God for the birth of Jesus Christ. 28 The Court noted that, [a]lthough the government may acknowledge Christmas as a cultural phenomenon, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus. 29 Unlike the nativity scene, the placement of the menorah next to the Christmas tree, along with the largely secular interpretation of the symbols on the city s accompanying sign, detracted from its religious significance and communicated a sense of pluralism, which makes the display pass constitutional muster. 27 Cnty. of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573 (1989). 28 Id. at Id. 11

13 In upholding one holiday display on government property while declaring the other unconstitutional, the Court re-examined the constitutional limits imposed on the practice and content of legislative prayer. The nativity scene at issue in Allegheny was analogized to the legislative prayer at issue in Marsh. The Allegheny Court found that the invocations at issue in Marsh did not have the effect of affiliating the government with any one specific faith or belief because the chaplain removed all references to Christ from the invocation after a Jewish legislator complained about the prayer practice. 30 Likewise, in Van Orden v. Perry, the Supreme Court recognized the importance of the nonsectarian nature of the invocations at issue in Marsh. 31 The Court implied that the Nebraska legislative prayer practice was upheld because the prayers offered were nonsectarian observing that [i]n Marsh, the prayers were often explicitly Christian, but the chaplain removed all references to Christ after the suit was filed. 32 Despite the Supreme Court s pronouncement on the subject of legislative prayer in Allegheny, circuit courts have recently upheld sectarian legislative prayers on the grounds that the courts should not dissect the content of legislative prayers absent an impermissible motive to favor or disfavor a particular faith. For example, the Eleventh Circuit found that occasional references to specific religious figures neither favors nor disfavors a particular faith or belief. The Eleventh Circuit concluded that, as long as the selection processes were not limited to members of a single faith, the offering of sectarian legislative prayer does not violate the Establishment Clause Id. at 603 (quoting Marsh, 463 U.S. at 793 n.14) (internal citations and quotations omitted). 31 Van Orden v. Perry, 545 U.S. 677 (2005). 32 Id. at 688 n Pelphrey v. Cobb Cnty., 547 F.3d 1263 (11th Cir. 2008). 12

14 However, in Wynne v. Town of Great Falls, the Fourth Circuit invalidated a town council s prayer practice under Marsh after the council repeatedly referenced Jesus Christ in its prayers and town leaders made it clear that they wanted their prayers to be devoted to Christian worship. 34 Following Wynne, the Fourth Circuit heard Simpson v. Chesterfield County Board of Supervisors and explained its rationale for requiring that legislative prayer be nonsectarian: [The] repeated invocation for the tenets of a single faith undermined our commitment to participation by persons of all faiths in public life.... Advancing one specific creed at the outset of each public meeting runs counter to the credo of American pluralism and discourages the diverse views on which our democracy demands. 35 The Fourth Circuit s decision implied that the legislative prayer practice at issue was upheld primarily because the town council required that each invocation must be nonsectarian with elements of the American civil religion and must not be used to proselytize or advance any one faith or belief. 36 However, these invocations contained explicit references to religious figures. For example, some of the invocations at issue in the Fourth Circuit included: Lord God, our creator, giver and sustainer of life, the God of Abraham, Isaac and Jacob, the God of Abraham, of Moses, Jesus, and Mohammad, Heavenly Father, Lord our Governor, mighty God, Lord of Lords, King of Kings, creator of planet Earth and the universe and our own creator. 37 Nevertheless, the Fourth Circuit stated that the town had aspired to non-sectarianism and 34 Wynne v. Town of Great Falls, 376 F.3d 292, 295 (4th Cir. 2004). 35 Simpson v. Chesterfield Cnty. Bd. of Supervisors, 404 F.3d. 276, 283 (4th Cir. 2005). 36 Id. at Id. at

15 requested that invocations refrain from using Christ s name or... any denominational appeal. 38 The most recent federal case addressing the issue of legislative prayer is Joyner v. Forsyth County. 39 On July 29, 2011, the Fourth Circuit Court of Appeals struck down the prayer policy of the Forsyth County Board of Commissioners, which provided a time for prayer at the beginning of its Board meetings and which did not regulate the content of the prayers that would be offered. The Fourth Circuit interpreted Marsh v. Chambers to mean that any legislative prayers must be nonsectarian and held that the First Amendment prohibits any mention of Jesus Christ, despite the fact the community was predominantly Christian. The court reasoned that such a practice would be divisive, offensive, and would result in ostracism and marginalization of non-christian citizens. Whether Marsh requires legislative prayers to be nonsectarian is difficult to determine. The central question raised in Marsh, but left unanswered, is whether isolated references to religious figures or deities in legislative prayers renders the prayers unconstitutional, or whether more significant evidence of religious favoritism is required. In the practice upheld by the Eleventh Circuit, more than ninety-six percent of the clergy invited by the county to offer invocational prayers between 1998 and 2005 were Christian, and approximately seventy percent of the prayers contained Christian references. In upholding the county s sectarian prayer practice, the Fourth Circuit noted that the commission did not compose or censor the prayers, despite the fact that the prayers 38 Id. 39 Joyner v. Forsyth Cnty., 653 F.3d 341 (4th Cir. 2011), cert. denied (January 17, 2012). 14

16 often concluded with references to our Heavenly Father or in Jesus name we pray. The Eleventh Circuit reasoned that because the references to specific deities were often short, usually at the end of the prayers, and reflected the beliefs of diverse faiths, the prayers did not unconstitutionally advance or disparage a particular faith. However, it is difficult to believe that non-christians attending these public hearings would not feel that the county preferred Christianity to other faiths. Moreover, sectarian prayer does not further the secular purpose of unification and inclusion in government functions. By invoking a deity that is only accepted by a particular group, those non-adherents are implicitly excluded from the community. References, even when occasional, are not the type of tolerable acknowledgement[s] of beliefs widely held among people of this country. 40 This concern is especially heightened when applied to the current composition of American society. When the first prayer was offered in Congress more than 200 years ago, the vast majority of Americans were Christian. The same does not hold true in Though Christianity remains the dominant religion in America, there are many other religions, and many people, Christians among them, who find the invocation of Christ s name in the context of government-authorized prayer to be offensive and ostracizing to adherents of other faiths. Is reference to God constitutional? A legislative prayer practice invoking the divine guidance of a particular religious deity can have the unconstitutional effect of affiliating the government with a specific religious belief. This is especially true when the government s legislative prayer guidelines mandate that all invocations for divine guidance be made in the name of 40 Simpson, 404 F.3d. 276 at 282 (quoting Marsh, 463 U.S. at 792). 15

17 God. Recognizing that the history of the nation is replete with official references to the value and invocation of a divine guidance, 41 the Supreme Court has held that simply having religious content or promoting a message that is consistent with a religious doctrine does not run afoul of the Constitution. 42 Justice Douglas acknowledged this directly in Marsh, [we] are a religious people whose institutions presuppose a Supreme Being. 43 While the history of this nation is replete with official references to the value and invocation of Divine Guidance, that does not heap that we should continute that practice today. The Supreme Court has held reference to God alone does not per se constitute proselytization so long as it is used in a manner consistent with the concept of ceremonial deism. 44 The term ceremonial deism was first coined in 1962 by former dean of Yale Law School, Eugene Rostow, who defined it as class of public activity, which... could be accepted as so conventional and uncontroversial as to be constitutional. Government practices that fall into the category of ceremonial deism include the words under God in the post-1954 Pledge of Allegiance; the invocation God save the United States and this Honorable Court in opening judicial proceedings; the national motto In God We 41 In the words of the House Report that accompanied the insertion of the phrase under God in the Pledge of Allegiance: From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God. H.R. REP. NO (1954). 42 Lynch, 465 U.S. at 675, Marsh, 463 U.S. at 792 (quoting Zorach v. Clauson, 343 U.S. 306, 313 (1952). See also Engle v. Vitale, 370 U.S. 421, 434 (1962) ( the history of man is inseparable from the history of religion. ). 44 See Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. 2083, (1996). The Supreme Court has explicitly used this phrase in two opinions, the crèche cases of Lynch v. Donnelly, 465 U.S. 668 (1984), and County of Allegheny v. ACLU, 492 U.S. 573 (1989). See also Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 26 (2004) (Rehnquist, C.J., concurring in judgment) ( Examples of patriotic invocations of God and official acknowledgements of religion s role in our Nation s history abound. ) (O Connor, J., concurring) ( It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in it s symbols, songs, mottoes, and oaths. ) id. at

18 Trust on our currency; and the swearing in of witnesses and government officials so help me God. The justifications for why ceremonial deism does not violate the Establishment Clause vary. In his Marsh dissent, Justice Brennan explained that religious government speech, such as God save the United States and this honorable Court, are consistent with the Establishment Clause not because their import is de minimis, but because they have lost any true religious significance. 45 Others argue that reference to God does not serve as a statement of religious belief, but simply acknowledges the importance of religion in our nation s past and present. 46 The term God is simply a tolerable attempt to acknowledge religion [in general] and to invoke its solemnizing power without favoring any individual religious sect or belief system. 47 Other explanations do not deny the religious content, but claim that praying at the start of a legislative session is intended to solemnize the proceedings, not worship God. Thus, God may be invoked for the secular purpose of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. 48 Further, reference to God in the Pledge of Allegiance is meant to intensify the patriotic exercise. Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church. 49 As Justice O Connor explained, 45 Marsh, 463 U.S. at 818 (Brennan, J., dissenting). 46 Elk Grove, 542 U.S. at Id. at Lynch, 465 U.S. at 693 (O Connor, J., concurring). 49 Elk Grove, 542 U.S. at 31 (Rehnquist, C.J., concurring). 17

19 although these references speak in the language of religious belief, they are more properly understood as employing the idiom for secular purposes. 50 Yet others, like the Marsh Court, argue that a practice falls under the umbrella of ceremonial deism when it has been around for a long time and is so widespread that it has become an acceptable and expected part of society. The Supreme Court has recognized that [o]ur history is replete with official reference to the value and invocation of Divine guidance. 51 This history and tradition argument is essentially if the framers thought the practice was constitutional, so should we. Finally, others have argued that government religious speech is a constitutional form of ceremonial deism simply because it has gone unchallenged for so long. In discussing the inclusion of God in the Pledge of Allegiance, Justice O Connor emphasized the fact that the practice has been pervasive for years without significant controversy. 52 However, this argument assumes that those who were significantly offended by the practice would have challenged it under the Establishment Clause. If everyone in my town is Christian, is reference to Jesus Christ disparaging? A reasonable person would interpret a reference to Jesus Christ as government endorsement of a specific religion. Whether or not a practice proselytizes or disparages a religious belief should be viewed from a national, rather than a local, perspective. However, ironically, the outcome depends on the jurisdiction in which the challenge is brought. The Eleventh Circuit would allow reference to Jesus Christ. At the same time, 50 Id. at 35 (O Connor, J., concurring). 51 Van Orden v. Perry, 545 U.S. 677, 688 n.7 (2005) (quoting Lynch, 465 U.S. at 675). 52 Elk Grove, 542 U.S. at 38 (O Connor, J., concurring). 18

20 a litigant in the Second Circuit would have a difficult time arguing that such references do not advance or disparage a particular faith or belief. Isn t school prayer unconstitutional? How is legislative prayer any different? It is well-established that government-sponsored prayer in public school is unconstitutional. The context of a public school setting is distinguishable from that of a legislative chamber. Legislative bodies are comprised of adults who are voluntarily attending government meetings, as opposed to the audience in a public school setting where students do not have the option to leave. This distinction was key for the Court in decisions involving school prayer. The Court held that school prayer violates the Establishment Clause at the point in which the students might have felt compelled to participate in the prayer because school officials prescribed the prayer and students did not have the option of leaving. 53 What about Free Exercise Clause? The free exercise clause protects individuals, not government bodies: the government does not have a right to exercise religion. The Supreme Court has repeatedly held that the First Amendment requires the government to be neutral in its treatment of religion, showing neither favoritism nor hostility toward religious expression such as prayer. 54 Accordingly, the First Amendment forbids religious activity that is sponsored by the government but protects religious activity that is initiated by private individuals. Understanding the line between government-sponsored and privately initiated religious expression is essential to understanding the scope of the First Amendment. As the 53 Lee v. Weisman, 505 U.S. 577, 599 (1992). 54 See, e.g., Everson v. Board of Education, 330 U.S. 1, 18 (1947) (the First Amendment requires the state to be neutral in its relations with groups of religious believers and non-believers. ). 19

21 Supreme Court has explained, there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect Santa Fe. Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (quoting Board of Educ. v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion); accord Rosenberger v. Rector of Univ. of Virginia, 515 U.S. 819, 841 (1995). 20