Document Type

Supreme Court Commentaries

Publication Date

4-23-2019

Keywords

Establishment Clause, Free Exercise Clause, prayer, religious freedom, First Amendment

Subject Category

Constitutional Law | Supreme Court of the United States

Abstract

Leading a group in prayer in a public setting blurs the line between public and private. Such blurring implicates a constitutional tension between the Establishment Clause and the Free Exercise Clause. This tension is magnified when the constitutionality of prayer is questioned in the context of democratic participation. Current Supreme Court precedent holds legislative prayer to be constitutional, but the relevant cases, Marsh v. Chambers and Town of Greece, NY v. Galloway, do not address the specific constitutionality of legislator-led prayer. There is currently a circuit split on the subject: in Bormuth v. County of Jackson, the United States Court of Appeals for the Sixth Circuit held legislator-led legislative prayer to be constitutional, but in Lund v. Rowan County, N.C., the United States Court of Appeals for the Fourth Circuit came to the opposite conclusion, despite the case having strikingly similar facts. I seek to confront this tension. First, I challenge the validity of the precedent on legislative prayer. Then, accepting the current precedents as valid, I argue legislator-led prayer in public legislative sessions is unconstitutional. This analysis evaluates the interplay of the original intent of the Establishment Clause, the changes in the social structure of the United States since the eighteenth century, and the unique role of the legislator, separate from that of a guest minister or ordinary citizen. Ultimately, I attempt to inject empathy into legal analysis by pointing to the tangible effects of legislator-led prayer: alienation from the community and increased violence against religious minorities. I hope to highlight these harms as sufficient in themselves to implicate the Establishment Clause and to bolster the argument for holding this practice to be unconstitutional.

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