Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, May 20, 2013

More on the legislative-prayer case

Following up on Marc's post, and also on the posts by Eugene Volokh and Paul Horwitz to which he linked, a few quick thoughts:  First, I think it would be a good thing if the possibility Eugene raises - i.e., that the Court might re-examine the so-called "endorsement test" -- came to pass.  I think the criticisms directed at that test in Steven Smith's 1987 article had and have force.  Next, even if the justices leave the "endorsement test" in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context.  Yes, this context is an anomalous one and, yes, Marsh was and is something of an outlier, given that it prioritized history, tradition, and practice over the "wall of separation" idea.  For reasons I mention in this very short piece, I don't think the courts are very good at deploying all-things-considered balancing tests that purport to somehow measure the effects of religious displays and the like on the feelings of hypothetical "reasonable observers" and so they probably shouldn't try.  Better to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity.   


Garnett, Rick | Permalink


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I’ll have to read some of the articles mentioned in these posts, but do you think it is significant that the Establishment Clause refers to “laws” while legislative prayers are usually provided for by legislative Rules of Procedure? Is a distinction between a law and a rule material in this matter?

sean s.

Posted by: sean samis | May 20, 2013 1:00:46 PM

Rick, if the Court were to go with your option (a), but it were also not to apply the endorsement test in this context (either because it discarded the endorsement test altogether or because it refused to apply it here), what do you think ought to be the ground on which it would reach option (a)? A possibility might be the adoption of a coercion approach (generally, or specifically as an extension of the graduation/school prayer context), but it seems to me that one would have to interpret coercion very broadly to reach the conclusion that legislative prayer was per se and in all cases a violation of the Establishment Clause. There is some indirect precedent for this (J. Kennedy's approach in Lee v. Weisman), though decisions like Santa Fe go at least in part with endorsement (a decision that Justice Kennedy joined).

Posted by: Marc DeGirolami | May 20, 2013 1:39:54 PM


Regarding the latter part of your comment, don’t most rationale’s regarding coercion in school settings rely on a protective attitude for minors? Wouldn’t the adult status of legislators mitigate that? Or could the court be solicitous of minors who might be in the legislative galleries? That the legislators’ sensibilities are not offended, but an audience member’s might be?

sean s.

Posted by: sean samis | May 20, 2013 2:42:26 PM

Hi, Sean. What you say about the Court's view of special concerns with respect to coercion in the school context is true, I think. The psychological coercion of the specific kind discussed in Lee would need to be extended and/or adapted in an adult context. It is also true that Justice Kennedy in Lee said this:

"Inherent differences between the public school system and a session of a state legislature distinguish this case from Marsh v. Chambers, 463 U. S. 783 (1983). The considerations we have raised in objection to the invocation and benediction are in many respects similar to the arguments we considered in Marsh. But there are also obvious differences. The atmosphere at the opening of a session of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the constraining potential of the one school event most important for the student to attend. The influence and force of a formal exercise in a school graduation are far greater than the prayer exercise we condoned in Marsh. The Marsh majority in fact gave specific recognition to this distinction and placed particular reliance on it in upholding the prayers at issue there. 463 U. S., at 792. Today’s case is different. At a high school graduation, teachers and principals must and do retain a high degree of control over the precise contents of the program, the speeches, the timing,
the movements, the dress, and the decorum of the students. Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986). In this atmosphere the state-imposed character of an invocation and benediction by clergy selected by the school combine to make the prayer a state-sanctioned religious exercise in which the student was left with no alternative but to submit. This is different from Marsh and suffices to make the religious exercise a First Amendment violation. Our Establishment Clause jurisprudence remains a delicate and fact-sensitive one, and we cannot accept the parallel relied upon by petitioners and the United States between the facts of Marsh and the case now before us. Our decisions in Engel v. Vitale, supra, and School Dist. of Abington v. Schempp, supra, require us to distinguish the public school context."

The Court would need to repudiate or work around that dictum if it extended the broad view of coercion applied in Lee to the legislative prayer context. But I suppose it could do that if it wanted to strike down legislative prayer as per se unconstitutional *without* using the endorsement test. If it does not use endorsement and it also does not extend the coercion test to reach this context, then I am not sure how it could hold legislative prayer per se unconstitutional. It could not do so using any kind of historically informed approach.

Posted by: Marc DeGirolami | May 20, 2013 3:50:36 PM

According to the Court records, the prayer was instituted in 1999; prior to that they had a moment of silence (for how long the record is not clear). It seems to me that the idea that history or tradition supports the prayer will be a hard sell.

sean s.

Posted by: sean samis | May 20, 2013 5:12:53 PM

"Better to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity."

(a) is not at all likely. That leaves (b). The opinion below said this:

"We conclude, on the record before us, that the town's prayer practice must be viewed as an endorsement of a particular religious viewpoint. This conclusion is supported by several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials."

So, the opinion so police but did more. The opinion earlier cited Breyer to note that the whole context needs to be weighed. The OP is wary of this. I think the policing of discrimination will generally in some fashion address such questions anyhow -- it is seen discrimination cases generally.

Consider, e.g., Village of Arlington Heights v. Metropolitian: "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available."

Marsh v. Chambers generally counsels against sectarian prayers. It accepts a sort of civil religion, but not Christian prayers dominant for some communities, Jewish for others, etc. The content of the prayers therefore would be somewhat useful in certain cases to police the discrimination, especially since majority numbers alone can "establish" religion even if the majority takes what they are doing as benign.

I'm unsure if the 'spirit of charity' will be enough here and local majorities will from time to time resist true respect of religious minorities (seems to be the idea on certain questions around here recently). Still, perhaps, the same result would have arose here if the selection process alone was addressed.

As to the first comment, that might be important -- the matter at hand is a sort of special case involve legislative in-house rules. So, e.g., certain rules of debate there might "abridge speech" by requiring a level of politeness that a law for the general public might not. But, it is unclear how far that will go to "Town Board meetings" covered by the 14a. And, if Congress decided to by 'rules of procedure' only allow Muslim prayers, don't think the courts might appreciate it, so to speak.

Posted by: Joe | May 20, 2013 5:42:10 PM

Since it is true that this Nation was founded on Judeo-Christian principles, it is absurd to suggest that endorsing our Judeo-Christian principles would be a violation of The First Amendment. There is a difference between Congress establishing a State Religion, for example, Anglicanism, and endorsing our Judeo-Christian principles, including through Prayer, and it is that difference that makes all the difference. Please Pray for those suffering from the devastating tornado in Oklahoma City today, and all their loved ones.

Posted by: Nancy | May 20, 2013 9:41:58 PM

What are these "Judeo-Christian principles" cited as compared to Muslims, Buddhists, Hindus or whatever?

If prayer, that is, appeals to a specific God (Judeo-Christian) doesn't count as favoring specific religions over others, the sort of thing the 1A disallows, the language used is curious. The language is "religion," not "Judeo-Christian sects."

Do we really want to entrust the state of all people with formulating proper prayers to God? Again, since Jesus said to pray in private, bottom line, wouldn't "Judeo-Christian principles" counsel against legislative prayers anyhow?

Posted by: Joe | May 20, 2013 10:19:37 PM

Joe, Jesus also said that whenever two or more are gathered in My Name, there am I in the midst of them. As a Nation that professes to be One Nation, under God ( with the capital G) and thus indivisible, with Liberty and Justice for all, Prayer has been a part of this Nation's History, since the founding of our Nation. It is only since the 1960's that the Court decided to ignore the precedent that was set by our Founding Fathers and make the erroneous claim that a Nation that Prays together is establishing a State Religion, even when evidence shows that this particular Nation that is Praying together consists of persons from various Religious Groups.

Posted by: Nancy | May 21, 2013 10:44:32 AM

Strangely, the Framers who founded this country were unaware that their work was founded on Judeo-Christian principles. That’s what makes identifying those founding Judeo-Christian principles so hard; even the guys doing the founding were, by their own words, unaware of that!

sean s.

Posted by: sean samis | May 21, 2013 11:32:51 AM

Nancy, the reference to "God" does not really explain your comment about this nation being founded on "Judeo-Christian" principles.

I understand that legislative prayer has been around since the beginning of this nation's history. The question is specifically about the claim this nation was founded on J-C principles. Muslims, deists, Hindus and others, e.g., believe in God, but not various J-C principles, including the basic ones like the sacred nature of specific holy books or that Jesus is Christ.

Also, we can "pray together" in various ways. It is curious though that you of all people actually don't criticize legislative prayer in particular. Didn't Jesus say to pray in private and that such showy public events, not even in holy places like churches or synagogues, more akin to what he railed against?

The Supreme Court did not say the nation is barred from "praying together." It also upheld legislative prayer, at least some forms of it. It did reject certain things. For instance, for years, the Roman Catholic Church criticized how various public schools used Protestant bibles for bible reading. Students were actually physically punished for refusing to use such bibles. This sort of thing is unconstitutional. Likewise, states crafting prayers were struck down. Again, do you want states to craft official prayers? Isn't that something that the Church should handle?

Posted by: Joe | May 21, 2013 12:10:37 PM

Joe, The Treaty of Paris, officially ended The Revolutionary War in the name of The Most Holy and undivided Blessed Trinity,( God, with the capital G), Christ being the fulfillment of The Old and New Testament and our Salvation through the Sacrifice of The Cross, The Sacrifice of The Most Holy and undivided Blessed Trinity.

"...and to secure these Rights, Governments are instituted by men...", these Rights being our unalienable Right to Life, Liberty, and The Pursuit of Happiness that have been endowed to every human being at the moment of our creation from God, the Government instituted by men, being our Government created through The Constitution of The United States of America.

Posted by: Nancy | May 21, 2013 1:57:58 PM

Christian witness and evangelization are forms of Prayer, thus Christ's teaching in regards to Prayer, was about humility as we are called to witness to our Catholic Faith both in private and in public. Pope Benedict has referred to Pray as Hope in action.

Posted by: Nancy | May 21, 2013 2:58:24 PM

"As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries."

– Article 11 of the Treaty of Tripoli; Annals of Congress, 5th Congress. Ratified unanimously by the US Senate and signed by President John Adams, Authored by American diplomat Joel Barlow in 1796, the treaty was sent to the floor of the Senate, June 7, 1797, where it was read aloud in its entirety and unanimously approved. President John Adams, having seen the treaty, signed it.

sean s.

Posted by: sean samis | May 21, 2013 3:23:42 PM

I don't see this reference to the "The Most Holy and undivided Blessed Trinity":


Great Britain at the time had an established church, so on that side, perhaps some official religious suffix is added. But, the U.S. doesn't have an established church. Unitarians, e.g., would have found some official establishment of such a "trinity" problematic.

You have still not shown that the U.S. was founded on Judeo-Christian principles. As sean notes, the Treaty of Tripoli seems (the translation is somewhat debated) to be an official statement of another kind.

If you said that the country was founded on "deistic" principles, it would be different. There is some aspect of God based natural law mixed in. But, Jews and Christians are not the only people who believe in God.


"But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you."

Legislative prayer doesn't seem to be in this spirit. You also skip over the other stuff, including how 1960s rulings protected the religious freedom of all, including Catholics.

Posted by: Joe | May 21, 2013 4:20:25 PM


Posted by: Nancy | May 21, 2013 4:34:18 PM

I am grading exams, so I'm sorry I have not responded to the comments. My suggestion would be that the debate about "Christian nation" and Jefferson, etc., etc., is not likely to lead us anywhere. The United States was not founded -- everyone should agree -- as a confessional state and -- everyone should agree -- the Constitution was ratified by people who lived in and were formed significantly by a Protestant Christian culture. The questions are whether (a) the Constitution, correctly understood, prohibits legislative prayer and (b) what doctrines the Court should employ, and is likely to employ well, when playing its role (whatever that is) in enforcing whatever it is the Constitution says about legislative prayer.

Marc, to (try to) answer your excellent question: My sense is that a ruling that legislative prayer is per se unconstitutional would have an unavoidable aspect of "ipse-dixit-ism", whether or not the "endorsement test" was used. Such a ruling would be primarily about making the work of courts easier, and not about identifying with any accuracy the content of our traditions.

I *think* my views are that (1) the Constitution permits legislative prayer, basically for the reasons (and subject to the limitations) stated in Marsh; (2) the "endorsement test" is not a helpful doctrinal tool for operationalizing the Constitution's meaning; and (3) that legislative prayer should, for the most part, be avoided.

Posted by: Rick Garnett | May 21, 2013 4:46:05 PM

I don't think the Treaty of Tripoli statement by its lonesome tells us anything conclusive but David Barton as a whole is not the best source.



When "Thomas Nelson, a Christian publisher based in Nashville, ceased publication of David Barton’s," red flag. I can also cite other critics, but that's pretty damning in itself.

Posted by: Joe | May 21, 2013 4:52:31 PM

The treaty of Tripoli was drafted, negotiated, ratified and published by 1797. John Adams is certainly a Framer, as were many in that Congress; and most of those who could be considered Framers were very much alive at the time. If their plain statement is not conclusive, along with the absence of a record of significant dissent, then I don’t think that anything can be considered conclusive. But it is as close as anything else could be.

sean s.

Posted by: sean samis | May 21, 2013 5:08:31 PM

Consider my disclaimer to the site to be a disclaimer while recognizing the facts are still factual in regards to our founding Christian principles, and The Trinity, a.k.a, God, a.k.a., The Blessed Trinity, a.k.a., The Holy Trinity, all refer to The Christian God, but not to any specific denomination or Religion.

Posted by: Nancy | May 21, 2013 5:08:45 PM

Marsh briefly noted:

"The 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."

The opinion below, however, had more of a cause to think the practice here was more sectarian, at least in practice. It is left to the Court, now with Kennedy (who had a more lax reading in the creche case than the one cited by the lower court opinion here but still left open some extreme cases of endorsement that he would deem problematic) as the swing justice, to provide its own interpretation.

Posted by: Joe | May 21, 2013 5:26:40 PM

The Endorsement Test is erroneous because there is a difference between endorsing our founding Judeo-Christian principles and establishing a State Religion, for example, Anglicanism, and that difference makes all the difference.

Posted by: Nancy | May 22, 2013 9:39:44 AM


A test to determine if Congress is attempting to create a Law to establish a State Religion.

Posted by: Nancy | May 22, 2013 10:09:27 AM

The principles of the First Amendment are applied liberally and does not just apply to specific laws passed by Congress. Thus, e.g., if the a prison decided to only allow Catholic prayers, without Congress specifically passing such a law, the practice would be held to violate the principles of the 1A. Regardless, the practice at issue here involves a legislative body that set in place certain procedures. There is "law" enough there to apply.

Rick Garnett is correct to say that this debate over alleged "founding Judeo-Christian principles" won't get us far. But, it's important to respond, since it is a fairly common trope. It is being announced that somehow Congress CAN establish religion -- that is "Judeo-Christian principles." I remain ignorant on what this means. What "Muslim" principle, e.g., won't apply here?

Nancy references "the Trinity," but Unitarians don't agree with that. Do they not count here? Important since Unitarians were around in the late 18th Century. In fact, they eventually were the majority of the established MA Church, a factor in it being disestablished. Still, the endorsement test wouldn't be wrong completely on her argument. It would just be overbroad.

Posted by: Joe | May 22, 2013 10:31:33 AM

Joe, the procedural error in the Endorsement Test, is the failure to follow the letter and intent of the Law, and thus the spirit of the Law.

Posted by: Nancy | May 22, 2013 11:47:36 AM

Nancy, when you state bare conclusions like that, it isn't overly helpful.

Posted by: Joe | May 22, 2013 12:53:45 PM

I'm familiar with the case but what about that link makes your case?

For instance, the link provides criticism of the case. And, if the 19th Century case (decided in the same decade racial segregation was accepted) meant ONLY Christian ministers should be protected by the statute, it would be wrong. The quote in the opinion by a judge of "worship of those impostors" -- a judge making an official statement some religions are "impostors" is patently wrong.

There was such wrongful religious favoritism over the years. As noted, Roman Catholics were repeatedly burdened by official Protestant establishments. It is a bit rich for them now to similarly favor certain religions over others, in part because they are the "haves" now.

Posted by: Joe | May 23, 2013 12:52:57 PM


Joe, The Supreme Court declared that The United States is a Christian Nation and thus was founded on Judeo-Christian principles. This does not change the fact that there can be no division in The One Body of Christ.

Posted by: Nancy | May 23, 2013 3:26:49 PM

I'll leave it there and will take an early Memorial Day Weekend.


Posted by: Joe | May 23, 2013 3:46:42 PM

Me too. I have a kitchen to tile. Have a good weekend.

Posted by: sean samis | May 23, 2013 3:54:24 PM