Circuit split on constitutionality of legislator-led prayer may lead to SCOTUS review
HISTORY AS A GUIDE
Others disagree. “The history and tradition of legislative prayers helps determine the intent of the First Amendment,” says Mat Staver, founder and chairman of Orlando, Florida-based Liberty Counsel. “The drafters of the Amendment were familiar with this history and tradition, and they gave no indication they intended to discontinue legislative prayers.”
Although Harvey of the Alliance Defending Freedom, who also litigated the Town of Greece case, believes legislative prayer is not coercive—others do.
“There is unmistakable coercion when a lawmaker leads prayer and invites others to join in in public,” says Benjamin N. Cardozo School of Law professor Marci Hamilton, who successfully challenged the application of the Religious Freedom Restoration Act as applied to the states before the Supreme Court in City of Boerne v. Flores (1997). “The lines between pastor and legislator, church and state have been blurred to the point of elimination.”
Despite the circuit split, Kreder of Northern Kentucky University explains that both cases were decided correctly by the respective appellate courts. In Bormuth, “the 6th Circuit correctly applied the Supreme Court standard from Marsh, allowing the long-standing practice of a moment of nondenominational prayer or silence prior to government meetings,” she says. In Lund, Kreder adds, “the elected officials went further than what the court allowed in that the elected officials expressly and uniformly invoked Jesus Christ and denigrated others not sharing their faith.”
Some believe the Supreme Court could move the needle significantly in the next establishment clause case, particularly with the court’s addition of Justice Neil M. Gorsuch.
“Since Justice Gorsuch adheres to originalism, he will find that legislative prayers are not prohibited by the First Amendment,” predicts Staver. “This is the only historically accurate conclusion one can reach based on the original intent of the establishment clause.”
Chemerinsky also sees a similar outcome. “I do think that there are likely five votes to significantly change the law of the establishment clause, to allow more government support for religion and more religious participation in government,” he says. “I assume that Justice Gorsuch will join with the conservatives here: Roberts, Kennedy, Thomas and Alito.”
This article was published in the February 2018 issue of the ABA Journal with the title "Let Us Pray: Circuit split on constitutionality of legislator-led prayer may lead to Supreme Court review."
