It comes as no surprise, due to the significant impact that religion has had on the history of the United States, its important role in the day to day lives of many of its citizens, and the controversial nature of religion, that the courts have been confronted with litigation involving public prayer and the First Amendment’s Establishment Clause.
Deliberative bodies of government across the United States have historically opened their meetings with prayer. This tradition dates back to pre-colonial history, long before the 1774 Continental Congress adopted the procedure of opening its sessions with a prayer offered by a paid chaplain. Today, the United States Senate begins each session with a prayer, the United States Supreme Court opens each session with the phrase “God save the United States and this Honorable Court” and numerous governmental boards across the country begin their meetings with religious invocations. Despite the prevalence of legislative prayer throughout the history of the United States, and the significance that many founders placed on religion, the practice of religious invocations before public bodies is not specifically addressed by the United States Constitution.
The First Amendment, which applies to the states through the Fourteenth Amendment provides that “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof…” The wording of the Establishment Clause has been subjected to extensive litigation in the area of prayer before public bodies, ending in significantly different outcomes. However, one central principle has emerged from these cases: neutrality. The Establishment Clause has been repeatedly interpreted to provide that neither a state, nor the federal government may: a) establish a church; b) pass a law which aids one religion over another; c) pass a law which prefers one religion over another; or d) discriminates against a religion. At a minimum, the Establishment clause prohibits the government from appearing to take a position on questions of religion, or making a person’s faith relevant to that person’s participation in the political community. It does not, however, prohibit religious expression before public bodies in all circumstances.
In a 7-2 landmark decision, the United States Supreme Court rendered the leading decision on legislative invocations and the Establishment Clause, in Marsh v. Chambers. The Court held that Nebraska’s practice of opening legislative sessions with prayer was not in violation of the First Amendment.
When deciding establishment clause issues before Marsh, the federal courts predominately used a three-prong test set out by the Supreme Court in Lemon v. Kurtzman. Under Lemon, in order for a governmental act to exist consistent with the Establishment Clause, it: 1) has to have a secular purpose; 2) its principal or primary effect must be one that neither advances nor inhibits religion; and 3) it must not foster excessive government entanglement with religion. When applying this test to the facts involving Nebraska’s practice of legislative prayer in Marsh, the Eighth Circuit held that the practice violated the Establishment Clause. In reversing the Eighth Circuit, the Supreme Court did not apply the Lemon test but instead relied on the historical significance and tradition of legislative prayer; finding legislative prayer to be constitutional under the Establishment Clause.
In the 30 years since Marsh, many cases have been litigated in the federal courts challenging prayer before public bodies. Marsh, however, remains good law. Unfortunately, Marsh arguably left some issues unanswered, such as who can lead legislative invocations, who can be excluded during the chaplain selection process, and whether or not sectarian references can be made in the invocations. These issues have become the center of today’s legislative prayer litigation. This article will re-examine the Marsh decision, outline the circuit split that has emerged from the cases heard by the lower courts since Marsh and comment on the most modern trends related to this issue.
Marsh: Legislative Prayer as an Exception to the Neutrality Principle. By the time that Marsh v. Chambers reached the United States Supreme Court in 1983, the Nebraska legislature had been opening each of its sessions with prayer for over a century. The prayer was offered by a chaplain who was chosen biennially by the Executive Board of the Legislative Council and who was paid out of public funds. Ernest Chambers, a member of the Nebraska Legislature and a Nebraska taxpayer, brought an action seeking to enjoin the legislative invocations by alleging that the long-standing practice violated the Establishment Clause of the First Amendment. The Nebraska District Court found the actual practice of beginning the legislative sessions with prayer constitutional but struck down the use of public funds to pay the chaplain’s salary. On appeal, the Eighth Circuit found both practices to be unconstitutional. It held that Nebraska’s practice violated all three elements of Lemon finding that: the purpose and primary effect was to promote a particular religious expression and that the use of state money for compensation and publication led to excessive government entanglement.
The United States Supreme Court granted certiorari and by choosing to forego the Lemon test, reversed the decision of the Appellate Court and concluded that Nebraska’s chaplaincy practice did not violate the Establishment Clause. The Marsh majority did not even mention Lemon or earlier decisions involving prayer such as Engel v. Vitale, but instead took a much more fundamental approach by relying on the historic tradition of prayer before public bodies in this country.
The Court began by explaining, “opening sessions of legislative and other deliberative bodies with prayer is deeply imbedded in the history and the traditions of this country.” It noted that legislative prayer has historically co-existed with the Establishment Clause, from colonial times through the founding of the Republic and ever since, and that the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. In fact, the court noted that in the very courtrooms in which the United States district judge and the three Appellate justices of the Eighth Circuit had heard and decided Marsh, their proceedings opened with an announcement that concluded, “God save the United States and this Honorable Court,” the same invocation which is also heard before all sessions of the United States Supreme Court.
Justice Burger, in writing for the majority, provided an extensive discussion of the role which legislative prayer has played in the history of the United States. He writes, “Clearly the men who wrote the First Amendment religion 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. He continued, “It has also been followed consistently in most states, including Nebraska, where the institution of opening legislative sessions with prayer was adopted even before the State attained statehood.” Since the members of the Continental Congress authorized publicly paid chaplains to provide legislative invocations the week before approving the first draft of the First Amendment, legislative prayer is undoubtedly consistent with the original drafter’s intent and with the Establishment Clause as it stands today.
Justice Burger further explained that this unique history led the majority of the Supreme Court to accept the interpretation of the draftsmen of the Establishment Clause, who saw no real threat to it arising from the practice of prayer before a legislative body. The Court concluded, “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 a 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 the people of this country. As Justice Douglas observed, “we are a religious people whose institutions presuppose a supreme being.”
While the historical approach provided sound logic for the majority’s conclusion that legislative prayers are constitutionally consistent with the Establishment Clause, it does not provide a bright line rule for determining at what point a legislative invocation becomes unconstitutional under the Establishment Clause. The majority seems to imply that not all legislative prayers are necessarily constitutional when it finds “no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged.”
In order to distinguish those legislative prayers which violate the Establishment Clause from those which do not, the Court established the ‘impermissive motive’ test. Under the impermissive motive test, the content of the prayer is not important; rather, a legislative prayer is constitutional so long as “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.” Using this test, the Supreme Court found no evidence of an impermissible motive from the continued reappointment of the Presbyterian chaplain, the fact that the chaplain was paid at public expense or that his prayers were in the Judeo-Christian tradition and therefore, these factors had no impact on the constitutionality of the Nebraska legislature’s invocation practice.
The Circuit Split: New Issues Emerge After Marsh. Since Marsh confirmed the constitutionality of legislative invocation, the lower courts have litigated specific questions that the Marsh court left unanswered. For example, some lower courts contend that sectarian references are unconstitutional, as they would involve the government directly endorsing specific religions and beliefs in violation of the Establishment Clause. Supporters of this position argue that when Marsh made reference to the fact that Nebraska’s chaplain “removed all reference to Christ,” after complaints arose in 1980, the court was inferring that legislative prayers should be non-denominational. But, the Marsh holding never expressly limits legislative prayer in this way. In fact, the majority states that courts should not “parse the content of a particular prayer,” and the “content of the prayer is not of concern to judges where…there is not indication that the prayer opportunity has been exploited to proselytize any one religion or belief.” On the other hand, it has been argued that prayers, by their very nature are religious, sectarian, and therefore by upholding the constitutionality of legislative prayer, Marsh allows sectarian reference.
The other litigated issue that arose following the Marsh decision involves the question of who can offer the legislative prayers. Marsh appears again to use the impermissible motive requirement to impose a limit on who can offer prayer by forbidding governments from picking and choosing among potential chaplains based on their religious affiliations alone. In Marsh, while the Appellate court was concerned that the same Presbyterian chaplain gave the invocation for such extended time, the Supreme Court found no objection and stated that they could not “any more than Members of the Congresses of this century, perceive any suggestion that choosing a clergyman of one denomination advances the beliefs of a particular church.” In other words, as long as the speaker is not selected for the sole purpose that he is espousing a particular faith, the selection is constitutional.
Subsequent rulings in the federal courts surrounding the issues outlined above involving an impermissible motive and whether the establishment clause is violated by sectarian prayers or the selection of invocators are inconsistent. For example, in one of the most recent legislative prayer cases heard, the Eleventh Circuit in Pelphrey v. Cobb County, agreed with Marsh while upholding a county’s longstanding tradition of opening its Planning Commission meetings with prayer led by volunteer clergy. In its decision, the Pelfrey Court citing Marsh, specifically and expressly found sectarian prayers to be consistent with the Establishment Clause and therefore constitutional. The commission’s method of securing clergy however, which purposefully eliminated potentials from the categories of “Churches-Islamic,” “Churches-Jehovah’s Witnesses,” “Churches-Jewish,” and “Churches-Latter Day Saints,” was found to be unconstitutional.
The Fourth and Tenth Circuits, while refusing to adhere to a bright line rule, have allowed “sectarian” legislative prayer in some specific instances. In Simpson v. Chesterfield County Bd. of Supervisors, the Fourth Circuit upheld a prayer policy under which the county board invited clergy from “a wide cross-section of the County’s religious leaders,” to offer “a wide variety of prayers,” before the county meetings. In Turner v. City Council of Fredericksburg, the court upheld the city council’s decision refusing to allow a council member’s request to offer sectarian prayer in violation of the board’s newly established nonsectarian prayer policy.
The Sixth and Ninth circuits, on the other hand, have issued opinions stating that sectarian references in legislative prayer are unconstitutional. These cases may be distinguishable in that they involve prayer at a high school graduation and at a school board meeting and therefore do not address the exact issue of legislative prayer in terms of the binding precedent set out in Marsh. The Second, Third and Eighth Circuits have all mentioned Marsh in subsequent appellate decisions but have yet to decide a case specifically involving the constitutionality of legislative invocations. Similarly, the Fifth and Seventh Circuits have refused to hear a case on the merits involving legislative invocations.
The Supreme Court has also cautioned against courts making theological judgments. In many respects making a determination of what is or is not sectarian prayer is a theological judgment in and of itself. Consequently, attempting to approach the issue from this standpoint appears to be misguided. A neutral method of selecting potential invocators which gives the opportunity of various invocators from different religious backgrounds the opportunity to offer public invocations is a legal strategy not involving theological judgments and therefore does not become bogged down in the conundrum of what is or isn’t sectarian prayer. It would also be fully consistent with Marsh.
The Future of the Establishment Clause: Modern Trends Suggest Expansion of Marsh. While no one can predict with any certainty what the future holds for Establishment Clause litigation involving legislative prayer, a couple of recent decisions indicate a trend toward more judicial leniency in this arena. One such area is school prayer. Though the courts seem to be particularly vigilant in enforcing the Establishment Clause by way of sustaining virtually every challenge to government sponsored religious speech in the public school context, recent developments illustrate the courts may be shifting towards expanding Marsh, rather than placing limitations. Additionally, the recent Supreme Court decision of Summum v. Pleasant Grove City, while technically a free speech case, appears to foreshadow an increased use of the “government speech doctrine” in establishment clause jurisprudence.
First Amendment Rights: No Longer Shed at the Schoolhouse Door. Historically, courts have maintained that clearly identifiable distinctions exist between prayer in the public school context and legislative prayer and therefore, they have not applied Marsh in school settings. However, recent decisions in both the Third and Fifth Circuits have extended the Marsh exception to also apply to prayer offered before public school board meetings. In Louisiana, a district court sitting in the Eastern District found that, “the function of the school board, as the body governing public schools, is more like a legislature than a public school classroom or event,” and therefore the court held, “that the U.S. Supreme Court’s exception for legislative prayer applies to the Tangipahoa Parish School Board.” Similarly, a Delaware Court found that not only does Marsh apply to the school board’s prayer policy, but also found that the school board’s practice of frequently referencing “Jesus Christ” in their prayers does not render the board’s policy unconstitutional.
In a surprising decision, given the Seventh Circuit’s unwillingness to jump into the legislative prayer arena, a Seventh Circuit Court of Appeals recently issued a 2-1 ruling that upheld the constitutionality of an Illinois law that requires a moment of silence in public schools. The lawsuit, brought by a talk-show host and known atheist, and his daughter, a student at Buffalo Grove High School, alleged that the law indicated “intent to force the introduction of the concept of prayer into the schools.” The court disagreed, and by appearing to apply the Lemon test, it found the law “serves a secular purpose and does not have the principal or primary effect of promoting religion.”
Legislative Prayer and the Government Speech Doctrine. To date, very few cases challenging the religious clauses of the First Amendment even mention the idea of resolution through the “government speech doctrine”. This doctrine was first developed by the Supreme Court in the seminal government speech case of Rust v. Sullivan. This 5-4 ruling stands for the premise that when the government itself speaks, as opposed to the government regulating speech of a private person, it can generally say what it likes, including viewpoint discrimination, while remaining immune from First Amendment scrutiny. If legislative invocations constitute government speech, then applying this doctrine means the government has “unqualified control over the religious message.” The few legislative prayer cases discussing the government speech doctrine are all out of the Fourth Circuit and have acknowledged that legislative prayer is government speech. These courts also found that the free speech analysis is separate and distinct from that of the establishment clause. However, in 2009 the Supreme Court decided the case of Summum v. Pleasant Grove City, a decision that, using a clearly defined government speech doctrine, has the potential to expand Marsh’s boundaries to encompass and allow sectarian legislative prayer under the Establishment Clause.
Although Summum was a free speech case, it involves religious government speech and therefore its outcome has the potential to directly impact future legislative prayer litigation. The case arose when the city of Pleasant Grove refused to display a monument that contained the Seven Aphorisms of the Summum religion in a park that contained a similar monument displaying the Ten Commandments. The Court, in a unanimous decision, sided with the city by adopting the government speech doctrine under which “the government’s own speech…is exempt from First Amendment scrutiny.” This appears to mean that when the government is speaking, it can “say what it wishes,” and can “select the views that it wants to express.”
In this case, the Court justified the government’s choice of one facially religious monument over another by calling it government speech, which, is exempt from First Amendment scrutiny. Under Summum, speech is government speech if the government engages in speech activity with the intent to send a desired message. It seems clear that legislative prayer is government speech as long as the entity that provided the prayer has enough control to send its own message. And, Summum further held that the government need not write the speech, but rather the speaker will qualify for the protection of this doctrine so long as the legislative entity adopts the speech, or prayer, introduced at the meeting. Accordingly, this decision appears to be consistent with the Marsh holding, which also allowed for a particular form of facially religious speech- legislative prayer- and as such, there is potential for the application of the government speech doctrine to legislative prayer. This, of course, would mean that the government, as speaker, has free reign over the content of the religious message.
Conclusion. The culture wars over religious expression in government arenas will probably continue to be litigated in the federal courts in the coming years. As long as Marsh remains the law of the land, some form of religious expression before governmental deliberative bodies will remain constitutional. This concept is fully consistent with the intent of the Founding Fathers, some of whom believed that in absence “natural rights” flowing from a divine creator, rights become little more than political ephemera. Jefferson noted this in the Declaration of Independence when he used the phrase “…[T]hat all men…are endowed by their Creator with certain unalienable Rights…” If the concept of “natural rights” is to remain a philosophical underpinning of the courts analysis, as described by Justice Douglas when he said “our institutions presume a supreme being,” it appears that the legal battlefield will be to fine tune the application of the Marsh principals.
 Marsh v. Chambers, 463 U.S. 783, 787 (1983).
 U.S. Const. amend. I.
 See Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious Endorsements, 94 Minn. L. Rev. 972 (2010).
 Marsh, 463 U.S. 783 (1983).
 See e.g. Edwards v. Aguillard, 482 U.S. 578, 583 (1987)(“The Lemon Test has been applied in all cases since its adoption in 1971, except in Marsh…”)
 Lemon v. Kurtzman, 403 U.S. 602 (1971).
 Marsh, 463 U.S. at 786 (1983).
 Id.at 790.
 Marsh, 463 U.S. 783 (1983).
 Engel v. Vitale, 370 U.S. 421 (1962)(the first government sponsored prayer case involving prayer before school)
 Marsh, 463 U.S. at 786 (1983).
 Id. at 788-89.
 Id. at 788-89.
 S. Jour., 1st Cong., 1st Sess., at 88 (1820 ed.).
 Marsh, 463 U.S. at 792-3.
 Marsh, 463 U.S. at 791.
 Marsh, 463 U.S. at 794-5 (1983).
 Id. at 795.
 See Turner v. City Councio of Fredericksburg, 534 F. 3d 352 (4th Cir. 2008); Wynne v. Great Falls, 376 F. 3d 292, 298-99 (4th Cir. 2004); See also Robert J. Delahunty, Varied Carols: Legislative Prayer in a Pluralist Polity, 40 Creighton L. Rev. 517, 522 (2006) (“Every prayer, by its very nature…is sectarian.”).
 Marsh at 795.
 Id. at 793.
 547 F. 3d 1263 (11th Cir. 2008).
 404 F.3d 276 (4th Cir. 2005).
 534 F.3d 352 (4th Cir. 2008); See also Joyner v. Forsyth County, 2009 WL 3787754 (M.D.N.C. Nov. 9, 2009)(The 4th Cir. is currently deciding this challenge to the board’s policy of allowing sectarian prayer before meetings).
 See e.g. Stein v. Plainwell Cmty Sch., 822 F.2d 1406, 1409 (6th Cir. 1987); Bacus v. Palo Verde Unified Sch. Dist. Bd. Of Educ.,52 Fed.Appx. 355 (9th Cir. 2002).
 See e.g. Hinrichsv. Bosma, 440 F.3d 393 (7th Cir. 2006)(though the case was later dismissed for lack of standing, the 7th Cir. stated that it reads Marsh as “hinging on the nonsectarian nature of the invocations at issue”).
 Thomas v. Review Bd. Of Ind. Employment Sec. Div., 450 U.S. 707 (1981); See also United States v. Seeger, 380 U.S. 163 (1965).
129 U.S. 1125 (2009).
 See Coles v. Cleveland Board of Education, 171 F.3d 369, 381 (6th Cir. 1999)(holding that Marsh does not apply to school board meetings, “the fact that school board meetings are an integral component of the Cleveland public school system serves to remove it from the logic in Marsh and to place it squarely within the history and precedent concerning the school prayer line of cases.”); See also Lee v. Weisman, 505 U.S. 577 (1992)(rejecting the applicability of Marsh to a high school graduation ceremony); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)(holding that student prayer before a high school football game violated the Establishment Clause).
 Doe v. Tangipahoa Parish School Board, 631 F. Supp. 2d (E.D. La. 2009).
 Doe v. Indian River School Dist., 685 F. Supp. 2d 524 (D. Del. 2010).
 Sherman v. Koch, 623 F.3d 501 (7th Cir. Ill. 2010) (The appellate decision reversed a federal district judge’s decision to strike down the law as unconstitutional in Sherman’s 2007 lawsuit challenging the law).
 Simpson, 404 F. 3d at 288; Turner, 534 F. 3d at 354-55.
 500 U.S. 173 (1991).
 Cornelius v. NAACP Legal Def. & Ed. Fund, Inc., 473 U.S. 788 (1985).
 See Christopher C. Lund, Keeping the Government’s Religion Pure: Pleasant Grove City v. Summum, 104 Nw. U. L. Rev. Colloquy 46 (2009).
 Summum v. Pleasant Grove City, 555 U.S. 460 (2009).
 Summum, 129 S. Ct. at 1131 (quoting Johanns v. Livestock Marketing Assn, 544 U.S.550, 553 (2005)).
 Id. at 1131 (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995); and Rust v. Sullivan, 500 U.S. 173 (1991).
Jim Knippen is a principal at Walsh, Knippen, Knight & Pollock, Chartered in Wheaton who specializes in complex litigation, including personal injury, professional negligence, chancery and business litigation. He also represents units of local government. His work in the personal injury area has included representing both plaintiffs and defendants. He has co-counseled multi-million dollar settlements and verdicts and is a specialist in the creation and use of demonstrative exhibits.
Beth Farmer joined Walsh, Knippen, Knight & Pollock, Chartered in Wheaton in 2010 as an associate attorney and focuses on the areas of personal injury and medical malpractice litigation. She graduated with honors from Northern Illinois University College of Law in 2010. Beth is also a practicing registered nurse and she currently works in the cardiac-neuro intensive care unit at Edward Hospital in Naperville, IL.