Elon Law Professor Scott Gaylord spoke about sectarian legislative prayer at a religious legal theory conference in February, sponsored by the Nootbaar Institute on Law, Religion, and Ethics and the Glazer Institute for Jewish Studies at Pepperdine University School of Law.
Gaylord presented as part of a session titled, “Legislative Prayer: Speaking Whose Truth to Which Power—Thoughts on Forsyth County, North Carolina v. Joyner.” He presented on the panel with the following law scholars and attorneys:
- J. Michael Johnson, Dean, Louisiana College Judge Paul Pressler School of Law;
- Christopher C. Lund, Assistant Professor of Law, Wayne State University Law School;
- Robert Luther III, Associate, Knicely and Associates, PC;
- Jeremy G. Mallory, Associate, Kirkland & Ellis LLP.
Gaylord’s comments were based on his paper, “When the Exception Becomes the Rule: Marsh and Sectarian Legislative Prayer Post-Summum.”
The abstract for that article follows:
“Across the country, federal, state, and local legislative bodies begin their meetings with prayer. Yet, as recent challenges to sectarian legislative prayer demonstrate, legislative prayer rests uneasily at the intersection of the Free Speech and Establishment Clauses. While the government has the right to speak for itself, many contend that it is precluded from engaging in paradigmatic religious activity, such as sectarian prayer. As a result, although legislative prayer has been part of the ‘fabric of our society’ since at least the First Continental Congress, sectarian prayer teeters on the brink of unconstitutionality.
“Despite the pervasiveness of legislative prayer and the importance of the constitutional issues it raises, the United States Supreme Court did not decide a legislative prayer case until Marsh v. Chambers in 1983. In Marsh, the Court upheld legislative prayers generally but did not explain how Marsh fit within the Court’s broader Establishment Clause jurisprudence. Subsequent Supreme Court and lower court decisions, therefore, have treated Marsh as a narrow exception to the Supreme Court’s general Establishment Clause rules.
“This Article examines recent developments that undermine the traditional view of Marsh as a limited exception and places Marsh at the center of the Court’s current view of facially religious government speech. In particular, after analyzing the Court’s discussions of legislative prayer in Marsh and Allegheny, this Article focuses on the recent flood of challenges to sectarian legislative prayers, comparing the widely divergent conclusions reached by the seven circuit courts that have heard such cases. It then explores how the Supreme Court’s 2009 decision in Summum v. Pleasant Grove City provides a new lens through which Marsh may be interpreted, contending that the Court’s “recently minted” government speech doctrine (1) is inconsistent with the endorsement test and, in fact, (2) mandates the Establishment Clause test the Court first developed in Marsh. In the last Part, this Article considers the constitutionality of sectarian and nonsectarian legislative prayer in light of Marsh and Summum, arguing that, under this “new” standard, federal, state, and local governments can continue to engage in legislative prayer, even if those prayers contain sectarian references.”
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