A QUESTION OF COERCION: WHEN DOES LEGISLATOR-LED PRAYER CROSS THE CONSTITUTIONAL LINE?

• Author: Holt, Theresa

INTRODUCTION

Perhaps one of the greatest motivations of the first English settlers in North America was freedom to practice one's religion according to one's conscience. (1) Religious liberty remained a primary concern during the founding of the Republic and, as a result, the Framers enshrined the dual principles of free exercise and disestablishment of religion in the First Amendment to the Constitution of the United States. (2) In the nineteenth century, principles of disestablishment coexisted with local, state, and federal traditions of prayer before legislative sessions and paid legislative chaplains. (3)

Since the twentieth century, however, the constitutionality of legislative prayer has become a source of great debate. (4) Some have challenged the practice of legislator-led prayer, claiming that the practice violates the Establishment Clause because government officials--rather than ministers or other religious leaders--lead a religious exercise. (5) In Lund v. Rowan County (6) and Bormuth v. County of Jackson, (7) the Fourth and Sixth Circuits split concerning the constitutionality of legislator-led prayer, resulting in an absurdity: legislators in one region are permitted to engage in a practice held unconstitutional in the neighboring region. (8) The Supreme Court has declined to review Lund and Bormuth, leaving the question of legislator-led prayer open. (9)

The purpose of this Note is to consider the practice of legislator-led prayer and the opposing analytical approaches taken by the Fourth and Sixth Circuits to craft a solution to the unresolved questions concerning legislator-led prayer and the Establishment Clause. The first part of this Note will review the history of legislative prayer in Establishment Clause jurisprudence to provide a historical and legal context for the practice of legislative prayer. This part will primarily focus on the analytical frameworks the Supreme Court developed in the two cardinal cases on legislative prayer: Marsh v. Chambers and Town of Greece v. Galloway.

The second part of this Note will examine the current circuit split regarding legislator-led prayer and the Supreme Court's subsequent denial of certiorari. Although the Fourth and Sixth Circuits applied the tests articulated in Marsh and Town of Greece, they came to diametrically opposed conclusions because they disagreed on whether the identity of the prayer-giver should be given any weight in the historical and coercion analyses from Marsh and the coercion analysis from Town of Greece. (10) Furthermore, the Circuits disagreed about the coercive effect of legislators leading prayers according to a single religious tradition. (11)

The third part of this Note will consider a solution to the questions of the extent to which coercion, the identity of the prayer-giver, and religious uniformity should be considered in the legislator-led prayer analysis. After considering whether the prayer practice falls into the established historical practice of legislative prayer outlined in Marsh and Town of Greece, courts should consider whether the practice is coercive. A prayer practice is coercive if (1) legislators and the public attending the session are required to participate in the prayer; (2) the prayer proselytizes, denigrates other religious beliefs, or promotes membership in a particular religion; or (3) a citizen or government official's participation in or dissent from the prayer opportunity influences the governing body's decisions. (12) The identity of the prayer-giver should not be a factor in the analysis because legislator-led prayer has consistently been part of the legislative prayer tradition and is unrelated to voluntariness, the existence of proselytization, and whether the government uses participation in the prayer to allocate government benefits and burdens. (13) Courts should only consider the uniformity of prayer-givers' religious traditions to the extent that it is relevant to determining whether the prayer opportunity has been exploited to proselytize. (14) If the legislative body retains a policy of nondiscrimination concerning the religious belief--or lack thereof--of prayer-givers, mere uniformity of religious traditions represented in the prayer opportunities should not be sufficient to render the prayer practice unconstitutional. (15)

I: THE HISTORY OF LEGISLATIVE PRAYER IN ESTABLISHMENT CLAUSE JURISPRUDENCE

1. The Founding to the Twentieth Century

   The American tradition of legislative prayer began in the colonial period when legislatures would open their sessions with prayers led by a paid chaplain. (16) Later, the Continental Congress continued this practice by opening its sessions with prayers led by a paid Anglican chaplain. (17) Although legislative prayer was rooted in the established churches of colonial America, it was not abandoned by local, state, and federal legislatures after the United States gained independence from Great Britain. (18) On the federal level, in the same week the First Congress finalized the language of the First Amendment--including the Establishment Clause--it passed a bill establishing the office of chaplain and authorizing the chaplain's salary to be taken from government funds. (19) The practice of appointing chaplains for the House of Representatives and Senate has continued to the present. (20) Although both houses of Congress have chaplains, the task of opening legislative sessions with prayer has not been exclusively reserved to the hired chaplain; the right has also been given to invited guest chaplains (21) and occasionally legislators have led prayers. (22)

   Several state legislatures also continued their colonial legislative prayer practices or adopted a legislative prayer practice before or after attaining statehood. (23) Notably, Virginia's legislature hired a paid chaplain to open its sessions even though it had disestablished its state church prior to the adoption of the First Amendment. (24) Many state legislatures have continued their legislative prayer practices to the present. (25) State legislatures have adopted a variety of prayer practices, including paid chaplaincies, inviting guest chaplains, and legislator-led prayer. (26)

   Despite its longevity, legislative prayer has been subject to criticism and debate since the Founding Era. (27) At the First Continental Congress, before hiring a chaplain to open the sessions with prayer, the delegates debated the wisdom of opening the sessions with sectarian prayer because the delegates held a variety of religious beliefs. (28) Although there is no record of the First Congress's debate on legislative prayer, subsequent Congresses have debated the practice. (29) For example, in 1853, members of the Senate proposed abolishing its chaplaincy and legislative prayer practice. (30) The Senate Judiciary Committee determined the chaplaincies did not violate the Establishment Clause because they did not establish a national church and the First Congress "could not have intended the First Amendment to forbid legislative prayer or viewed prayer as a step toward an established church." (31)

2. Marsh v. Chambers

   Perhaps the most significant development in modern Establishment Clause jurisprudence occurred in 1971 when the Supreme Court decided Lemon v. Kurtzman and established a new test to determine whether a state or the federal government violated the Establishment Clause. (32) Following Lemon, lower courts struggled to apply the standard to various traditional practices--including religious themes in official or patriotic rituals, songs, and monuments--resulting in inconsistent application of the Lemon test. (33) However, it was not until 1982 that a federal court considered applying Lemon to legislative prayer. (34)

   The following year, the Supreme Court held that legislative prayer did not violate the Establishment Clause in the landmark decision Marsh v. Chambers. (35) Since 1855, the Nebraska State Legislature appointed a paid chaplain to open its sessions with prayer. (36) Twice a year, a committee would appoint a minister to serve as chaplain. (37) In 1965, the committee appointed a Presbyterian minister and renewed his appointment every two years for the next sixteen years. (38)

   In 1980, a member of the Nebraska State Legislature brought an action under 42 U.S.C. [section] 1983, arguing Nebraska's chaplaincy practice violated the Establishment Clause because the continually appointed, paid chaplain delivered his prayers according to the Judeo-Christian tradition. (39) The district court upheld the prayer practice but enjoined payment of the chaplain using public funds. (40) On appeal, the Eighth Circuit applied the Lemon test and held that the chaplaincy practice as a whole violated the Establishment Clause. (41)

   On certiorari, however, the Supreme Court declined to apply Lemon because of legislative prayer's "unique history." (42) In the majority opinion, Chief Justice Burger traced the history of legislative prayer from its colonial origins, its adoption by the Continental Congress and the First Congress, and its continuation by federal and state legislatures. (43) The majority emphasized that the First Congress authorized paid legislative chaplains and finalized the wording of the Establishment Clause within the same week, suggesting that the drafters did not intend the Establishment Clause to forbid the practice of legislative prayer by paid chaplains. (44)

   Although the Court cautioned that "historical patterns [alone] cannot justify contemporary violations of constitutional guarantees," (45) it found that an unbroken practice revealing the Framers' intent could not "be lightly cast aside." (46) The historical debates concerning legislative prayer revealed that the Framers did not consider the practice as "placing the government's 'official seal of approval on one religious view.'" (47) Instead, the Framers found "invok[ing] Divine guidance on a public body entrusted with making the...