The establishment clause and legislative prayer: differentiating tradition from religion: Pelphrey v. Cobb County.

Author:Walsh, Kathleen
  1. INTRODUCTION

    George Washington rightly observed that "[r]eligious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause." (1) In Pelphrey v. Cobb County, Georgia, the Eleventh Circuit held that the court will not evaluate or parse any portion of legislative prayer, unless outside evidence shows that the prayer is used to proselytize or advance any one particular faith. (2) Relying heavily on the Supreme Court's holding in Marsh v. Chambers, the Pelphrey ruling allows room for risking imbalance between the separation and neutrality principles derived from the Establishment Clause of the First Amendment. The result in Marsh was correct, but the rationale has raised significant questions, which eventually resulted in the incorrect ruling in Pelphrey. First, the rationale in Marsh raises the question whether the Supreme Court properly recognized the purpose of legislative prayer at the time the Founding Fathers constructed the Constitution of the United States. Second, through its historical analysis, the Marsh rationale raises the question whether the Court properly determined when an establishment of religion occurs. Third, the Marsh rationale raises the question whether the Court may parse or evaluate the content of legislative prayer regardless of outside evidence showing an impermissible governmental motive. Finally, the rationale in Marsh raises the question whether the Court correctly ignored Lemon v. Kurtzman in evaluating the constitutionality of legislative prayer. (3)

    Due to the Supreme Court's incorrect reasoning in Marsh, the Court failed to set out a clear standard for future guidance, and it established a rule that inherently violates the Establishment Clause of the First Amendment. In saying so, the court in Pelphrey properly applied the Marsh rationale, but the result was incorrect because the Marsh rationale was erroneous. In addition, although the Marsh Court accurately set out the historical analysis approach, the Court should have made a more thorough overall analysis. Through a more in-depth application, the Court could have reached a better result by recognizing that legislatures can conduct prayer as a traditional ceremony serving to solemnize legislative sessions, without any substantial religious purpose or effect. Courts should deem such prayers permissible. On the other hand, courts should not deem all legislative prayers permissible. The only way legislative prayers can survive within the parameters of constitutional limits is for the speaker to limit the invocations to prayers of thankfulness and relief, including generic references to God to promote tradition, unity, hope, and national pride for those attending the legislative sessions. Under this more analytical approach, in determining both the purpose of legislative prayer and whether a violation of the Establishment Clause has occurred, the Court would have accurately found congressional invocations that preserve hope, unity, national pride, and the Framers' traditional practice as constitutional.

    Furthermore, the Court should have applied the three-prong test in Lemon v. Kurtzman. Even under the more thorough historical and originalist approach of the Lemon test (4), the Marsh legislative prayer would have survived constitutional challenge. Therefore, the Court ultimately should have applied Lemon and concluded that legislative prayer does not violate the Establishment Clause when (1) it is conducted to preserve the patriotic tradition carried on by the Founding Fathers and (2) it contains only generic references to God in relation to national hope and pride, in a somewhat similar fashion to that of the Founding Fathers. Thus, the Court may parse or evaluate the content of legislative prayer, regardless of outside evidence showing that the government is trying to proselytize or advance a particular belief. When the true nature of the prayer is not to seek divine guidance but rather to preserve the tradition long engrained in the fabric of our society, such prayer is constitutional.

    The first section of this note discusses the constitutional requirements of the Establishment Clause, the history of congressional prayer, and the legal background of Pelphrey. The second section recites the facts, procedural posture, and the court's holding and reasoning in the Pelphrey case. The third section analyzes the Marsh case and addresses (1) whether the Supreme Court in Marsh properly recognized the purpose of legislative prayer at the time the Founding Fathers constructed the Constitution of the United States; (2) whether, through its historical analysis, the Court has properly analyzed when an establishment of religion has occurred; (3) whether the Court may parse or evaluate the content of legislative prayer regardless of outside evidence showing an impermissible governmental motive; and (4) whether the Court should have applied the three-prong test in Lemon v. Kurtzman in evaluating the constitutionality of legislative prayer. The final section of this note summarizes the shortcomings of the Marsh decision and the proposed test to better gauge the constitutionality of legislative prayer.

  2. BACKGROUND INFORMATION

    1. Constitutional Requirements of the Establishment Clause

      The Establishment Clause of the First Amendment, applied to the states through the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion[.]" (5) Preservation of the Establishment Clause has conjured up constant controversies since its existence. In relation to the separation and neutrality principles derived from the Establishment Clause, "[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." (6)

    2. History and Progress of Congressional Prayer

      The practice of legislative prayer began when the First Continental Congress implemented the prayers in the fall of 1774, before the construction of the United States Constitution. (7) Over several objections from some of the congressional members, Reverend Jacob Duche, an Anglican minister, was the first person to open the session with a prayer, better recognized as "the first American legislative prayer." (8) The prayer comprised biblical scriptures, including Psalm 35, and prepared invocations relating to the events the Congress would be addressing at the session. (9) However, the exceedingly influential Reverend Duche, acting as an informal Congressional chaplain, continued to offer prayers that were likely to be religiously motivated and used to push for Congress' political and revolutionary movements. (10) During this era, continuously high anti-Catholic sentiment existed as well as a desperate need for control, balance, and unity, especially between the Protestant and growing Catholic population. (11)

      Duche's legendary career peaked shortly after the ratification of the Declaration of Independence on July 4, 1776. (12) He became the official chaplain for the Continental Congress after he famously struck King George III's name out of church prayers and "cross[ed] his name out of the Book of Common Prayer," an otherwise treasonous act under English law. (13) However, his fame and valiant reputation ended during the British detainment in the Revolutionary War when he "[urged] Washington to lay down his arms," leading John Adams to refer to him as "an Apostate and Traytor." (14) After his removal from Congressional chaplain, Congress appointed several other chaplains who also gave prayers and sermons and administered funerals in a fashion similar to Reverend Duche's. This process continued through the ratification of the Constitution and the selection of new Congressional members. (15)

      Although Congressional chaplaincies thrived since before the nation's independence, heated controversies over such practices were unavoidable. (16) One such controversy took place during the Constitutional Convention in 1787. (17) Unlike the organized prayer structure of the Continental Congress, the Constitutional Convention had neither official chaplaincies nor an "institutionalized practice of prayer." (18) Within the first few weeks of its existence, the Convention experienced minimal success in its political deliberations. As a result, Benjamin Franklin begged the Convention members to organize daily prayers at the start of each session in order to seek divine guidance, hope, and unity, and to maintain a "common bond" and open mind in its deliberations. (19) However, Franklin's motion failed to sway the other members, and the Convention continued without prayers from an official chaplain. (20)

      Soon after the Constitutional Convention came the First Congress in 1789. (21) The House of Representatives and the Senate each were given the power to "appoint their own chaplains, [provided] that the chaplains would be of different denominations, and the chaplains would regularly switch between the two bodies." (22) Moreover, the First Congress enacted a statute providing chaplains an annual salary. (23) Although the legislative invocations and paid chaplaincies were then continuing without interruption, dissent remained as to whether these practices were constitutional. (24)

      James Madison, the primary drafter of the First Amendment to the Constitution, did occasionally vote for paid congressional officers, which included paid chaplaincies; however, he "always maintained that he never had given outright approval to the congressional chaplaincies." (25) Ultimately, Madison's true sentiment became clear--that he deemed legislative prayers to be unconstitutional. (26) Specifically, in his Detached Memoranda, James Madison offered his last few crucial arguments against the practice of legislative prayers:

      Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious...

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