The Establishment Clause: The Lemon and Marsh Conflict, Where Lund and Bormuth Leave Us, and the Constitutionality of Exclusive, Legislator-Led Prayer.

AuthorNguyen, Joe H.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." (1)


    Over the last fifty years, Establishment Clause jurisprudence has caused widespread dissent and confusion within the legal community. (2) The Supreme Court's Establishment Clause cases have left lower courts with little guidance on how to address similar issues. (3) Specifically, cases involving the constitutionality of legislative prayer practices have generated inconsistency among lower courts due to the conflicting analytical approaches set forth in the Supreme Court's Marsh v. Chambers (4) and Lemon v. Kurtzman (5) opinions. (6) Marsh sets forth a historical approach to legislative prayer cases, deferring to an interpretation and application of the Framers' intent regarding the Establishment Clause, while providing limited framework to guide lower courts confronted with legislative prayer challenges. (7) Lemon, on the other hand, constructed an abstract three prong test based on "cumulative criteria developed by the Court over many years," diverging from the historically deferential approach previously governing Establishment Clause constitutional analyses. (8)

    This conflict was supposedly resolved by the Supreme Court's ruling in Town of Greece v. Galloway (9) In a 5-4 split decision, the majority clarified and affirmed Marsh's role as a "historical override" to Establishment Clause analyses, negating any role Lemon or its counterparts would play in the constitutional analyses for legislative prayer cases. (10) Town of Greece continued the trend towards an originalist and historically informed approach to First Amendment jurisprudence, an approach some scholars have welcomed to replace the current governing law. (11)

    In light of Town of Greece, an Establishment Clause split now exists between the Fourth Circuit and the Sixth Circuit concerning the constitutionality of legislator-led prayer practices. (12) In Lund v. Rowan County, (13) the Fourth Circuit conducted a fact-sensitive review, examining the coercive effects of Rowan County's exclusive, legislator-led prayer practice, and in determining the prayer practice fell outside of the historical exception set forth in Marsh and its progeny, the Fourth Circuit held that the county's practice was constitutionally impermissible. (14) To the contrary, in Bormuth v. County of Jackson, (15) the Sixth Circuit--while declining to consider in its analysis the unique setting and circumstances of the prayer practice at issue--determined that Jackson County's prayer practice was permitted by the Court's ruling in Town of Greece. (16)

    This Note begins by tracing the origins and development of modern Establishment Clause jurisprudence. (17) Next, this Note identifies and critiques the tests the Supreme Court has created and applied in Establishment Clause cases. (18) This Note then evaluates the Fourth Circuit's analysis in Lund and the Sixth Circuit's analysis in Bormuth, and determines the extent to which each is consistent with Supreme Court precedent. (19) Thereafter, this Note argues that, while the weight the Supreme Court affords to historical practices in legislative prayer cases can be justified, the same or more weight should also be given to the coercive effects of such practices. (20) Consequently, this Note concludes that Establishment Clause jurisprudence regarding legislator-led prayer requires clarification and additional review to account for the direct or indirect adverse effects on religious minorities. (21)


    1. Origins of Modern Establishment Clause Jurisprudence

      Prior to the 1940s, the Supreme Court had few opportunities to interpret the Establishment Clause's meaning or purpose, and for that reason Establishment Clause jurisprudence remained largely undeveloped. (22) It was not until the Court's 1947 Everson v. Board of Education of Ewing Township (23) decision that this Nation's modern Establishment Clause jurisprudence began to take form. (24) The Court used Everson as a vehicle to extend and apply the Establishment Clause to the states through the Due Process Clause of the Fourteenth Amendment. (25) Further, Everson marked the first time the Supreme Court gave weight to historically relevant events and practices in an Establishment Clause case. (26)

      Everson, however, left much to be desired in its Establishment Clause approach. (27) To give historical credence to its decision, the Everson Court chose to rely on one event in this Nation's centuries-old history--a 1785 Virginia tax dispute--to define the Establishment Clause's purpose as intended by the Framers. (28) In doing so, the Court failed to consider--or even acknowledge--the complete legal history relating to disestablishment in early American states and colonies. (29)

      Still, Everson's historical approach "set the tone for Establishment Clause cases" for the next two decades, dictated by a brief 1785 Virginia tax dispute that determined the Clause's meaning and purpose during that time period. (30) Twenty-four years after Everson established its abbreviated and insufficient historical approach to Establishment Clause cases, the Supreme Court recognized that it could not definitively determine the Framers' intent nor the meaning behind the Clause, and effectively turned to a new page in Establishment Clause jurisprudence. (31)

    2. Establishment Clause After Everson

      1. Establishment Clause Tests

        Establishment Clause jurisprudence began to take on a completely new form in the last quarter of the twentieth century. (32) New doctrinal standards grounded in long-standing constitutional values replaced historical deference in Establishment Clause cases. (33) Presently, the Supreme Court has created three main tests to assist and guide courts in reviewing and determining the outcomes in Establishment Clause cases: the Lemon test, the endorsement test, and the coercion test. (34)

        The Supreme Court's jurisprudential shift past Everson's historical approach began in 1971 with its decision in Lemon v. Kurtzman. (35) Lemon marked a new era in Establishment Clause jurisprudence by setting forth a universal Establishment Clause standard, shifting the focus from historical deference to a cumulative criteria developed by the Court. (36) Under the three-pronged Lemon test, to avoid conflict with the Establishment Clause, government action must have a secular purpose, the action's primary effect must not be to advance or inhibit religion, and the action must not foster excessive entanglement between state and church. (37) Accordingly, the Lemon test gained preference in lower courts because its abstract terms, while vague, provided lower courts with a foundation for their analyses--a benefit unavailable under the previous Everson approach. (38)

        The Establishment Clause's evolution continued with the Supreme Court's 1984 decision in Lynch v. Donnelly, (39) where Justice O'Connor's concurrence introduced the endorsement test. (40) The endorsement test--initially proposed as a "clarification" of Lemon--became a separate doctrinal tool prohibiting two types of governmental action: excessive governmental entanglement in religion and governmental endorsement or disapproval of religion. (41) While the Lemon and endorsement tests share similar constitutional values, the latter gives greater weight to values such as protecting minority religious identities and promoting religiously inclusive communities. (42) However, the Court has rarely found impermissible endorsement in subsequent Establishment Clause cases, evidencing its unwillingness to apply the standard to enjoin state action. (43)

        The coercion test is the last major Establishment Clause standard in the Court's repertoire of doctrinal tools, formally added to the lineup in the Court's 1992 decision in Lee v. Weisman. (44) The approach reflects the constitutional guarantee that the government may not coerce its citizens "to support or participate in religion or its exercise, or otherwise act in a way which 'establishes a [state] religion or religious faith, or tends to do so.'" (45) As such, any state action that is coercive towards or against any religion, whether it be direct or indirect, is prohibited under the coercion test. (46) While recognized as a separate and distinct doctrinal analysis tool, coercion is not essential to an Establishment Clause claim. (47) Instead, it is often treated as an auxiliary element to most Establishment Clause claims due to the Lemon and endorsement tests' lower thresholds for Establishment Clause violations. (48)

      2. Legislative Prayer Exception

        In addition to the doctrinal tools set forth above, the Supreme Court has, at its discretion, applied a historically deferential approach in cases dealing with the constitutionality of legislative prayer. (49) The Court used its 1983 decision in Marsh v. Chambers--about a year before Justice O'Connor's concurrence in Lynch--to set forth an Everson-like, historically deferential approach to govern legislative prayer cases; an approach the Court used to uphold the Nebraska legislature's practice of opening sessions with prayer, relying on the fact that the practice mirrored the Framers' legislative prayer practices. (50) Justice Brennan's dissent, however, criticized the majority decision's inconsistency with established precedent, arguing that an application of the Lemon test would have undoubtedly led to an antithetical result. (51) Due to Marsh's limited applicability, lower courts developed a preference for Lemon and viewed Marsh as an exception when dealing with Establishment Clause claims. (52)

        The Marsh decision created a doctrinal conflict in Establishment Clause jurisprudence. (53) Under Marsh's fact-specific criteria, the constitutionality of a specific legislative prayer practice turns on whether the reviewing court finds that the practice is within the scope of the Framers' intent and practice of legislative prayer...

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