"unity Through Division": Religious Liberty and the Virtue of Pluralism in the Context of Legislative Prayer Controversies

• Publication year: 2022

43 Creighton L. Rev. 1. "UNITY THROUGH DIVISION": RELIGIOUS LIBERTY AND THE VIRTUE OF PLURALISM IN THE CONTEXT OF LEGISLATIVE PRAYER CONTROVERSIES

"UNITY THROUGH DIVISION": RELIGIOUS LIBERTY AND THE VIRTUE OF PLURALISM IN THE CONTEXT OF LEGISLATIVE PRAYER CONTROVERSIES

ROBERT LUTHER III(fn*)

TABLE OF CONTENTS

PREFACE: A BRIEF OVERVIEW OF RECENT CONTROVERSIES CONCERNING RELIGION IN

AMERICAN PUBLIC LIFE .................... 2

I. INTRODUCTION ................................... 7

II. A REPLY TO PROFESSOR LUND .................. 9

A. Professor Lund On "Nonsectarian" Prayer ........ 14

B. Professor Lund on the Rights of the Listener v.

The Rights of the Speaker ....................... 17

III. REASONS WHY TURNER V. CITY COUNCIL OF FREDERICKSBURG WAS WRONGLY DECIDED ... 19

IV. STANDING ON THE SHOULDERS OF MARSH : WHY PELPHREY, AS INFORMED BY SNYDER, IS THE MODEL LEGISLATIVE PRAYER DECISION FOR THE TWENTY-FIRST

CENTURY .......................................... 28

A. Snyder v. Murray City Corp ...................... 29

B. Pelphrey v. Cobb County ......................... 30

V. CONCLUSION ..................................... 32

PREFACE: A BRIEF OVERVIEW OF RECENT CONTROVERSIES CONCERNING RELIGION IN AMERICAN PUBLIC LIFE

On December 17, 2008, President-Elect Barack Obama announced that he had invited Reverend Rick Warren, author of the best-selling book The Purpose Driven Life ,(fn1) to deliver the invocation at his inauguration.(fn2) This selection drew some criticism from members of the homosexual community on the basis of Reverend Warren's support for California's Proposition 8.(fn3) Surprisingly, one of the most pointed criticisms directed at President Obama for selecting Reverend Warren(fn4) concerned the fact that the Reverend was likely to "say the J-word"(fn5) during his invocation. The "J-word," of course, refers to the name of "Jesus."(fn6) Reverend Kirbyjon Caldwell, former spiritual advisor to President George W. Bush, forewarned that "[i]f Rick Warren doesn't pray in Jesus' name, some folks are going to be very disappointed ..."(fn7)

If Reverend Warren had failed to pray in the name of "Jesus" during his invocation, noted atheist litigant and attorney Reverend Dr. Michael Newdow would not have been among those "disappointed folks"(fn8) alluded to by Reverend Caldwell. Reverend Dr. Newdow chose to celebrate the election and inauguration of President Obama in a slightly different fashion than Reverend Warren. Convinced that a solitary reference to "God," let alone the mention of "Jesus," had absolutely no place in American public life, Reverend Dr. Newdow brought suit seeking on this occasion to enjoin the Chief Justice of the United States, John G. Roberts, Jr., from referencing "God" during his administration of the inaugural oath.(fn9)

To be certain, inaugural prayer and the inaugural oath are not the same as legislative prayer. In fact, the former two practices are most distinct from legislative prayer by virtue of their infrequency. While the inaugural prayer and oath occur only once every four years, legislative prayer occurs most days a week in countless cities, towns, and municipalities across the nation. However, the inaugural oath and inaugural prayer share a common bloodline with legislative prayer as siblings in the family of religion in American public life. Perhaps the most interesting overlap between the inaugural prayer and inaugural oath controversies is that the positions of Reverend Warren and Reverend Dr. Newdow epitomize the positions of advocates on each side of the contemporary legislative prayer debate.(fn10)

Today, "Establishment Clause jurisprudence, including cases interpreting Marsh [v. Chambers ],(fn11) remains complex and unresolved"(fn12)and recent decisions from the United States Courts of Appeal have proven no exception to this rule.(fn13) In 2008, the United States Courts of Appeal for the Eleventh and the Fourth Circuits issued decisions on the hot-button constitutional question of whether the government may censor non-"proselytiz[ing] or disparage[ing]"(fn14) religious speech a prayer-giver wishes to reference during his or her delivery of legislative prayer.(fn15) The most recent of these opinions, released by the Eleventh Circuit only days prior to the 2008 election, is consistent with Reverend Warren's religious-freedom friendly and pluralistic vision that respects the diversity of religious views in American public life. On the contrary, the earlier opinion released by the Fourth Circuit in July 2008 indirectly promotes Reverend Dr. Newdow's vision of a vapid American public square sterile of any indication of religion or acknowledgment of the fact that this nation peacefully hosts the most diverse group of faiths in the world.(fn16)

Initially, one might label this analogy extreme in view of the fact that Reverend Dr. Newdow desires to remove all notions of "God" from the public sphere, while the Fourth Circuit's most recent legislative prayer opinion clearly permits the invocation of "God," just not any other "deity."(fn17) However, when considered in the context of legislative prayer, Reverend Dr. Newdow is sure to be pleased by the fact that the Fourth Circuit's most recent legislative prayer opinion effectively silenced a number of individuals from praying at all, as the result of the government's decision to prohibit these individuals from praying to the "god" of their choice.(fn18) By shrinking the size of the forum through restriction of the speech's theological content, the Fourth Circuit reduced the pool of potential prayer-givers and indirectly advanced Reverend Dr. Newdow's vision of the theologically-naked public square.

Consistent with the theme that legislative prayer controversies have recently received increased public exposure, a momentary look away from the courtroom and into the academy reveals that 2009 has yielded three articles on legislative prayer, including an article by Professor Eric J. Segall recounting the Eleventh Circuit's opinion and arguing that Marsh should be overruled,(fn19) as well as a duo of articles by church-state scholar Professor Christopher C. Lund on the subject of legislative prayer. The first of Professor Lund's articles, The Congressional Chaplaincies, (fn20) traces the historical origins of the Congressional Chaplaincies in far greater depth than the Court's opinion in Marsh . Professor Lund's second article, Legislative Prayer and the Secret Costs of Religious Endorsements ,(fn21) stands as the most comprehensive article to date on the lower court developments in the law of legislative prayer. The value of Professor Lund's legislative prayer article to the scholarship on this area of law is significant for a number of reasons. As Professor Lund's footnote indicates, he was involved with the litigation of two of the earliest "second generation"(fn22) legislative prayer cases that occurred within the Fourth Circuit, specifically the Wynne v. Town of Great Falls (fn23) and Simpson v. Chesterfield County (fn24) decisions. Thus, he obviously has intimate familiarity with legislative prayer issues and his involvement permits him to offer behind-the-scenes insights into these two important cases. Professor Lund's Secret Costs article is particularly insightful for that reason because it traces the back and forth that the litigants in these cases stewed over as they framed their theories of litigation.(fn25) By carefully parsing out the arguments considered by both sides in the variety of cases he has considered, Professor Lund is able to bring the litigation to life and make his own thesis that government should not take sides in the legislative prayer debate increasingly effective.

Although we seem to be in general agreement that the Wynne court reached the correct result under the Marsh precedent,(fn26) while the Simpson decision left us both disappointed,(fn27) Professor Lund and I are not in agreement with either the result or analysis applied in the third "second generation" legislative prayer case adjudicated by the Fourth Circuit, namely the Turner v. City Council of Fredericksburg, (fn28)decision. On the basis of my involvement with the Turner case, and on the basis of my previously published article on legislative prayer,(fn29) I offer the following response and commentary.(fn30)

Although other courts outside the Eleventh and Fourth Circuits have recently adjudicated legislative prayer disputes,(fn31) this issue is clearly not settled and remains a fresh church and state controversy alive in federal courts nationwide.(fn32) It is now more likely than ever that the United States Supreme Court will resolve the conflicts that exist within the United States Courts of Appeals for the Eleventh, Tenth, and Fourth Circuits.

I. INTRODUCTION

Just over four months after the United States Court of Appeals for the Fourth Circuit issued Turner v. City Council of Fredericks-burg, (fn33) the United States Court of Appeals for the Eleventh Circuit issued an opinion in the case of Pelphrey v. Cobb County, (fn34) which also concerned a legislative prayer controversy. The Pelphrey decision is the most comprehensive federal court decision on legislative prayer to date because the Eleventh Circuit addressed both flashpoints of the post-Marsh [v. Chambers ](fn35) debate. First, the Pelphrey court addressed the "curious[ly] ambigu[ous]"(fn36) issue of sectarian prayer. Second, the Pe...