This opinion column originally appeared on fed-soc.org on 4/11/2013.
Nearly three decades ago, in the case of Marsh v. Chambers, the Supreme Court declared that legislative prayers do not constitute an establishment of religion.1 It is the only time the Supreme Court has directly addressed the constitutionality of legislative prayers. In Marsh, the high Court found that it did not violate the Constitution for a state legislature to pay a Presbyterian minister to serve as its chaplain for sixteen years, even where that chaplain delivered daily prayers that were “often explicitly Christian.”
Despite the Supreme Court’s pronouncement, since 2004 seventeen federal lawsuits have challenged the validity of various legislative prayer practices. These suits have focused on the content of the prayers as well as the government’s role in regulating that content. The year 2004 was significant because it marked the first time a legislative prayer practice was struck down. In Wynne v. Town of Great Falls, SC,the Fourth Circuit reviewed troubling facts that led the court to find that the Town of Great Falls had impermissibly exploited the prayer opportunity.2 Most notably, town officials publicly chided a Wiccan who had complained that Christian prayers were offered. And to make matters worse, the town refused to allow her to participate in public town meetings unless she was present for the prayers.3 The Fourth Circuit’s finding that the town’s prayer opportunity was exploited is unremarkable, given those facts. But the many federal lawsuits challenging legislative prayer practices that were brought after Wynne were spawned by the Fourth Circuit’s reliance upon dictum contained in a Supreme Court decision involving public holiday displays, County of Allegheny v. ACLU Greater Pittsburgh Chapter,4 which led the Wynne court to find the content of legislative prayers themselves to be unconstitutional.5