Shan Wu

The Religious Secular State: A Case Against Legislative Prayer

The United States was founded on the principles of independence and equality. In writing

the Constitution, the Founding Fathers were well aware of the risks that may impact the nation’s

abilities to adhere to those founding principles. The Bill of Rights was soon added and clearly

stated the specific freedoms and practices that would be given in the new nation. The First

Amendment rings clear in all Americans’ minds, giving the freedoms to religion, speech, press,

assembly, and petition. However, the exact limits and ranges of these freedoms were never

strictly printed, and many issues have arisen regarding the application of these freedoms over the

past centuries. Specifically regarding the freedom of religion, the United States has a very

complicated history with the extent to which this amendment is practiced, making interpretations

varied and complicated.

To further elaborate on the meaning of freedom of religion, the Free Exercise and

Establishment Clauses were written within the First Amendment. As defined by the American

Bar Association, the Free Exercise Clause recognizes the “right to believe and practice [any]

faith, or not, according to the dictates of conscience” (Girard). Under this clause, individuals

have the right to practice their faith of choice, and the government cannot persecute practitioners

for adhering to a certain belief. Because this clause opens up the possibilities of religion within

national practices, the Establishment Clause was written in conjunction in order to separate the

government from individual religious affairs. The clause “bars the government from taking sides

in religious disputes or favoring or disfavoring anyone based on religion or belief (or lack
thereof)” (Girard). While a clear attempt to separate the government from religious affairs, many

practices attempt to find an exception through different interpretations of the clause and its true

potential. One such practice is that of legislative prayer, where a prayer is performed in the

opening of a legislative setting. Legislative prayer has a long history in the nation; however, it is

commonly argued against due to its heavily religious origins. In the United States, the practice of

prayer in legislative settings is unjust under the basis of the Establishment Clause.

The practice works directly against the goal of religious neutrality developed under the

Establishment Clause, especially due to its rather coercive nature. While the Free Exercise

Clause permits a lack of participation, the coercion presented in such acts cannot be denied, and

those impacts play a large role in the legislative session itself. Even with such a unique history,

there are other practices of similar intent and reasoning, such as school prayer, that should be

used in determining the acceptability of this practice.

In approaching this topic, it is necessary to consider the historical context behind the First

Amendment and the practice of legislative prayer. The Founding Fathers advocated for freedom

of religion so that citizens of the new nation could practice under different sects of Christianity,

which they would be persecuted for if they were to remain in Great Britain. This progressive idea

remained true in the growing country as more religions began to appear through conquest and

immigration. However, because of religion’s widespread influence over the population, the

Founders made clear that the government should not be involved in religious affairs. They saw it

as a corruptive practice, since the Church and the State had historically been involved in different

political struggles competing for power. Since many lawmakers and residents were religious in

this time where religion played a key role in everyday lives, legislative prayer was made a

common practice, carried on for the next centuries. As other religions and non-religions began
growing in representation in the population, this practice was debated, with its clear sacred

origins. One case that shows the questionability of legislative prayer is Marsh v. Chambers, a

landmark case dealing with the issue of a public prayer offered by a chaplain in the Nebraska

legislature. Decided in 1983, the Supreme Court ruled in favor of Marsh, establishing that this

practice of legislative prayer is not unconstitutional under the basis of a unique tradition. Relying

on a look into the past, the Court ruled legislative prayer as permissible because it had long been

practiced in the United States and its meaning is not exclusively sacred. Upon analyzing the

changing circumstances of the country and its views towards religion, Nicholas C. Roberts writes

that “the Court compounded its failure to provide a principled basis for its decision by

oversimplifying the historical narrative it relied upon” (Roberts). He argues that consideration for

the changing perspectives should be considered, since it is evident that the United States does not

have the same religious views as it did traditionally. By allowing for one religion to be present in

the legislative setting above others creates a bias and exclusion against other practices, which is

spoken against in the Establishment Clause.

Through approaching the case from the lens of tradition, the Court failed to account for

the actual impact of its decision and how it strays constitutionally. Roberts elaborates by noting

that “Participation in democracy is one of the most fundamental rights of American citizenship.

It is a violation of the Establishment Clause to require citizens to attend a religious ceremony

they may not agree with—especially when it contains sectarian references to a God they may not

believe in—before they are allowed to participate in the democratic process” (Roberts). From

considering the practice of legislative prayer in context with its setting, the clear presence of

religion within government settings cannot be denied, as prayer is inherently sacred in its nature.

To account for the changing status of religion within the nation and how the population reacts
and perceives the practice, the Court relying on the support of tradition shows just how far

removed the practice is from modern legislative proceedings. Since the people no longer see the

practice as harmless, the Court should have considered the future effects of such activity

happening in legislative settings and what precedent it may set towards the presence of religion

in other government activities. Legislative prayer is more than just a tradition; it is a breaking of

boundaries between the Free Exercise Clause and the Establishment Clause. To view this

practice as secular and harmless is an unjust interpretation of the First Amendment in

conjunction with the role of government in upholding the goal of religious neutrality.

When considering cases of legislative prayer, the possibility of coercion is one that must

be taken into account in deciding whether the practice is just or not. However, the test of

coerciveness is very general and can be interpreted so differently, causing a varied understanding

of how case law can be effectively applied to real circumstances. Established in the landmark

case Lemon v. Kurtzman, the Lemon Test relies on three factors to determine government

involvement in religious affairs. If the practice is secular in primary purpose, neither promoting

or inhibiting religion, and absent of excessive entanglement between the church and the state, the

practice is considered just. However, the Lemon Test only considers the clear, definite interests

of legislative prayer and not more of its potential and possibilities. The coercive nature of such

practices in the legislative setting has been debated with the practice itself, and the interpretation

of the extent of the Establishment Clause has played a key role. One such interpretation states

that “the Establishment Clause, then, does not merely exist to protect the public from the formal

establishment of religion, but stands to defend against a deeper, subtler, coercion of religious

beliefs,” meaning that the court must interpret beyond the clear intentions of such practices

(Masrani). By opening legislative sessions with a prayer, it is possible for lawmakers and
residents to feel coerced into joining the prayer or voting a certain belief. While it is indeed a

choice of whether or not to participate in the prayer, humans are social creatures and still act to

seek out the approval of others around them. In understanding the notion of coercion, Samuel

Taxi argues that “the Court is ill-suited to analyze the coercive potential in

government-sponsored prayers because doing so requires a rich record and intensive factfinding

into the subjective mental states of those in attendance” (Taxi). It is obvious that the courts will

never recognize the exact mental state and emotions of those in attendance of a prayer, but

through the nature of the act itself, they can make reasonable assumptions about potential a

practice has for eliciting a coercive interpretation. In the 2013 case of Town of Greece vs.

Galloway, a prayer given by a member of the local clergy at the start of public town board

meetings, yet under the Lemon Test and history of tradition, was ruled to be a constitutional

practice. Part of this decision was due to the fact that councilmembers themselves were not

giving the prayer, but this raises the question of whether the church has made a presence in state

affairs. While it may be a standard practice within the history of the nation, allowing for clergy

members to present a prayer in legislative settings is inherently a religious practice, and should

be viewed as such. The possibilities of coercion are endless in all cases dealing with legislative

prayer, especially when lawmakers are involved, and in order to settle those potentials, the

practice should altogether be viewed as unjust. As times progress, interpretations of the

boundaries of the Lemon Test will too, and it is becoming more apparent that the potential of

coercion within the practice of legislative prayer is a risk to secular practices.

As with any other case concerned with the First Amendment, it is necessary to look at

precedent rulings and determine similarities to create a just and understood ruling. Through

looking at similar circumstances involving prayer in government settings, it becomes clear that
the decisions regarding legislative prayer do not necessarily align with the nation’s precedent

rulings. Like legislative prayer, another topic that came into light during the twentieth century is

prayer in public school settings. Before the practice was ruled as unjust under the Establishment

Clause, certain public schools would dedicate time at the beginning of the school day to reciting

prayers or readings from the Bible. Landmark case Engel v. Vitale was in regards to a voluntary

prayer recitation in New York to which the Supreme Court ruled to be a breach of the

Establishment Clause. In the majority ruling, Justice Hugo Black writes that “neither the fact that

the prayer may be denominationally neutral nor the fact that its observance on the part of the

students is voluntary can serve to free it from the limitations of the Establishment Clause, as it

might from the Free Exercise Clause, of the First Amendment, both of which are operative

against the States by virtue of the Fourteenth Amendment” (Supreme Court of the United States).

By ruling that the denominationally neutral and voluntary nature of the prayer still does not

allow for the prayer to be within the realm of the First Amendment, the Court establishes the

bounds of prayer within a public school setting, aligned with the government. In looking at cases

of legislative prayer where these same issues of denominational neutrality and voluntary are at

hand, the decisions should be based on this former ruling, due to the circumstances and setting

having similar relations. Yet, despite these similarities, the Court has previously decided that

those same factors are what make legislative prayer permissible.

How can the Establishment Clause truly be upheld when its interpretations of similar

issues contradict each other? The case of the public school in Engel v. Vitale is not a unique

circumstance either; time and time again religious prayers have been disallowed in public

schools due to their sacred nature. In the case of Murray v. Curlett, the school decided for verses

of the Bible to be read without comment at the beginning of the school day. In making a decision
on this case, Justice William Brennan “recognized that Americans are a religious people, but he

noted that the severest test should be applied to the First Amendment in school prayer cases.

Considering the unique environment of public schools, Brennan concluded, the establishment

clause forbids religious exercises because they: ‘(a) serve the essentially religious activities of

religious institutions; (b) employ the organs of government for essentially religious purposes; or

(c) use essentially religious means to serve governmental ends, where secular means would

suffice’” (Keynes). From this passage, Dr. Keynes explains Justice Brennan’s interpretation of

the Establishment Clause in context of a prayer that would invoke a school day. The reasoning

Brennan provides is especially important in considering other circumstances in which religious

activity may be present in government settings. The third prong, regarding religion to serve

governmental needs, is very relevant to any case of legislative prayer, since it is a practice done

before governmental proceedings. By disallowing the practice where secular means would

suffice, the Court establishes the lack of procedural value in certain practices. In the case of

opening a legislative session, a secular means would clearly suffice, and to cause for a prayer in

this setting to be seen as forbidden under the Establishment Clause. As so many other cases

regarding prayer in governmental settings have ruled similarly, it is unjust for the nation to have

a different perspective for legislative prayer and to ignore the precedent set by previous courts.

The case of legislative prayer is a difficult one to decide due to its complicated history

and tradition in the United States, but it is not impossible to analyze. The opening of a legislative

session with a prayer, whether led by lawmaker or appointed religious figures, is a clear breach

of the Establishment Clause of the First Amendment. The goal of this clause was to ensure

religious neutrality within the government for the purpose of not infiltrating the state with

religious affairs. To allow for religion to be present in a legislative session defeats the goal of
neutrality, especially when certain religions are presented more than others. With the practice

being in such an important and open setting, the question of possible coercion comes into play,

and it is reasonable to assume that prayer has a coercive nature. While determining coercion is

difficult to come to an exact and extensive conclusion on, the practice is still seen as crossing the

line of having solely secular value. In this case, it is necessary to follow precedent rulings on

similar issues to issue constitutional decisions. Though not exactly the same setting, a public

school has the same governmental connection as a legislative session, and opening prayers in

these cases were considered to be a breach of the Establishment Clause. By looking at the nature

of the prayer itself, the goals of the Establishment Clause, and precedent rulings regarding

similar activities, legislative prayer is estranged from the nation’s values and interpretations,

considering it an unjust practice.

 Works Cited

Girard, Bradley, and Gabriela Hybel. “The Free Exercise Clause vs. the Establishment

Clause: Religious Favoritism at the Supreme Court.” Americanbar.org, 5 July 2022,

https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/int

ersection-of-lgbtq-rights-and-religious-freedom/the-free-exercise-clause-vs-the-establish

ment-clause/#:~:text=The%20Free%20Exercise%20Clause%20recognizes,belief%20(or

%20lack%20thereof).

Keynes, Edward, and Randall K. Miller. “Congress, the Court, and School Prayer.” Court

versus Congress the Court vs. Congress: Prayer, Busing, and Abortion, Duke Univ. Press,

Durham, NC, 1989, pp. 174–206.

Masrani, Aishwarya. “Legislator-Led Legislative Prayer and the Search for Religious

Neutrality.” Duke Journal of Constitutional Law and Public Policy, 2019, pp. 97–127.

Roberts, Nicholas C. “The Rising None: Marsh, Galloway, and the End of Legislative

Prayer.” Indiana Law Journal, vol. 90, no. 1, 2015, pp. 407–439.

Supreme Court of the United States. Engel v. Vitale. 25 June 1962. Exploring

Constitutional Conflicts, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/

engel.html. Accessed 6 Apr. 2023.

Taxy, Samuel. “Pressure to Pray? Thinking beyond the Coercion Test for Legislator-Led

Prayer.” The University of Chicago Law Review, 2019, pp. 143–185.