Reply to "Group complains about Brooks’ pregame prayers"

Originally Posted by CrustyMac:

How has the city council been breaking the law?



Crusty I may have to somewhat retract that statement. There have been many cases where citizens have sued their local government councils for violation of the Establishment Clause and have won, but the SCOTUS is still somewhat wishy washy on this one.The Florence City Council routinely lead sectarian prayers before their meetings.


Here are a few examples.


The legal benchmark for legislative prayer remains the 1983 Supreme Court decision, Marsh v. Chambers, 463 U.S. 783 (1983), which ruled that the Nebraska legislature's tradition of opening with a prayer by a paid chaplain was constitutional. Nebraska State Senator Ernie Chambers challenged the practice as violative of the Establishment Clause. The Marsh decision carved out a very narrow exception to the Establishment Clause, as well as established Court doctrine, as a nod to history and custom; however, the Court made clear that “Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees . . . ” Marsh v. Chambers, 463 U.S. 783, 790 (1983). In the Court's language:

To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an “establishment” of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.

If a legislative prayer were to exceed the confines of the circumstances outlined in Marsh, then no such exception would apply. First and foremost, the prayer opportunity must not be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Marsh v. Chambers, 463 U.S. 783, 794 (1983). This applies to the content of the prayers, the selection of the prayer leaders, be they clergy, representatives, or government officials, and the audience to whom the prayer is addressed. The audience in Marsh was construed as comprising only legislators, represented by the plaintiff, Sen. Ernie Chambers. The Court found that such an audience would not be “readily susceptible to 'religious indoctrination'.”



Subsequent Supreme Court and lower federal court decisions serve as clarifications of the Marsh v. Chambers analysis, particularly with regard to the content of legislative prayers.


In County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989), The Court found that, even if history and custom had saved non-sectarian legislative prayer, “history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed.” Additionally, the Court reiterated that “not even the 'unique history' of legislative prayer, can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief.” The Court continued, “The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had 'removed all references to Christ.'” Therefore, while non-sectarian legislative prayer could fall within the constraints of the Marsh exception, legislative prayer which has the effect of either proselytizing or advancing or disparaging or demonstrating the government's allegiance to or affiliating the government with any particular faith or belief, cannot fall within the constraints of the Marsh exception, regardless of history or custom. The strong sectarian nature of legislative prayer, and/or the inclusion of sectarian references to deities, saints, and/or prophets, could indicate an Establishment Clause violation. It is significant that the U.S. Supreme Court has recently twice upheld the U.S. Circuit Court of Appeals requiring that city-led prayers be nonsectarian.


So it would be a harder fight and not nearly as clear cut as the prayer in school.