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Religions > Atheism |
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31 May 2004 01:52:11 PM |
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MARSH v CHAMBERS |
PART IV
The implications of ceremonial deism are far-reaching because
courts frequently employ this amorphous concept as a springboard from which
to hold that other challenged practices do not violate the Establishment
Clause. After all, the argument typically goes, if practices such as the
Pledge of Allegiance, to a nation "under God," legislative prayer, the
invocation to God prior to court proceedings, and the Christmas holiday are
permissible notwithstanding the Establishment Clause, then surely the
practice at hand (be it a nativity scene, commencement invocation, or some
other governmental practice)-which does not advance religion "any more
than" these accepted practices-must also pass muster under the
Establishment Clause:
Major Premise: These traditional practices obviously pass constitutional
muster (otherwise we would not have tolerated them for so long).
Minor Premise: The practice at hand does not advance religion any more
than those which pass constitutional muster.
Conclusion: The practice at hand must pass constitutional muster.
This syllogistic reasoning has been aptly named the "any more than" test.
Its central flaw is that no court has ever squarely and faithfully probed
the validity of the major premise under the Supreme Court's long-standing
Establishment Clause jurisprudence.15
15. For instance, in Marsh v. Chambers, the legislative prayer case, the
Supreme Court ignored the Court's traditional Establishment Clause
jurisprudence as if it did not exist, opting instead for a syllogistic
approach similar to the one described above. 463 U.S. 783, 791 (1983)
("legislative prayer presents no more potential for establishment than the
provision of school transportation, beneficial grants for higher education,
or tax exemptions for religious organizations" (emphasis added) (citations
omitted)); see also Rodney J. Blackman, Showing the Fly the Way Out of the
Fly-Bottle: Making Sense of the First Amendment Religion Clauses, 42 U.
Kan. L. Rev. 285, 335 n.144 (1994) (criticizing the weakness of an
historical approach based on reasoning that "because 'this' already has
been allowed, there is no reason not to allow 'that'"); Ira C. Lupu,
Keeping the Faith: Religion, Equality and Speech in the U.S. Constitution,
18 Conn. L. Rev. 739, 755 n.4 (1986) ("In the absence. of a baseline
principle, 'more' and 'worse' are meaningless concepts of measure."); .
Gregory Wallace, When Government Speaks Religiously, 21 Fla. St U. L. Rev.
1183, 1213-14 (1994) ("there is no substantive baseline that reflects
constitutional values; rather, everything is relative to what government
has traditionally done"); Yehudab Mirsky, Note, Civil Religion and the
Establishment Clause, 95 Yale LJ. 1237, 1245 (1986) (under such test,
"[t]he legitimate functions of government are defined ... simply by what
government is already doing, without any reference to the substantive
content and constitutional value of the activity in question").
SOURCE: Rethinking the Constitutionality of Ceremonial Deism, Steven B.
Epstein, 96 Colum L. Rev. 2086-2087 (1996)
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The Uncertain Constitutionality of Prayers That Open School Board Meetings
by Chad Ford
IS IT A VIOLATION of the United States Constitution for a North Carolina
school board to open its meetings with a prayer?
There is no definitive answer to this question because it lands
directly between two competing lines of constitutional thought. One line,
springing from the 1971 United States Supreme Court decision in Lemon v.
Kurtzman,1 has sustained virtually every challenge to government-sponsored
religious expressions in public schools, including prayer. The other line,
springing from the Court's 1983 decision in Marsh v. Chambers, 2 has held
that religious prayers authorized by a legislative body at the opening of
its sessions do not violate the Constitution.
Under Lemon, a government-sponsored activity will not violate the
Establishment Clause if (1) it has a secular purpose, (2) its principal or
primary effect neither advances nor inhibits religion, and (3) it does not
create an excessive entanglement of the government with religion.8 If the
challenged practice fails any part of the Lemon test, it violates the
Establishment Clause.9 The first prong of the Lemon test focuses on the
intentions of the government. Namely, did "the government intend to convey
a message of endorsement or disapproval of religion."10 The second prong
asks whether, "irrespective of government's actual purpose, the practice
under review in fact conveys a message of endorsement or disapproval."11
The last prong looks to "the character and purpose of the institutions that
are benefited, the nature of the aid that the State provides, and the
resulting relationship between the government and religious authority."12
The key to the third prong is "excessive entanglement." Not every
interaction between a government and religious authority would be a
violation of the Establishment Clause. The court has "always tolerated some
level of involvement between the two."13
Marsh v. Chambers
The only clear departure from the Lemon test since its inception came in
1983, in Marsh v. Chambers, in which the Supreme Court held that a state
legislature's practice of opening each day's session with a prayer
delivered by a state-paid chaplain did not violate the Establishment Clause
of the First Amendment.14 The Court began its analysis by comparing
Nebraska's practice with the "unique history" of the United States
Congress, noting that the practice of opening sessions of "legislative and
other deliberative public bodies with prayer is deeply embedded in the
history and tradition of the country." The court reasoned that:
. . . in light of the unambiguous and unbroken history
of more than 200 years, there can be no doubt that the
practice of opening legislative sessions with prayer has
become part of the fabric of our society. 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. As Justice Douglas
observed, "[w]e are a religious people whose institutions
presuppose a Supreme Being."15
To bolster that argument, the Court noted that the drafters of the
Establishment Clause expressed their support for legislative prayer by
voting to employ a legislative chaplain for the first Congress. Just three
days before the first Congress adopted the language of the Establishment
Clause, it authorized the appointment of paid chaplains to offer
invocations at the beginning of each congressional session.16 [ This isn't
quite true. See Chief Justice Burger, I Would Like You To Meet Mr. Madison
http://members.tripod.com/~candst/meet.htm , and Discrepancies
http://members.tripod.com/~candst/discrep.htm ] Is this a clear indication
that the men who authored the First Amendment did not view paid legislative
chaplains offering invocations in Congress as a violation of the
Establishment Clause?17 Or is it evidence that the enactment of the First
Amendment and the Bill of Rights was forced upon Congress by the states as
a condition for their ratification of the original Constitution?18 The
Court found it untenable that the first Congress "intended the
Establishment Clause of the Amendment to forbid what they had just declared
acceptable."19
The result in Marsh departs from the Court's earlier Establishment
Clause jurisprudence in several critical ways.20 First, the Court began the
analysis of the case with the caveat that "standing alone, historical
patterns cannot justify contemporary violations of constitutional
guarantees."21 It appears, from the rest of the opinion, that the Court
goes on to ignore its own admonition by deciding the case because of
well-established historical patterns. Nevertheless the Court's result may
not be as inconsistent with the aforementioned proposition as it initially
seems. Perhaps the Court viewed the facts in this case through the lens of
a centuries-old empirical observation—despite two hundred years of
beginning
3
legislative sessions with sectarian prayers, legislative invocations in
both Congress and the Nebraska legislature have not led to an establishment
of a state religion.22 Second, Marsh is the first and only Establishment
Clause case since 1971 to not apply the three-pronged Lemon test. Justice
William Brennan notes this in his dissent in an attempt to limit the
holding of Marsh. "That it fails to so [apply the Lemon test] is, in a
sense, a good thing, for it simply confirms that the Court is carving out
an exception to the Establishment Clause rather than reshaping
Establishment Clause doctrine to accommodate legislative prayer."23
Brennan, in his dissent, protested the departure from traditional
Establishment Clause analysis and went on to apply the Lemon test to the
facts in Marsh. He quickly concluded that "if the Court were to judge
legislative prayer through the unsentimental eye of our settled doctrine,
it would have to strike it down as a clear violation of the Establishment
Clause."24 He found that the legislative prayer had a preeminently
religious purpose, had a religious effect, and led to excessive
"entanglement" between the state and religion.25 One of the essential
factors in Brennan's analysis was the fact that the Nebraska legislature
had chosen the same Presbyterian minister as chaplain for sixteen years and
that it was he who often offered the nonsectarian prayers before the
legislature.26 Because of the fact-specific historical analysis employed by
the Court to uphold legislative invocations, many commentators have argued
that all Marsh holds is that "legislative prayer," delivered by an
established chaplain system, with a long and unbroken historical legacy, is
not per se unconstitutional.27
Despite the seemingly uncertain ground upon which the Marsh
exemption was created, the holding in Marsh was consistent with case law in
lower courts upholding legislative prayers.28
In Marsh the Supreme Court did place some limits on the scope and selection
of legislative invocations. First, a prayer falls outside the exception
when "the
1. Lemon v. Kurtzman, 403 U.S. 602 (1971).
2. Marsh v. Chambers, 463 U.S. 783 (1983).
7. Lemon, 403 U.S. at 612–13.
8. Id.
9. See Stone v. Graham, 449 U.S. 39, 40–41 (1980).
10. Edwards v. Aguillard, 482 U.S. 578 (1987).
11. Lynch, 465 U.S. at 690.
12. Lemon, 403 U.S. at 614.
13. Agostini v. Felton, 521 U.S. 203, 232–33 (1997).
14. Marsh, 463 U.S. at 793–95.
15. Id. at 792 [quoting Zorach v. Clauson, 343 U.S. 306, 313 (1952)].
16. See Marsh, 463 U.S. at 787–88 (1983).
17. Id. at 788.
18. Id. at. 816.
19. Id. at 790–91.
20. See RODNEY K. SMITH, PUBLIC PRAYER AND THE CONSTITUTION: A CASE STUDY
IN CONSTITUTIONAL INTERPRETATION 257 (1987) (noting that "Marsh makes a
strange fit with the Court's prior decisions").
21. Marsh, 463 U.S. at 790.
22. Paul Ryneski, The Constitutionality of Praying at Government Events,
1996 DET. C.L. MICH ST. U.L. REV. 603, 608 (1996).
23. Marsh, 463 U.S. at 796.
24. Id.
25. Id. at 797–98.
26. Id. at 800, n.9.
27. See Judge Lucero's dissent in Snyder v. Murray Corp., 159 F.3d 1227,
1236 (10th Cir. 1998) (for a summary of arguments that compel a narrow
reading of Marsh); Mark S. Kouris & Kyrie Elaison, A Constitutional
Amendment Is No Panacea for the Prayer in City Council Meeting Dilemma,
1992 UTAH L. REV. 1385, 1418–25 (1992).
28. See Bogen v. Doty, 598 F.2d 1110 (8th Cir. 1979); Colorado v. Treasurer
and Receiver Gen., 392 N.E.2d 1195 (Mass. 1979); Lincoln v. Page, 241 A.2d
799 (N.H. 1968); and Marsa v. Wernik, 430 A.2d 888 (N.J. 1981).
SOURCE: Institute of Government School Law Bulletin / Fall 1999
http://ncinfo.iog.unc.edu/pubs/electronicversions/slb/slb99fl1.pdf
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