Barry, as you know, the U.S. Court of Appeals for the Eleventh Circuit issued an important ruling earlier this week on the constitutionality of prayer before legislative bodies.

In Cobb County, Georgia, a few local taxpayers challenged the County Commission’s practice of inviting community clergy members to offer prayers before Commission meetings on a rotating basis. “The clergy have represented a variety of faiths, including Christianity, Islam, Unitarian Universalism, and Judaism, and their diverse prayers have, at times, included expressions of their religious faiths.”

The plaintiffs claimed that allowing the clergy to end their prayers with reference to a specific deity, e.g., “Jesus,” “Allah,” or “God of Abraham, Isaac and Jacob,” violated the Establishment Clause of the First Amendment. They also objected to the fact that the majority of speakers are Christian because the volunteer clergy group “reflects the composition of the religious institutions in Cobb County.”

The Court of Appeals disagreed. In an opinion by Judge William H. Pryor, the court explained that the Supreme Court’s decision in Marsh v. Chambers, 463 U.S. 783 (1983), “makes clear that ‘[t]he content of the prayer is not of concern to judges where . . . there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.'” Echoing Marsh, the court stated that it is not the role of judges “‘to embark on a sensitive evaluation or to parse the content of a particular prayer.'” In other words, “[w]hether invocations of ‘Lord of Lords’ or ‘the God of Abraham, Issac, and Mohammed’ are ‘sectarian’ is best left to theologians, not courts of law.'”

The Court of Appeals correctly noted that the Supreme Court’s decision in Marsh did not impose a requirement that all prayers offered to open legislative meetings must be “nonsectarian” or otherwise avoid any words that may offend some listeners. In this regard, the recent Eleventh Circuit decision parted ways with some other lower court decisions that had imposed a ban on any “sectarian” references during legislative prayers.

The Eleventh Circuit’s decision is consistent with Marsh v. Chambers in which the Supreme Court upheld the Nebraska legislature’s practice of opening each legislative day with a prayer offered by a chaplain paid by the State. The Marsh Court noted that “[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.” The Court acknowledged the fact that “the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain.”

In addition, the Marsh Court explained that “the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.” The Court concluded that, “[i]n 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 laws is not, in these circumstances, an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country. As Justice Douglas observed, ‘we are a religious people whose institutions presuppose a Supreme Being.'”

Barry, I believe that the Supreme Court would agree with the Eleventh Circuit’s interpretation of Marsh – do you?