By Christopher C. Lund. Full text here.
For fifty years, the Establishment Clause has generally required the government to be neutral on religious questions. That principle of neutrality, however, has become more controversial with time. Now even quite moderate judges and commentators reject it as a conceptual model for the Establishment Clause. Part of it is they have come to see many endorsements of religion as fundamentally harmless. Where exactly, they ask, is the real harm in the government speaking religiously? Who exactly is hurt when the government advances a religious message—when it, say, puts up a Christmas display or arranges for a prayer to be delivered at a public school graduation? Given that these minor religious endorsements do so little apparent harm, maybe they are not worth striking down, especially given the hostile societal reaction that striking them down sometimes generates. Yet there are obvious difficulties in evaluating this argument. For the neutrality principle is still the law. And as long as the government cannot speak religiously, we cannot really see the harms that would flow from such speech. And being unable to evaluate the severity of those harms, we cannot really judge the wisdom of the neutrality principle.
But there is a separate world where the government does speak religiously—the world of legislative prayer. Upheld by the Supreme Court roughly twenty-five years ago in Marsh v. Chambers, legislative prayer remains the only clear and official exception to the neutrality rule. Legislative prayer now serves as a strange realm where the government constitutionally can (and routinely does) develop things like prayer policies. Through the window that Marsh created, we can glimpse an alternative constitutional universe—one where neutrality goes unobserved and religious endorsements freely proliferate.
The thesis of this Article is that what can be seen through this window does not look good. Over the past twenty-five years, legislative prayer has become deeply troublesome in ways that the Marsh court had no reason to foresee. Legislative prayer has caused tremendous political division in city councils, county commissions, and state legislatures throughout this country; it has probably caused more constitutional litigation in the past decade than any other Establishment Clause issue. With that in mind, this Article has two purposes. First, it examines the second-order constitutional questions inspired by legislative prayer—under what circumstances might legislative prayer, constitutional in theory, nevertheless turn unconstitutional in practice? And second, it uses legislative prayer as a case study—as a way of analyzing how superficially innocuous religious endorsements can take on a life of their own, creating social costs that are initially quite difficult to foresee. In future years, the Supreme Court will have to decide whether to retain the neutrality principle or, if not, how far to depart from it. These costs should be kept in mind.