Prayer at government functions-6: Introducing the ‘proselytize, advance, or disparage’ standard

The Greece v. Galloway case of the constitutionality of opening town meetings with prayer is framed by the 1983 precedent of Marsh v. Chambers. Briefly, the facts of the Marsh case are as follows.

Since 1965, the Nebraska state legislature had had a single Presbyterian minister as its official chaplain on its payroll, paid for out of state funds. He would offer the prayer at the beginning of each day’s session and all his prayers were of the Judeo-Christian tradition. Ernest Chambers, a member of the legislature, sued to stop the practice. The District Court ruled that the prayers themselves were not unconstitutional but that the government paying the chaplain was and ordered that that practice be stopped. On appeal, in 1982 the Eighth Circuit Court of Appeals in its opinion decided to strictly apply the Lemon test, and found that the practice violated all its three prongs because “the purpose and primary effect of selecting the same minister for 16 years and publishing his prayers was to promote a particular religious expression; use of state money for compensation and publication led to entanglement.”

But the court said that the act of ceremonial prayer by itself was not unconstitutional and that each case had to be examined on its merits.

We do not hold that invocations alone are unconstitutional. Indeed, Bogen demonstrates that some invocation practices can be constitutionally conducted. Nor do we hold that a legislative chaplaincy, even a paid chaplaincy, is per se unconstitutional. We recognize that a paid chaplain might be assigned functions other than offering official prayers, functions that could be deemed proper in some contexts. As indicated in Bogen v. Doty, supra, a chaplaincy program also might rely on volunteer members of the clergy and involve diverse theological representatives. The purpose and effect of such alternatives, however, must be examined in the light of a full record when they present an actual controversy. We cannot speculate on the constitutionality of practices that are not before us.

What the opinion seemed to say was that in deciding cases like prayer, courts should take into account the history of the practice. It also said that the prayers should not be sectarian in the sense of proselytizing for one religion or denigrating other religions but at the same time that the government and the courts should not be parsing the content of prayers. It also said that adults are less susceptible to coercion than children, so offering prayers in their presence is less problematic than doing so where children are compelled to be present, like in schools.

But the US Supreme Court overruled that in 1983 by a 6-3 vote, the majority opinion written by chief justice Warren E. Burger. This opinion did not use the Lemon, endorsement, or any other test but instead used a form of historical justification that the court sometimes uses when it seems reluctant to overthrow long-standing practice, as it did in the case in the Walz case involving tax exemptions for religious institutions. The direction of Burger’s thinking was quite clear from the outset:

On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights. Clearly 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.

He argued that while tradition alone was not enough, it was not to be dismissed lightly either, suggesting that overturning an old practice requires a different, and higher, standard from allowing a new one.

Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns.

“It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice . . . is not something to be lightly cast aside.” (Quoting Walz)

Burger adopted the stance that as long as there was no attempt to proselytize using the prayers, that made it acceptable, which was an ad hoc new standard that had not been invoked in the past.

The content of the prayer is not of concern to judges where, as here, 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. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.

Burger finally said that ultimately it is the risk of establishing a church that should be the criterion for whether some religious practice is constitutional but that there seemed to be little danger of that happening with ceremonial prayer.

We do not doubt the sincerity of those, who like respondent, believe that to have prayer in this context risks the beginning of the establishment the Founding Fathers feared. But this concern is not well founded, for as Justice Goldberg aptly observed in his concurring opinion in Abington.

“It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.”

The unbroken practice for two centuries in the National Congress and for more than a century in Nebraska and in many other states gives abundant assurance that there is no real threat “while this Court sits.”

So as a result of Marsh, the standard for deciding whether ceremonial prayer passed Establishment Clause muster became diluted from one that “mandates governmental neutrality between religion and religion, and between religion and nonreligion” (as was the standard set in the 1968 Epperson v. Arkansas case that itself was drawing upon the 1947 Everson v. Board of Education case ) and now became whether the prayer sought to “to proselytize or advance any one, or to disparage any other, faith or belief.”

It is this lower standard that the lawyer for the town of Greece used to defend its practice of prayers in oral arguments last November.

In the next post, we will look at the vigorous dissent by justice William J. Brennan to Burger’s majority opinion.


  1. dmcclean says

    Great series, Prof. Singham. You are covering this in a lot of depth.

    One note, I believe that your last sentence is referring to Justice William J(oseph) Brennan.

  2. DsylexicHippo says

    He argued that while tradition alone was not enough, it was not to be dismissed lightly either, suggesting that overturning an old practice requires a different, and higher, standard from allowing a new one.

    From allowing a new one? Did I hear that right? Therein lies the solution to the problem. Open the door to Imams, Rabbis, Hindu priests, Wiccans, Pastafarians and whatnot and see how quickly they change their mind in Nebraska.

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