Santa Clara Law Review Volume 48 | Number 3 Article 2 1-1-2008 Breaking away from the Prayer Police: Why the First Amendment Permits Sectarian Legislative Prayer and Demands a Practice Focused Analysis Robert Luther David B. Caddell Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Robert Luther and David B. Caddell, Breaking away from the Prayer Police: Why the First Amendment Permits Sectarian Legislative Prayer and Demands a Practice Focused Analysis, 48 Santa Clara L. Rev. 569 (2008). Available at: http://digitalcommons.law.scu.edu/lawreview/vol48/iss3/2 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. BREAKING AWAY FROM THE "PRAYER POLICE": WHY THE FIRST AMENDMENT PERMITS SECTARIAN LEGISLATIVE PRAYER AND DEMANDS A "PRACTICE FOCUSED" ANALYSIS Robert Luther III* & David B. Caddell" Historically, the "ineluctable tension"1 within the First Amendment has concerned the relationship between the Free Exercise Clause and the Establishment Clause when the cause of such tension was an issue that involved a question of religion and its role in the public square.2 However, in a post- *Fellow, Pacific Legal Foundation, Sacramento, California (2007); Summer Associate, The Rutherford Institute (2006). J.D., Ohio Northern University Pettit College of Law (2006), B.A., Hampden-Sydney College, magna cum laude (2003). Rob would like to thank John W. Whitehead for providing him the opportunity to research this issue during the summer of 2006. He would also like to thank his co-author Dave Caddell as well as the entire staff of the Santa Clara Law Review for all of their assistance. The views expressed in this article do not necessarily reflect the views of the Pacific Legal Foundation. Rob can be reached at [email protected]. ** Staff Attorney, The Rutherford Institute, Charlottesville, Virginia (2005 - Present), J.D., Salmon P. Chase College of Law, Northern Kentucky University (2005), B.S., Northern Kentucky University (2002). Dave can be reached at [email protected]. 1. See Jesse H. Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict," 41 U. Pirr L. REV. 673, 673 (1980) ("In this chapter I wish to confront the ineluctable tension that exists between the two provisions-a conflict that the Court has conceded . ."). Such "ineluctable tension" between the religion clauses was not intended by the Framers. John Baker, Amendments: Establishment of Religion, in THE HERITAGE GUIDE TO THE CONSTITUTION 302 (Edwin Meese III, Matthew Spalding & David F. Forte eds., 2005) ("In recent years the Supreme Court has placed the Establishment Clause and the Free Exercise Clause of Religion clauses in mutual tension, but it was not so for the Framers."). 2. See generally James J. Knicely, "FirstPrinciples" and the Misplacement of the "Wall of Separation": Too Late in the Day for a Cure?, 52 DRAKE L. REV. 171 (2004). Needless to say, if the Establishment Clause were not incorporated against the states, it is unlikely that any of the cases discussed in this paper 569 570 SANTA CLARA LAW REVIEW [Vol:48 Employment Division v. Smith3 world, it is not uncommon to find advocates who raise Establishment Clause claims 4 confronted with the defense of the Free Speech Clause. Thus, "religious speech in the public square" cases that range from high school valedictorians who wish to speak about the role of a particular religion in their life at graduation, 5 to cases where legislators, city council persons, school board members, 6 or invited clergy7 wish to open legislative gatherings in the name of the deity most personal to them are often met with intense condemnation and scrutiny.' would entail "Establishment Clause concerns." 3. Employment Div. v. Smith, 494 U.S. 872, 878 (1990) (holding that neutral laws of general applicability may be upheld despite an incidental burden on the practice of one's religion). 4. In cases involving religious speech in the public square, advocates are left with little choice but to raise Free Speech arguments in view of the fact that federal courts have closed the door to traditional Free Exercise claims in the years that have followed Smith. Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 n.1 (2006) ("As originally enacted, RFRA applied to States as well as the Federal Government. In City of Boerne v. Flores, 521 U.S. 507 (1997), we held the application to States to be beyond Congress' legislative authority under § 5 of the 14th Amendment."). 5. Cole v. Oroville Union High Sch., 228 F.3d 1092, 1105 (9th Cir. 2000); Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979, 985 (9th Cir. 2003) (holding that a student selected on objective criteria to present a valedictory address may not disclaim sectarian, proselytizing religious speech at a graduation ceremony). 6. Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir. 2006); Turner v. City Council of Fredericksburg, 2006 U.S. Dist. LEXIS 56786 (E.D. Va. Aug. 14, 2006); Hinrichs v. Bosma, 400 F. Supp. 2d 1103 (S.D. Ind. 2005), stay denied, 440 F.3d 393 (7th Cir. 2006), rev'd, 506 F.3d 584 (7th Cir. 2007). 7. Pelphrey v. Cobb County, 410 F. Supp. 2d 1324 (N.D. Ga. 2006) (denying plaintiffs/taxpayers motion for preliminary injunction to forbid invited clergy for invoking sectarian references during course of legislative prayer); Klingenschmitt v. Winter, No. 06-01832 (D.D.C. Oct. 25, 2006), dismissed, 2007 U.S. App. LEXIS 22630 (D.C. Cir. Sept. 21, 2007). Compare Jim Sparks, Forsyth Commissioners to Stick with Prayer Policy, WINSTON-SALEM J., Jan. 6, 2007, http://www.journalnow.com/servlet/Satellite?pagename=WSJ%2FMGArticle%2 FWSJBasicArticle&c=MGArticle&cid=1149192520899&path=!localnews!localg ov!&s=1037645509123 (County in Winston-Salem, North Carolina refuses to adopt nonsectarian prayer policy), with Tom Steadman, Prayer Debate Heats Up, NEWS-RECORD, Jul. 17, 2007, http'//www.news- record.com/apps/pbcs.dllarticle?AID=/20070717/NEWSRECOl00170716026/- 1/NEWSRECO201 (High Point, North Carolina citizens protest Point City Council's 9-1 decision to permit only nonsectarian references in legislative prayers). 8. For treatment of the controversy surrounding military chaplains who seek to close prayer with sectarian references, see Klingenschmitt v. Winter, No. 06-01832 (D.D.C. Oct. 25, 2006), dismissed, 2007 U.S. App. LEXIS 22630 2008]BREAKING AWAY FROM THE "PRAYER POLICE"571 There had been virtually no litigation or legal authority concerning the constitutionality of sectarian legislative prayer until the last six years. As a general observation, the first federal courts to confront the issue tended to over-read9 the U.S. Supreme Court's seminal opinion on legislative prayer, Marsh v. Chambers,10 by restricting all sectarian content from prayers, although some courts have recently cut back on this initial over-reading. 1 While it is clear that "if Marsh means anything, it is that the Establishment Clause does not scrutinize legislative invocations with the same rigor that it appraises other religious activities,"12 it is equally evident that lower federal courts have failed to adopt a consistent framework for answering the question of whether the Constitution permits political bodies to control the content of a speaker's religious speech during legislative prayer. In anticipation of the Supreme Court's final word, and with the hope of providing clarity to this dialogue in the meantime, we will discuss the reasons why Marsh permits the use of sectarian references despite the confusion within lower federal courts generated by reliance on dicta contained in County of Allegheny v. American Civil Liberties Union13-a case that dealt with religious symbols and not religious speech. This article urges courts to favor the historical and constitutional policy of permitting individuals to choose their own words when engaging in speech, including religious speech, within the public square. Legislative bodies that refuse to allow those who are permitted to pray the right to mention specific deities of their choosing -- Jesus, Allah, Jehovah, or others - in their prayers undermines diversity and the free speech rights of these individuals, and, in turn, (D.C. Cir. Sept. 21, 2007). See generally Jeremy G. Mallory, Comment, "An Officer of the House Which Chooses Him, and Nothing More": How Should Marsh v. Chambers Apply to Rotating Chaplains?," 73 U. CHI. L. REV. 1421 (2006). 9. See Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004); Simpson v. Chesterfield County, 404 F.3d 276, 287 (4th Cir. 2005); Bosma, 440 F.3d 393; Turner, 2006 U.S. Dist. LEXIS 5676. 10. Marsh v. Chambers, 463 U.S. 783 (1983). 11. Pelphrey,410 F. Supp. 2d 1324 (2006); Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir. 2006) (Clement, J., dissenting). 12. Simpson v. Chesterfield County, 404 F.3d 276, 287 (4th Cir. 2005). 13. County of Allegheny v. ACLU, 492 U.S. 573 (1989). 572 SANTA CLARA LAW REVIEW [Vo1:48 renders these traditionally solemn occasions meaningless. As a result of these seemingly ambiguous and disparate road signs, conflict exists amongst the federal circuits in these legislative prayer cases. 14 An attempt at reconciliation has created a myriad of confusing paths before courts addressing the issue." United States District Court Judge David Hamilton articulated a number of. these diverging philosophies when he stated: There are three solutions to the problem the Speaker has raised in terms of the inherently sectarian content of any prayer.