A Different Take on Lund and the Scope of Legislative Prayer

By Corey Noland, Staff Member (Vol. 16)

“A moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.”

If I did not know any better, I would think this statement was made by a political candidate talking to his or her religious constituents, or perhaps by a pastor discussing his or her perspective on legislative prayer. But no, this quote is taken from a Supreme Court decision written by Justice Kennedy in Town of Greece in which he outlines the standard by which legislative prayer is scrutinized. This quote encapsulates the scope of the Supreme Court’s protection of legislative prayer. The most recent installment in the line of legislative prayer cases is one of significance in North Carolina. Rowan County’s longstanding tradition of opening commission meetings with prayer was challenged by the ACLU in 2013 as running afoul of the Establishment Clause.

My fellow First Amendment Law Review staff member wrote an excellent blog post in which she outlined how Lund was decided in the District Court and the Fourth Circuit. However, I disagree with her as to the validity of the distinctions used by the Fourth Circuit in Lund to move it outside of the shadow of Town of Greece. Specifically, I disagree with the notion that a prayer led by a commissioner is more coercive than legislative prayer led by a clergyman, and that legislator-led prayer should be treated differently under the precedent set by Town of Greece. My colleague believes that if the Supreme Court takes up Lund, the decision could be “closer than one would initially think;” however, I argue that the Supreme Court’s decision will not be close. The strong presumption in favor of the legislative prayer established in Town of Greece will swallow up the questionable distinctions used by the Fourth Circuit in Lund.

In order to understand why the Supreme Court’s decision in Lund would be an easy one, it is important to know the scope of protection the Supreme Court has given legislative prayer in previous decisions. The first major legislative prayer decision by the Supreme Court was in 1983 when it took up the Marsh case, which involved the prayer practices of the Nebraska legislature. Justice Burger, in his opinion, explained that tradition and history justify the practice of legislative prayer. The Marsh Court refused to analyze the content of the prayer, establishing almost absolute protection for legislative prayer.

Town of Greece is an important case because it illustrates the evolution of the legislative prayer doctrine since Marsh, specifically what the Supreme Court is willing to allow in regard to legislative prayer. My colleague discusses Town of Greece in her blog post; however, she understates the scope of protection it provides for legislative prayer.

The Town of Greece Court allows sectarian, exclusively Christian prayers, delivered by exclusively Christian clergy in which those in attendance are asked to stand in honor of the prayer. Even if those in attendance were uncomfortable with the prayer, “offense does not equate to coercion.” This statement by Justice Kennedy, as well as the Court’s willingness to protect such polarizing sectarian speech, sets the boundaries under which the Fourth Circuit should have analyzed the Rowan County case.

The Fourth Circuit attempted to distinguish Lund in that it involved legislator-led prayer, a factor they argued that made the practice more coercive and brought it outside of historical tradition. Both of these claims are incorrect. My fellow staff member discusses the Lund court’s attempt to distinguish the Rowan County case from Marsh, claiming the two cases are “notably dissimilar” since Lund involves prayer led by Rowan County Commissioners instead of local clergy. This argument fails to capture the sentiment of Town of Greece and imagines boundaries to the doctrine of legislative prayer that are nowhere to be found in previous case law. Even the claim that legislator-led prayer is not rooted in history is imprecise.

Other circuits have dealt with cases of legislator-led prayer. For example, the Court in Bormuth v. County of Jackson outlined its significance historically and how the practice of legislator led prayer persists in twenty-one states. While most legislative prayer is led by local religious figures, the historical significance of legislator-led prayer is undeniable.

Furthermore, the idea that legislator-led prayer is more coercive than prayer led by a clergyman seems confounding. In the context of Lund, what would make members of the community feel as if they need to participate in a prayer? A respected pastor, someone who is an authority figure in the religious community, or a local politician, who has little influence over the community members’ lives. It seems to me, that if I did not want to participate in prayer, I would be more likely to feel coerced by an authority figure like a pastor rather than a local member of the county commission. If the Supreme Court is going to allow respected clergyman to deliver prayer, it seems to follow that they would find a local non-clergyman even less coercive to someone who does not want to participate in prayer.

The argument that legislative bodies should not open their sessions with prayer is one that should be made in the legislative bodies themselves because the Supreme Court has clearly established that the practice does not run afoul of the Establishment Clause. It seems unlikely that the Fourth Circuit’s logic in Lund will hold. If the Supreme Court will allow sectarian prayer that refers specifically to religious figures, delivered exclusively in the tradition of one religion, where those in attendance are asked to stand and participate, it is unlikely that they will relent just because a local politician is the one to deliver the prayer.

I respectfully disagree with my colleague on the scope of protection provided to legislative prayer under the guidance of Town of Greece. While everyone “should feel free to participate in community activities and discussions,” if we are to follow binding Supreme Court precedent, the Rowan County Commissioners should once again feel free to open their legislative sessions in legislator-led prayer.

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