Marsh v. Chambers and Sectarian Prayer

In Marsh v. Chambers, the Supreme Court addressed the issue of whether sectarian legislative prayer violated the EC.

The Court  held that the so-called sectarian (or Judeo-Christian) content of the prayer "is not of concern to judges." Indeed, the Establishment Clause arguably forbids federal judges from entangling themselves in the content of prayers, upholding the ones they like and striking down the ones they dislike. "That being so," said the Court, "it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer." 463 U.S, at 795.

The Court held that this issue was easy, because the history of legislative prayer--both in Congress and in the states (not to mention in the Court itself)--"gives abundant assurance" that there is no Establishment violation resulting from the common practice of legislative or judicial prayer.

The historical evidence supporting the constitutionality of legislative prayer goes all the way back to the Continental Congress and the First Congress, both of which adopted laws providing for paid chaplains who would open each session of Congress with a prayer. These prayers were frequently explicitly Christian prayers. For example, as the Solicitor general of the United States pointed out in his brief in the Town of Greece case, on its second day of business in 1774, the Continental Congress appointed an Episcopalian clergyman as chaplain and his very first opening prayer "called upon the 'Lord our Heavenly Father, King of Kings, and Lord of Lords" to bless Congress and the prayer concluded  with these words: "All this we ask in the name and through the merits of Jesus Christ thy Son, our Savior, Amen."

This type of sectarian prayer was not uncommon; indeed, as the Solicitor General points out, this was the common practice and even today "the great majority of [Congressional] prayer-givers are still Christians and a substantial proportion of the prayers delivered" continue to contain "identifiably sectarian references." SG's Brief at 19-20.

This is the unbroken history that led the Court in Marsh to uphold the practice of legislative prayers, including sectarian legislative prayers.

By the way, this issue of nonsectarian-only prayer actually came up-and was rejected-- by the Court in Marsh v. Chambers.

Marsh was decided in 1982, and it was argued there that the Founder's acceptance of Judeo-Christian prayer was no longer relevant "to a society far more heterogeneous than that of the Framers."  463 U.S. at 791.

The Court responded by noting that serious religious differences--even among Christian denominations--existed at the time of the Founders.

Indeed, in the Continental Congress, John Jay and John Rutledge opposed the motion to open with prayer arguing that delegates to the Congress "were so divided in religious sentiments…that they could not join in the same act of worship."

As the Court in Marsh v. Chambers noted, Sam Adams responded to Jay and Rutledge by stating that "he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the same time a friend to his country." 463 U.S. at 791-792

Do you think that Sam Adams's response to Jay and Rutledge was persuasive?