Via Religion Clause, earlier this week a federal district judge sided with the city of Lancaster, California in a dispute over the town's practice of opening council meetings with prayer. Every congregation in Lancaster, regardless of religious affiliation, is invited to volunteer to lead an opening invocation. Plaintiffs are challenging the city's acceptance of sectarian prayer – in this case, distinctly Christian invocations, citing the Supreme Court's ruling in Marsh that legislative invocations are acceptable in part because the chaplain in that case offered only nonsectarian prayer.
Here, after wading through the legal controversy surrounding this issue, the judge ruled that the evocations of Christ in the opening prayers did not amount to a violation of the Establishment Clause,
Whether Marsh…established a “bright-line” rule prohibiting“sectarian” legislative prayer, or merely noted an historical fact about the case, has been the subject of substantial debate.
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Subsequent cases evaluating Establishment Clause challenges – in this and other contexts – have not reached consensus.
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Those who reject this supposed "bright-line" rule, and advocate for a policy that allows "sectarian" prayer so long as it is not "exploited to proselytize or advance any one, or to disparage any other, faith or belief," rely heavily on Marsh's mandate not to "embark on a sensitive evaluation or to parse the content of a particular prayer."…Having reviewed these cases and others, the Court concludes that Marsh does not prohibit sectarian prayer and specifically does not prohibit references to Jesus or any other deity. Instead, [a ban on sectarian prayer] is best viewed as describing one possible means of assuring that the legislative prayer does not have the prohibited purpose or effect.
For more than 30 years, Marsh has been interpreted to bar government-led prayer from being sectarian in nature, that a rule asking prayer to be nonsectarian is not only "one possible means of assuring" that prayer does not advance a specific faith, but is the only way for such prayer to pass constitutional muster.
That arrangement has served us well, and allowed for the consecration of legislative events, without risking the affiliation of the government with any one religious viewpoint. That is not only a fair reading of Marsh, it is the reading that has dominated church-state jurisprudence with regard to legislative prayer disputes, though there have been far fewer cases involving a rotating, voluntary policy like Lancaster's.
I feel confident we have not heard the last of this case, or this controversy.
