Varied Carols: Legislative Prayer in a Pluralist Polity
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Delahunty, Robert J.
FIRST PARAGRAPH(S)|Although the Supreme Court held in a 1983 decision, Marsh v. Chambers, that the traditional practice of prayers by legislative chaplains did not constitute an Establishment Clause violation, the decision left open whether such prayers could be "sectarian." That open question has been litigated in several recent cases, and a similar controversy has arisen over public prayers by military chaplains. The specific focus of most of these controversies has been whether legislative chaplains could include references to "Jesus" or "Allah" in their prayers. This Article places the controversies in a broader context of thinking about the Establishment Clause by distinguishing four rival conceptions of that Clause. Two of these positions, here called "Enlightenment separationism" and "Evangelical separationism," would prohibit legislative prayer altogether - a view ruled out by Marsh. The two other positions, called the "Religion of the Republic" and the "Pluralist Polity" approaches, follow Marsh in permitting the practice, but differ from each other over the nature of permissible prayers. The former position would permit legislative prayer only in the forms of "ceremonial deism" or of "American civil religion", the latter permits legislative prayers of any kind, however "sectarian" or "denominational," provided that over time the prayers reflect a sufficient variety of religious voices and perspectives to dispel any appearance that the legislature is favoring any particular form of religious belief The Article argues that the "Pluralist Polity" position accords better with the tradition of religious liberty in this country by allowing the extraordinary vitality and diversity of the American religious scene to find fuller and freer expression...
40 Creighton L. Rev. 517 (2006-2007)
Creighton University School of Law