AbstractIn his dissent in Marsh v. Chambers, which upheld the practice of chaplains delivering public prayers in state legislative chambers, Justice William J. Brennan, Jr., observed that “prayer is serious business – serious theological business.” This two-part essay returns to that simple but important insight in discussing the Supreme Court’s recent return to the question of legislative prayer in Town of Greece v. Galloway.
The first part is based on remarks I delivered as part of a panel discussion held several months before the Supreme Court handed down its ruling in Town of Greece. I proposed that the Court should overrule Marsh, or at least not extend its reach to local governmental bodies. But I also argued that, if the Court was unwilling to draw such bright lines, it should resist the temptation to parse individual prayer practices to make sure that they remained inoffensively “non-sectarian.”
The second part of the essay was written after Town of Greece came down. It contends that both the majority opinion and Justice Kagan’s principal dissent failed spectacularly to appreciate that “prayer is serious business.” The majority listed a litany of purposes for public prayer, but neglected to include the most obvious – to pray. And the dissent repeatedly discussed the audiences for various public prayers, but ignored the most obvious intended audience – God. The two opinions are actually remarkably alike in reducing civic prayer to political declarations of identity. For Justice Kennedy, the prayers recited in the Town of Greece reflected a patriotic and inclusive national identity that transcends specific religious expressions. For Justice Kagan, the prayers were sectarian and exclusionary. But, at the end of the day, that is mere quibbling.
SubjectsTown of Greece v Galloway, Marsh v Chambers, Legislative prayer, Nonsectarian prayer, Establishment Clause, Religion Clauses, Church and State, William J. Brennan Jr.
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