Thirty years ago, in an amicus curiae brief submitted to the U.S. Supreme Court opposing the Nebraska Legislature’s practice of designating a chaplain to open its sessions with a prayer, ADL noted that the practice was not only unconstitutional but unwise, because it would be politically divisive. The Court nevertheless upheld the practice in Marsh v. Chambers, carving out a limited exception to the First Amendment’s Establishment Clause, which mandates the separation of church and state, for non-sectarian prayers.
Ever since, lower courts have wrestled with whether and how prayers can be non-sectarian, and recently there has been a new wave of cases. Courts in at least five states are now considering various forms of prayers before state and local legislative bodies, county and/or city commissions, and it may just be a matter of time before the U.S. Supreme Court revisits the issue. It has, in fact, become politically divisive. When and if a case reaches the Supreme Court, the Court should prohibit such “legislative prayer” once and for all.
Over the past three decades, courts have already issued widely diverging opinions, essentially confirming that a prayer can never truly be non-sectarian. Some courts have determined that prayers in the name of Jesus, Abraham, or Mohammed are not sectarian or do not advance religion. Of course, even a seemingly non-denominational prayer is likely to cause divisions among Christians, Jews and Muslims. And most courts have failed to consider that any such prayer would exclude adherents of polytheistic or Eastern faiths such as Hinduism or Buddhism, not to mention the growing segment of American society that identifies as humanist or atheist.
Legislative prayer is not only divisive, but also a distraction from the job of governing that can end up in costly litigation. If legislative bodies deem it necessary to solemnize their sessions, the best practice would be a moment of silence. It allows officials and citizens to silently pray or meditate in the faith or beliefs of their choosing, without government officials conveying any actual or perceived message of religious preference or exclusion.