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As Christians we know that we can pray to God at any time and in any place, so there is no real threat to prayer when the Establishment Clause is interpreted to prohibit prayers in certain government-sponsored contexts. Public prayers spoken aloud at government meetings or public school graduations or other places (beyond gatherings of those who share the same religious tradition) tend to draw everyone present into the prayer and threaten to violate the consciences of non-believers.

The issue most often arises in the public schools and in the legislative arena where some want to assert a tradition of prayer to solemnize the event. In the public schools arena, the U.S. Supreme Court has drawn some clear lines, finding school sponsored prayer to violate the constitution, while upholding the rights of students to initiate prayer in ways that do not disrupt others or interfere with other school activities. See Engel v. Vitale, 370 U.S. 421 (1962);  Abington School District v. Schempp, 374 U.S. 203 (1963); Board of Ed. v. Mergens, 496 U.S. 226 (1990) Students may pray either audibly or silently, yet are subject to the same rules of order as apply to other speech in these locations.

Some controversies continue to arise over the issue of legislative prayer. More than two decades ago, the Supreme Court upheld the Nebraska legislature's practice of opening with a prayer offered by a state-employed chaplain. Rejecting an Establishment Clause challenge, the Court based its decision on the historical record of prayer in public legislatures that showed such prayer was "deeply embedded in the history and tradition of this country."  Marsh v. Chambers, 463 U.S. 783 (1983). The practice escaped a finding of "establishment" because it was a longstanding tradition at the time of the First Amendment's passage, the prayers were "nonsectarian," and the context was less threatening than government prayers in a public school classroom. In the words of Marsh, such prayers are "simply a tolerable acknowledgement of beliefs widely held among the people of this country."

For many religious liberty advocates, however, the practice of official prayers at governmental meetings remains awkward at best, illustrating the point that just because something is constitutional does not make it right. Many legislative bodies eschew the practice entirely or opt for a moment of silence. Others enact and follow guidelines to stay squarely within Marsh. Some employ a system of speaker rotation among the elected officials or from local clergy to avoid the appearance of a denominational preference.

Still, legislative prayers continue to pose difficulties and continue to be the target of litigation. These difficulties are evident in recent cases working their way through the federal courts that may eventually lead to a reconsideration of the constitutional status quo. For those who are most watchful about separating the responsibilities of the government from the religious practices of the citizens it serves, the practice is something to be avoided or strictly constrained. For those who bristle at constraints on prayer, it is an offensive interference.

The U.S. Supreme Court heard a case on official prayers at local government meetings on Nov. 6, 2013. The BJC filed a friend-of-the-court brief in the case, Town of Greece v. Galloway, and General Counsel Holly Hollman recorded a podcast with Staff Counsel Nan Futrell about the issues in the case and how it differs from the chaplain-led prayer practice in Marsh v. Chambers. A decision in the case is expected by June 2014.


Articles | National prayer day not an occasion for government to push piety
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