Addressing the question of legislative prayer for the first time, the 2nd Circuit Court of Appeals last week implemented a unique approach in finding the practice of Greece, New York in violation of the First Amendment. While other circuits like the 4th have emphasized the "nonsectarian" requirement the Supreme Court seemed to highlight in Marsh, here the Appeals Court explicitly noted that prayers need not necessarily be nonsectarian, but must appear to a reasonable observer not to represent an "official affiliation with a particular religion," considering the "totality of the circumstances."

Merely inviting members of multiple faiths to offer the invocation, however, is not enough the court said, to avoid the appearance of affiliation. The practice must also:

[make] clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief.

The Washington Post has more.