Abstract

For over fifty years, the Establishment Clause has generally required the government to be neutral on religious questions. That principle, however, has become more controversial with time. Many quite moderate judges and commentators have come, in varying degrees, to reject it. They have come to see many endorsements of religion as insignificant. Where exactly, they ask, is the real harm in the government speaking religiously? Who exactly is hurt when the government pushes a religious message, as in the Ten Commandments or the Pledge of Allegiance? Given that religious endorsements do so little apparent harm, maybe they are not worth striking down - particularly given the hostile societal reaction that generates. Yet there are obvious difficulties evaluating this argument. For as long as the government cannot speak religiously, we cannot really see the harms that would flow from such speech. And unable to evaluate the severity of those harms, we cannot really judge the wisdom of the neutrality principle. But there is a world where the government does speak religiously - the world of legislative prayer. Upheld by the Supreme Court twenty-five years ago in Marsh v. Chambers, legislative prayer remains the only official exception to the neutrality rule - the only realm where the government can constitutionally (and routinely does) develop things like prayer policies. Through the window that Marsh created, we can glimpse an alternative constitutional universe - one where neutrality goes unobserved and where religious endorsements freely proliferate. The thesis of this Article is that what can be seen through this window does not look good. Over the past twenty-five years, legislative prayer has become nightmarish in ways that the Marsh court had no reason to foresee. Legislative prayer has caused tremendous political division in city councils, county commissions, and state legislatures throughout this country; it has caused more constitutional litigation in the past decade than any other Establishment Clause issue. This piece has two purposes. First, it articulates and attempts to justify answers to the second-order constitutional questions inspired by legislative prayer - under what circumstances might legislative prayer, constitutional in theory, nevertheless turn unconstitutional in practice? Second, it uses legislative prayer as a case study - as a way of reflecting on the general perils that religious endorsements can create. Twenty-five years worth of history make clear that religious endorsements come with enormous social costs - costs that may be initially difficult to foresee and that will be borne both by believers and nonbelievers and by people of all political persuasions. In future years, the Supreme Court will have to decide whether to retain the neutrality principle or, if not, how far to depart from it. These costs should be kept in mind.