I originally wrote this for an Argumentation class at The John Marshall Law School.

In
light of the recent non-controversy involving Starbucks cups and the fictional War
on Christianity I thought now would be a good time to share. The fact remains that
Christianity and its followers have, to this day, an unconstitutional hold on our
political institutions. While this did not start in 1983, the Supreme Courts illogical
ruling in Marsh v. Chambers exemplifies how far believers in power will stretch the
law to serve their Christian purpose.

Marsh v. Chambers

In 1983 Justice Burger delivered the Supreme Courts majority opinion in

Marsh v. Chambers, a case that agued the constitutionality of Nebraskas practice of
opening up state legislative sessions with a prayer delivered by the same
Presbyterian clergyman, paid by the state, for over 16 years. There is no question
related to if there was state action. The majority argued that the practice was not a
violation. I will discuss the justification used to derive that opinion in detail below.
With the case invoking the 1stAmendment it seems likely that the court would apply
the Strict Scrutiny test to insure the states fumbling about in the realm of
fundamental rights was necessary in order to accomplish a compelling
governmental interest. The court did no such thing; they instead based the
strongest part of their opinion on the flimsy ground of history and legislative intent.
The plain language of the 1st Amendments Establishment Clause is:
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof. Some founders viewed this to establish a wall between
church and state, but others (and the court in Marsh v. Chambers) watered down
this view to the point that it now incorporates selective religion into the legislative
process without being viewed as a violation of the fundamental right.
The majority opinion can be broken down into the seven following arguments:

1. History- History of Legislative Prayer (Federal and State)

2. Founders Intent- Founders did not intend Legislative prayer to violate the
Establishment Clause
3. History of the Court- The threat of Establishment by paying clergymen to deliver
legislative prayer is less than other things we deemed ok.
4. Effect- Legislative prayer has no effect on the religious beliefs of the legislative
body.
5. Effect- Legislative prayer is simply an acknowledgement of widely held beliefs.
6. Effect- Choosing a clergyman of one denomination for 16 years does not advance
the beliefs of that particular church.
7. Balk- The content of Legislative prayer is not a concern for judges when there is
no threat of Establishment.
Looking into these arguments, there are really only 4 arguments made:
1. History of Legislative Prayer
2. Founders Intent
3. History of the Court
4. Effect
The court balks on the content of what is said in legislative prayer and
justifies doing so by stating that it had already determined that there was no
establishment threat. The court also ignores the fact that free exercise of religion

includes the ability to avoid any religion not practiced by the citizen. Below I will
analyze the five major arguments in greater detail, diagramed below:
Weve always done it
They did it
We allow worse things
This has no effect
No violation
Argument 1
1. Long history of legislative prayer going back to the Continental Congress.
2. 1st Congress selected a clergyman to open each session with prayer
3. 1st Amendment of the Bill of Rights final language was reached by the 1 st
Congress after the appointment of paid clergymen.
4. Clearly, the 1st Amendment Establishment Clause did not view paid legislative
clergymen and opening legislative sessions with prayer as a violation of that
Amendment.
Conclusion: The practice of opening each legislative day with a prayer by a
clergyman paid by the state does not violate the Establishment Clause of the 1 st
Amendment.
The court also analyzes the Nebraskas long history of opening up their
legislative sessions with prayer, but the analysis is the same: Weve always done it.
This argument fails to invoke the plain meaning of the Establishment Clause, and

based on my view of statutory interpretation the plain meaning should always be

acknowledged prior to the legislative intent. It also fails to consider the Bill of Rights
was ratified by the states and therefore a true interpretation of intent should also
take into account those who ratified. The dissent points out beautifully how various
founders varied in their views related to the Establishment Clause, so it is unlikely
that there is a singular Legislative Intent. The court wins a point based on the fact
that there is a history of legislative prayer, but what does that matter if that history
is a direct violation of the plain meaning of the 1 st Amendment? Again, my view is
that any state action that inhibits my free exercise of religion (or lack thereof) is a
violation of my fundamental rights and therefore should be strictly scrutinized to
show the practice is necessary to achieve a compelling state interest. The court
could not reach the conclusion it wanted with such a high standard to meet. There is
no way that legislative prayer is necessary to achieve legislating (which is a
compelling state interest).
Argument 21. The Founders did not intend the Establishment Clause to forbid paid clergymen
and Legislative prayer.
2. The 1st Congress both voted to appoint and pay a clergyman for each house and
voted to approve the draft of the 1st Amendment to be ratified by the States.
3. The founders would not intend the Establishment Clause to forbid what they had
just declared acceptable.
4. The Establishment Clause cannot be applied more harshly against the States than
the Federal Government.

Conclusion: Paid Clergymen and Legislative prayer do not violate the Establishment
Clause.
The court is saying little more than They did it. This argument fails to take
into account those who ratified the Bill of Rights and what they knew about the
practice of legislative prayer prior to ratification. The argument also ignores the
plain meaning of the 1st Amendment by failing to acknowledge that opening up a
legislative session with a Judeo-Christian prayer would violate the Free Exercise of
Religion of a legislator who is not of the Judeo-Christian faith. It matters not that the
majority of Americans at the time of ratification were of the Judeo-Christian faith;
the constitution was constructed carefully to prevent the tyranny of the majority.
With this in mind we must first look into the plain meaning of the 1 st Amendment as
a whole in order to determine if a violation exists, despite the practices that existed
at the founding of our nation.
Argument 3
1. If the threat of establishment is less than what we said was OK in the past then
there is no violation.
2. We found provisions OK related to school transportation, beneficial grants for
higher education, and tax exemptions for religious organizations.
3. Paid Clergymen and Legislative Prayer are less of a threat of Establishment.
Conclusion: Paid Clergymen and Legislative Prayer are not a violation of the
Establishment Clause.
This argument fails to establish the validity of the courts past decisions, it
only mentions the outcomes of certain decisions as related to establishment. If a

closer look is taken the court would have to point out that the above mentioned
instances did not force a preferred religion onto non-believers or followers of other
religions. Those cases involved state action that granted benefits to religious
organizations. This differs significantly from forcing a particular denominations form
of prayer on legislators of varied religious backgrounds. Reading the Free Exercise
Clause into the Establishment Clause indicates that no state action can force prayer
upon any citizen, despite that citizens beliefs.
The court is basically saying We allow worse things. This ignores the stark
difference between granting benefits to religious organizations and forcing the
tyranny of the majority upon the minority.
Argument 4
1. Legislative Prayer has no effect on the religious beliefs of the legislative body.
2. Legislative prayer is simply a tolerable acknowlegement of beliefs widely held
3, Choosing a clergyman of one particular denomination for 16 years does not
advance the particular beliefs of that particular church.
Conclusion: Legislative Prayer is not a violation of the Establishment Clause because
its effects are minimal if existant at all.
This is by far the most arrogant argument made by the majority. The fact is
that the plaintiff, a Nebraskan legislator, brought suit because he was affected by
the allowance of Legislative Prayer. I imagine that the good Judeo-Christian Justices
would see a violation if, in order to do their job, they were forced to start their day
with Muslim prayer or Buddhist chanting. Once more, it does not matter that the
act of Legislative prayer has no effect of a legislators beliefs. What matters is that

the majority is forcing the minority to endure its religion, which violates the
minoritys free exercise of their own religion. The court acknowledges the fact that
this is little more than the tyranny of the majority by pointing to widely held
views. In fact, views changed over the past 200 years, as has the demographics of
the country and religious practices. The idea that picking the same clergyman to
deliver legislative prayers for 16 years has zero effect is perposterous and beside
the point. The point is that any prayer sponsored by the state is a violation of the
free exercise of religion when there is any religious variety at all.
Argument 5
1. The content of Legislative Prayer is of no conern to judges if there is no indication
of an establishment threat.
2. Our country has a long-standing Judeo-Christian tradition
3. The Legislative Prayers were within the Judeo-Christian tradition
Conclusion: It is not a violation of the Establishment Clause if all Legislative prayers
are in the Judeo-Christian Tradition.
This final argument is the courts successful attempt to avoid the content of
the prayers given to the Nebraska Legislature. In fact, the content was offensive to
the plaintiff (and likely to other Americans) so the court balked on the issue and
plainly stated that the content was not an issue so long as the prayers conformed
with our shared history. This is the most rediculous argument. The court says that
there is no establishment so long as the prayer is within the accepted established
religions. This argument again avoids the Free Exercise clause and the effects of

Judeo-Christian state sponsored prayer on the free religious practice of non-JudeoChristian legislators in Nebraska.
The court could have made it easier to interpret their opinion by stating
Were in the majority and we dont see a problem with oppressing you. Of course
they cant do that so they filled pages with words that seem to indicate that they
actually put thought in. What they did in Marsh v. Chambers was interpret a
fundamental rights case upon the shaky ground of history and (the impossible to
discern) legislative intent. They avoided Strict Scrutiny because prayer is not
necessary to legislate. They picked the outcome they desired based on their own
personal beliefs and made up the justification.