The Lawletter Vol 36 No 5
Steve Friedman, Senior Attorney, National Legal Research Group
In pertinent part, the First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion." The Establishment Clause, applicable to the states and their political subdivisions through the Fourteenth Amendment, thus prohibits the Government from promoting or affiliating itself with any religious doctrine or organization, discriminating among persons on the basis of their religious beliefs and practices, or otherwise involving itself too deeply in the affairs of religious institutions. See County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 590-91 (1989).
However, the Supreme Court has carved out an exception to its traditional Establishment Clause jurisprudence for so-called "legislative prayer." In Marsh v. Chambers, 463 U.S. 783 (1983), the Court held "that the practice of opening legislative sessions with prayer has become part of the fabric of our society" in that its roots can be traced back to the beginnings of this nation. See id. at 792. Accordingly, legislative prayer has more of a civic than a religious overtone in this context, see id. at 792-93, provided that such prayer is not used "to proselytize or advance any one, or to disparage any other, faith or belief," see id. at 794-95.
In subsequent years, Marsh's "legislative prayer" exception to the Establishment Clause has been applied to analogous legislative or deliberative bodies at the local level as well. See, e.g., Pelphrey v. Cobb County, 547 F.3d 1263, 1276 (11th Cir. 2008) (county commission). However, juxtaposed to Marsh and its progeny is another line of "school prayer" cases.
In Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court declared unconstitutional a school policy of having clergymen give nonsectarian prayers at school graduations. A major focus in Lee was the "heightened concerns" of "indirect coercion," given the impressionable youth in the public schools. Indeed, the Court emphasized that "[i]nherent differences between the public school system and a session of a state legislature distinguish this case from [Marsh]." Id. at 596. The mere fact that students had the option of remaining silent during the prayer or of skipping the graduation ceremony altogether did not cure the constitutional defect. See id. at 593-94.
So the question is, which case provides the applicable law in the school board context—Marsh or Lee? Recently, the U.S. Court of Appeals for the Third Circuit took up this issue head-on. See Doe v. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011).
In Doe, the plaintiffs challenged the school board's practice of beginning each public meeting with a prayer as being unconstitutional under the Establishment Clause. The school board contended, and the district court agreed, that the school board was akin to a legislative or deliberative body and, thus, that its practice was akin to the legislative prayer approved of in Marsh. See id. at 259. Rejecting that argument, the Third Circuit reasoned that "[t]o conclude that, merely because the Board has duties and powers similar to a legislative body[,] Marsh applies, is to ignore the Board's role in [the] system of public school education." Id. at 279.
"Although the school board, like many other legislative bodies, is composed of publicly elected officials drawn from the local community, that is where the similarity ends. . . . Simply stated, the fact that the function of the school board is uniquely directed toward school‑related matters gives it a different type of 'constituency' than those of other legislative bodiesCnamely, students."
Id. (quoting Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 381-82 (6th Cir. 1999) (holding under similar circumstances that school boards are distinct from legislative bodies and, thus, that school board prayers should be analyzed under Lee, not Marsh)).
