Author: Mary Nobles Hancock

Publisher:

Published: 2018

Total Pages: 80

ISBN-13:

Ever since the Continental Congress adopted the practice of beginning sessions with prayer in 1774, legislative prayer has permeated all branches and levels of American government. Despite its widespread nature the Supreme Court has previously ruled on the issue of legislative prayer in only two cases - Marsh v. Chambers in 1983 and Town of Greece v. Galloway in 2014 - and in both cases, the Court found the challenged practices to be constitutional. However, in both instances the Court cautioned that legislative prayer practices are not always permissible, and courts must engage in a "fact sensitive" inquiry "that considers both the setting in which the prayer arises and the audience to whom it is directed." The Court has refused to set forth a clear test for evaluating the constitutionality of legislative prayer; and as a result of this lack of clear doctrinal guidance, a circuit split has arisen. On July 14, 2017, in Lund v. Rowan County, the United States Court of Appeals for the Fourth Circuit found that a county board's practice of opening its meetings with prayer was unconstitutional. In so holding, the court relied on four factors which, taken together, created an impermissible prayer practice. The four factors were (1) the role of the commissioners as the exclusive prayer givers; (2) their invocation of a single faith; (3) their instructions to the audience; and (4) the local government setting of the prayers. Two months later, on September 6, 2017, the United States Court of Appeals for the Sixth Circuit, in Bormuth v. County of Jackson, found that a prayer practice that exhibited the same four factors was constitutional. This split is important because it reveals that, a mere three years after the Supreme Court last addressed this issue, there is still significant confusion among the courts concerning how to evaluate the constitutionality of legislative prayer practices. This Note addresses whether, and to what extent, the four factors proposed by the Fourth Circuit, and subsequently rejected by the Sixth Circuit, are an appropriate test of the constitutionality of a legislative prayer practice under United States Supreme Court jurisprudence. In considering the values articulated by the Supreme Court those underlying each factor this Note ultimately argues that until the Supreme Court provides more clarity, the Fourth Circuit's test provides a powerful tool for other courts to assesses legislative prayer.