"UNITY THROUGH DIVISION": RELIGIOUS LIBERTY AND THE VIRTUE OF PLURALISM IN THE CONTEXT OF LEGISLATIVE PRAYER CONTROVERSIES

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1 "UNITY THROUGH DIVISION": RELIGIOUS LIBERTY AND THE VIRTUE OF PLURALISM IN THE CONTEXT OF LEGISLATIVE PRAYER CONTROVERSIES ROBERT LUTHER IIIt TABLE OF CONTENTS PREFACE: A BRIEF OVERVIEW OF RECENT CONTRO- VERSIES CONCERNING RELIGION IN AMERICAN PUBLIC LIFE... 2 I. INTRODUCTION... 7 II. A REPLY TO PROFESSOR LUND... 9 A. Professor Lund On "Nonsectarian" Prayer B. Professor Lund on the Rights of the Listener v. The Rights of the Speaker III. REASONS WHY TURNER V CITY COUNCIL OF FREDERICKSBURG WAS WRONGLY DECIDED IV. STANDING ON THE SHOULDERS OF MARSH: WHY PELPHREY, AS INFORMED BY SNYDER, IS THE MODEL LEGISLATIVE PRAYER DECISION FOR THE TWENTY-FIRST CENTU RY A. Snyder u. Murray City Corp B. Pelphrey v. Cobb County V. CONCLUSION t Associate, Knicely & Associates, P.C., Williamsburg, Virginia; Former Litigation Fellow, Pacific Legal Foundation; J.D., Ohio Northern University Pettit College of Law; B.A., Hampden-Sydney College, magna cum laude. Mr. Luther was part of the team that represented Councilor Hashmel C. Turner, Jr., in the case of Turner v. City Council of Fredericksburg, 534 F.3d 352 (4th Cir. 2008) (O'Connor, J., (Ret.), sitting by designation). Rob would like to thank Professor Christopher C. Lund of Wayne State University Law School for his comments, Ms. Colleen E. McGarry of the Creighton University Law Review for her editorial assistance, and Mr. Justin Meyer of William and Mary Law School for his research assistance. Rob can be reached at RobLuther@gmail.com.

2 CREIGHTON LAW REVIEW [Vol. 43 PREFACE: A BRIEF OVERVIEW OF RECENT CONTROVERSIES CONCERNING RELIGION IN AMERICAN PUBLIC LIFE On December 17, 2008, President-Elect Barack Obama announced that he had invited Reverend Rick Warren, author of the best-selling book The Purpose Driven Life, 1 to deliver the invocation at his inauguration. 2 This selection drew some criticism from members of the homosexual community on the basis of Reverend Warren's support for California's Proposition 8. 3 Surprisingly, one of the most pointed criticisms directed at President Obama for selecting Reverend Warren 4 concerned the fact that the Reverend was likely to "say the J- word" 5 during his invocation. The "J-word," of course, refers to the name of "Jesus." 6 Reverend Kirbyjon Caldwell, former spiritual advisor to President George W. Bush, forewarned that "[i]f Rick Warren doesn't pray in Jesus' name, some folks are going to be very disappointed...,,7 If Reverend Warren had failed to pray in the name of "Jesus" during his invocation, noted atheist litigant and attorney Reverend Dr. Michael Newdow would not have been among those "disappointed folks" 5 alluded to by Reverend Caldwell. Reverend Dr. Newdow chose to celebrate the election and inauguration of President Obama in a slightly different fashion than Reverend Warren. Convinced that a solitary reference to "God," let alone the mention of "Jesus," had abso- 1. RICK WARREN, THE PURPOSE DRIVEN LIFE: WHAT ON EARTH AM I HERE FOR? (2007). 2. See Obama Taps Evangelical for Inauguration, of faith/2008/12/obamataps-evan.html (Dec. 17, 2008, 5:23EST). 3. See Alexander Mooney: Obama's Inaugural Choice Sparks Outrage, (last visited June 18, 2009). 4. See DeSnubbed: Robinson Prayer Will Air Tomorrow, theatlantic.com/archives/2009/01/desnubbed-robinson-prayer will.php (January 19, 2009, 5:33 EST) ("[Rev. Gene] Robinson, the first openly gay Anglican church bishop, called Obama's selection of conservative Rick Warren to give the inaugural invocation a 'slap in the face"'). 5. See Will Rick Warren say the J-Word?, nov05election/detail?blogid=14&entryid=34798 (January 20, 2009, 7:34PST). 6. Id. 7. See Rachel Zoll: Warren's Inaugural Prayer Could Draw More Ire, abcnews.go.com/politics/wirestory?id= (last visited June 18, 2009) ("'For a Christian, especially for an evangelical pastor, the Bible teaches us that we are to pray in the name of Jesus Christ. How can a minister pray any other way?,' Franklin Graham said, 'If you don't want someone to pray in Jesus' name, don't invite an evangelical minister.'"); but see id. ("I know that for Christians, Jesus is part of their Trinity," said Rabbi Burt Visotzky, a professor at the Jewish Theological Seminary, who has taught at Protestant seminaries in the U.S. and Pontifical Gregorian University in Rome. "For me as a Jew, hearing the name of a first-century rabbi isn't the worst thing in the world, but it's not my God"). 8. See Zoll, supra note 7 and accompanying text.

3 2009] "UNITY THROUGH DIVISION" lutely no place in American public life, Reverend Dr. Newdow brought suit seeking on this occasion to enjoin the Chief Justice of the United States, John G. Roberts, Jr., from referencing "God" during his administration of the inaugural oath. 9 To be certain, inaugural prayer and the inaugural oath are not the same as legislative prayer. In fact, the former two practices are most distinct from legislative prayer by virtue of their infrequency. While the inaugural prayer and oath occur only once every four years, legislative prayer occurs most days a week in countless cities, towns, and municipalities across the nation. However, the inaugural oath and inaugural prayer share a common bloodline with legislative prayer as siblings in the family of religion in American public life. Perhaps the most interesting overlap between the inaugural prayer and inaugural oath controversies is that the positions of Reverend Warren and Reverend Dr. Newdow epitomize the positions of advocates on each side of the contemporary legislative prayer debate.' 0 Today, "Establishment Clause jurisprudence, including cases interpreting Marsh [v. Chambers]," remains complex and unresolved" 12 and recent decisions from the United States Courts of Appeal have proven no exception to this rule. 13 In 2008, the United States Courts 9. See Complaint, Newdow v. Roberts, 2008 WL (D. D.C., 2008) (No. 08CV02248). Newdow failed to obtain the preliminary injunction he sought. Order in Newdow v. Roberts (D. D.C., January 15, 2009) and his case was subsequently dismissed. See Newdow v. Roberts (D. D.C., March 13, 2009). This was not Rev. Dr. Newdow's first (failed) attempt at obtaining injunctive relief to prohibit displays of religion in American public life at a Presidential Inauguration. See Newdow v. Bush, 355 F.Supp.2d 265, 268 (D. D.C. 2005) (denying plaintiffs motion for declaratory judgment and preliminary injunction to prohibit clergy-led prayer at the 2005 Presidential Inaugration and refusing to take issue with isolated sectarian references invoked by speakers); see also Newdow v. Bush, 89 Fed.Appx. 624 (9th Cir. 2004) (stating that clergy-led prayer at a 2001 Presidential Inauguration did not violate the Establishment Clause). 10. See Christopher C. Lund, Legislative Prayer and The Secret Costs of Religious Endorsements 4-58 (Mississippi College of Law Legal Studies Research Paper Series, Paper No ), available at #. Lund asserts that "... neither side is really committed to the nonsectarian standard. The left would rather get rid of government-sponsored religion altogether." Id. at U.S. 783 (1983) (upholding the constitutionality of the practice of legislative prayer). 12. Bush, 355 F. Supp. 2d at See Complaint, Doe v. Tangipahoa Parish School Board ("Doe IT'), No (E.D. LA, filed February 29, 2008); See Complaint, in Galloway v. Town of Greece, No (W.D.N.Y., filed Feb. 28, 2008); Complaint, Joyner v. Forsyth County, 2007 WL (M.D.N.C., 2007) (No. 1:07cv00243); Pelphrey v. Cobb County, 547 F.3d 1263 (lth Cir. 2008) (looking to the prayer opportunity and holding that when the prayer opportunity has not been exploited, courts may not parse the content of individual prayers); see also Turner v. City Council of Fredericksburg, 534 F.3d 352 (4th Cir. 2008) (O'Connor, J., (Ret.), sitting by designation) (upholding the City Council's "nondenominational" prayer policy despite evidence of exploitation of the prayer opportunity or

4 CREIGHTON LAW REVIEW [Vol. 43 of Appeal for the Eleventh and the Fourth Circuits issued decisions on the hot-button constitutional question of whether the government may censor non-"proselytiz [ing] or disparage [ing]" 1 4 religious speech a prayer-giver wishes to reference during his or her delivery of legislative prayer. 15 The most recent of these opinions, released by the Eleventh Circuit only days prior to the 2008 election, is consistent with Reverend Warren's religious-freedom friendly and pluralistic vision that respects the diversity of religious views in American public life. On the contrary, the earlier opinion released by the Fourth Circuit in July 2008 indirectly promotes Reverend Dr. Newdow's vision of a vapid American public square sterile of any indication of religion or acknowledgment of the fact that this nation peacefully hosts the most diverse group of faiths in the world. 16 Initially, one might label this analogy extreme in view of the fact that Reverend Dr. Newdow desires to remove all notions of "God" from the public sphere, while the Fourth Circuit's most recent legislative prayer opinion clearly permits the invocation of "God," just not any "proselytizing or disparaging" prayer); Hinrichs v. Bosma, 400 F. Supp. 2d 1103 (S.D. Ind. 2005), stay denied, 440 F.3d 393 (7th Cir. 2006), rev'd sub nom, Hinrichs v. Speaker of the House of Representatives of the Indiana Gen. Assembly, 506 F.3d 584 (7th Cir. 2007) (holding that plaintiffs who wished to challenge sectarian legislative invocations lacked standing to sue); Doe v. Tangipahoa Parish School Bd., 494 F.3d 494 (5th Cir. 2007), en banc (holding that plaintiffs who wished to challenge sectarian legislative invocations lacked standing to sue); Simpson v. Chesterfield County, 404 F.3d 276 (4th Cir. 2005) (holding that the council possessed the authority to exclude a potential prayer-giver of the Wiccan religion from delivering a legislative prayer); Wynne v. Great Falls, 376 F.3d 292 (4th Cir. 2004) (holding that the council violated the proscriptions of Marsh by "proselytizing" and ordering a remedial remedy forbidding council members from invoking the name of "Jesus" when delivering legislative prayer); Bacus v. Palo Verde Unified School District Board of Education, 52 Fed. Appx. 355 (9th Cir. 2002) (forbidding the exclusive invocation of"in the name of Jesus" prior to school board meetings). Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998) (holding that the City did not violate Establishment Clause by prohibiting a potential prayer-giver from delivering a proselytizing and disparaging prayer). 14. Marsh v. Chambers, 463 U. S. 783, (1983). "The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." Marsh, 463 U.S. at See Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008) (looking to the prayer opportunity and holding that when the prayer opportunity has not been exploited, courts may not parse the content of individual prayers); see also Turner v. City Council of Fredericksburg, 534 F.3d 352 (4th Cir. 2008) (O'Connor, J., (Ret.), sitting by designation) (upholding the City Council's "nondenominational" prayer policy despite evidence of exploitation of the prayer opportunity or "proselytizing and disparaging" prayer). 16. See Hinrichs v. Speaker of the House of Representatives of the Ind. Gen. Assembly, 506 F.3d 584 (7th Cir. 2007) (Wood, J., dissenting) (stating "[O]ne of the crowning achievements of the American Experiment has been the relative harmony in which people of differing religious beliefs have joined together to create a common civil society").

5 2009] "UNITY THROUGH DIVISION" other "deity." 1 ' 7 However, when considered in the context of legislative prayer, Reverend Dr. Newdow is sure to be pleased by the fact that the Fourth Circuit's most recent legislative prayer opinion effectively silenced a number of individuals from praying at all, as the result of the government's decision to prohibit these individuals from praying to the "god" of their choice. 1 8 By shrinking the size of the forum through restriction of the speech's theological content, the Fourth Circuit reduced the pool of potential prayer-givers and indirectly advanced Reverend Dr. Newdow's vision of the theologically-naked public square. Consistent with the theme that legislative prayer controversies have recently received increased public exposure, a momentary look away from the courtroom and into the academy reveals that 2009 has yielded three articles on legislative prayer, including an article by Professor Eric J. Segall recounting the Eleventh Circuit's opinion and arguing that Marsh should be overruled, 19 as well as a duo of articles by church-state scholar Professor Christopher C. Lund on the subject of legislative prayer. The first of Professor Lund's articles, The Congressional Chaplaincies, 20 traces the historical origins of the Congressional Chaplaincies in far greater depth than the Court's opinion in Marsh. Professor Lund's second article, Legislative Prayer and the Secret Costs of Religious Endorsements, 2 1 stands as the most comprehensive article to date on the lower court developments in the law of legislative prayer. The value of Professor Lund's legislative prayer article to the scholarship on this area of law is significant for a number of reasons. As Professor Lund's footnote indicates, he was involved with the litigation of two of the earliest "second generation" 2 2 legislative prayer cases that occurred within the Fourth Circuit, specifically the Wynne v. Town of Great Falls 23 and Simpson v. Chesterfield 17. See generally, Turner, 534 F.3d at Gary Emerling, VA Police Chaplains Resign After Faith Conflict, washingtontimes.com/news/2008/sep/24/va-police-chaplains-resign-after-faith-conflict/ (last visited June 17, 2009). 19. Eric J. Segall, Mired in the Marsh: Legislative Prayers, Moments of Silence, and the Establishment Clause, 63 MIAMI L. REV. 713 (2009). 20. Christopher C. Lund, The Congressional Chaplaincies, 17 WM. & MARY BILL RTS. J (2009). 21. Christopher C. Lund, Legislative Prayer and The Secret Costs of Religious Endorsements 4-58 (Mississippi College of Law Legal Studies Research Paper Series, Paper No ), available at #. Professor Lund's article will be published in 94 MIN. L. REV.- (forthcoming February 2010). 22. Professor Lund aptly refers to the wide range of cases over last decade that arose from disputes about the permissible content of legislative prayer as "second generation" legislative prayer cases. I credit him for coining this phrase, which I use throughout this Article. The first and only U.S. Supreme Court decision on legislative prayer was, of course, Marsh v. Chambers, 463 U. S. 783 (1983) F.3d 292 (4th Cir. 2004).

6 CREIGHTON LAW REVIEW [Vol. 43 County 2 4 decisions. Thus, he obviously has intimate familiarity with legislative prayer issues and his involvement permits him to offer behind-the-scenes insights into these two important cases. Professor Lund's Secret Costs article is particularly insightful for that reason because it traces the back and forth that the litigants in these cases stewed over as they framed their theories of litigation. 25 By carefully parsing out the arguments considered by both sides in the variety of cases he has considered, Professor Lund is able to bring the litigation to life and make his own thesis that government should not take sides in the legislative prayer debate increasingly effective. Although we seem to be in general agreement that the Wynne court reached the correct result under the Marsh precedent, 2 6 while the Simpson decision left us both disappointed, 2 7 Professor Lund and I are not in agreement with either the result or analysis applied in the F.3d 276 (4th Cir. 2005). 25. See Lund, supra note 21, at (discussing strategic advantages/disadvantages of the "nonsectarian" standard for advocates on both the right and the left); see also id. at (discussing the various interpretations of the statement" [t]he content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief' (quoting Marsh, 463 U. S. at )). 26. The Wynne decision strikes me as an example of the old adage that "bad facts make bad law." This case presented the Court with a situation where the "prayer opportunity" had been abused and did require a judicial remedy to remain in order with Marsh. While I do not question the Court's result, I do question the Court's reasoning. See Robert Luther III & David B. Caddell, Breaking Away from the "Prayer Police": Why the First Amendment Permits Sectarian Legislative Prayer and Demands a "Practice Focused" Analysis, 48 SANTA CLARA L. REV. 569, (2008) ("In condemning the council for not adhering to Marsh, the court failed to articulate its understanding of the framework of Marsh before determining that an Establishment Clause violation had occurred. Thus, the sweeping scope of the Wynne court's ruling only seems appropriate when viewed as a remedial punishment for the town's public denigration of a religious minority. Additionally, the court's inquiry also failed to consider whether the same standard should apply when the invocation at issue was not consistently provided by the same speaker. For example, would an invited clergyperson still be subject to the same prayer restrictions as a councilmember or school board member?"). Furthermore, I disagree that the Court that a single, or even multiple, invocations of "Jesus Christ," constitute an "abuse of the prayer opportunity," as to veer astray from Marsh and give rise to an Establishment Clause problem in the absence of additional facts indicating otherwise. See Wynne, 376 F.3d 292, 301 (4th Cir. 2004) ("The invocations at issue here, which specifically call upon Jesus Christ, are simply not constitutionally acceptable.") 27. See Lund, supra note 21 at 43 ("The Fourth Circuit's reasoning in Simpson does not square with the Court's discussion of impermissible-motive requirement in Marsh. Marsh, again, took pains to explain why Palmer's selection did not reflect any denominational discrimination - Palmer was chosen not because he was Presbyterian, but because he was the best candidate for the job. Simpson, by contrast, was rejected precisely because of her theological beliefs. She was the only one rejected, and the letter rejecting her specified that it was her religious denomination that was the basis for her exclusion. Simpson suggests that local governments have unbridled discretion to pick and choose prayer-givers on all manner of religious criteria - it could choose Christians but not Jews, Protestants but not Catholics, or Lutherans but not Baptists. Simpson seems to vitiate the impermissible-motive requirement altogether; it is hard to imagine

7 2009] "UNITY THROUGH DIVISION" third "second generation" legislative prayer case adjudicated by the Fourth Circuit, namely the Turner v. City Council of Fredericksburg, 28 decision. On the basis of my involvement with the Turner case, and on the basis of my previously published article on legislative prayer, 29 I offer the following response and commentary. 30 Although other courts outside the Eleventh and Fourth Circuits have recently adjudicated legislative prayer disputes, 3 1 this issue is clearly not settled and remains a fresh church and state controversy alive in federal courts nationwide. 3 2 It is now more likely than ever that the United States Supreme Court will resolve the conflicts that exist within the United States Courts of Appeals for the Eleventh, Tenth, and Fourth Circuits. I. INTRODUCTION Just over four months after the United States Court of Appeals for the Fourth Circuit issued Turner v. City Council of Fredericksburg, 3 3 the United States Court of Appeals for the Eleventh Circuit issued an opinion in the case of Pelphrey v. Cobb County, 3 4 which also concerned a legislative prayer controversy. The Pelphrey decision is the most comprehensive federal court decision on legislative prayer to date because the Eleventh Circuit addressed both flashpoints of the post-marsh [v. Chambers] 3 5 debate. First, the Pelphrey court addressed the "curious[ly] ambigu[ous]" 3 6 issue of sectarian prayer. Seca clearer case of denominational discrimination than what happened to Cynthia Simpson") (citations omitted); see also Luther & Caddell, supra note 26, at 579 (2008) F.3d 352 (4th Cir. 2008). 29. Luther & Caddell, supra note 26, at 569 (2008). 30. While many of my opinions on this matter formed from conversations with others directly involved in the Turner case, the opinions offered in this Article are exclusively my own and do not represent the opinion of The Rutherford Institute or any of the other attorneys associated with the representation of Hashmel C. Turner, Jr. in his suit against the City Council of the City of Fredericksburg, Virginia. 31. Hinrichs v. Bosma, 400 F. Supp. 2d 1103 (S.D. Ind. 2005), stay denied, 440 F.3d 393 (7th Cir. 2006), rev'd sub nom, Hinrichs v. Speaker of the House of Representatives of the Indiana Gen. Assembly, 506 F.3d 584 (7th Cir. 2007); Doe v. Tangipahoa Parish School Bd., 494 F.3d 494 (5th Cir. 2007), en banc (holding that plaintiffs who wished to challenge sectarian legislative invocations lacked standing to sue); Bacus v. Palo Verde Unified School District Board of Education, 52 Fed. Appx. 355 (9th Cir. 2002) (forbidding the exclusive invocation of "in the name of Jesus" prior to school board meetings). 32. See Complaint, Doe v. Tangipahoa Parish School Board ("Doe II"), No (E.D. LA, filed February 29, 2008); See Complaint, in Galloway v. Town of Greece, No (W.D.N.Y., filed Feb. 28, 2008); Complaint, Joyner v. Forsyth County, 2007 WL (M.D.N.C., 2007) (No. 1:07cv00243) F.3d 352 (4th Cir. 2008) F.3d 1263 (11th Cir. 2008) U.S. 783 (1983) (upholding the constitutionality of the practice of legislative prayer). 36. Hinrichs v. Bosma, 440 F.3d 393, 403 (7th Cir. 2006) (Kanne, J., dissenting).

8 CREIGHTON LAW REVIEW [Vol. 43 ond, the Pelphrey court addressed the "impermissible motive" 3 7 issue of speaker selection alluded to briefly in Marsh. The Pelphrey opinion is significant because it opened the floodgates and caused the fine lines in the sand that federal circuit courts had drawn concerning the content of legislative prayer to wash back into the constitutional sea. In the wake of Pelphrey, there are now at least two, and potentially as many as three, significant conflicts identifiable within the federal circuits. 38 This Article will argue that the Eleventh Circuit's Pelphrey decision, like the United States Court of Appeals for the Tenth Circuit's decision a decade ago in Snyder v. Murray City Corp., 3 9 reflects the proper judicial application of stan- 37. See Marsh v. Chambers, 463 U.S. 783, (1983) (stating "[aibsent proof that the chaplain's reappointment stemmed from an impermissible motive, we conclude that his long tenure does not in itself conflict with the Establishment Clause"). 38. See Christopher C. Lund, Legislative Prayer and The Secret Costs of Religious Endorsements 7 n. 21 (Mississippi College of Law Legal Studies Research Paper Series, Paper No ), available at id= # (opining "courts are split on whether legislative prayers must be scrupulously nondenominational or 'nonsectarian'"); See, e.g., Wynne v. Great Falls, 376 F.3d 292 (4th Cir. 2004) (stating that references to Jesus Christ violated the establishment clause by promoting one religion over another); Bacus v. Palo Verde Unified School Dist., 52 Fed.Appx. 355 (9th 2002) (stating that a prayer which exclusively referenced Jesus Christ violated the establishment clause); Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008) (holding that it was not the role of Courts to determine what is or is not a sectarian reference for the purpose of a legislative prayer and holding that local governments are forbidden from engaging in viewpoint discrimination when selecting religious leaders to administer legislative prayers); Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998) (holding that Marsh permitted governmental bodies to forbid a potential prayer-giver from administering legislative prayer when the governmental body had reason to believe that the prayer administered would "proselytize and disparage" the tenants of other faiths or the practice of legislative prayer"). There has recently been a second circuit split on whether the government has the discretion to pick and choose prayer-givers on the basis of their religious affiliations. See Pelphrey, 547 F.3d at 1281 (stating that selection of a prayer-giver did not violate the "impermissible motive" standard); Simpson v. Chesterfield County, 404 F.3d 276 (4th Cir. 2005) (holding that the Commission's clergy selection process did not violate the Establishment Clause). I would argue that there is also a third potential circuit split between the Fourth and Eleventh Circuits concerning the role, if any, of Lee v. Weisman, 505 U.S. 577 (1992) in evaluating the content of legislative prayers. Compare Pelphrey, 547 F.3d at 1271 and n. 62, infra, with both Turner, 352 F.3d at 355 ("We do not read Lee as holding that a government cannot require legislative prayers to be nonsectarian.") and Simpson, 404 F.3d at 283 ("Additionally, it mattered in Marsh, that the audience during the legislative invocations consists of 'adult[s], presumably not readily acceptable to religious indoctrination or peer pressure... This contrasts with the Court's concern with, for instance, school children. See Lee v. Weisman, 505 U.S. 577, (1992)") F.3d 1227 (10th Cir. 1998), en banc. The court refused to permit prayer that proselytizes or disparages the tenets or beliefs of individual faiths because "[a] principal effect of [such] prayer, as practiced by Snyder and others, will be the symbolic association of government power with religious-and antireligious-intolerance and bigotry." Snyder v. Murray City Corp., 159 F.3d 1227, 1240 (10th Cir. 1998). Although the facts are extremely different in both Snyder and Pelphrey, the Marsh analysis applied by each Court was very much the same. Snyder properly upheld legislative action that forbade a prayer, thus staying true to Marsh, while Pelphrey withstood an Estab-

9 2009] "UNITY THROUGH DIVISION" dards for evaluating legislative prayer controversies under Marsh. Moreover, the Eleventh and Tenth Circuit decisions bookend two decisions issued in the interim by the Fourth Circuit [Simpson v. Chesterfield County 40 and Turner], that each misapplied Marsh. This Article will first lay a theoretical foundation for the argument by issuing an informal response to Professor Lund's thought-provoking article on legislative prayer, which proceeds in Section II. A discussion of reasons the Turner case was wrongly decided follows in Section III. Support for the argument that Pelphrey, as informed by Snyder, is the model "second generation" legislative prayer decision is offered in Section IV. This Article concludes in Section V, arguing that when the United States Supreme Court next grants certiorari in a legislative prayer controversy, it should affirm the Eleventh Circuit's rationale. By doing so, the Court will restore the principles of religious freedom implicit in Marsh. II. A REPLY TO PROFESSOR LUND Professor Lund's article, The Secret Costs of Religious Endorsements, 4 1 sets out to accomplish "two purposes, one doctrinal and one theoretical." 42 Professor Lund is quite right to imply that legislative prayer controversies are no different than other controversies of constitutional substance in that there are always two questions left unanswered at the conclusion of each level of the litigation: First, has the case been decided correctly as a matter of United States Supreme Court precedent? Second, as a "higher order" question, was the precedential case or series of cases the lower court looked to in making its decision rightly decided in the first place? The legislative prayer controversy is unique, however, because the Court may revisit these questions in the near future. 4 3 But why should the Court revisit this issue? My initial reaction to this question is that the Court will revisit this issue because, as Professor Lund correctly recognizes, local governments have taken sides in the legislalishment Clause challenge to the Commission that permitted speakers to pray according to their consciences F.3d 276 (4th Cir. 2005). 41. See Christopher C. Lund, Legislative Prayer and The Secret Costs of Religious Endorsements 7 n. 21 (Mississippi College of Law Legal Studies Research Paper Series, Paper No ), available at # 42. Christopher C. Lund, Legislative Prayer and The Secret Costs of Religious Endorsements 7 (Mississippi College of Law Legal Studies Research Paper Series, Paper No ), available at 910#. Professor Lund's article will be published in 94 MiNN. L. REV. _ (forthcoming February 2010). 43. See supra note 38 and accompanying text

10 CREIGHTON LAW REVIEW [Vol. 43 tive prayer debate. Local governments have taken sides in the debate on a number of occasions and in a variety of seemingly contradictory ways, particularly within the United States Court of Appeals for the Fourth Circuit's jurisdiction. In Simpson v. Chesterfield County, 44 the county's board of supervisors decided to exclude a potential prayergiver because her prayer would not have comported with "elements of the American civil religion" 4 5 and her prayer would not be made "to a divinity that is consistent with the Judeo-Christian tradition." 4 6 Three years later, in Turner v. City Council of Fredericksburg, 4 7 the Fourth Circuit upheld a different Virginia local government's prayer policy, which had been specifically crafted to eliminate religious speech offered in the Judeo-Christian tradition. 48 In Simpson, the court stated that "Fourth Circuit case law demonstrates not an intent to escape Marsh but a determination to apply it as the Supreme Court has directed." 4 9 However, thus far, the success of this endeavor seems questionable. How can these two decisions be reconciled within the Fourth Circuit, or perhaps more significantly, with decisions from other federal circuit courts that have adjudicated legislative prayer controversies? Certainly, the "simple rule" from Simpson and Turner is that governmental bodies within the Fourth Circuit have tremendous leeway to control the theological content of invocations offered at the opening of a government meeting. Under the recent result in Turner, it would appear that almost any "seem[ingly] reasonable" 50 restriction on prayer would be upheld. But from where does this notion that the government possesses the authority to control the theological content of an individual speaker's religious speech derive? The Marsh v. Chambers 51 decision does not permit such restriction except in the circumstance where a speaker has delivered "proselytiz[ing] or disparag[ing]" 5 2 remarks. The Marsh decision's silence otherwise should F.3d 276 (4th Cir. 2005). 45. Simpson v. Chesterfield County, 404 F.3d 276, 278 (4th Cir. 2005) (quoting Marsh v. Chambers, 463 U.S. 783, 793 n. 14 (1983)). 46. Simpson, 404 F.3d at F.3d 352 (4th Cir. 2008). 48. See generally, Turner v. City Council of Fredericksburg, 534 F.3d 352 (4th Cir. 2008). 49. Simpson, 404 F.3d at Emily Battle: Justice O'Connor Hears Appeal, FLS/2008/032008/ / (last visited June 20, 2009). This article says, "[rietired Supreme Court Justice Sandra Day O'Connor told lawyers arguing on behalf of Fredericksburg City Councilman Hashmel Turner yesterday that the city's nonsectarian prayer policy 'seems perfectly reasonable.'" Id U.S. 783 (1983) (upholding the constitutionality of the practice of legislative prayer). 52. Id. at ("The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize

11 2009] "UNITY THROUGH DIVISION" not be considered a tacit adoption of policies that would suppress the religious speech of those permitted to pray. Not surprisingly, the Fourth Circuit's various approaches to legislative prayer cases appear to be in conflict with approaches implemented in both the United States Courts of Appeals for the Eleventh and Tenth Circuits. It is highly probable that the Fourth Circuit's unique approaches to resolving legislative prayer matters have resulted from the fact that it has adjudicated more legislative prayer cases than any other federal circuit court. But regardless of the reasons why the Fourth Circuit has come to treat these cases differently than its sister federal circuit courts, the more timely and pressing question for the Supreme Court to consider is how legislative bodies or courts can undo the damage done to religious liberty by the local governments that have passed judgment on a prayer's theological content prior to determining whether it constitutes an appropriate legislative prayer. 53 One proposed solution for undoing this damage might be found in the following sequence of steps, which I recommended in an earlier article on this subject. 5 4 First and foremost, the first step to reconciliation is for legislators to stop censoring non-proselytizing and non-disparaging prayers. 5 5 "Prayer policies" enacted by legislators posing as or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer"). 53. See generally Turner, 534 F.3d at 352; see also Rutherford Institute Attorneys to Present Oral Argument Before Fourth Circuit Appeals Court in Defense of Councilman's Right To Pray 'In Jesus Name' (""The essential question in this case [Turner] is whether the government can provide an opportunity to pray to a select group of individuals, all the while dictating the content of the prayers and excluding anyone who refuses to go along with their dictates," stated John W. Whitehead, president of The Rutherford Institute. "The answer, as the Supreme Court has ruled in the past, is in the negativethe government simply cannot prescribe or proscribe the content of any 'official' prayer without violating the Establishment Clause, and it cannot discriminate against any person based on his or her religious viewpoint without violating that person's rights to free speech and free religious expression." See press release.asp?article id=703 (Accessed on March 30, 2009); See also ; Simpson v. Chesterfield County Bd. of Supervisions, 404 F.3d 276, 278 (4th Cir. 2005) (upholding Board of Supervisor's policy restricting the content of permissible legislative prayer to that with elements of the "American civil religion.") 54. See Robert Luther III & David B. Caddell, Breaking Away from the "Prayer Police": Why the First Amendment Permits Sectarian Legislative Prayer and Demands a "Practice Focused" Analysis, 48 SANTA CLARA L. REV. 569, 572 (2008) (stating that "Instead of following some grand, new judicially promulgated design, it makes more sense to adhere to the words of the Supreme Court precedent in Marsh by refusing to 'parse' particular prayers to the extent that prayer does not 'proselytize or disparage the particular tenets or beliefs of individual faiths"). 55. Id. at 571 (declaring that "[l]egislative bodies that refuse to allow those who are permitted to pray the right to mention specific deities of their choosing -- Jesus, Allah, Jehovah, or others -- in their prayers undermines diversity and the free speech rights of these individuals, and, in turn, renders these traditionally solemn occasions meaningless").

12 CREIGHTON LAW REVIEW [Vol. 43 prayer police need not exist within our constitutional tradition, 56 and quite frankly, are antithetical to "the rich religious heritage of our country." 57 Second, courts are properly equipped to adjudicate these disputes when facts demonstrate that a speaker has taken advantage of a prayer opportunity to proselytize or disparage. 58 The Marsh court articulated a standard for impermissible legislative prayers and was silent regarding the theological content unless the speaker delivered a "proselytizing or disparaging" speech. 59 It is critical that courts do not rubber-stamp the local government's determination of a permissible prayer. The Marsh court did not support this sort of legislative deference 60 and the Simpson case shows that local governments can be quite illiberal when crafting such policies. 61 In addition, even if the language of Marsh does not persuade one, there is still further support for this course. I have previously written 62 and the Eleventh Circuit 56. Id. at 604 ("A pluralistic nation like the United States must account for and recognize that not everyone who prays does so in the same way or to the same deity and 'openness to... ecumenism is consonant with our character both as a nation of faith and as a country of free religious exercise and broad religious tolerance"). 57. Turner v. City Council of Fredericksburg, 534 F.3d 352, 356 (4th Cir. 2008). 58. Marsh v. Chambers, 463 U.S. 783, (1983) ("The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer"). 59. Id. 60. See Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 285 (4th 2005) (supporting of one of his many arguments for why legislatures retain the authority to control the content of legislative prayer, Chief Judge Wilkinson writes, "[i]ndicating the latitude retained by legislatures, however, the Court did not remand for such a determination as to whether there had been such an 'impermissible motive.' Instead it simply noted that the Nebraska legislature had not strayed beyond permissible bounds"). This statement is perplexing because the Marsh Court's decision not to remand for a determination of whether Chaplain Palmer had been employed or retained on the basis of an impermissible motive does not reflect on the legislature's authority whatsoever - in fact, it cuts in the opposite direction entirely. The "impermissible motive" standard, which Chief Judge Wilkinson recognizes to be explicit in Marsh, does not show "latitude" towards the legislature but towards the judicial branch to which Marsh empowers a judicial remedy if and when the legislature has acted improperly in its speaker selection/retention by way of an "impermissible motive." 61. See Simpson, 404 F.3d at 278 (stating "[t]he County's policy, tracking the language of Marsh, states that each 'invocation must be non-sectarian with elements of the American civil religion....'"); see id. at 280 ("The deputy clerk referred Simpson's request to the County Attorney, who stated to Simpson and her attorneys that she was not eligible to be added to the list. He observed that 'Chesterfield's non-sectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition,' a divinity that would not be invoked by practitioners of witchcraft"). 62. See Robert Luther III & David B. Caddell, Breaking Away from the "Prayer Police": Why the First Amendment Permits Sectarian Legislative Prayer and Demands a "Practice Focused" Analysis, 48 SANTA CLARA L. REV. 569, (2008) (arguing that "non-sectarian" prayer policies violate the Establishment Clause and are prohibited under one of the holdings of Lee v. Weisman, 505 U.S. 577, 588 (1992); See id at 586 (declaring that "[ilt is a cornerstone principle of our Establishment Clause jurispru-

13 20091 "UNITY THROUGH DIVISION" has since acknowledged 6 3 that the Court's holding in Lee v. Weisman 64 forbids the government from editing prayers and from crafting specific prayers to be said by all speakers in the context of public life. 6 5 Local governmental bodies certainly do have the discretion to determine whether prayer is offered by council members, community members, or both. This function is within the sphere of the legislature, and its propriety has not been questioned in these disputes. However, local governmental bodies certainly do not, and should not, have the discretion to control the type of prayer an individual seeks to offer if that individual has been given the opportunity to pray. Neither may a local body exclude someone from offering prayer on the basis of the theological viewpoint that the prayer-giver wishes to publically acknowledge. 66 Most significantly, while Professor Lund's Secret Costs article offers a great deal of insight into the process of litigating legislative prayer matters and considers the social costs of the decisions various courts have rendered, and while this Article agrees with numerous observations he makes throughout his article, this Article nevertheless disagrees with his conclusion that "the nonsectarian standard is a good way of advancing religious freedom" or "religious liberty." 67 With that thought in mind, this Article will proceed by addressing specific points where I disagree with Professor Lund's understanding of the underlying First Amendment doctrine and the policy considerations faced by courts since the doctrine is unclear. Despite my points of disagreement, Professor Lund's thought-provoking arguments are dence that 'it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government'"); see also id. at 587 (stating that "[t]he suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted"). 63. Pelphrey v. Cobb County, 547 F.3d 1263, 1271 (11th Cir. 2008) ("In Lee, the Court clarified that the government ordinarily should have no role in determining the content of public prayers. Public school officials had asked a rabbi to provide a 'nonsectarian' invocation at a graduation ceremony. Lee, 505 U.S. at 581. The Court held that even that 'nonsectarian' prayer violated the Establishment Clause. Id. at 599. The Court ruled that the principal should not have provided the rabbi with guidelines for the invocation and 'directed and controlled the content of the prayers.' Id. at 588. 'It is a cornerstone principle of our Establishment Clause jurisprudence that 'it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government'...." Id. (quoting Engel v. Vitale, 370 U.S. 421, 425 (1962)) U.S. 577 (1992). 65. See supra note 62 and accompanying text. 66. See Luther & Caddell, supra note Id. at 9 ("But this route turned out to be far more controversial and far more harmful to religious liberty that anyone anticipated."); id. at 58 ("[Non-sectarian prayer] was the course that Marsh initially charted, and the course that would best serve religious liberty.")

14 CREIGHTON LAW REVIEW [Vol. 43 sure to remain critical to unlocking the meaning of Marsh as legislative prayer controversies continue to develop through the twenty-first century. I hope that the vigorous debate over the unsettled issues in Marsh and its progeny will be furthered by my response in this venue. A. PROFESSOR LUND ON "NONSECTARIAN" PRAYER After establishing the initial bearings for his article, Professor Lund sets course: On the doctrinal side, [the article] argues, for example, in favor of a constitutional requirement that legislative prayer be nondenominational or 'nonsectarian.' And it defends the claim that government should not be able to pick and choose among prayergivers on the basis of 'impermissible motives,' 68 such as their religious affiliations. 69 The arguments for and against "sectarian prayer," while a recent subject of public, judicial and scholarly scrutiny, are nonetheless welldocumented. 70 The analysis must start with what the Marsh v. Chambers 7 1 decision did and did not say about "nonsectarianism." The United States Court of Appeals for the Eleventh Circuit's Judge Pryor recently observed, "the [United States Supreme] Court never held that the prayers in Marsh were constitutional because they were 'nonsectarian.' Nor did the Court define the term." 72 While Professor Lund correctly supplemented my criticism of lower courts' interpretations of ACLU v. Allegheny, 73 and while I concede Professor Lund's correct ob- 68. See supra note 27 and accompanying text. 69. See Christopher C. Lund, Legislative Prayer and The Secret Costs of Religious Endorsements 7 n. 21 (Mississippi College of Law Legal Studies Research Paper Series, Paper No ), available at #. 70. See Christopher C. Lund, The Congressional Chaplaincies, 17 Wm. & MARY BILL RTS. J. 1171, 1174 (2009) (stating that "[clollectively, legislative prayer disputes have stormed the federal courts, the law reviews, and the public consciousness: and they have even spilled out into other countries, and caused violent confrontations") U.S. 783 (1983) (upholding the constitutionality of the practice of legislative prayer). 72. Pelphrey v. Cobb County, 547 F.3d 1263, 1271 (11th Cir. 2008) U.S. 573 (1989); See Lund, supra note 21, at 24 (stating that "some have called Allegheny County's interpretation of Marsh dicta, which is indeed true. But it is also irrelevant - lower courts are generally considered bound by the Supreme Court's dicta..."); Robert Luther III & David B. Caddell, Breaking Away from the "Prayer Police". Why the First Amendment Permits Sectarian Legislative Prayer and Demands a "Practice Focused"Analysis, 48 SANTA CLARA L. REV. 569, (2008) ("Although Allegheny involved religious symbols rather than spoken words, the plurality opinion launched into a retrospective analysis of Marsh. In dicta, the plurality declared, "not even the 'unique history' of legislative prayer can justify the contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief').

15 20091 "UNITY THROUGH DIVISION" servation that the Court is not bound to its own precedents, 74 I am of the opinion that the suggested effect of the Allegheny court's "guidance as to the permissible boundaries of legislative prayer" 75 must be considered with caution. Professor Lund suggests that any legislative prayer that refers to Jesus Christ affiliates the government with a specific faith and is thus unconstitutional. 76 While "[clourts have differed in their interpretations of this [Allegheny] language," 77 the Allegheny court's passing language does not manifest a clear intent to cause the standard for the sufficiency of a prayer opportunity to derivate from "whether a prayer proselytized or disparaged any other faith or belief' 78 to the mandate that prayer must always be nonsectarian. 7 9 While federal circuit courts have reached different conclusions subsequent to the application of this standard, even the United States Court of Appeals for the Fourth Circuit has conceded that the "proselytized or disparage[d]" standard is, indeed, the governing standard for adjudicating legislative prayer disputes. 8 0 The Allegheny case, on the contrary, concerned religious symbols and referenced Marsh only to confirm that Marsh was inapplicable in that context. 8 1 In sum, "[niothing in Allegheny suggests that it supplants Marsh in the area of legislative prayer." 8 2 So why is the "proselytizing and disparaging" standard worth retaining within our First Amendment index? Surely a legislative prayer opportunity could be abused to include "proselytizing and disparaging" remarks without the mention of a single theological refer- 74. See Lund, supra note 21, at 24 (declaring that "the Supreme Court is not even bound to its earlier holdings"). 75. Pelphrey, 547 F.3d at See Lund, supra note 21, at Newdow v. Bush, 355 F. Supp. 2d 265, 288 (D.D.C. 2005) ("not even the 'unique history' of legislative prayer can 'justify contemporary legislative prayers that have the affect of affiliating the government with any one specific faith or belief"); but see (distinguishing between the approaches taken by the Fourth and Tenth Circuit's in Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004) and Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir.) (en banc). 78. See Lund, supra note 21, at See id. (acknowledging that "[s]o far, the commentators have been fairly united in their opposition to the nonsectarian standard"). 80. See Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 278 (4th Cir. 2005), cert. denied, 546 U.S. 937 (stating that "[blecause that policy does not 'proselytize or advance any one, or [ ] disparage any other, faith or belief,' Marsh v. Chambers, 463 U.S. 783, (1983), we believe it fits within the Supreme Court's requirements for legislative prayer"). 81. See Pelphrey v. Cobb County, 547 F.3d 1263, 1276 (11th Cir. 2008) ("In Allegheny, the Supreme Court refused to apply the same test for a religious display that the Court applied to legislative prayer"); see also, Simpson, 404 F.3d at 281 n. 3 ("Allegheny concerned religious holiday displays, referencing Marsh to confirm that Marsh did not apply in that context."). 82. Simpson, 404 F.3d at 281 n. 3.

16 CREIGHTON LAW REVIEW [Vol. 43 ence. s 3 What would the standard for restricting such behavior be if the "nonsectarian" standard were to subsume the "proselytize or disparage" standard? Would a legislative body's restriction on speech without any constitutional predicate for doing so constitute viewpoint discrimination? Such hypothetical questions need not be contemplated with any seriousness if one simply reads Marsh as it was written. Instead, the Allegheny decision "reiterates the lesson of Marsh that legislative prayers should not 'demonstrate a [governmental] preference for one particular sect or creed.'" 8 4 When legislative prayer is delivered on a rotating basis, as it was done in Turner v. City 8 5 Council of Fredericksburg, and Pelphrey v. Cobb County, 8 6 legislative prayers "do not 'have the effect of affiliating the government with any one specific faith or belief."' 8 7 Therefore, "it is not for [the] court to embark on a sensitive evaluation or to parse the content of a particular prayer." 8 s The Marsh decision demands this result. As a matter of subsequent case interpretation, even if the Allegheny decision were read to "clarify" Marsh by demanding nonsectarian prayer, the Lee v. Weisman 8 9 opinion decided three years later reversed any such notion when it held that government-mandated nonsectarian prayer violates the Establishment Clause. 90 Moreover, the "nonsectarian prayer" reading of Allegheny is impossible to recon- 83. While the Snyder case did include theological references, it is not difficult to imagine a similar situation devoid of theological remarks that would still constitute 'proselytizing." Snyder's prayers were certainly "disparaging" enough to violate Marsh regardless of the inclusion or absence of theological content identifiable with any particular theological denomination. 84. Pelphrey, 547 F.3d at 1272 (quoting Allegheny, 492 U.S. at 605). 85. Turner v. City Council of Fredericksburg, 534 F.3d 352, 353 (4th Cir. 2008) ("Only Council members are allowed to offer the opening prayer, and the Council members rotate the Call to Order duty"). 86. Pelphrey, 547 F.3d at 1267 ("The Cobb County Commission and the Cobb County Planning Commission have a long tradition of opening their meetings with prayer by volunteer clergy invited by County personnel on a rotating basis"). 87. Id. at 1272 (quoting Allegheny, 492 U.S. at 603); See also, Robert Luther III& David B. Caddell, Breaking Away from the "Prayer Police": Why the First Amendment Permits Sectarian Legislative Prayer and Demands a "Practice Focused" Analysis, 48 SANTA CLARA L. REV. 569, 596 (2008) (stating that "Chief Judge Wilkinson recogni[zed] in Simpson that neither Marsh nor Allegheny held that the identity of the speaker "would 'affiliate the government with any one specific faith or belief... (citing Simpson, 404 F.3d at 286)"). 88. Pelphrey, 547 F.3d at 1272 (quoting Marsh, 463 U.S. at 795) U.S. 577 (1992). 90. Id. at 1271 ("In Lee, the Court clarified that the government ordinarily should have no role in determining the content of public prayers. Public school officials had asked a rabbi to provide a 'nonsectarian' invocation at a graduation ceremony. Lee, 505 U.S. at 581. The Court held that even that 'nonsectarian' prayer violated the Establishment Clause. Id. at 599. The Court ruled that the principal should not have provided the rabbi with guidelines for the invocation and 'directed and controlled the content of the prayers.' Id. at 588 'It is a cornerstone principle of our Establishment Clause jurisprudence that 'it is no part of the business of government to compose official prayers for

17 20091 "UNITY THROUGH DIVISION" cile with the United States Court of Appeals for the Tenth Circuit's en banc opinion in Snyder v. Murray City Corp., 9 1 which, as previously argued, along with the recently decided Pelphrey case, is one of two textbook examples of how Marsh should be understood. 9 2 In addition to the Tenth Circuit's 1998 decision in Snyder, both the Pelphrey and Turner courts uniformly agreed that Marsh does not demand a certain form of legislative prayer. 93 Thus, even Justice O'Connor's recent decision on this issue, which upheld the constitutionality of a nondenominational prayer policy, nevertheless conceded that nonsectarian prayer was not constitutionally compelled. 9 4 B. PROFESSOR LUND ON THE RIGHTS OF THE LISTENER V. THE RIGHTS OF THE SPEAKER Professor Lund spends a great deal of time breaking down the dichotomy of Marsh v. Chambers 9 5 and its protections for both listeners and speakers. He writes: Although no court or commentator has put it this way, one can see immediately how the two restrictions [in Marsh] can provide somewhat complimentary protections. The first restriction aims at protecting listeners from unwanted harassany group of the American people to recite as a part of a religious program carried on by government'... Id. (quoting Engel v. Vitale, 370 U.S. 421, 425 (1962)).'"). 91. Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998) (en banc). 92. See Robert Luther III & David B. Caddell, Breaking Away from the "Prayer Police": Why the First Amendment Permits Sectarian Legislative Prayer and Demands a "Practice Focused" Analysis, 48 SANTA CLARA L. REV. 569, 588 (2008) (declaring that "because any attempt by a legislative body to coerce council-members or invited guests to pray in particular ways raises significant and substantial Establishment Clause concerns, the court noted a novel and insightful approach to legislative prayer analysis when it suggested that 'the focus of the court's inquiry should be on a legislature's practice, rather than on a particular prayer, the selection and identity of speakers should be analyzed separately from the content of the prayer.'") (quoting Pelphrey v. Cobb County, 448 F. Supp. 2d 1357, 1368 n. 12 (N.D. Ga. 2006)); see also id. at (describing the Tenth Circuit's proper application of the Marsh framework in Snyder v. Murray City Corp.). 93. See Pelphrey v. Cobb County, 547 F.3d 1263, 1271 (11th Cir. 2008) (stating that "[t]o read Marsh as allowing only nonsectarian prayers is at odds with the clear directive by the Court that the content of legislative prayer 'is not of concern to judges where... there is no indication that the prayer opportunity has been exploited to proselytize or advance any one.., faith or belief") (quoting Marsh, 483 U.S ); see also Turner v. City Council of Fredericksburg, 534 F.3d 352, 356 (4th Cir. 2008) (observing that "[w]e need not decide whether the Establishment Clause compelled the Council to adopt their legislative prayer policy, because the Establishment Clause does not absolutely dictate the form of legislative prayer"). 94. Turner, 534 F.3d at 356; see also, Pelphrey, 547 F.3d at 1273 (stating that "[a]lthough it upheld the policy of the council, the Fourth Circuit expressly declined to hold that Marsh required a policy of nondenominational prayers.. ") U.S. 783 (1983) (upholding the constitutionality of the practice of legislative prayer).

18 CREIGHTON LAW REVIEW [Vol. 43 ment; the second restriction protects speakers from undue discrimination. 9 6 This analysis correctly identifies the Marsh decision's protections for speakers, but in the same vein, it overreaches with respect to its position on protections for listeners. The Marsh decision contemplates the audience's interests by its assertion that religious speech that proselytizes or disparages finds no shelter in the opinion or the First Amendment. 9 7 Moreover, it is essential to a proper understanding of Marsh that the ability of a prayer-giver to pray according to his conscience, so long as he or she does not "proselytize or disparage," falls hand-in-hand with the government's inability to selectively choose or deny prayer-givers. As such, it seems that the only principled way to read Marsh is 1) to say that prayer which mentions a religious deity or deities (or "sectarian prayer" for the purposes of this exercise) is permissible and government cannot discriminate against speakers on the basis of their religious affiliations, or 2) to say that the Marsh decision demands nonsectarian prayer, and in order to enforce this policy, the government can discriminate on the basis of religious affiliation to ensure that speakers comply. However, if it was actually the Marsh rule that government may not choose speakers on the basis of their religious affiliation, then how does it make sense that the Marsh decision requires nonsectarian prayer? It makes little sense for the government to be forbidden from engaging in viewpoint-based speaker selection only to then require the government to administer a uniform nonsectarian prayer. The latter, while not only the least preferable of the two options as a matter of policy, is also unconstitutional under the Lee v. Weisman 9s decision. 9 9 Professor Lund's observation of these two interests at work in Marsh demonstrates the extent to which different weight is placed on 96. Christopher C. Lund, Legislative Prayer and The Secret Costs of Religious Endorsements at 18 (Mississippi College of Law Legal Studies Research Paper Series, Paper No ), available at 910#. 97. See Marsh v. Chambers, 463 U.S. 783, (1983) ("The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer"). See also, Robert Luther III & David B. Caddell, Breaking Away from the "Prayer Police": Why the First Amendment Permits Sectarian Legislative Prayer and Demands a "Practice Focused" Analysis, 48 SANTA CLARA L. REV. 569, 597 (2008) ("'Proselytizing' or 'disparaging' remarks made in regards to the tenets of other faiths during legislative prayer find no shelter in the First Amendment.") U.S. 577 (1992). 99. See Luther & Caddell, supra note 62 and accompanying text.

19 2009] "UNITY THROUGH DIVISION" the respective interests of listeners and potential prayer-givers. Professor Lund seems to place greater weight on the value of "protecting listeners from unwanted harassment" 10 0 whereas this Article argues that greater weight should be placed on "protect[ing] speakers from undue discrimination." 10 1 This Article's view is preferable because Marsh explicitly protects listeners from "unwanted harassment" by way of the "proselytize or disparage" standard, which permits a speaker's prayer to be parsed when an adequate factual predicate requiring judicial intervention has occurred. If the Marsh decision does, indeed, "protect[] speakers from undue discrimination," 10 2 then this fact is just one more reason why the Fourth Circuit wrongly decided both Simpson and Turner.1 03 III. REASONS WHY TURNER V. CITY COUNCIL OF FREDERICKSBURG WAS WRONGLY DECIDED In Turner v. City Council of Fredericksburg, 1 04 the United States Court of Appeals for the Fourth Circuit, in an opinion written by Retired Associate Justice Sandra Day O'Connor, upheld the City Council of Frederickburg's ("the council") "non-denominational" prayer policy from a challenge brought by Councilor Hashmel Turner In that case, Councilor Turner ended his prayer "in Jesus' name" during his turn to pray throughout the course of the council's rotating prayer roster At the threat of suit from the American Civil Liberties Union ("ACLU"), the council adopted a "nondenominational" prayer policy that prohibited Turner from closing his prayers in the name of "Jesus." In response to the council's policy, Turner brought suit alleging that the implementation of the "nondenominational" prayer policy violated his Free Speech rights.1 08 In his motion for summary 100. Lund, supra note 21, at Id Id Simpson v. Chesterfield County, 404 F.3d 276, 280 (4th Cir. 2005) ("[Simpson] alleged that her exclusion from the list amounted to a violation of the Establishment Clause in that the County's policy impermissibly advanced Judeo-Christian religions. She also argued that the policy violated her rights under the Free Exercise and Free Speech Clauses of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment"); Turner, on the other-hand, argued that the County's "nonsectarian" prayer policy promoted a "civic" religion, in violation of the Establishment Clause. He also argued that the policy violated her rights under the Free Exercise and Free Speech Clauses of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment F.3d 352 (4th Cir. 2008) Turner v. City Council of Fredericksburg, 534 F.3d 352 (4th Cir. 2008) Id. at Id See Complaint, in Turner v. City Council of Fredericksburg, U.S. District Court for the Eastern District of Virginia at Richmond, filed on January 10, 2006 at p. 8 44

20 CREIGHTON LAW REVIEW [Vol. 43 judgment, Turner argued that the council's policy also violated the Establishment Clause because it established a civic American religion and preferred a civil religion to other religions. 0 9 This Article argues that Professor Lund is incorrect in his argument that the Fourth Circuit correctly decided Turner either as a matter of case law or as a matter of constitutional principle. Justice O'Connor has written that church and state cases are often extremely fact-intensive inquiries In Turner, the facts pitted Free Speech"' and Free Exercise principles against the Establishment Clause. Writing for the Fourth Circuit, Justice O'Connor affirmed the council's prayer policy by stating, "Turner was not forced to offer a prayer that violated his deeply-held religious beliefs. Instead, he was given a chance to pray on behalf of the government." 1 2 This statement is flawed for two reasons. First and foremost, "government cannot itself pray, thus prayer cannot be government speech." 1 13 Secondly, while Turner was not "forced to offer a prayer," 114 he was "forced to conform or face the punishment of exclusion." 115 If the requirement that a potential prayer-giver must conform his or her prayer to an appropriate vision of prayer approved by the government is not constitutionally defective enough, the result in this case should be most disturbing because the facts reveal that the council's policy was specifically imple- ("By amending the custom and practice for opening prayer on November 8, 2005 so as to allow only "nondenominational" prayer, the City Council has imposed impermissible content and/or viewpoint discrimination on Turner's speech.") 109. See Consolidated Memorandum in Support of Plaintiffs Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment in Turner v. City Council of Fredericksburg, U.S. District Court for the Eastern District of Virginia at Richmond, filed on June 23, 2006 at pp , Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 847 (1995) (O'Connor, J., concurring) ("Such judgment requires courts to draw lines, sometimes quite fine, based on the particular facts of each case. See Lee v. Weisman, 505 U.S. 577, 588 (1992) ('Our jurisprudence in this area is of necessity one of linedrawing')"). See also, Employment Division, Department of Human Services of the State of Oregon v. Smith, 494 U.S. 872, 899 (1990) ("Even if, as an empirical matter, a government's criminal laws might usually serve a compelling interest in health, safety, or public order, the First Amendment at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim.") (O'Connor, J., concurring) See Mark W. Cordes, Religion as Speech: The Growing Role of Free Speech Jurisprudence in Protecting Religious Liberty, 38 Sw. L. REV. 235, 239 (2008) ("A second principle to emerge from these early [Free Speech] decisions that has proved to be very significant for religious speech was the idea that when regulating speech government cannot discriminate against speech because of its content.") Turner, 534 F.3d at See Brief of Appellant, Turner v. City Council of Fredericksburg, Virginia, 2006 WL (4th Cir. 2006) (No ) Turner, 534 F.3d at 356 (emphasis in original) WorldNetDaily.com, Supremes Won't Restore Christian Prayer, Quote of Rev. Gordon Klingenschmitt, Id= (last visited June 25, 2009).

21 2009] "UNITY THROUGH DIVISION" mented to censor Councilor Turner's prayers When an individual is singled out and told that he or she cannot pray, (in a non-proselytizing or disparaging way) according to his or her conscience, the nation's "rich religious heritage" 117 is harmed, not celebrated. Nor do the consequences of such a practice end with those involved in the litigation. In this instance, upon the resolution of the Turner decision, a number of religiously affiliated individuals resigned their government positions because they were no longer permitted to pray in a manner consistent with their consciences. 118 This result is hardly consistent with Justice O'Connor's purported vision of solidarity When presented with a choice between allowing people of various faiths to pray according to their consciences or adopting a vapid nonsectarian prayer policy, courts have far too often chosen the latter under the guise that it promotes ecumenism more than the former However, the decisions of legislatures and courts in these cases have deprived individuals of various faiths the ability to pray to the deity of their choosing. This result has cost members of the public countless opportunities, in civic and communal settings, to experience the religious pluralism frequently referenced in Justice O'Connor's opinions Such restric See Memo from Kathleen Dooley, City Attorney, to City Council dated November 4, 2005 re: "Prayer at Council Meetings" located as pp attached to the Complaint in Turner v. City Council of Fredericksburg, filed January 10, 2006 in the U.S.D.C. for the E.D.Va - Richmond Division Turner, 534 F.3d at See Gary Emerling, VA Police Chaplains Resign After Faith Conflict, I www. washingtontimes.com / news /2008/sep /24 / va-police-chaplains-resign-after-faithconflict/ (last visited June 17, 2009); see also, Chelyen Davis, Bill Would Give OK to Any prayer by Chaplain, (last visited June 25, 2009) See Employment Division, Department of Human Services of the State of Oregon v. Smith, 494 U.S. 872, 897 (1990) ("In my view, however, the essence of a free exercise claim is relief from a burden imposed by government on religious practices or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific religious practices, or indirectly through laws that, in effect, make abandonment of one's own religion or conformity to the religious beliefs of others the price of an equal place in the civil community.") (O'Connor, J., concurring) See Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 284 (4th Cir. 2005) ("Chesterfield's openness to this ecumenism is consonant with our character both as a nation of faith and as a country of free religious exercise and broad religious tolerance"), see also Turner, 534 F.3d 352, 356 (O'Connor, J., (Ret.), sitting by designation) ("The prayers in both cases [Marsh and Simpson] shared a common characteristic: they recognized the rich religious heritage of our country in a fashion that was designed to include members of the community, rather than to proselytize.....the restriction that prayers be nonsectarian in nature is designed to make the prayers accessible to people who come from a variety of backgrounds, not to exclude or disparage a particular faith.") 121. See Elk Grove Unified School District v. Newdow, 542 U.S (2004) ("Given the dizzying religious heterogeneity of our nation...") (O'Connor, J., concurring); id. at 42 ("The phrase "under God," conceived and added at a time when our national religious diversity was neither as robust nor as well recognized as it is now..."); See also, Employment Division, Department of Human Services of the State of Oregon v. Smith, 494 U.S. 872, 902 (1990) ("The history of our free exercise doctrine amply demonstrates the

22 CREIGHTON LAW REVIEW [Vol tions on religious speech have not "advanc[ed] religious freedom,"' promoted "ecumenism," or fostered an appreciation of pluralism. Instead, these restrictions have merely endorsed the establishment of an unconstitutional civil religion Perhaps the most surprising and disturbing fact is that the Turner decision was not the first time that prayer was suppressed under the guise of faux ecumenism in the Fourth Circuit. Earlier in 2005, in Simpson v. Chesterfield County, 125 Chief Judge Wilkinson wrote a similar decision wherein, much like Justice O'Connor, he deferred to the county's board of supervisors' ("the board's) decision to pass a prayer policy limiting prayer to that which was "traditionally... consistent with the Judeo-Christian tradition" 12 6 and then justified it on the grounds that "openness to...ecumenism is consonant with our character both as a nation of faith and a country of free religious exercise and broad religious tolerance.' 2 7 On the contrary, the idea that government can exclude speakers of particular faiths or prefer faiths of "Judeo-Christian traditions" is antithetical to ecumenism and certainly does not comport with the 28 United States Supreme Court's recent "neutrality" framework.' Moreover, while I do not agree with the analysis or result of either the Simpson or Turner decision, I am of the opinion that the Turner decision is more offensive to First Amendment principles because the council's prayer policy was specifically crafted to stop Councilor Turharsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah's Witnesses and the Amish.") (O'Connor, J., concurring); American Civil Liberties Union v County of Allegheny, 492 U.S. 573, 627 (1989) ("We live in a pluralistic society. Our citizens come from diverse religious traditions, or adhere to no particular religious beliefs at all.") 122. See Christopher C. Lund, Legislative Prayer and The Secret Costs of Religious Endorsements 20 (Mississippi College of Law Legal Studies Research Paper Series, Paper No ), available at # (Need Parenthetical) Simpson, 404 F.3d at See Pelphrey v. Cobb County, 547 F.3d 1263, 1289 (Middlebrooks, J., dissenting) (stating that "[w]hen state sponsored prayer is a perfunctory sterile exercise marking the beginning of a commission agenda, religion becomes the casualty."); see also, James J. Knicely and John W. Whitehead, Government Speech and American Civil Religion: A New Establishment for a New Century? (forthcoming 2010) (manuscript on file with the author) F.3d 276 (4th Cir. 2005) Simpson, 404 F.3d at Id. at Pelphrey, 547 F.3d at 1268 ("The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.") (quoting Larson v. Valente, 456 U.S. 228, 244 (1962)). See also, Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) (explaining the Court's "neutrality" doctrine); Lynch v. Donnelly, 465 U.S (1984) ([The Constitution] "affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility towards any") (citations omitted).

23 2009] "UNITY THROUGH DIVISION" ner from invoking the name of Jesus. In Simpson, the policy, while also egregious, had been in force for many years.' 29 While there is certainly an argument that the Simpson case was more egregious than Turner because the Simpson board's prayer policy could have impeded any number of people from praying over the duration of its existence, the policy at issue in Turner seems more harmful from a constitutional standpoint by virtue of the fact that it was specifically enacted to suppress Councilor Turner's speech. Returning to the text of the Turner opinion, a number of the opinion's assertions and conclusions warrant further consideration. First, it holds that "... the requirement that the prayers be nondenominational does not violate the Establishment Clause."' 30 At the time the Turner opinion was published no authority was explicitly in conflict with this statement. However, the Pelphrey v. Cobb County' 3 ' opinion, issued four months later, calls that holding into question by its acknowledgment that "Marsh, as informed by Allegheny i 32 and Lee, 13 3 controls our review of the constitutionality of legislative 34 prayers."' Because the Lee decision stated that the Establishment Clause prohibited the school from editing Rabbi Weisman's prayer, and because the Eleventh Circuit stated in Pelphrey that Marsh and Lee must be read in tandem when considering a legislative prayer controversy, the Turner council's policy would seemingly be found unconstitutional if it were to be implemented in Atlanta, Birmingham, or Tallahassee and challenged in a court of competent jurisdiction by a plaintiff with standing. Thus, if the Eleventh Circuit's reasoning that Lee forbids the government from "direct[ing] and control[ing] the content of prayers" were adopted in the Fourth Circuit, then the "nondenominational" prayer policy approved by the Fourth Circuit in Turner not only ignored the requirement that prayer "proselytize See Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 277 (4th Cir. 2005) ("It instituted this practice in 1984, immediately after the Supreme Court upheld legislative invocations under the First Amendment's Establishment Clause"); The policy at issue in Turner was enacted in In view of the fact that we are now in the 21st century, one would hope that most, if not all, elected officials have moved beyond denominationalism. Even if they have not, the Supreme Court has prohibits such behavior; see also Larson v. Valente, 456 U.S. 228, 255 (holding that when the government demonstrates a "denominational preference" it violates the Establishment Clause) Turner v. City Council of Fredericksburg, Virginia, 534 F.3d 352, 353 (4th Cir. 2008) F.3d 1263 (11th Cir. 2008) U.S. 573 (1989) U.S. 577 (1992) Pelphrey, 547 F.3d at Id.

24 CREIGHTON LAW REVIEW [Vol. 43 or... disparage" 13 6 before it was adjudicated unconstitutional, but also violated the Establishment Clause. The question remains unanswered whether a challenge to legislative prayer involving a specific deity would succeed in the Fourth Circuit if the council had refused to adopt a policy to silence religious speech. On one hand, I hope that a municipality where prayer-givers are permitted to pray according to their consciences subject to the prescriptions of Marsh would be immune from Establishment Clause challenges because prayer-givers should be able to offer such prayers. On the other hand, it seems inconsistent with the rule of law that prayer-givers in municipalities where no "prayer policy" is adopted should be able to pray as they wish, free of the fear of Establishment Clause challenges, while speakers in other municipalities, where council or board members desire to avoid litigation, are able to insulate themselves from Establishment Clause challenges by forcing prayer-givers to deliver nonsectarian prayers or to not pray at all. In light of her jurisprudence, it should come as no surprise that legislative deference is implicit in Justice O'Connor's Turner opinion, because legislative deference is at the heart of the "reasonable observer" standard After all, the "reasonable observer" standard repeatedly found in Justice O'Connor's opinions requires deference to some legislative body or elected or appointed official's judgment. Thus, in application, this standard presumes that the action taken by that body or individual concerning some affirmative display of religion in public life should be permitted to stand if a "reasonable observer" would not conclude that the government endorsed religion from viewing the display. 138 Given Justice O'Connor's judicial history and these facts, her willingness to defer to the legislature in the context of legislative prayer was not particularly unusual. It was unusual, however, 136. Marsh, 463 U.S. at ("The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer") See Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O'Connor, J., concurring) (upholding the constitutionality of a holiday display in a public park that contained a variety of holiday symbols traditionally associated with a multitude of faiths from an Establishment Clause challenge); but see John M. Bickers, Of Non-Horses, Quantum Mechanics, and the Establishment Clause, 57 U. KAN L. REV. 377 n. 39 (2009) (opining "I confess that I have always been more fascinated by Pawtucket's inclusion of a clown, a dancing elephant, and a robot as symbols of Christmas.") (citing Donnelly v. Lynch, 525 F. Supp. 1150, 1155 (D. R.I. 1981); see also, Bd. of Educ. of Westside Cmty. Schools v. Mergens, 496 U.S. 226, 250 (1990) (O'Connor, plurality opinion) ("there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.") See supra note 137 and accompanying text.

25 20091 "UNITY THROUGH DIVISION" that Justice O'Connor was unwilling to acknowledge the value in a variety of religious speech through legislative prayer, considering her appreciation for diversity in the public sphere 13 9 and her votes and opinions in the early religious symbols cases of her tenure on the United States Supreme Court, such as Lynch v. Donnelly, 140 Allegheny, 14 1 and, later, Capitol Square Review and Advisory Board v. Pinette 14 2 decisions. Yet regardless of the merits, if any, 14 3 of this reasonable observer standard in other contexts, the Fourth Circuit's display of deference to legislative action here is misguided Results in legislative prayer cases should not hinge on whether the legislature took action to prevent suit or whether the legislature refused to adopt a policy to prevent suit. Federal courts have seen both types of cases. Taxpayers have brought Establishment Clause challenges to government bodies that have failed to take action. 145 Also, speakers who were denied the ability to speak as their conscience demanded have brought suits against local governments for suppressing their 139. See Grutter v. Bollinger, 539 U.S. 306 (2003) (concluding that diversity in higher education satisfied a compelling state interest) U.S. 668 (1984) In Allegheny, Justice O'Connor concluded that the display of a Menorah next to Christmas Tree on public property did not violate the Establishment Clause because "the city did not endorse Judaism or religion in general, but rather conveyed a message of pluralism and freedom of belief during the holiday season." See American Civil Liberties Union v. County of Allegheny, 492 U.S. 573, 635 (1989) (O'Connor, J., concurring) (emphasis added) U.S. 753 (1995) (holding that the Free Speech Clause of the First Amendment permits the unattended display of a cross in a public forum) See Susan Hanley Kosse, A Missed Opportunity to Abandon the Reasonable Observer Framework In Sacred Text Cases: McCreary County v. ACLU of Kentucky and Van Orden v. Perry, 4 FIRST AMEND.L. REV. 139, 163 (2006) ("Based on its current definition, a reasonable observer knows more about the government's motivations than an actual observer.") Turner v. City Council of Fredericksburg, 534 F.3d 352, 355 (4th Cir. 2008) ("We do not read Lee as holding that a government cannot require legislative prayers to be nonsectarian); Id. at 356 ("We need not decide whether the Establishment Clause compelled the Council to adopt their legislative prayer policy, because the Establishment Clause does not absolutely dictate the form of legislative prayer") See Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008) (looking to the prayer opportunity and holding that when the prayer opportunity has not been exploited, courts may not parse the content of individual prayers); see also Hinrichs v. Bosma, 400 F. Supp. 2d 1103 (S.D. Ind. 2005), stay denied, 440 F.3d 393 (7th Cir. 2006), rev'd sub nom, Hinrichs v. Speaker of the House of Representatives of the Ind. Gen. Assembly, 506 F.3d 584 (7th Cir. 2007) (holding that plaintiffs who wishes to challenge sectarian invocations lacked standing to sue); see also Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494, 497 (5th Cir. 2007) (en banc) (holding that plaintiffs who wishes to challenge sectarian invocations lacked standing to sue); see also Wynne v. Town of Great Falls, 376 F.3d 292, (4th Cir. 2004) (holding that the council violatioed the proscriptions of Marsh by "proselytizing" and ordering a remedial remedy forbidding council members from invoking "Jesus" when delivering legislative prayer).

26 CREIGHTON LAW REVIEW [Vol. 43 speech. 146 Form should not prevail over substance. Unfortunately, the Turner opinion stands for a legal proposition that supports a distinction without a difference. A second point worthy of revisiting in the Turner opinion is the statement that, "Turner has not cited a single case in which a legislative prayer was treated as individual or private speech." 1 47 While this statement is true, it is fatally incomplete. While the concept of legislative prayer may be "inherently governmental" as a matter of theory, in practice, legislative prayer must retain significant dimensions of individual speech in order to avoid violating the Establishment Clause. 148 At the time the Turner case was argued before the Fourth Circuit, the United States District Court for the Northern District of Georgia had previously declared in Pelphrey that "isolated sectarian references without more [are] insufficient to find prayer violated the prohibitions of Marsh." 1 49 Thus, while the United States Supreme Court may not have explicitly categorized legislative prayer as "individual" or "private" speech, the fact remained that a federal court had found no violation of Marsh when multiple speakers of a variety of theological denominations had given unique prayers that recognized different deities. These facts lend significant support to the argument that the legislative prayers, along with the invocations that are part and parcel to the prayers in Pelphrey, are private speech. Additionally, it is worth noting that the Marsh decision did not declare that legislative prayer was government speech. 150 Thus, a more precise summary of the case law on the date of the Turner argument was that the high Court had never addressed the question of whether legislative prayer is government speech. However, while the High Court was silent on this point, under the Fourth Circuit's precedent, as construed by the Simpson court's interpretation of Rosenberger, the Turner legislative prayer constituted government speech See Turner v. City Council of Fredericksburg, 534 F.3d 352 (4th Cir. 2008) (upholding the City Council's "nondenominational" prayer policy despite evidence of exploitation of the prayer opportunity or "proselytizing or disparaging" prayer"); see also, Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276 (4th Cir. 2005) (holding that the council possessed the authority to exclude a potential prayer-giver of the Wiccan religion from delivering a legislative prayer) Turner, 534 F.3d. at Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 282 (4th Cir. 2005). ("[T]he invocations themselves, as part and parcel to the unity policy under attack, warrant our examination because they are what the general public sees and hears.") (emphasis added) Pelphrey v. Cobb County, 410 F. Supp. 2d 1324, 1334 n.10 (N.D.Ga. 2006) (citing Newdow v. Bush, F. Supp. 2d 265, 289 (D. D.C. 2005)) See Brief of Appellant, Turner v. City Council of Fredericksburg, 2006 WL (4th Cir. 2006) (No ) ("Perhaps most importantly, however, the Supreme Court has never deemed legislative prayer to constitute government speech").

27 2009] "UNITY THROUGH DIVISION" Yet the two most outstanding statements in the Turner opinion do not even concern whether legislative prayer is government speech. Instead, those statements touch upon bigger questions that shed light on the Fourth Circuit's vision of legislative prayer. The Fourth Circuit states that "[t]he prayers in both cases [Marsh and Simpson] shared a common characteristic: they recognized the rich religious heritage of our country in a fashion that was designed to include members of the community, rather than to proselytize The policy at issue in Simpson was birthed out of discrimination towards members of minority religions because it excluded speakers who did not intend to give prayers with elements of the American civil religion or of the Judeo- Christian tradition. This policy fails to "recognize the rich religious heritage of our country in a fashion that was designed to include members of the community If anything, the Turner council's policy was anathema to the goals that the Fourth Circuit suggests it achieved. Second, the Fourth Circuit's reference to the word "proselytize" was unwarranted because the district court made no findings of proselytizing and even the briefs submitted on behalf of the council were notably quiet with respect to that argument. If proselytization had been a significant argument, Turner would have had a greater chance of prevailing on his claims. Moreover, the Court has never defined "proselytizing" 1 53 and even if it had done so, a solitary reference to "Jesus" or any deity, would not constitute such conduct by any plain or constitutionally charged definition of the word "proseytize" or "establish [ment]." Finally, the Fourth Circuit asserted that "[t]he restriction that prayers be nonsectarian in nature is designed to make the prayers accessible to people who come from a variety of backgrounds, not to exclude or disparage a particular faith." 1 54 Although a noble goal, this proclamation had no basis in the facts of the case and moves in the opposite direction when the facts are reviewed. The record reflected that the Turner council's policy was adopted specifically to silence Councilor Turner's "Christian" speech. 155 Turner's speech was explicitly excluded because it referenced a deity often associated with a particular faith It is difficult to understand the policy in Simpson, which excluded all speakers who did not intend to offer prayer in the 151. Turner, 534 F.3d at Id Christian M. Keiner, Preaching from the State's Podium: What Speech is Proselytizing Prohibited by the Establishment Clause?, 21 BYU J. PUB. L. 83, 85 (2007) Turner, 534 F.3d at Id. at See WorldNetDaily.com, Supremes Won't Restore Christian Prayer, (last visited June 25, 2009) (quoting former U.S. military Chaplain Gordon Klingenschmitt, "[i]ronically,

28 CREIGHTON LAW REVIEW [Vol. 43 "Judeo-Christian tradition," 15 7 on the basis that such exclusion "recognized the rich religious heritage of our country." 158 The Fourth Circuit's decision to suppress speech associated with Christianity on the basis that such an exclusion was designed "not to exclude or disparage a particular faith" 15 9 also seems an equally peculiar way to promote solidarity. If the Turner court was confronted only with the Wynne precedent, the case could have been decided in Turner's favor, since the facts lacked the vindictive elements that made the Wynne v. Town of Great Falls 160 case so egregious in the eyes of the Fourth Circuit. But the Simpson decision vests local government bodies in the Fourth Circuit with a tremendous amount of discretion to determine what sort of prayers are acceptable for their communities. In view of the Turner court's failure to breathe life into the words of Marsh in the same manner previously adhered to by Snyder v. Murray City Corp and subsequently adhered to by Pelphrey, it is not a tremendous surprise that the Fourth Circuit upheld the Turner council's policy. IV. STANDING ON THE SHOULDERS OF MARSH: WHY PELPHREY, AS INFORMED BY SNYDER, IS THE MODEL LEGISLATIVE PRAYER DECISION FOR THE TWENTY-FIRST CENTURY There is some hope for the future of legislative prayer because the United States Courts of Appeals for the Eleventh and Tenth Circuits have interpreted Marsh v. Chambers 16 2 correctly. Perhaps the principal strength of the opinions advanced by these two federal circuit courts is that the facts, circumstances, and results of each case were significantly different, but each federal circuit court applied Marsh similarly. [Justice O'Connor] admitted Turner was excluded from participating solely because of the Christian content of his prayer." 157. Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 280 (4th Cir. 2005) Turner, 534 F.3d at Id F.3d 292 (4th Cir. 2004) F.3d 1227 (10th Cir. 1998) (en banc) (holding that the City did not violate Establishment Clause by prohibiting a potential prayer-giver from delivering a proselytizing and disparaging prayer) U.S. 783 (1983) (upholding the constitutionality of the practice of legislative prayer).

29 20091 "UNITY THROUGH DIVISION" A. SNYDER V. MuRRAY CITY CORP. The Snyder v. Murray City Corp case concerned the question of whether a city council had the authority to restrict the speech of a potential prayer-giver when it was made clear to the council that the prayer-giver would abuse the prayer-opportunity and offer a prayer that "proselytized and disparaged" the tenets of other faiths and condemned the practice of legislative prayer, in clear violation of the boundaries outlined in Marsh v. Chambers However, the United States Court of Appeals for the Tenth Circuit phrased the issue slightly differently stating it was determining "whether the Establishment Clause of the First Amendment prevents a city council from denying a request from a private citizen to give a prayer at the opening of the council's meeting when the denial is made on the basis of the content of the proposed prayer." 165 The short answer to the Tenth Circuit's question is "yes, Marsh grants the council the authority to restrict a potential prayer-giver from delivering a 'proselytizing and disparaging' prayer." 166 However, this answer comes with the caveat that the potential prayer-giver must engage in some sort of conduct that would give the council a constitutionally legitimate reason to restrict the potential prayer-giver from delivering the proposed content. In Snyder, the prayer-giver met that standard by desiring to deliver a "proselytizing and disparaging" harangue against religion and the practice of legislative prayer. The Tenth Circuit recognized that "[blecause Snyder's prayer seeks to convert his audience to his belief in the sacrilegious nature of governmental prayer, his prayer is itself proselytizing." 16 7 Such behavior can hardly be compared to Councilor Turner's desire to solemnly close his prayer "in Jesus' name." 168 While the Snyder court phrased the issue slightly differently than the facts warranted, the Tenth Circuit also summarized its holding in slightly different terms than its subsequent analysis would suggest. The Tenth Circuit "h[e]ld that no violation of the Establishment Clause arises when a city chooses who may offer the invocation prayer to open a city council meeting." That summary, in isolation, does F.3d 1227 (10th Cir. 1998) (en banc) (holding that the City did not violate Establishment Clause by prohibiting a potential prayer-giver from delivering a proselytizing and disparaging prayer) U.S. 783 (1983) (upholding the constitutionality of the practice of legislative prayer) Snyder, 159 F.3d at Marsh, 463 U.S. 783, Id. at See Turner v. City Council of Fredericksburg, 534 F.3d 352, 354 (4th Cir. 2008) ("Turner's religious beliefs require him to close his prayers in the name of Jesus Christ.") 169. Snyder, 159 F.3d at 1228.

30 CREIGHTON LAW REVIEW [Vol. 43 not completely describe the holding of the case or the reasons the Tenth Circuit reached its conclusion because a city's decision whether to choose or not choose a particular individual to deliver legislative prayer does not necessarily raise any Establishment Clause concerns absent additional facts, such as those "stemm[ing] from an impermissible motive Here, a more complete summary of the holding could have been delivered if the court had stated that no violation of the Establishment Clause arises when a city prohibits a potential prayer-giver from delivering "proselytizing and disparaging" prayer that exceeds the boundaries proscribed by Marsh. Indeed, that is the situation the facts described and that is the rationale the Tenth Circuit applied in conducting its analysis These facts considered, the Snyder opinion is praiseworthy on many levels. It was decided a decade ago, prior to the recent flurry in "second-generation" legislative prayer litigation, and it had few authorities aside from the United States Supreme Court church and state decisions to rely on as precedent. Confronted with this challenge, the Tenth Circuit chose to emphasize the text of the Marsh opinion and, in turn, rendered a reasonable decision grounded in the words laid out in Marsh. The Snyder opinion proves that courts are, and should be, empowered with the authority to adjudicate legislative prayer controversies. The Snyder opinion also proves that the conclusions of legislative bodies who have chosen to restrict the prayer opportunities of theological minorities should be given no quarter in the First Amendment. B. PELPHREY V. COBB COUNTY In October 2008, the United States Court of Appeals for the Eleventh Circuit held in Pelphrey v. Cobb County 172 that the Cobb County Commission and the Cobb County Planning Commission (the "Planning Commission"), which each had permitted a variety of religious traditions to appear before meetings to deliver opening prayer, may continue to permit these speakers to invoke names of specific deities such as Jesus, Yahweh, Allah, Muhammad, and Lord of Lords without 170. Id. at See id. at ("The point at which an invocational legislative prayer falls outside the traditions of the genre and becomes intolerable occurs when 'the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.' (citing Marsh, 463 U.S. at (other citations omitted)).") F.3d 1263 (11th Cir. 2008).

31 2009] "UNITY THROUGH DIVISION" violating the Establishment Clause The Eleventh Circuit stated that it based its decision on the particular phrase from the Marsh v. Chambers 174 holding stating, "[s]o long as the prayer is not used to advance a particular religion or to disparage another faith or belief, courts ought not to 'parse the content of a particular prayer."1 7 5 This interpretation of Marsh, while consistent with the Tenth Circuit's decision in Snyder v. Murray City Corp.,176 brings to the forefront a conflict on this issue made apparent by the Turner v. City Council of Fredericksburgl 7 7 decision that upheld a similar council's non-denominational only prayer policy. The Fourth Circuit failed to apply the Marsh standard in upholding the council's "non-denominational" prayer policy by concluding that legislative prayer is "governmental speech." 178 As a result of the Fourth Circuit's determination that legislative prayer is "governmental speech," the Fourth Circuit ignored the Marsh court's mandate that courts may not "parse the content of prayer." Here, the Eleventh Circuit's opinion implicitly recognizes that the Fourth Circuit's sweeping application of "the government speech doctrine" is on a collision course with the United States Supreme Court's holding in Marsh. But the Pelphrey decision is particularly exceptional not only because it was able to address the content of the religious speech referenced by prayer-givers, but also because the Eleventh Circuit had cause to address the less-often litigated "impermissible motive" language of Marsh. Here, "the district court upheld the invocations of the County Commission [but] the district could rule that the Planning Commission violated the Establishment Clause in 2003 and 2004 because of its selection procedure..."18o Indeed a plain reading of Marsh, as informed by a reasonable interpretation of Establishment Clause jurisprudence, reveals that the Planning Commission engaged in theological viewpoint discrimination by drawing a line "through several subcategories of churches: 'Churches-Islamic,' 'Churches-Jehovah's Witnesses,' 'Churches-Jewish,' and 'Churches-Latter Day Saints." 1 " 8 l The Planning Commission then subsequently carried out 173. See Pelphrey v. Cobb County, 547 F.3d 1263, 1267 (11th Cir. 2008) ("Whether invocations of'lord of Lords' or 'the God of Abraham, Isaac, and Mohammed' are 'sectarian' is best left to theologians, not courts of law") U.S. 783 (1983) Id. at F.3d 1227 (10th Cir. 1998) (en banc) F.3d 352 (4th Cir. 2008) See Turner, 534 F.3d at 354 (O'Connor, J., (Ret.), sitting by designation) (declaring that "[aipplying these factors, we conclude that the legislative prayer at issue here is governmental speech") Id Pelphrey, 547 F.3d at Id. at 1267.