finding no First Amendment violation in the Nebraska Legislature’s practice of opening its sessions with a prayer delivered by a Presbyterian chaplain, who was paid with state funds, because there was no evidence that the practice stemmed from an impermissible motive and because the prayers given by the chaplain were not used to advance or disparage any particular faith or belief
How later courts described this case
- finding no First Amendment violation in the Nebraska Legislature’s practice of opening its sessions with a prayer delivered by a Presbyterian chaplain, who was paid with state funds, because there was no evidence that the practice stemmed from an impermissible motive and because the prayers given by the chaplain were not used to advance or disparage any particular faith or belief
- holding that a graduation policy that does not limit speakers to "nonsectarian, non-proselytizing speech" violates the Establishment Clause
- finding state-funded legislative prayer not per se invalid under the Establishment Clause because “[c]learly the men who wrote the First Amendment Religion Clause did not view paid legislative chaplains and opening prayers as a violation of that Amendment”
- recognizing that government “may to some extent act to facilitate the opportunity of individuals to practice their religion,” in an opinion opposing the right of a state legislature to open session with prayer
Written by the judges who cited it.
Distinguished
Distinguished by Gagliardi v. City of Boca Raton, 197 F. Supp. 3d 1359 (2016)
Though Marsh contains no standing analysis, it is distinguishable on the ground that paying the chaplain to conduct a prayer was a measurable appropriation attributable to the challenged activity.
Distinguished by Sarah E. Coles, by Her Next Friend, Elizabeth Lashley Coles, Gene T. Tracy v. Cleveland Board of Education, 171 F.3d 369 (1999)
Because the prayer at issue was found to take place in the public school context, the magistrate judge reasoned that the Supreme Court’s decision upholding prayer at the beginning of state legislative sessions in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), was inapplicable.
Distinguished by Cammack v. Waihee, 932 F.2d 765 (1991)
We reject the government’s contention that Marsh controls the disposition of this case.
The opinion
Justice Stevens,
dissenting.
In a democratically elected legislature, the religious beliefs of the chaplain tend to reflect the faith of the majority of the *823 lawmakers’ constituents. Prayers may be said by a Catholic priest in the Massachusetts Legislature and by a Presbyterian minister in the Nebraska Legislature, but I would not expect to find a Jehovah’s Witness or a disciple of Mary Baker Eddy or the Reverend Moon serving as the official chaplain in any state legislature. Regardless of the motivation of the majority that exercises the power to appoint the chaplain, 1 it seems plain to me that the designation of a member of one religious faith to serve as the sole official chaplain of a state legislature for a period of 16 years constitutes the preference of one faith over another in violation of the Establishment Clause of the First Amendment.
The Court declines to “embark on a sensitive evaluation or to parse the content of a particular prayer.” Ante, at 795. Perhaps it does so because it would be unable to explain away the clearly sectarian content of some of the prayers given by Nebraska’s chaplain. 2 Or perhaps the Court is unwilling to *824 acknowledge that the tenure of the chaplain must inevitably be conditioned on the acceptability of that content to the silent majority.
I would affirm the judgment of the Court of Appeals.
The Court holds that a chaplain’s 16-year tenure is constitutional as long as there is no proof that his reappointment “stemmed from an impermissible motive.” Ante, at 793. Thus, once again, the Court makes the subjective motivation of legislators the decisive criterion for judging the constitutionality of a state legislative practice. Cf. Rogers v. Lodge, 458 U. S. 613 (1982), and City of Mobile v. Bolden, 446 U. S. 55 (1980). Although that sort of standard maximizes the power of federal judges to review state action, it is not conducive to the evenhanded administration of the law. See 458 U. S., at 642-650 (Stevens, J., dissenting); 446 U. S., at 91-94 (Stevens, J., concurring in judgment).
On March 20, 1978, for example, Chaplain Palmer gave the following invocation:
“Father in heaven, the suffering and death of your son brought life to the whole world moving our hearts to praise your glory. The power of the cross reveals your concern for the world and the wonder of Christ crucified.
“ ‘The days of his life-giving death and glorious resurrection are approaching. This is the hour when he triumphed over Satan’s pride; the time when we celebrate the great event of our redemption.
*824 “We are reminded of the price he paid when we pray with the Psalmist:
“ ‘ My God, my God, why have you forsaken me, far from my prayer, from the words of my cry?
“ ‘ 0 my God, I cry out by day, and you answer not; by night, and there is no relief for me.
‘“Yet you are enthroned in the Holy Place, 0 glory of Israel!
“ ‘ In you our fathers trusted; they trusted, and you delivered them.
“ ‘ To you they cried, and they escaped; in you they trusted, and they were not put to shame.
“ ‘ But I am a worm, not a man; the scorn of men, despised by the people.
“ ‘ All who see me scoff at me; they mock me with parted lips, they wag their heads:
“ ‘ He relied on the Lord; let Him deliver him, let Him rescue him, if He loves him.’ Amen.” App. 103-104.