Prayer and Establishment Clause

[David Guinn]

I agree, I think we are having some semantic difficulties with the term "equal access."  I do not think that the Florida situation fits within the coverage of that term as commonly used.

In contrast to you, I think that there are three strains of EC jurisprudence.

1) As you phrased it, the first strain "states that the *government* doesn't violate its Estab Cl obligations by operating a program that treats religion and nonreligion
evenhandedly;"

2) The second allows "that the *government* doesn't violate its Estab Cl
obligations by operating a program that treats religion and nonreligion
evenhandedly;"   My interpretation is that this strain accommodates the provision of military and prison chaplains.  Since this remedies the government's activities that would otherwise prevent individuals from their FE rights, I disagree with your assessment that this strain is less sound.

3) The third strain is far more limited in that it allows members of the government in the course of their official duties to authorize religious activities on their own behalf.  This, for example, covers legislative chaplains and the prayers opening sessions of the Supreme Court.  This is a very narrow strain and, as Michael suggests, it applies to a group of individuals with significant political power.  While the Court justified recognizing this right in Marsh on historical grounds, I do think that it has continuing viability simply because the Court recognizes that government officials have some right to exercise significant authority over how they carry out their duties and that these practices are different from governmental action directed towards members of the public.  It is a self-regulating action as opposed to an act as sovereign.

While I agree that Marsh and Allegheny do indicate that the "nonsectarian" nature of the prayer in Marsh is significant, the twist that I think that the Florida situation offers is that a rotating access to the delivery of the invocation can serve the same function.  That is to say, I think that what is significant for the Court about the non-sectarian nature of the prayer in Marsh is that it reflects a sensitivity (poor as it might be) to the fact that not everyone is a Christian.  The rotating access is even more equitable in that it recognizes that there may be non-theists and non-religious individuals in the legislature as well.  The issue is not equal access, but equal treatment within the institution itself.

David


>>> "Volokh, Eugene" <VOLOKH at mail.law.ucla.edu> 03/15 1:51 PM >>>
        I appreciate David's classification, and this might be one of those
times where a buzzword like "equal access" ends up being so ambiguous that
it obscures more than it reveals.  My point was simply that
        (1) there is a strong (and in my view correct) strain in Estab Cl
jurisprudence that states that the *government* doesn't violate its Estab Cl
obligations by operating a program that treats religion and nonreligion
evenhandedly;
        (2) there's another (in my view less sound) strain that states that
the government doesn't violate its Estab Cl obligations by operating a
program that treats all religions evenhandedly, even if it prefers religion
over nonreligion; but
        (3) a program where each legislator gets to designate a prayer
leader does not fit into either (1) or (2), because such a program involves
government officials, using the power drawn from their being government
officials (even if not using *legislative* power as such), preferring each
of their favorite religions over others.

        Now maybe the program is constitutional despite point 3; but the
fact that it treats all legislators equally strikes me as irrelevant.
Whether a chaplain is selected by the legislator-of-the-day, by the speaker
of the house, or by a vote of the entire house, it's government officials
preferring some sects over others.  The fact that the officials are being
treated equally seems to me to be beside the point.

> -----Original Message-----
> From: David Guinn [SMTP:dsg at PRCHFE.ORG]
> Sent: Wednesday, March 15, 2000 5:49 AM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: "Equal Access Prayers"
>
> >>> "Volokh, Eugene" <VOLOKH at mail.law.ucla.edu> 03/14 2:24 PM >>>
>         I ask again:  How is this any sort of "equal access prayer"?  It
> seems to me a system under which those sects which have the support of at
> least one Florida state legislator get to give prayers, while sects which
> have the support of no legislators don't.
>
>         This seems to me to be a system that prefers certain religious
> groups selected by government officials over other religious groups.
> Certainly it's a far cry from a true open forum a la Lamb's Chapel,
> Rosenberger, and Pinette.  Maybe it's constitutional, but not because it
> is
> a truly nonpreferential system that treats all religions (much less all
> religious and nonreligious perspectives) equally.
>
> >>>>>>
> My point was that this is NOT a completely open forum.  Nonetheless, it is
> comperable to Rosenberger in the sense that it is open to the members of
> that community (ie the legislators) not to everyone in the State.  I don't
> think that Rosenberger compelled UVa to open its doors to every member of
> the community in Charlottesville or Virginia.  Does it favor religious
> groups selected by members of the legislature?  Certainly.  It is part of
> their group practice (ie the legislature as a group.)  The effort is not
> to treat all religion and non-religion perspectives equally, but to treat
> all of the individual legislators the same.
>
> David
>
>
> > -----Original Message-----
> > From: David Guinn [SMTP:dsg at PRCHFE.ORG]
> > Sent: Tuesday, March 14, 2000 6:09 AM
> > To:   RELIGIONLAW at listserv.ucla.edu
> > Subject:      Re: "Equal Access Prayers"
> >
> > It strikes me that the discussion on equal access has focused on the
> > invocation as an open public forum.  However, as I understand the
> history
> > of legislative prayer, it arose out of the wishes of the legislators to
> > solemnize and seek blessings upon their actions.  While it occurs as
> part
> > of a public event in a public forum, it is primarily a part of their
> > private associational rights.
> >
> > While the legislature is not a pure private association, neither is it a
> > simple bureaucracy being acted upon by a separate sovereign.  This
> > situation is clearly different from a school graduation ceremony or
> other
> > compelled worship situation in the sense that it involves actions by
> > people with sovereign authority on their collective behalf, as opposed
> to
> > a school situation where the state is overtly or subtly acting on the
> > student body.
> >
> > Given the fact that this is an exercise of the legislators associational
> > rights, the Florida approach which allows each member in turn to
> designate
> > a leader does seem to me to be an equitable, equal access approach that
> > respects both the collective decision to begin with prayer or devotion
> (I
> > would hope it includes the option of non-religious solemnization
> > ceremonies) and the individual interests of legislators to have their
> > particular religious orientation publicly honored.
> >
> > I tend to believe that argument over whether or not a prayer is
> sectarian,
> > as under Marsh, would be decisive where there is only one religious
> prayer
> > leader provided for the group.  However, allowing invocations that
> > represent all participants through rotating access accomplishes the same
> > goal with far less damage to the nature of prayer itself and the
> inherent
> > problem of having the government dictate content.
> >
> > David
> >
> >
> >
> > David E. Guinn, JD, PhD
> > The Park Ridge Center
> > 211 E. Ontario, Suite 800
> > Chicago, IL 60611
> >
> > deg at prchfe.org
> > (312) 266-2222
> > (312)266-6086 (fax)
> > web page: www.prchfe.org