Discrimination Against Wiccans; Simpson v. Chesterfield Count y

[Berg, Thomas C.]

The Marsh opinion justified legislative prayer on the basis of a very crude
version of a historical argument -- the first Congress did this, and it's
been done consistently since -- not really on the basis of a coherent,
generalizable analytical principle such as "it's just solemnization" or
"it's just a personal act by the legislators, not directed at the public."
For that reason, it's difficult to know how to apply Marsh in a principled
or convincing way, as I think this decision dramatizes.
 
With respect to the "it's just for the legislators, not directed at the
public" rationale, I have more trouble accepting it in this kind of case
than in Marsh.  At a county board meeting, unlike a session of Congress,
regular citizens often must attend in order to present some kind of proposal
or petition to the board:  so they have to listen to the prayer (and
probably refrain from walking out on it, so as not to offend the board
members).  And if the prayer is really just for the board members, then
since there's typically only a few of them (again unlike Congress), they
could have it together before entering the room and starting the public
meeting.  Finally, if the prayer is truly just the board members personally
asking for guidance together, then they ought to be able to have a highly
"sectarian" prayer if they all agree on it, rather than being constrained by
the "nonsectarian monotheism" requirement that the Fourth Circuit has set
forth in its cases.
 
Tom Berg, University of St. Thomas (Minnesota)
 

  _____  

From: David Cruz [mailto:dcruz at law.usc.edu]
Sent: Fri 4/15/2005 1:13 PM
To: Law & Religion issues for Law Academics
Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield County



On Fri, 15 Apr 2005, West, Ellis wrote: 

> [snip]  If, however, the reason for these prayers 
> is because the members of the Board truly want divine guidance or 
> blessing from the deity in which they believe, the God of the 
> Judeo-Christian faith, [snip] 

Does that count as a *secular* purpose??  I thought legislative prayers 
were typically justified on solemnization rationale. 

David B. Cruz 
Professor of Law 
University of Southern California Law School 
Los Angeles, CA 90089-0071 
U.S.A. 

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