Rethinking Legislative Prayer after Town of Greece: How Ceremonial Deism Would Include More and Exclude Less

Abstract

Should sectarian prayer before legislative sessions be the proper practice to solemnize members of the legislature? The Supreme Court in Town of Greece v. Galloway held that the history of the practice and the non-coercive nature of the invocations allowed it to be constitutional under the Establishment Clause. This is not the most inclusive way that legislatures could begin sessions, and the Supreme Court reached the wrong conclusion when it held the practice constitutional.This Article is the first to suggest that ceremonial deist invocations would be a better alternative to sectarian legislative prayer before legislative sessions. States should protect its citizens from a government establishment of religion by utilizing less religious and more inclusive invocations. First, because states can have stricter guidelines under their own constitutions and statutes, they could protect their citizens from Establishment Clause problems by allowing ceremonial deist invocations instead of sectarian prayer. Similar to the reaction to the Supreme Court’s decision with RFRA, states could take action to protect more citizens under their own statutes. Second, because the Supreme Court misapplied the proper Establishment Clause precedent and used the Coercion Test in Town of Greece and found sectarian prayer constitutional, states should not follow that decision. State courts should utilize more established precedential tests such as the Lemon Test and the Endorsement Test to analyze legislative prayer to find it unconstitutional. Third, ceremonial deism is a constitutional alternative to sectarian prayer that would include more observers and legislators. Ceremonial deism is constitutional because of its history and ubiquity, absence of worship or prayer, absence of reference to a particular religion, and minimal religious content. Further, states should protect their citizens under their own constitutions and statutes by utilizing ceremonial deist invocations instead of sectarian prayers. Because the Supreme Court departed from long-standing precedent, states should follow the precedent and remain within Establishment Clause jurisprudence. Ceremonial deism would exclude less and include more, and it achieves the same purpose of solemnizing legislative sessions in the same way that sectarian prayer would.