Legislative Prayer and School Prayer: The Constitutional Difference

Legislative Prayer and School Prayer: The Constitutional Difference

94-821 A
October 26, 1994
Received through the CRS Web
Legislative Prayer and School Prayer:
The Constitutional Difference
David M. Ackerman
Legislative Attorney
American Law Division
SUMMARY
The Supreme Court has held government-sponsored prayer in the public schools to
violate the establishment of religion clause of the First Amendment. In contrast, it has held
clergy-led prayer in legislative assemblies such as the Congress and the State legislatures to
be constitutionally permitted. Because both situations involve government sponsorship of
prayer, these rulings are sometimes said to be contradictory. The Court, however, has drawn
significant factual and legal distinctions between the two situations. Nonetheless, it remains
true that the contrary decisions reflect different approaches to the interpretation of the
establishment clause.
SCHOOL PRAYER
The Supreme Court has handed down more than a dozen decisions involving religion
in the public schools,1 but three decisions are crucial for understanding this area of the law.
In Engel v. Vitale2 in 1962 and Abington School District v. Schempp3 in 1963 the Supreme
Court first held government-sponsored devotional activities in the public schools to constitute
an establishment of religion in violation of the First Amendment.4
Engel involved a
requirement of a local board of education in New York that students recite at the beginning
of each school day a prayer that had been composed and recommended for use by the New
York State Board of Regents:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy
blessings upon us, our parents, our teachers and our Country.
1
For a detailed summary and exposition of this area of the law, see CRS, Prayer and Religion in the Public
Schools: What Is, and Is Not, Permitted (July 16, 1993) (Report No. 93-680A).
2
370 U.S. 421 (1962).
3
374 U.S. 203 (1963).
4
The religion clauses of the First Amendment provide that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof ...." These protections of religious liberty have been held
to be applicable to State and local governments as well under the due process clause of the Fourteenth Amendment. See
Everson v. Board of Education, 330 U.S. 1 (1947), and Cantwell v. Connecticut, 310 U.S. 296 (1941).
Congressional Research Service · The Library of Congress

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In holding the prayer exercise unconstitutional, 6-1, the Court stated:
(T)he constitutional prohibition against laws respecting an establishment of
religion must at least mean that in this country 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.
....
(G)overnment in this country, be it state or federal, is without power to
prescribe by law any particular form of prayer which is to be used as an
official prayer in carrying on any program of governmentally sponsored
religious activity.
370 U.S. at 425 and 430.
Abington (and the companion case of Murray v. Curlett) involved government
requirements in Pennsylvania and Baltimore, Md., that each school day begin with readings
from the Bible and the unison recital of the Lord’s Prayer.
In striking down those
requirements as well, 8-1, the Court asserted:
[The exercises] are religious exercises, required by the States in violation of
the command of the First Amendment that the Government maintain strict
neutrality, neither aiding nor opposing religion.
374 U.S. at 203.
In both cases the States excused students who objected to taking part in the exercises.
But the Court suggested that the exercises could not be truly voluntary in the context of
compulsory school attendance laws, and, in any event, "the Establishment Clause ... does not
depend upon any showing of direct governmental compulsion and is violated by the enactment
of laws which establish an official religion whether those laws operate directly to coerce
nonobserving individuals or not."5
In the third case, Lee v. Weisman,6 the Court, by a 5-4 margin, held it to be
unconstitutional for a public secondary school to include an invocation and benediction by a
clergyman in its commencement ceremony.
The Court explicitly reaffirmed Engel and
Abington and concluded that "the prayer exercises in this case are especially improper because
the State has in every practical sense compelled attendance and participation in an explicit
religious exercise at an event of singular
importance to every student ...."7 Students were not required to attend the ceremony to receive
their diplomas, but the Court stated that "law reaches past formalism, and to say a teenage
student has a real choice not to attend her high school graduation is formalistic in the
extreme."8 To "persuade or compel a student to participate in a religious exercise," the Court
said, "is forbidden by the establishment clause."9
5
Engel v. Vitale, supra, at 421.
6
112 S.Ct. 2649 (1992).
7
Id., at 2661.
8
Id., at 2659.
9
Id., at 2661.

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The Court differentiated its holding in this case from its ruling in Marsh v. Chambers,
infra, concerning legislative prayer as follows:
The atmosphere at the opening of a session of a state legislature where adults
are free to enter and leave with little comment and for any number of
reasons cannot compare with the constraining potential of the one school
event most important for the student to attend. The influence and force of
a formal exercise in a school graduation are far greater than the prayer
exercise we condoned in Marsh .... At a high school graduation, teachers
and principals must and do retain a high degree of control over the precise
contents of the program, the speeches, the timing, the movements, the dress,
and the decorum of the students .... In this atmosphere the state-imposed
character of an invocation and benediction by clergy selected by the school
combine to make the prayer a state-sanctioned religious exercise in which the
student was left with no alternative but to submit.
112 S.Ct. at 2659-60.
LEGISLATIVE PRAYER
The Court has addressed the issue of the constitutionality of legislative prayer in only
one instance, and that involved prayer at the opening of a State legislature. But the reasoning
of the decision gave general approval to prayer at all legislative levels, including in the
Congress.
At issue in Marsh v. Chambers10 was the constitutionality of the practice of the
Nebraska legislature of opening each legislative day with a prayer by a chaplain paid by the
State.
In holding the practice constitutional, 6-3, the Court stated that the practice of
legislative prayer was "deeply embedded in the history and tradition of this country" and had
become "part of the fabric of our society." It stressed that legislative prayer had existed from
colonial times through the founding of the Republic, had been practiced in Congress for nearly
two centuries, and was a consistent practice in most of the State legislatures. But along with
this historical data, the Court emphasized the fact that the First Congress in 1789 had
authorized the appointment of paid chaplains to offer prayers at each legislative session only
three days before it reached agreement on the language of the Bill of Rights, including the
religion clauses of the First Amendment. "Standing alone, historical patterns cannot justify
contemporary violations of constitutional guarantees," the Court said, but here "historical
evidence sheds light ... on what the draftsmen intended the Establishment Clause to mean
...."11 "Clearly," the Court concluded, "the men who wrote the First Amendment Religion
Clauses did not view paid legislative chaplains and opening prayers as a violation of that
Amendment ..."12:
It can hardly be thought that in the same week Members of the First
Congress voted to appoint and to pay a chaplain for each House and also
voted to approve the draft of the First Amendment for submission to the
10
463 U.S. 783 (1983).
11
Id., at 790.
12
Id., at 788.

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States, they intended the Establishment Clause of the Amendment to forbid
what they had just declared acceptable.
463 U.S. at 790.
Soon after Marsh was decided by the Court, the U.S. Court of Appeals for the District
of Columbia acted on a related case called Murray v. Buchanan. That case challenged the
constitutionality of a paid chaplain’s prayers not in a State legislature but in the Congress
itself. After the decision in Marsh came down, the appellate court in an en banc decision
dismissed Murray on the grounds it no longer raised a substantial constitutional question.13
In a brief ruling the court stated simply that "(t)he Supreme Court’s decision in Marsh v.
Chambers is dispositive of appellants’ challenge to the public funding of congressional
chaplains."
DISTINCTIONS
The distinctions between government-sponsored prayer in the public schools and
government-sponsored prayer in legislative assemblies, thus, appear to be twofold. First, the
Supreme Court has found legislative prayer, in effect, to be an historically sanctioned exception
to the general proscription of the establishment clause. In Engel and Abington the Court
interpreted the establishment clause broadly.
The history of religion in Europe and the
colonies, the Court said, demonstrated both that "a union of government and religion tends to
destroy government and to degrade religion" and that "governmentally established religions and
religious persecutions go hand in hand."14 Thus, it said, the meaning of the establishment
clause is essentially that government must be strictly neutral toward religion, serving neither
as its advocate nor as its enemy. In Lee it used the narrower principle that "at a minimum the
Constitution guarantees that government may not coerce anyone to support or participate in
religion or its exercise."15 In the public schools these interpretations of the establishment
clause have meant that government cannot sponsor devotional exercises, either as a daily ritual
or as part of such a significant event as commencement. But legislative prayer is different, the
Court has said, because the First Congress that wrote the establishment clause hired legislative
chaplains to offer daily prayers at the same time.
Thus, no matter how broadly the
establishment clause is interpreted, it cannot be read as proscribing legislative prayer.
Second, the Court has cited factual differences both in the age of participants and in the
legal compulsion to attend the prayer exercises as important. It has noted that legislative
prayer involves adults who are under no compulsion to be present for the exercise, while
prayer in the public schools involves impressionable children who are subject both to
compulsory attendance laws and to substantial social pressure to conform. It has suggested,
in short, that government-sponsored school prayer is more coercive in nature than legislative
prayer and thus more violative of the purposes of the establishment clause.
Finally, however, it should be noted that the differing results the Court reached in its
school prayer and legislative prayer decisions reflect in part an ongoing debate on the Court
about how the establishment clause should be interpreted. Engel, Abington, and to a lesser
13
720 F.2d 689 (1983).
14
Engel v. Vitale, supra, at 431, 433.
15
112 S.Ct. at 2659.

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extent, Lee reflect a perspective that believes "a union of government and religion tends to
destroy government and to degrade religion"16 and that, therefore, there must be a "wall of
separation" between government and religion. Marsh, in contrast, reflects a perspective that
government can act benignly in support of religion and, more particularly, that practices which
have become part of the "fabric of our society" should be constitutionally allowed to continue.
Although the decisions themselves are not necessarily inconsistent, these differing perspectives
continue to frame the debate on the Court and in the society at large on the proper relationship
between government and religion and the proper interpretation of the religion clauses of the
First Amendment. As long as that debate persists, the Court’s school prayer and legislative
prayer decisions seem likely to continue to be lifted up as contradictory.
16
Engel v. Vitale, supra, at 431.