Berkley Center

In Marsh v. Chambers the Supreme Court upheld the constitutionality of legislative prayer. The case involved the Nebraska Legislature’s practice of beginning its sessions with a prayer led by a state-paid chaplain. In determining whether this practice violated the Establishment Clause, the Court did not apply its usual test, announced in Lemon v. Kurtzman, but relied solely on the basis of historical practice. The Court observed that the practice of opening legislative sessions with prayer has continued without interruption for almost 200 years since the First Congress. Importantly, the Court pointed out, the drafters of the First Amendment Religion Clause did not understand legislative prayer to be inconsistent with the First Amendment; three days after the First Congress approved appointment of paid chaplains to open sessions of the House and Senate with prayer, the same Congress approved the final language of the Bill of Rights. The long history of legislative prayer in America combined with the apparent interpretation of the founding fathers that such prayer was consistent with the First Amendment led the Court to conclude that the Nebraska statute did not violate the Establishment Clause. The Court characterized legislative prayer simply as “a tolerable acknowledgment of beliefs widely held among the people of this country.”