Lemon in Legislative Prayer

http://religionclause.blogspot.com/2008/10/11th-circuit-upholds-county-legislative.html

The above blog is about the U.S. 11th Circuit Court of Appeals upholding a county planning commission's practice of opening their meetings with a prayer in Pelphrey v. Cobb County, Georgia. The majority of the court relied on the Supreme Court's decision in Marsh v. Chambers (1983). I agree with the ciruit court's decision because they simply followed the decision of a case in the Supreme Court that was very similar. However, I do not agree with the outcome.

Since I do not agree with this ruling, I will have to argue that the Supreme Court was wrong in their ruling in Marsh v. Chambers. Marsh was about the Nebraska legislature opening each daily session with a prayer by a chaplain who was paid for with public funds. The Supreme Court used historical reasoning in their decision. They argued that the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment because they did the very same thing back then. This type of reasoning can be very problematic to our understanding of the Constitution. Using this same logic, I could just as easily claim that slavery should still be legal because many of the founders of the Constitution owned slaves.

The Supreme Court, in order to achieve their desired result, chose to ignore the Lemon test in determining whether Marsh violated the Establishment Clause. The Lemon Test, formulated in the 1971 Lemon v. Kurtzman decision, has three parts, addressing purpose, effect, and involvement. To pass the test, government action must be: (1) only for secular purposes;(2) not to promote or prohibit a specific religion; and (3) not to "excessively entangle," meaning substantially involve, government in religious matters. Failure on any one of the three parts indicates a violation of the Establishment Clause. Since the Supreme Court failed to apply Lemon to this case, I will do it. (1) There is no way that prayer can be only for secular purposes. (2) The prayer was promoting a specific religion because they used the same chaplain for more than 16 years. (3) The government was substantially involved in religious matters because it was in a public (law-making) building, the prayer was during their time of work, and they were paying the chaplain with public funds. There was definite excessive entanglement. Failing one of these three tests was necessary for there to a violation of the Establishment Clause, and in my opinion, Marsh v. Chambers failed all three.

If Marsh v. Chambers would have been decided correctly, then Pelphrey v. Cobb County, Georgia would have been decided differently. The Circuit Court would have had to apply the Lemon test in their decision. Once again, since they didn't, I will. (1) The purpose was not for secular purposes, it promoted religion over non-religion. (2) Since they used various religions and people, albeit not often, I could be convinced that they were not promoting or prohibiting a specific religion. (3) There was excessive entanglement because the commisions' sponsorship of prayer substantially involved government into religious matters. Since failing one test is all it takes to determine a violation of the Establishment Clause, there is little doubt that Pelphrey v. Cobb County would have been decided differently if they used the Lemon test that the Supreme Court should have used in Marsh v. Chambers.