Legislative Prayer

Missouri votes tomorrow on a ballot resolution that will protect a right to pray in public. The utterly unfocused proposal is animated by a sense that Christians (who constitute 80% of the Missouri population) are victims. The resolution will easily pass and be challenged with tough sledding for many of its applications in court. Even more interesting to my mind is a prayer issue raised in Sussex County Delaware.

The legislature there has been starting its session with the Lord’s Prayer for more than 20 years. U.S. District Court Judge Leonard P. Stark has enjoined the practice on the ground that the practice endorses Christianity. In lieu of appeal, the legislature has offered the compromise of saying Psalm 23: “The Lord is my shepherd, I shall not want . . .”

Obviously, the Lord’s Prayer is an important part of the Christian tradition although its content is not explicitly Christian. Psalm 23 is a part of the Judeo-Christian tradition, and Marsh v. Chambers authorized legislative prayers that fit within that joint tradition. But the country has become significantly more pluralistic since the Chambers decision in 1983 (making the discrimination against Buddhist, Hindus, atheists, and agnostics more socially salient), and I would guess that Jews generally (not to mention many mainline Protestants) would be uncomfortable with legislative prayer of any kind. That could suggest the decision is vulnerable to attack. On the other hand, the Court has become far more conservative since 1983 and even less sensitive to the interests of religious minorities.  

To my mind, this makes the question of what the lawyers should settle for in Sussex County extremely interesting. The judge was insisting on a settlement by mid-July, but that apparently has not happened, and the clock is ticking.

I was interviewed about this a couple of weeks ago. Here’s a link. Shiffrin Discusses Public Prayer in Delaware
WDEL, Jul 13, 2012

 

 

Comments

[Michael Duff]

Steve, Lag issues are interesting. There are many legal environments (especially given the interminable implementation delays in the administrative state) in which the answer to a legal problem is obvious in the sense that precedent would undoubtedly lead to a particular outcome but events on the ground have shifted since then. When I was a practicing labor lawyer, for example, I was involved in numerous cases in which my position was completely "right" under existing precedent that was a couple of decades old. Then we had legislative/administrative gridlock and ossification leaving us with law that we knew the existing judiciary and maybe even the public were implacably hostile to (the NLRB's recent Boeing debacle is a great, recent example). The effect of this "lag" is to inject a layer of uncertainty for practicing lawyers. Once can say, "Don't challenge - settle! You never know what rule you will wind up with." Alternatively, one can say, "Challenge! Even if we lose- everything will be out in the open, and we can move to politics." When I was a younger litigator, I chose course 2 whenever possible. Now that I have less and greyer hair I have a deeper appreciation for the pain potentially associated with a bad, bright line rule. (Though I'm still more aggressive than most, no doubt).

[Steve Shiffrin]

Thanks for the comment, Michael.
Perhaps I am risk averse, but this seems to me to be a case crying
out for settlement. The challengers face a hostile Supreme Court
and, on the other side, it would cost a lot of money for the
legislature to be vindicated, money that could surely be better
spent elsewhere. One of the problems with strategy two in some
contexts is that the legal outcome frames the politics in a
direction consonant with the legal outcome. Of course, the legal
outcome can also spur a negative backlash. 8/9/2012 12:37 PM,