Dane on Legislative Prayer

Perry Dane has a very interesting post over at CLR Forum on legislative prayer and Town of Greece v. Galloway. Perry was Justice Brennan's law clerk at the time the Court decided Marsh v. Chambers and Justice Brennan authored a dissent. I see things a little differently than Perry on this issue, but that hardly matters. His analysis is well worth reading, particularly on the question of what ought to happen if the Court follows the majority view in Marsh. Here's a bit:

At that point [if the Court adheres to Marsh], it seems to me, the principle that prayer is serious business would require us to let (most of) the chips fall where they may.  For the reasons Justice Brennan stated, courts should not demand that legislative prayer be “nonsectarian.”  There is, with respect to prayer, no such thing.  Bland prayers, and prayers to an unnamed deity, are — if taken seriously as religious acts — just as “sectarian” as more apparently meaty prayers.  Certainly, judges should not try to monitor or censor individual prayers to strip them of religious particularity.  Nor should they even even try, as the Court of Appeals for the Second Circuit panel did, to decide whether a whole pattern of prayer over several years is somehow disproportionate by being, for example, too Christian.

I wouldn’t rule out all constitutional limits on the particulars of legislative prayer.  Since legislative prayers are, for better or worse, said in a civic context, the Constitution might at least demand that they be civil, in the sense of not disparaging other faiths.  More to the point, maybe, the Establishment Clause might bar processes for selecting chaplains, guest chaplains, or the like that by their terms manifestly exclude certain faiths, or for that matter even all faiths other than the preferred one.

To be sure, the distinction between exclusion and inclusion is shaky, and applying it in particular cases even more so.  But it might be the closest we can get to a fair rule while still treating prayer as serious business.