Legislative prayer, "division," and "strife."

To Marc's outstanding analysis I would just add that, in both of the dissenting opinions, the notion that because American church-state law reflects in part a widespread desire to avoid "political divisions along religious lines" and other forms of "strife" and "division" it follows that courts should (a) speculate about the possible "divisiveness" of a policy and (b) invalidate as unconstitutional those that it oberves or predicts to be "divisive" seemed to be doing significant work.  As I have argued, this is unfortunate:

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good. 

This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument. . . .