University of Chicago Law Review

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The First Amendment to the Constitution commands that “Congress shall make no law respecting an establishment of religion.” This provision is now generally interpreted to forbid a slew of policies and practices at the federal, state, and local levels that endorse or enshrine religion. One flash point in the Establishment Clause doctrine is prayer and government. Whereas one line of cases suggests that prayer offered at government-sponsored events is unconstitutional if it is coercive, another instructs that prayer offered in the legislative context is generally acceptable, at least if delivered by a third party.

This Comment addresses a burgeoning circuit split regarding the intersection of these cases. Lower courts have struggled to come to an adequate answer to the question of whether prayer offered in an intimate, constituent-facing legislative context by councilmembers themselves is constitutional. This Comment analyzes the various prayer cases as two overlapping constitutional prophylactic rules designed to prevent intrusive and time-intensive fact-finding into hard-to-ascertain facts. There is also a parallel line of cases that militates against the constitutionality of legislative prayer—the government is supposed to refrain from practices that have the potential to be politically divisive. Because prayers delivered by legislators themselves are more potentially divisive than those offered by third parties, and because the Court prefers strong prophylactic rules designed to prevent judicial speculation into factors like the divisiveness of specific prayer content, legislatorled prayer should be per se forbidden.

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