Legislative Prayer and School Prayer: The Constitutional Difference

CRS Report for Congress
Legislative Prayer and School Prayer:
The Constitutional Difference
David M. Ackerman
Legislative Attorney
American Law Division
The Supreme Court has held government-sponsored prayer in the public schools
to violate the establishment of religion clause of the First Amendment. In contrast, it
has held clergy-led prayer in legislative assemblies such as the Congress and the State
legislatures to be constitutionally permitted. Because both situations involve
government sponsorship of prayer, these rulings are sometimes said to be contradictory.
The Court, however, has drawn significant factual and legal distinctions between the two
situations. Nonetheless, it remains true that the contrary decisions reflect different
approaches to the interpretation of the establishment clause.
School Prayer
The Supreme Court has handed down more than a dozen decisions involving religion
in the public schools, but three decisions are crucial for understanding this area of the123
law. In Engel v. Vitale in 1962 and Abington School District v. Schempp in 1963 the
Supreme Court first held government-sponsored devotional activities in the public schools4
to constitute an establishment of religion in violation of the First Amendment. Engel
involved a requirement of a local board of education in New York that students recite at
For a detailed summary and exposition of this area of the law, see CRS, Prayer and1
Religion in the Public Schools: What Is, and Is Not, Permitted (July 16, 1993) (Report No. 93-


370 U.S. 421 (1962).2

374 U.S. 203 (1963).3

The religion clauses of the First Amendment provide that “Congress shall make no law4
respecting an establishment of religion, or prohibiting the free exercise thereof ....” These
protections of religious liberty have been held to be applicable to State and local governments
as well under the due process clause of the Fourteenth Amendment. See Everson v. Board of
Education, 330 U.S. 1 (1947), and Cantwell v. Connecticut, 310 U.S. 296 (1941).
Congressional Research Service ˜ The Library of Congress
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the beginning of each school day a prayer that had been composed and recommended for
use by the New York State Board of Regents:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy
blessings upon us, our parents, our teachers and our Country.
In holding the prayer exercise unconstitutional, 6-1, the Court stated:
(T)he constitutional prohibition against laws respecting an establishment of religion
must at least mean that in this country it is no part of the business of government to
compose official prayers for any group of the American people to recite as a part of
a religious program carried on by government.
(G)overnment in this country, be it state or federal, is without power to prescribe by
law any particular form of prayer which is to be used as an official prayer in carrying
on any program of governmentally sponsored religious activity.

370 U.S. at 425 and 430.

Abington (and the companion case of Murray v. Curlett) involved government
requirements in Pennsylvania and Baltimore, Md., that each school day begin with
readings from the Bible and the unison recital of the Lord’s Prayer. In striking down
those requirements as well, 8-1, the Court asserted:
[The exercises] are religious exercises, required by the States in violation of the
command of the First Amendment that the Government maintain strict neutrality,
neither aiding nor opposing religion.

374 U.S. at 203.

In both cases the States excused students who objected to taking part in the exercises.
But the Court suggested that the exercises could not be truly voluntary in the context of
compulsory school attendance laws, and, in any event, “the Establishment Clause ... does
not depend upon any showing of direct governmental compulsion and is violated by the
enactment of laws which establish an official religion whether those laws operate directly
to coerce nonobserving individuals or not.”5
In the third case, Lee v. Weisman, the Court, by a 5-4 margin, held it to be6
unconstitutional for a public secondary school to include an invocation and benediction
by a clergyman in its commencement ceremony. The Court explicitly reaffirmed Engel
and Abington and concluded that “the prayer exercises in this case are especially improper
because the State has in every practical sense compelled attendance and participation in
an explicit religious exercise at an event of singular importance to every student ....”7
Students were not required to attend the ceremony to receive their diplomas, but the Court
stated that “law reaches past formalism, and to say a teenage student has a real choice not
Engel v. Vitale, supra, at 421.5

112 S.Ct. 2649 (1992).6

Id., at 2661.7
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to attend her high school graduation is formalistic in the extreme.” To “persuade or8
compel a student to participate in a religious exercise,” the Court said, “is forbidden by
the establishment clause.”9
The Court differentiated its holding in this case from its ruling in Marsh v.
Chambers, infra, concerning legislative prayer as follows:
The atmosphere at the opening of a session of a state legislature where adults are free
to enter and leave with little comment and for any number of reasons cannot compare
with the constraining potential of the one school event most important for the student
to attend. The influence and force of a formal exercise in a school graduation are far
greater than the prayer exercise we condoned in Marsh .... At a high school
graduation, teachers and principals must and do retain a high degree of control over
the precise contents of the program, the speeches, the timing, the movements, the
dress, and the decorum of the students .... In this atmosphere the state-imposed
character of an invocation and benediction by clergy selected by the school combine
to make the prayer a state-sanctioned religious exercise in which the student was left
with no alternative but to submit.

112 S.Ct. at 2659-60.

Legislative Prayer
The Court has addressed the issue of the constitutionality of legislative prayer in only
one instance, and that involved prayer at the opening of a State legislature. But the
reasoning of the decision gave general approval to prayer at all legislative levels,
including in the Congress.
At issue in Marsh v. Chambers was the constitutionality of the practice of the10
Nebraska legislature of opening each legislative day with a prayer by a chaplain paid by
the State. In holding the practice constitutional, 6-3, the Court stated that the practice of
legislative prayer was “deeply embedded in the history and tradition of this country” and
had become “part of the fabric of our society.” It stressed that legislative prayer had
existed from colonial times through the founding of the Republic, had been practiced in
Congress for nearly two centuries, and was a consistent practice in most of the State
legislatures. But along with this historical data, the Court emphasized the fact that the
First Congress in 1789 had authorized the appointment of paid chaplains to offer prayers
at each legislative session only three days before it reached agreement on the language of
the Bill of Rights, including the religion clauses of the First Amendment. “Standing
alone, historical patterns cannot justify contemporary violations of constitutional
guarantees,” the Court said, but here “historical evidence sheds light ... on what the
draftsmen intended the Establishment Clause to mean ....” “Clearly,” the Court11
Id., at 2659.8
Id., at 2661.9

463 U.S. 783 (1983).10

Id., at 790.11
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concluded, “the men who wrote the First Amendment Religion Clauses did not view paid
legislative chaplains and opening prayers as a violation of that Amendment ...”:12
It can hardly be thought that in the same week Members of the First Congress voted
to appoint and to pay a chaplain for each House and also voted to approve the draft
of the First Amendment for submission to the States, they intended the Establishment
Clause of the Amendment to forbid what they had just declared acceptable.

463 U.S. at 790.

Soon after Marsh was decided by the Court, the U.S. Court of Appeals for the
District of Columbia acted on a related case called Murray v. Buchanan. That case
challenged the constitutionality of a paid chaplain’s prayers not in a State legislature but
in the Congress itself. After the decision in Marsh came down, the appellate court in an
en banc decision dismissed Murray on the grounds it no longer raised a substantial
constitutional question. In a brief ruling the court stated simply that “(t)he Supreme13
Court’s decision in Marsh v. Chambers is dispositive of appellants’ challenge to the
public funding of congressional chaplains.”
The distinctions between government-sponsored prayer in the public schools and
government-sponsored prayer in legislative assemblies, thus, appear to be twofold. First,
the Supreme Court has found legislative prayer, in effect, to be an historically sanctioned
exception to the general proscription of the establishment clause. In Engel and Abington
the Court interpreted the establishment clause broadly. The history of religion in Europe
and the colonies, the Court said, demonstrated both that “a union of government and
religion tends to destroy government and to degrade religion” and that “governmentally
established religions and religious persecutions go hand in hand.” Thus, it said, the14
meaning of the establishment clause is essentially that government must be strictly neutral
toward religion, serving neither as its advocate nor as its enemy. In Lee it used the
narrower principle that “at a minimum the Constitution guarantees that government may
not coerce anyone to support or participate in religion or its exercise.” In the public15
schools these interpretations of the establishment clause have meant that government
cannot sponsor devotional exercises, either as a daily ritual or as part of such a significant
event as commencement. But legislative prayer is different, the Court has said, because
the First Congress that wrote the establishment clause hired legislative chaplains to offer
daily prayers at the same time. Thus, no matter how broadly the establishment clause is
interpreted, it cannot be read as proscribing legislative prayer.
Second, the Court has cited factual differences both in the age of participants and in
the legal compulsion to attend the prayer exercises as important. It has noted that
legislative prayer involves adults who are under no compulsion to be present for the
exercise, while prayer in the public schools involves impressionable children who are
Id., at 788.12

720 F.2d 689 (1983).13

Engel v. Vitale, supra, at 431, 433.14

112 S.Ct. at 2659.15

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subject both to compulsory attendance laws and to substantial social pressure to conform.
It has suggested, in short, that government-sponsored school prayer is more coercive in
nature than legislative prayer and thus more violative of the purposes of the establishment
Finally, however, it should be noted that the differing results the Court reached in
its school prayer and legislative prayer decisions reflect in part an ongoing debate on the
Court about how the establishment clause should be interpreted. Engel, Abington, and to
a lesser extent, Lee reflect a perspective that believes “a union of government and religion
tends to destroy government and to degrade religion” and that, therefore, there must be16
a “wall of separation” between government and religion. Marsh, in contrast, reflects a
perspective that government can act benignly in support of religion and, more particularly,
that practices which have become part of the “fabric of our society” should be
constitutionally allowed to continue. Although the decisions themselves are not
necessarily inconsistent, these differing perspectives continue to frame the debate on the
Court and in the society at large on the proper relationship between government and
religion and the proper interpretation of the religion clauses of the First Amendment. As
long as that debate persists, the Court’s school prayer and legislative prayer decisions
seem likely to continue to be lifted up as contradictory.
Engel v. Vitale, supra, at 431.16
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