Boston University School of Law
The Supreme Court has considered the constitutionality of “legislative prayer” twice, once in the 1983 case of Marsh v. Chambers and once in the 2014 case of Town of Greece v. Galloway. Although both of those cases upheld challenged invocation practices on the basis that such practices predated the adoption of the First Amendment, they also placed additional limits on the nature of such prayer programs, including that they be non-discriminatory, as Justice Kennedy explained in Town of Greece. In response to Justice Kennedy’s non-discrimination mandate, hundreds of secular individuals in the wake of Town of Greece asked to give and indeed have given secular invocations before legislatures and town boards across the country. These invocations have tended to stress a series of common themes, including the importance of reason, nature, science, diversity, and equality. By articulating an approach to life that denies the existence of a god or gods or other higher powers, these secular invocations contribute importantly to religious pluralism in public life. Although most of these secular invocations have gone smoothly, many have caused significant controversy. Several jurisdictions have recently adopted policies excluding nonbelievers from giving invocations, and these bans have given rise to three federal appellate court cases. Notably, both the D.C. Circuit and the Third Circuit have held that such secularist exclusion policies are not unconstitutional under the Religion Clauses. This Article, prepared for the Fall 2020 Roger Williams University Law School’s “Is This a Christian Nation?” conference, describes the Supreme Court’s jurisprudence regarding legislative prayer, explains the phenomenon of secular invocations, and argues that these secular invocations are critically important from the perspective of religious pluralism. The Article then describes the cases that have evaluated the constitutionality of secular exclusion polices and argues that these policies violate two fundamental First Amendment principles, namely that the government may not treat religious denominations differently under the Religion Clauses, and that the government may not discriminate on the basis of the viewpoint of speakers under the Free Speech Clause.
Secular Invocations and the Promise of Religious Pluralism,
Boston University School of Law Public Law & Legal Theory Paper
Available at: https://scholarship.law.bu.edu/faculty_scholarship/981