Thoughts on Simpson v. Chesterfield County Board of Supervisors

Simpson was asking to be allowed to give a Wiccan invocation before one of the Chesterfield County Board of Supervisors meetings as volunteers of other religions were allowed to do. The board refused to allow her to do so because, as they put it, their invocation prayers "are traditionally made to a divinity that is consistent with the Judeo-Christian tradition." The appeals court sided with this County restriction.

Marsh v Chambers abstracted here, appears to give the precedent for the case. If the Nebraska legislature is allowed to pick the chaplain to hire based on the persons religious background, then the Chesterfield County Board of Supervisors can choose volunteers for their invocation based on religious considerations as well.

CHIEF JUSTICE BURGER delivered the opinion of the Court in Marsh. This practice was justified almost entirely on historical precedent:

The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country...

This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged...

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.

I now believe that the practice of official invocational prayer, as it exists in Nebraska and most other state legislatures, is unconstitutional. It is contrary to the doctrine as well the underlying purposes of the Establishment Clause, and it is not saved either by its history or by any of the other considerations suggested in the Court's opinion....

From Lemon: "Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute [at issue] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster `an excessive government entanglement with religion.'"

The Court's main argument for carving out an exception sustaining legislative prayer is historical. This is a case, however, in which - absent the Court's invocation of history - there would be no question that the practice at issue was unconstitutional. And despite the surface appeal of the Court's argument, there are at least three reasons why specific historical practice should not in this case override that clear constitutional imperative...

To my mind, the Court's focus here on a narrow piece of history is, in a fundamental sense, a betrayal of the lessons of history.

Until the Supreme Court decides a case more in line with the Brennan and Marshall dissent, the Appeals Courts would have to follow Justice Burger's historically based first amendment exception.