Why the First Amendment Permits Sectarian Legislative Prayer and Demands a “Practice Focused” Analysis
Breaking Away from the “Prayer Police”: Why the First Amendment Permits Sectarian Legislative Prayer and Demands a “Practice Focused” Analysis
Robert Luther III and David B. Caddell, 48 Santa Clara L. Rev. 569 (2008)
Historically, the “ineluctable tension” within the First Amendment has concerned the relationship between the Free Exercise Clause and the Establishment Clause when the cause of such tension was an issue that involved a question of religion and its role in the public square. However, in a post Employment Division v. Smith world, it is not uncommon to find advocates who raise Establishment Clause claims confronted with the defense of the Free Speech Clause. Thus, “religious speech in the public square” cases that range from high school valedictorians who wish to speak about the role of a particular religion in their life at graduation, to cases where legislators, city council persons, school board members, or invited clergy wish to open legislative gatherings in the name of the deity most personal to them are often met with intense condemnation and scrutiny.