In the brief, conclusory opinion of Marsh v. Chambers, the Supreme Court upheld the Nebraska state legislature’s policy, which dated back over 100 years, of opening its meetings with a prayer. The prayer did not advance the tenets of any single faith. In deciding the case, the Court relied on the fact that prayer by “legislative and other deliberative public bodies” was a longstanding and continuous tradition for both the federal Congress and the Nebraska legislature. Therefore, the issue of school board prayer lies at the intersection of the “prayer in school” prohibition and the “legislative prayer” exception.
Lower courts have struggled with the meaning of Marsh since the case was decided. As will be seen by the widely differing results in school board prayer cases, circuit courts have particularly struggled with whether Marsh applies to local legislative bodies and with determining what content is permissible for legislative prayer. This Note argues that the Marsh exception, not the Lee line of cases, should govern school board prayer. But, relying on the facts of Marsh, the legislative prayer exception should be limited by a two-part legal test, which would have the effect of making school board prayer unconstitutional in all but the rarest cases. Legislative prayer, including school board prayer, should be upheld only if it is (1) nonsectarian and (2) part of a continuous tradition that was constitutional when it began because it predates the explicit incorporation of the Establishment Clause against the states in Everson v. Board of Education in 1947.18 This test is necessary because the circuit courts have varied widely on the meaning of Marsh since the case was decided and because many circuit courts have ignored the facts that led to the creation of the exception in the first place.