It is usually legal “conservatives” who claim that appealscourts often “make” law, not interpret it.  Well, two of the three judges on the panel of the EleventhCircuit seem to have wildlymisinterpreted the key basis for the only Supreme Court decision which did uphold onespecific kind of “legislative prayer” and created a new standard out of whole cloth.

The heart of the Marsh v. Chambers decision is thatlegislative prayer is permissible only if it is legally non-sectarian (I forone do not believe there is such a thing as a ‘non-sectarian” prayer as atheological matter.  You have to bepraying to somebody.)  For legalpurposes, though, the prayer must not use language or symbols specific to onefaith.  The Supreme Court emphasized thatwith the Nebraskachaplain “there was no indication that the prayer opportunity has beenexploited to proselytize or advance any one, or to disparage any other, faithor belief.”  It specifically noted, toreemphasize that point that “the particular chaplain had removed all referencesto Christ.” 

 

Judge William H. Pryor (and you, Jay) seems to think thatnon-sectarianism has nothing to do with the Supreme Court’s view.  One prayer at issue in this case invoked the”God of Abraham, Isaac, and Mohammed”, but Judge Pryor seems to think a courtcould not possibly determine if that was “sectarian”.  If the prayer were to “the Lord Satan” or to”Odin, father of Thor”, would he have said the same thing?  I don’t think so.  It stretches credulity to believe Judge Pryorcan’t tell a sectarian prayer when he hears one.

 

Until this Eleventh Circuit decision, four other federalappellate courts had hewed to the simple principle in Marsh.  Invocation of a specific deity or particular theological undergirding is notconstitutionally permissible.  Now, thereis a “split” (although not exactly an even one) which might make this case acandidate for high court action if the plaintiffs choose to appeal.  My view, though, is that the current Supreme Court would likely pass on this issue even if given such an opportunity.

 

You and the Eleventh Circuit also raise the old issue of howthe Continental Congress had prayer.  TheContinental Congress of course predates the writing of or ratification of theBill of Rights.  You also invoke JusticeWilliam O. Douglas’ dicta that “we are a religious people whose institutionspresuppose a Supreme Being”.  Douglas of course, was not, of course, the kind of justiceyou’d want on the Supreme Court in the McCain Era (in the event that comes topass on Tuesday.)  He was a strictseparationist and, if you recall, even thought that trees had “standing” tosue.