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When The Exception Becomes The Rule: Marsh And Sectarian Legislative Prayer Post-Summum, Scott W. Gaylord

Scott W. Gaylord

Across the country, federal, state, and local legislative bodies begin their meetings with prayer. Yet, as recent challenges to sectarian legislative prayer demonstrate, legislative prayer rests uneasily at the intersection of the Free Speech and Establishment Clauses. While the government has the right to speak for itself, many contend that it is precluded from engaging in paradigmatic religious activity, such as sectarian prayer. As a result, although legislative prayer has been part of the “fabric of our society” since at least the First Continental Congress, sectarian prayer teeters on the brink of unconstitutionality.

Despite the pervasiveness of legislative prayer and …

Licensing Facially Religious Government Speech: Summum's Impact On The Free Speech And Establishment Clauses, Scott W. Gaylord

Scott W. Gaylord

LICENSING FACIALLY RELIGIOUS GOVERNMENT SPEECH: SUMMUM’S IMPACT ON THE FREE SPEECH AND ESTABLISHMENT CLAUSES

Abstract

Scott W. Gaylord

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment—that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause—the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision …