Legal Commentary

I've been doing a bit of academic writing about legislative prayer lately, and couldn't resist a short post on the most recent legislative prayer case -- the Eleventh Circuit's decision in Pelphrey v. Cobb County.   It is huge on both of the two major doctrinal issues -- first, whether legislative prayer can be "sectarian" in the sense of using identifiably denominational language (i.e., words like "Jesus" and "Allah"), and second, whether government can pick and choose among prayergivers on the basis of their religious affiliations.   The Eleventh Circuit said yes to #1, and no to #2.  So going forward, Cobb County can have sectarian prayer, but it has to stop having its clerk weed out Islamic, Jewish, Mormon, and Jehovah Witness prayergivers.   (No joke there: The county clerk located prospective prayergivers by going through the phone book.   Her phone book was apparently turned over in discovery, and she had crossed out a number of sections, including "Churches-Islamic," "Churches-Jehovah's Witnesses," "Churches-Jewish," and "Churches-Latter Day Saints."  Those groups just didn't get called.)

So Pelphrey means that there are now two circuit splits on legislative prayer issues.  The Fourth Circuit earlier came to the opposite conclusions on both doctrinal issues -- it held that sectarian prayers are flatly unconstitutional, and that government can indeed select prayergivers by religious affiliations.   (That latter point was made in a startling case where a Wiccan got a letter in the mail saying that she wouldn't be allowed to pray because, well, she was a Wiccan.)  End result: Both the appeal and the cross-appeal here have arguably certworthy issues to raise.  Very interesting times....