I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.
—Thomas Jefferson
The Supreme Court’s Establishment Clause jurisprudence is perhaps one of the most convoluted areas of law the Court has developed. Town of Greece v. Galloway, a recent case which held that sectarian legislative prayer policies are constitutional, has only added to the uncertainty and confusion. Consequently, a circuit split has emerged relating to a penumbra of Galloway – legislator-led and legislator-exclusive legislative prayer policies. The Fourth Circuit has held that such practices do not fall within the scope of Galloway and are unconstitutional, while the Sixth Circuit has held that Galloway clearly indicates that such practices are constitutional. Because of the inequities such a split creates and given the dangers of legislator-led and legislator-exclusive prayer policies, this Comment recommends that the Supreme Court step in to resolve the circuit split and adopt a strict scrutiny analysis for all legislator-led legislative prayer cases going forward.
