On April 5, the Rev. Clarence Brown gave a prayer praising God for giving the world Jesus. Following his prayer, Speaker Bosma asked Brown to remain in the Speaker’s stand and sing a song titled "Just a Little Talk with Jesus." ...
Although Marsh allowed for legislative prayer, it also clearly set out limitations, [Judge] Hamilton wrote. Specifically Marsh [upholding legislative prayers] noted the Constitution is subverted where "the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief."
In 2005, the Indiana House acted too often like a place of worship. The federal judge had no choice but to put a halt to its sectarian activities and remind the legislature that it works on behalf of all the state’s citizens.
-- Preferential Prayers: Federal Judge Halts Indiana Legislature’s Sectarian Invocations
What exactly is an "establishment of religion?" Unclear perhaps, but some unions of church and state that are deemed by some to be relatively minor seem to me to be particularly troubling. For instance, when forming a national anthem or pledge, especially one daily cited by young children, it appears that you should keep anything even kind of religious out of it. You know, citations of God or how we are "under" God and all. Unlike even supplying money to parents that might go to religious schools pursuant to their choice, this appears to be a clear endorsement by the state of religious doctrine.
"Establishment" suggests such close official endorsement ... it is especially problematic when the government itself gets involved with religious faith directly. This is why legislative prayer (prayer!) is problematic. Any involvement and picking and choosing in such matters, including who would be chaplain and what said chaplain (or lector? whatever) will say is trouble. Is it too surprising that the result, in the words of the Court, was:
Some of the prayers offered from the Speaker's podium in the House of Representatives avoided endorsing particular sects or beliefs. They included a broad spectrum of faith and belief and avoided sending the message to many that they are "outsiders" and to others that they are "insiders." The substantial majority, however, were different. After reviewing all available transcripts of prayers from the House sessions in 2005, the court finds that, the actual practice amounts on the whole to a clear endorsement of Christianity, sending the message to others that they are outsiders and the message to Christians that they are favored insiders. No other specific religious faith was endorsed or invoked. The only available transcript of a prayer led by anyone not professing the Christian faith, by a Muslim imam on March 8th, was inclusive and was not identifiable as distinctly Muslim from its content.
When the prayers were consistently Christian, to the degree that the reverend in effect led the hall in Christian song, it was deemed by some legislators and other participants (such as lobbyists that had to be there*)as a bit much. The litigants were: Quaker/Methodist/Roman Catholic. But, do recall that other case in which a Wiccan was not allowed to sign up to give an invocation -- the religious discrimination was upheld since they were deemed inclusive enough. Still, mixing church and state is just not the concern of atheists and agnostics. No matter how much some whine that it is.
Taking the "whatever it takes route," the Speaker argued "that the court should deny relief to plaintiffs because essentially 'all prayers advance' a particular faith or belief in one way or another." As the opinion notes, citing Justice Brennan's dissent in Marsh (Stevens also dissented separately, noting only one denomination was represented for over a decade), this has some force. It is not current law though. Furthermore, the legislators fighting for Christian dominance here wanted to go the other way: no limits, not no chaplains. The ruling countered, quoting another case (there being a small cottage industry in this area):
Our civic faith seeks guidance that is not the property of any sect. To ban all manifestations of this faith would needlessly transform and devitalize the very nature of our culture. When we gather as Americans, we do not abandon all expressions of religious faith. Instead, our expressions evoke common and inclusive themes and forswear, as Chesterfield has done, the forbidding character of sectarian invocations.
The ruling held that there can be no Christian references; such was the saving grace, so to speak, in Marsh. [The references were removed there after someone finally complained -- this is how it should be, right?] This is what "nonsectarian" means according to current doctrine. That's b.s. really ... it just is less so. The point is that the 'civic faith' is not to be regulated when it comes to religious belief by the state at all.
But, the Court here was compelled to push for the lesser evil. Meanwhile, the legislators demanding Christian prayers say they will not stop. Maybe, they should read up more on what Jesus said about praying in public.
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* Lobbying is not all akin to the sort that led to today's plea deal. One here involved a Quaker lobbyist, who lost the position upon joining in the lawsuit. This makes sense: suing the legislature might hinder lobbying, but the harm caused by defending religious liberty here is telling.