Plaintiff makes no real attempt to explain how his Establishment Clause claim survives Marsh and Murray. His assertion that the Supreme Court's post-Marsh decisions "directly conflict with the holding in Marsh" (Compl. at ^ 18-19) is not true. Although the Court has described Marsh as a decision grounded in the '"unique history"' of legislative prayer, see County of Allegheny v. American Civil Liberties Union. 492 U.S. 573, 603 (1989) (quoting Marsh, 463 U.S. at 791); see also Kurtz. 829 F.2d at 1147 (R.B. Ginsburg, J., dissenting from the court's standing disposition), it has never questioned the correctness of its ruling.18
But more importantly, this Court has no authority to "recognize," based on the Supreme Court's post-Marsh cases, that Marsh "has been overruled." See Compl. at p. 17 (Point III). "[I]t is not for the lower courts to conclude that the Supreme Court's 'more recent cases have, by implication, overruled an earlier precedent.'" United States v. Weathers. 186 F.3d 948, 957 n.l2 (D.C. Cir. 1999) (citing Agostini v. Felton. 521 U.S. 203, 237 (1997)), cert. denied. 529 U.S. 1005 (2000). That is the end of the matter. For all of these reasons, plaintiffs Establishment Clause claim should be dismissed, whether forjurisdictional reasons or on the merits.
"Plaintiffs principal Establishment Clause argument is that this Court should evaluate the constitutionality of legislative prayer under various tests the Supreme Court has employed in other Establishment Clause cases. See. e.g.. Compl. at 7 n. 18 (citing the "endorsement test"); id. at 7 n. 19 (citing the "Lemon test"); id^ at ^ 41 (citing the "coercion test"). Marsh, however, applied a different test - the historical test - in determining the constitutionality of legislative prayer. See also Lynch v. Donnelly. 465 U.S. 668, 676-77 (1984) (approving, on historical grounds, references to God in national Motto, currency, and the Pledge of Allegiance); cf_ Committee for Public Educ. and Religious Liberty v. Nvouist. 413 U.S. 756, 777 n.33 (1973) ("[our] Establishment Clause precedents have recognized the special relevance in this area of Mr. Justice Homes' comment that 'a page of history is worth a volume of logic'") (internal citation omitted). The irony of plaintiffs challenge is that the weight of history supporting the use of legislative prayer has only increased in the almost-twenty years since Marsh was decided. Moreover, contrary to plaintiffs suggestion (see Compl. at ^ 23-24), the long history of legislative prayer has not been free from occasional controversy. See Marsh. 463 U.S. at 800 n.10 (Brennan, J., dissenting).
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