Franklin Roosevelt's second in 1937, the Senate's Chaplain delivered the inaugural prayers in the Senate chambers as a part of the administration of the oath of office to the vice president." Id. at 2174 fn. 137. "These prayers were technically not part of'the 'inaiiyiiral ceremony' of (lie President, which typically took place outside of the Capitol following the Senate proceedings." Id. After this time, prayers were read during the inauguration ceremony. David M. Smolin, Cracks in the Mirrored Prison: An Evangelical Critique of Secularist Academic and Judicial Myths Regarding the Relationship of Religion and American Politics. 29 Loy. L.Rev. 1487, 1504 (1996). Jn^dditT6h;ieyery President has included reverent references to the deity in his inaugural <
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address to the nation, 96 Colum. L. Rev. at 2109.
Like prayers opening legislative sessions, inaugural prayers are a historical tradition. While the prayers have only been "technically" included in the inaugural ceremony since 1937, they have always been part of the inauguration proceedings. The history of inaugural prayers, like the history of legislative prayers, indicates that they were not viewed as violating tlie Establishment Clause.3 Clearly, if legislative prayers do not violate the Establishment Clause, neither do inaugural prayers.4
Accordingly, defendant's motion should be granted on grounds that prayers per se at the Presidential inauguration do not violate the Establishment Clause.
3 In Marsh, the Supreme Court also observed that the plaintiff was an adult, "presumably not readily susceptible to 'religious indoctrination,'...or peer pressure." 463 U.S. at 792, 103 S.Ct. at 3336. At oral argument, plaintiff in the instant case mentioned the possibility of amending his complaint to include his daughter as a plaintiff. The Supreme Court's holding in Marsh was based on the historical significance of legislative prayer-not on the age of the plaintiff. Therefore, allowing plaintiff to amend the complaint to include his daughter as a plaintiff would not change the result of the court's recommendation.
4 Plaintiff argues that Marsh v. Chambers is no longer good law as it has been criticized in later cases. While Marsh may have been distinguished in later cases, it has not been overturned. Marsh is controlling in the instant case as the facts are quite similar in botli cases. The Marsh line of authority is thus completely separate from the general -religious-speech-at-a public-event authority, e.g., high school graduation, see Cole, supra. While other cases might bring harder interpretive problems in determining whether a certain function was historical in nature, the present case does not.