Prayer in the Well: Some Heretical Reflections on the Establishment Syndrome

Marsh v. Chamberss probably is not a case that will excite a lot of attention in the journals. Its conclusions run sufficiently against the grain of cultural bias to invite if not disbelief at least a practiced disposition to ignore. Beyond that, with a modicum of effort the case can be dismissed by those not cottoning to its premises as a mere historical appendage to the larger issues of churchstate jurisprudence. Indeed, a lengthy dissent by Justice Brennan labors mightily to diminish the importance of the majority's work by a patronizing description of it as a "narrow and, on the whole, careful opinion." Yet Marsh exhibits this remarkable attribute that ought not to go unnoticed: In one simple stroke it exposes the infirmity of each of the three elements of the prevailing judicial test for an establishment of religion under the first amendment.