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This Note argues that Lund was decided incorrectly in part because the Fourth Circuit failed to analyze the type of speech at issue before assessing the constitutionality of the prayer practice. This Note is composed of four parts. Part I surveys the Supreme Court’s legislative prayer jurisprudence—Marsh and Town of Greece. Part II outlines Lund and Bormuth, and the Fourth and Sixth Circuits’ dissimilar applications of the Supreme Court’s precedent. Part III argues that courts must first classify legislative prayers as either government or private speech before assessing whether a prayer practice violates the Establishment Clause. It further argues that legislator-led prayer is a form of government speech. Lastly, Part IV, the most extensive of this Note, argues that because legislator-led prayer is government speech, courts must focus on the intent underlying legislator-led prayer practices, and only practices motivated by impermissible purposes should be deemed unconstitutional. It then proposes a framework to determine whether a legislative prayer practice classified as government speech is motivated by impermissible intent and analyzes under this framework the legislator-led prayer practices in Lund and Bormuth.



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