CNN Analyst: History of Prayer A Difficult ‘Challenge’ For America

COSTELLO: "Thanks for being here, Gloria. First off, give me your general impression of this ruling."
MARSHALL: "Well, I had the opportunity to be in the courtroom during the oral argument. And I saw the Justice Kagan as well as Justice Ginsberg the -- showing that this kind of -- and questioning whether any legislative entity would figure out a way to have a prayer that would not be offensive to someone. And I think this 5-4 ruling shows that there's still this divisiveness between the liberal wing and the conservatives."
COSTELLO: "When they say that, you know, 'non-adherence,' don't have to participate, what do they mean by that? That means if you're Jewish and don't participate in the prayer, that makes it Constitutional, is that what the U.S. Supreme Court has said?"
MARSHALL: "Here's the problem. We have a challenge that is based on history. The legal history and history of this country is that prayer was the first session of Congress. We have an official leader, religious leader, in the Senate, in the House and there are prayers in all of these different legislative bodies from the smallest jurisdiction to the highest. And so this idea of balancing someone who does not have any belief at all with someone who has a foundational belief that we are making these decisions that affect the jurisdiction and therefore we need guidance of a holier spirit. They said the person who doesn't believe is supposed to either leave the room or not participate. Don't bow your head in silence. Don't follow whatever the religious leader is doing and that that's what the compromise is that the court finds Constitutional."
COSTELLO: "Interesting. So I was talking to our CNN producer, Bill Mears, he covers the Supreme Court. He says this isn't a hard and fast ruling. In fact, it might confuse some government bodies. Do you agree?"
MARSHALL: "I do agree. It's quite confusing. I mean, when you are in the Supreme Court and you watch the swearing in of new attorneys before the Supreme Court bar, they are asked to swear to uphold the Constitution 'so help me god.' So there's no footnote given in that swearing-in service that says those people that want to swear or affirm. In the Constitution, the framers decided to have the division between church and state is say one may swear or affirm. Meaning, affirming has no religious connotation to it. And the Supreme Court is trying to do the same thing. You can be part of the religious practice or not be a part of it and in not being a participant. That way you are affirming but you are not a religious issue."