VII Miscellaneous-Continued Page ..8, 10, 13, 16-17 A. Stokes & L. Pfeffer, Church and State in the 9 Wrtings of James Madison (G. Hunt ed. 1910).. 8 12 Ju the Supreme Court of the United States OCTOBER TERM, 1982 No. 82-23 FRANK MARSH, STATE TREASURER, ET AL., PETITIONERS v. ERNEST CHAMBERS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS for the EIGHTH CIRCUIT BRIEF FOR THE UNITED STATES IN SUPPORT OF PETITIONERS INTEREST OF THE UNITED STATES The This case concerns the constitutionality of the Nebraska Unicameral Legislature's chaplaincy practice under the Establishment Clause of the First Amendment. United States has a substantial interest in this matter because the United States Congress has, since the first session of the Continental Congress in 1774, appointed chaplains to open each legislative day with an invocation. Over a half-century ago, a challenge to the constitutionality of the federal chaplaincy practice was dismissed for lack of standing. Elliott v. White, 23 F.2d 997 (D.C. Cir. 1928). A similar challenge is now pending before the United States Court of Appeals for the District of Columbia Circuit for determination by the court en banc of whether the suit must be dismissed on standing or political question grounds. Murray v. Buchanan, (1) 2 No. 81-1301 (Mar. 9, 1982), vacated and scheduled for rehearing en banc by orders of May 25 and July 16, 1982. Although the constitutionality of the chaplaincy prac-. tice of the Senate and House of Representatives may not be justiciable, that issue has not been finally resolved by this Court. But see Abington School District v. Schempp, 374 U.S. 203, 300 (1963) (Brennan, J., concurring).1 Accordingly, the United States retains a keen interest in the Court's ruling in this case because the Nebraska Legislature's chaplaincy bears many basic similarities to the congressional chaplaincies. Moreover, the Nebraska practice is clearly patterned after the longstanding practice of Congress and the other states; thus, the Court's consideration of Nebraska's practice would be enhanced by a complete exposition of the federal experience. SUMMARY OF ARGUMENT The Establishment Clause of the First Amendment is not violated by the Nebraska Legislature's appointment and compensation of a chaplain to open each day's legislative session with a prayer. The constitutionality of paid legislative chaplaincies is conclusively demonstrated by the fact that the Members of the First Congress appointed and compensated chaplains to open their daily sessions at the same time that they drafted the First Amendment; historical analysis thus shows that the Framers did not intend to invalidate their own chaplaincy, nor those of the states. But, even if more need be shown, the constitutional propriety of the Nebraska chaplaincy is confirmed by application of the now traditional three-part Estab 1 With regard to the question of standing to challenge a legislative chaplaincy, we note that the courts below held that respondent Chambers had standing to challenge the Nebraska practice not merely as a state taxpayer but as a member of the State Legislature who personally confronts the morning invocation on a daily basis (Pet. App. 22 n.3, 23-24 n.14, 28-29). This circumstance distinguishes the standing issue in this case, which petitioners do not press in this Court, from the federal taxpayer standing issue involved in Murray v. Buchanan, supra. 3 lishment Clause test announced by the Court in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). 1. At the national level, the designation of legislative chaplains originated with the first session of the Continental Congress in September 1774 and was carried forward by the First Congress convened under the Constitution. Indeed, the very first congressional compensation act included authority to pay "each chaplain of Congress, at the rate of five hundred dollars per annum during the session of Congress." Act of Sept. 22, 1789, ch. XVII, Section 4, 1 Stat. 71. Just three days after enactment of the congressional compensation statute, the Members of the First Congress reached final agreement on the wording and content of the Bill of Rights, including the Establishment Clause, and referred the proposed amendments to the states for ratification. See 1 Journal of the House of Representatives, 1st Cong., 1st Sess. 26 (1789); 1 Journal of the Senate, 1st Cong., 1st Sess. 16 (1789). It is apparent from this simultaneous consideration by the First Congress of the appointment and compensation of chaplains, on the one hand, and the framing of the Establishment Clause, on the other, that the Members of the First Congress did not consider their own legislative chaplaincy to run afoul of the Establishment Clause. It should therefore come as no surprise that the congressional chaplaincy practice continued without interruption after the Bill of Rights became part of the Constitution. on December 15, 1791. That being so, Nebraska's virtually identical practice is equally permissible under the Establishment Clause, which is made applicable to the states by incorporation into the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). 2. In light of the historical evidence of the Framers' intent, it should not be necessary to analyze the Nebraska chaplaincy further under the three-part test announced by this Court in Lemon v. Kurtzman, supra. The Lemon test is merely a device for discerning the proper meaning of the Establishment Clause and for applying its 4 restrictions in a modern-day context. In this case, where the challenged practice is one that was actually engaged in by the Framers themselves, and where the intended meaning and scope of the Establishment Clause in this context is clear, application of the Lemon test would seemsuperfluous. Nevertheless, a review of the Nebraska chaplaincy under that test confirms that the legislative chaplaincy practice is constitutionally sound. The district court found, and the trial record reflects, that the Nebraska chaplain's opening invocation has the "clearly secular purpose" of "bringing the legislators to order by means of a brief, solemn and thoughtful act in a traditional manner" (Pet. App. 13). The trial court also found on the basis of the record that the opening invocation does not have a primary effect of advancing or inhibiting religion (Pet. App. 14-15). Finally, the district court found no evidence to indicate that Nebraska's legislative chaplaincy has resulted in an excessive governmental entanglement with religion (Pet. App. 18). The court of appeals' disagreement with the district court was based solely on its own assumptions, and those assumptions cannot withstand reasoned analysis. The court's main objections to the Nebraska practice "viewed as a whole" (Pet. App. 34) were the chaplain's lengthy tenure, the resulting fact that only one religious denomination has been represented in the chaplaincy for many years, and the fact that the chaplain receives compensation for performing his duties (Pet. App. 36, 38). None of these features distinguishes the Nebraska chaplaincy from the traditional federal practice or, for that matter, from the Massachusetts practice upheld in Colo v. Treasurer & Receiver General, 392 N.E.2d 1195 (1979). In any event, the length of a particular chaplain's service as a legislative officer and the particular religious denomination to which he subscribes is wholly irrelevant to his secular purpose of bringing the legislature to order in a traditional, ceremonial manner that establishes a proper tone of solemnity for the day's proceedings. The |