5 record in this case establishes that the Nebraska chaplain's prayers are nondenominational and that he advocates no particular religious dogma. Accordingly, his formal religious affiliation is of no particular concern. Furthermore, once it is shown that the chaplain performs a predominantly secular function, there can be no legitimate constitutional objection to paying for his services any more than one could object to paying any of Nebraska's other legislative officers. See, e.g., Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 746 & n.13 (1976) (plurality opinion). Finally, this Court has observed in a similar Establishment Clause setting that "an unbroken practice is not something to be lightly cast aside." Walz v. Tax Commission, 397 U.S. 664, 678 (1970). This Nation has employed legislative chaplains for over 200 years without posing any threat to religious liberty. In light of this history, it cannot be plausibly suggested that the legislative chaplaincy is "but the 'foot in the door' or the 'nose of the camel in the tent' leading to an established church" (ibid.). ARGUMENT THE NEBRASKA LEGISLATURE'S APPOINTMENT MENT Beginning in 1855, even before attaining statehood, Nebraska opened the daily sessions of its Legislature with a prayer by the chaplain (Pet. App. 11, 22 n.5). In 1867, the year Nebraska became a state, the Legislature provided that the chaplain would be a compensated officer with the duty of opening each legislative session with a prayer (id. at 11, 23 n.6). This practice has remained unchanged to the present day; the Rules of the Nebraska Unicameral Legislature provide that "Prayer by the 6 Chaplain" shall be the first item on the agenda, to precede even the taking of the "Roll call" (Rule 7A, Section 1(b)) (Pet. 5). The Nebraska Legislature is not alone in establishing this kind of chaplaincy practice. Every state of the Union opens its legislative sessions with a prayer and, like Nebraska, 17 other states utilize a salaried chaplain for this purpose. See Colo v. Treasurer & Receiver General, supra, 392 N.E.2d at 1197. In addition, as previously mentioned, each House of the United States Congress appoints and compensates a chaplain whose duty it is to open each day's session with a prayer. See United States Senate Rule IV; United States House of Representatives Rule VII. It is apparent that the Nebraska chaplaincy practice instituted in 1855 grew out of the traditional legislative ceremonial practice already long-established in the existing states as well as in the federal Congress. An examination of the history of legislative chaplaincies in the United States and the experience of the Congress before, during and after ratification of the First Amendment reveals that the Framers did not intend to invalidate under the Establishment Clause the kind of legislative chaplaincy that now exists in Nebraska. The historical evidence of the Framers' intent is so conclusive that no further inquiry should be necessary in order to determine that the Nebraska chaplaincy is constitutionally permissible. Nevertheless, as we show in Part B of this brief, the Nebraska chaplaincy also passes constitutional muster under the now familiar three-part test articulated by this Court in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). 2 The First Amendment provides in pertinent part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ***" Those provisions have been made applicable to the states by incorporation into the Duc. Process Clause of the Fourteenth Amendment. Sec, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). 21-618 0-83--52 7 A. The Historical Evidence Conclusively Shows That the Establishment Clause of the First Amendment Does Not Proscribe the Practice of Opening a Legislature's Day with Prayer by a Compensated Chaplain This Court's "Establishment Clause precedents have recognized the special relevance in this area of Justice Holmes' comment that 'a page of history is worth a volume of logic.'" Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 777 n.33 (1973), quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). See also Walz v. Tax Commission, 397 U.S. 664, 675-676 (1970). The Court has often undertaken a thorough historical examination in order to shed light on the meaning and proper application of the Establishment and Free Exercise Clauses to particular circumstances, and it has steadfastly "declined to construe the Religion. Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history" (id. at 671; emphasis added). See, e.g., McGowan v. Maryland, 366 U.S. 420, 431 (1961) (history of Sunday Closing Laws relevant to Establishment Clause inquiry); Everson v. Board of Education, 330 U.S. 1, 8-16 (1947) (history of period when Establishment Clause was fashioned and adopted is relevant to determination of validity of modern state law authorizing reimbursement for student transportation to private schools). In the instant case, the appropriateness of historical review is more compelling, and the results are more instructive and conclusive, than in any Establishment Clause case previously considered by this Court. The very governmental practice challenged here-the utilization of a salaried chaplain to open daily legislative sessions with a prayer is one that predated the Constitution, was adopted by the Founding Fathers from the outset of the First Congress convened under the Constitution, was continued by the Framers of the First Amendment while the Establishment Clause itself was being fashioned and rati 8 fied by the states, and has continued substantially unchanged to the present day.3 1. The origins of the congressional chaplaincies can bet traced to the American colonies. See, e.g., Journal of the House of Burgesses of Virginia 34, 36 (Nov. 20 & 21, 1712); Votes and Proceedings of the Lower House of Assembly of the Province of Maryland 4 (Dec. 12, 1754). In Virginia, for example, the first item of business at the Virginia Colony Convention of Delegates was a resolution. "[t]hat the Reverend Thomas Price be appointed chaplain to this Convention, and that he be desired to read prayers every morning at 10 o'clock." Proceedings of the Virginia Convention of Delegates, 1775-1776, at 59 (Dec. 5, 1775). At the conclusion of the session, the Convention provided for allowances "to the several officers of this Convention," including the chaplain (id. at 102 (Jan. 20, 1776)). Virginia continued this chaplaincy practice when its legislature convened for the first time under the state constitution on October 7, 1776. The House of Delegates ordered that "the several officers of the late Convention be continued officers of this House" and further prescribed that "the Chaplain attend to read prayers every morning at seven o'clock ***." Journal of the House of Delegates 3 Thus, the lesson of history in this case is even clearer than in Walz, where the Court carefully considered and placed substantial emphasis on the lengthy history of tax exemptions for places of worship. See 397 U.S. at 676-680. The earliest federal taxing statute cited in Walz that could be regarded as incorporating a tax exemption for church property was enacted by Congress in 1798-seven years after the ratification of the First Amendment. See 397 U.S. at 677 n.5. In contrast, the United States Congress' 'practice of appointing and compensating its legislative chaplains for the purpose of delivering opening prayers began in the First Congress, continued during the framing of the First Amendment, and remained intact after the First Amendment's adoption in 1791. See A. Stokes & L. Ffeffer, Church and State in the United States 83-84, 478-482 (Harper & Rowe rev. 1st ed. 1964). 9 of Virginia 1 (Oct. 7, 1776). Other state legislatures adopted similar chaplaincy practices.* 2. At the national level, the designation of legislative chaplains can be traced to the first session of the Continental Congress in September 1774, where the delegates resolved on the second day of proceedings to open the next day's meeting with a prayer by an invited Episcopalian clergyman-the Reverend Jacob Duché. 1 Journals of the Continental Congress 26 (1774) (hereinafter cited as "Journals"). Accordingly, the first opening prayer was recited on September 7, 1774 (id. at 27). Reverend Duché was subsequently invited back to deliver an opening prayer on May 11, 1775, the second day of the second session of the Continental Congress. 2 Journals 12, 13 (1775). In July 1776, Reverend Duché was "appointed chaplain to Congress" and charged with opening each day's proceedings on a regular basis. 5 Journals 530 (1776). Upon his resignation on October 17, 1776, the Continental Congress voted a $150 stipend for his services. 6 Journals 886-887 (1776). 4 See Journal of the Proceedings of the General Assembly of the State of Vermont 7, 63 (Feb. 23 & Mar. 9, 1784); Journal of the House of Representatives of the Commonwealth of Massachusetts 350 (Mar. 14, 1785); Journals of the Proceedings of the Senate and House of Representatives of the State of New Hampshire 66, 100 (Feb. 19 & 23, 1785). By letter of September 16, 1774, John Adams described this event to Abigail Adams in the following manner: When the Congress first met, Mr. Cushing made a Motion, that it should be opened with Prayer. It was opposed by Mr. Jay of N. York and Mr. Rutledge of South Carolina, because we were so divided in religious Sentiments, some Episcopalians, some Quakers, some anabaptists, some Presbyterians, and some Congregationalists, so that We could not join in the same Act of Worship. Mr. S. Adams arose and said he was no Bigot, and could hear a Prayer from a Gentleman of Piety and Virtue, who was at the same Time a Friend to his Country. Letter from John Adams to Abigail Adams (Sept. 16, 1774) rcprinted in P. Smith, 1 Letters of Delegates to Congress, 1774-1789, at 74 (1976). See also H.R. Rep. No. 124, 33d Cong., 1st Sess. 2 (1854) (Mr. Webster's account). |