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


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 seem: superfluous. 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 Ne-: braska'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 sclemnity for the day's proceedings. The


record in this case establishes that the Nebraska chaplain's prayers are nondenominational and that he adva cates 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.).



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


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 y. Kurtzman, 403 U.S. 602, 612-613 (1971).

· % 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


A. The Historical Evidence Conclusively Shows That the

Establishment Clause of the First Amendment Docs
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

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