freedom of choice negates any possibility of an "establishment of religion.” As explained by the Senate Committee on the Judiciary in the 1853 report mentioned above (S. Rep. No. 376, supra, at 2-3; emphasis added):

At every session two chaplains are elected
Now, in this, no religion, no form of faith, no de-
nomination of religious professors, is established, in
preference to any other, or has any peculiar privi-
leges conferred upon it. The range of selection is
absolutely free in each house amongst all existing
professions of religious faith. * The chaplain is
an officer of the house which chooses him, and noth-
ing more. He owes his place not to his belonging to
a particular religious society, or holding a particular
faith, but to the voluntary choice of the members of
the house, and stands, in this respect, upon the same
footing with any other officer so elected.

True, selections, in point of fact, are always made from some one of the denominations into which Christians are distributed; but that is not in consequence of any legal right or privilege, but by the voluntary choice of those who have the power of

appointment. The same is true with respect to the Nebraska Legislature, which appoints the chaplain, along with other legislative officers, in accordance with the vote of its members (Tr. 115-121).13

Thus, the Nebraska chaplaincy does not deviate in any constitutionally significant way from the kind of legislative chaplaincy envisioned and practiced by the Framers themselves. Accordingly, the Nebraska chaplaincy does not constitute a law or practice "respecting an establishment of religion” within the meaning of the Establishment Clause of the First Amendment.

18 "Tr." refers to pages of the transcript of testimony at the trial held in this case on December 1, 1980.


B. Application of the Three-Part Lemon v. Kurtzman

Test Confirms that the Nebraska Chaplaincy Does
Not Offend the Establishment Clause of the First

In Zorach v. Clauson, 343 U.S. 306, 312 (1952), this Court observed that "[t]he First Amendment does not say that in every and all respects there shall be a separation of Church and State." If the rule were otherwise, a number of anomalies would result (id. at 312313; emphasis added):

[T]he state and religion would be aliens to each other --hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamation making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths—these and all other. references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: "God save the United States and this Honorable Court." (14]

14 See also, Abington School District v. Schempp, 374 U.S. 203, 213 (1963) (Court spcaks approvingly of evidence of recognition of God in public life, including the fact that "each House of the Congress provides through its Chaplain an opening prayer"); Engel v. Vitale, 370 U.S. 421, 435 n.21 (1962) (Court speaks approvingly of "patriotic or ceremonial occasions" where "there are many mani. festations in our public life of belief in God").

Individual Justices of this Court have expressed similar views in separate concurring or dissenting opinions. Sec Abington School District v. Schempp, supra, 374 U.S. at 299-300 (footnote omitted) (Brennan, J., concurring) ("The saying of invocational prayers in legislative chambers, state or federal, and the appointment of legislative chaplains, might well represent no involvements

20 It is no wonder that there are numerous recognitions of God in public life, for “this Nation's history has not been one of entirely sanitized separation between Church and State," and "[i]t has never been thought either possible or desirable to enforce a regime of total separation." Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973). Thus "the line of separation, far from being a 'wall,' is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” Lemon v. Kurtzman, supra, 403.U.S. at 614. At most, the "concept of a 'wall' of separation is a useful signpost." Larkin v. Grendel's Den, Inc., No. 81-878 (Dec. 13, 1982), slip op. 7.

of the kind prohibited by the Establishment Clause"); Engel v. Vitale, supra, 370 U.S. at 446-450 (Stewart, J., dissenting). (recounts with approval the many religious traditions remaining in government, including the congressional chaplaincies); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 253-254 (1948) (Reed, J., dissenting) (cites examples of permissible federal involvement with religion, including the daily invocations by the congressional chaplains). But see Engel v. Vitale, supra, 370 U.S. at 437-444 (Douglas, J., concurring) (advocates a rule of virtually absolute and total separation of church and state). Other federal and state courts have also dealt with various public recognitions of God and have found them constitutionally unobjectionable. See, e.g., Bogen v. Doty, 598 F.2d 1110 (8th Cir. 1979) (opening prayer by local clergymen at county board meetings); Aronow v. United States, 432 F.2d 242 (9th Cir. 1970) ("In God We Trust" motto on federal currency); O'Hair y. Cooke, Civil Action No. A-77-CA236 (W.D. Tex, filed Jan. 29, 1980) (opening invocation by local clergyman at city council meetings), aff'd mem., 638 F.2d 1231 (5th Cir.), cert. denied, 454 U.S. 824 (1981) (petition also raised issue of Fifth Circuit court crier's reference to Deity at public court hearing); Grossberg v. Deusebio, 380 F. Supp. 285 (E.D, Va. 1974) (invocation at public high school graduation) ; Marsa V. Wernik, 86 N.J. 232, 430 A.2d 888 (1981) (opening invocation at borough

council meetings); Wiest v. Mt. Lebanon School District, 457 . Pa. 166, 320 A.2d 362 (1974) (same); Lincoin v. Page, 109 N.H. 30, 241 A.2d 799 (1968) (opening invocation by clergyman at town meeting). Of particular relevance to this case is the decision by the Supreme Judicial Court of Massachusetts in Colo v. Treasurer & Receiver General, 392 N.E.2d 1195 (1979), upholding the constitutionality of the legislative chaplaincies of the state Senate and Hausa & Dannonnntatives


Under these circumstances, the Court has understandably found it impossible to provide “ 'bright line' guidance" for readily discerning those situations in which the Establishment Clause has been transgressed by some government involvement with matters of religion. Committee for Public Education & Religious Liberty V. Nyquist, supra, 413 U.S. at 761 n.5. Nevertheless, "there has been general agreement upon the applicable principles and upon the framework of analysis” (ibid.). That general framework has been articulated in the form of a three-pronged test, which requires that a challenged governmental statute or action (1) "must have a secular legislative purpose"; (2) must have a "principal or primary effect * * * that neither advances nor inhibits religion"; and (3) "must not foster 'an excessive government entanglement with religion.'Lemon V. Kurtzman, supra, 403 U.S. at 612-613. The Court has found it "well to emphasize, however that the tests must not be viewed as setting the precise limits to the necessary constitutional inquiry, but serve only as guidelines with which to identify instances in which the objectives of the Establishment Clause have been impaired.” Meek v. Pittenger, 421 U.S. 349, 358359 (1975).

The wisdom of the Court's admonition concerning the limitations of the three-pronged Lemon test is borne out by this case, which seems ill-suited to such an analysis. The test, after all, is merely a device by which the Court seeks to divine the intended meaning and scope of the Establishment Clause. Here, that frequently useful device is simply not needed, because the intended meaning and scope of the Establishment Clause, insofar as the question presented by this case is concerned, emerges quite clearly from the history surrounding its development. This case does not involve the more typical situation in which a modern-day state law must be tested against the evils that the Establishment Clause was designed to eradicate. See, e.g., Lemon v. Kurtzman, supra. Rather, this case involves a unique situation in which the challenged state practice is one that was engaged in by


the Framers themselves before, during and after the fashioning and ratification of the First Amendment.

In these circumstances, analysis of the legislative chaplaincy practice under the Lemon test seems pointless.10 The historical analysis above should alone suffice to demonstrate that the Nebraska chaplaincy does not run afoul of the constitutional command against "an establishment of religion.” Nevertheless, a review of the legislative chaplaincy under the three-part Lemon test confirms that the Nebraska practice challenged in this case is constitutionally permissible.

1. Secular Legislative Purpose. The district court, , based on the testimony and evidence presented at trial, found that the Nebraska chaplain's opening invocation

15 As the court recently stated when applying the four-part test to determine whether an implied cause of action has been created by a particular statute, "there is no need for us to 'trudge through all four of the factors when the dispositive question of legislative intent has been resolved.'" Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, No. 80-203 (May 3, 1982), slip op. 34, citing California v. Sierra Club, 451 U.S. 287, 302 (1981) (Rehnquist, J., concurring in the judgment). Similarly, the Court's decision just last Term in Larson v. Valente, No. 80-1666 (Apr. 21, 1982), indicates that the Lemon test need not be applied in all Establishment Clause contexts. Larson involved a Minnesota statute granting preferential treatment to the well-established churches that receive more than half of their charitable contributions from their members. Other, less entrenched religious organizations were to be subjected to various registration and reporting requirements. In striking down the statute, the Court announced that "application of the Lemon tests is not necessary to disposition of the case before us" (slip op. 23). Although the issue presented by this case, in which legislators merely vote their personal preference for the Office of Chaplain, in no way resembles the statutory classification of different religions challenged in Larson and is therefore not subject to the same kind of Establishment Clause analysis applied by the Court in that case, Larson is at Icast relevant to show that the Court will not slavishly adhere to the three-part test and will apply a different mode of analysis where appropriate. In this case, as indicated above, an historical analysis not only is more appropriate but is also determinative. There is no need here to "trudge through" the three parts of the Lemon testo

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