15 the judgment of the Framers.10 Moreover, as this Court has observed in an Establishment Clause context, using the words of Justice Holmes: "If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it.'" Walz v. Tax Commission, supra, 397 U.S. at 678, quoting Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922). Although it is the Nebraska Legislature's chaplaincyand not those of the United States Congress-that is challenged in this case, the foregoing principles are equally controlling. The Establishment Clause applies with full force to the several states by incorporation into the Due. Process Clause of the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). It is hardly plausible that the Establishment Clause could be construed to permit the federal congressional chaplaincies but, at the same time, impose a more stringent standard on the state legislatures-like Nebraska-that have similar chaplaincy practices. Any such construction would be ironic, indeed, because the First Amendment itself is directed solely to the Congress and was not intended to interfere with the various established state religions existing at the time of ratification. See McGowan v. Maryland, 366 U.S. 420, 440-441 (1961). If, as demonstrated above, the Framers did not intend the Establishment Clause to proscribe the congressional chaplaincies, then the Clause a fortiori does not proscribe similar chaplaincies in the state legislatures. 6. The court of appeals found the Nebraska chaplaincy to be constitutionally objectionable because "[f] or sixteen years, the Nebraska legislature has selected and paid one minister, representing one denomination, to open each 10 See Rostker v. Goldberg, 453 U.S. 57, 64 (1981) ("The customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Act's constitutionality."). 16 legislative session with prayer" (Pet. App. 36).11 These features singled out by the Eighth Circuit for special opprobium-lengthy tenure, compensation, and single denomination 12-do not meaningfully distinguish the Nebraska practice from the kind of legislative chaplaincy approved by the Framers and early Congresses. As indicated above (see pages 11-12, supra), the congressional chaplains have been paid as officers of the House and Senate since the very first congressional compensation act in 1789. Moreover, the length of service of the congressional chaplains has never been a matter of particular concern. One chaplain of the House, for example, served for 26 years, from 1895 to 1921; and he was succeeded by another chaplain who held that office for 29 years, until 1950. See History of the United States House of Representatives, H.R. Doc. No. 250, 89th Cong., 1st Sess. 212 (1965). As for denominational variety, it is true that, during the first half-century of the congressional chaplaincy practice, Congress explicitly provided that each House would appoint a chaplain of a different denomination. But the denominations have all been Protestant, with the sole exception of the Catholic Reverend Pise, who served the Senate for a single year in 1832. See A. Stokes & L. 11 The court of appeals also objected to the state legislature's publication of prayer books (Pct. App. 36, 38), which occurred only in the years 1975, 1978 and 1979 (Pct. App. 8). As pointed out by petitioners, however, the district court's injunction against the prayer book practice was not appealed and was therefore not before the court of appeals (Pet. 22-23). See note 22, infra. In any event, we note that Congress has also occasionally ordered the publication of its chaplains' prayers. See A. Stokes & L. Pfeffer, supra, at 478, : 12 We note that the court of appeals' statement that the Nebraska chaplain has been the "exclusive source" (Pet. App. 38) of the opening prayers is factually incorrect. The Nebraska Legislature, like the United States Congress, has on occasion invited other ministers of different denominations and faiths to officiate at the opening prayer (see Pet. App. 20)..: 17 Pfeffer, supra, at 478-479. It appears that no particular attention has been paid to this matter within each House. Thus, for example, the first eight chaplains appointed by the Senate-serving over a period of 18 years, from 1789 to 1807-were all Episcopalians (Chaplains of the United States Senate, April 25, 1789 to Date (December 8, 1982), on file in the Office of the United States Senate Historian). Similarly, the first three chaplains appointed by the House of Represenatives-serving over a period of 11 years, from 1789 to 1800-were all Presbyterians (History of the United States House of Representatives, H.R. Doc. No. 250, 89th Cong., 1st Sess. 212 (1965)). The Eighth Circuit's real objection in this case was not to the fact that only one person has served as chaplain in Nebraska for some 16 years, but that only one denomination has been represented during that time. Presumably, it would have made no difference to the court of appeals if Nebraska had appointed eight different chaplains of a single denomination over this same 16-year period. Yet, that is precisely what the United States Senate in the first and succeeding Congresses did in the first 18 years of federal government under the Constitution. Moreover, as recognized by the Supreme Judicial Court of Massachusetts in a case nearly identical to the present case, the question of denominational tenure is more properly viewed as an equal protection challenge then a First Amendment issue. The Massachusetts court rejected such a challenge, explaining that "[t]he mere fact that two persons of a particular faith have been appointed to these positions [legislative chaplains] over the past twenty years does not demonstrate that any other person has ever been denied appointment (a necessary element of any equal protection claim), or that such decisions were based on religious discrimination." Colo v. Treasurer & Receiver General, 392 N.E.2d 1195, 1199 (1979). Congress itself has placed great emphasis on the fact that Members are free to select chaplains from any denomination whatsoever, and has concluded that this 18 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 denomination of religious professors, is established, in preference to any other, or has any peculiar privileges 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 nothing 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. 19 B. Application of the Three-Part Lemon v. Kurtzman * * 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 speaks 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 manifestations 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 |