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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 v. 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); Lincoln 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

House of Dannorantativas.

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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

22

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.15 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 least 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 test.

21-618 0-83-53

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does indeed serve a secular legislative purpose: "bringing the legislators to order by means of a brief, solemn and thoughtful act in a traditional manner" (Pet. App. 13). See Tr. 96, 111-113, 121-123. While acknowledging that the chaplain's opening prayers may well have "a religious purpose for the chaplain and those who choose to listen for spiritual reasons," the trial court emphasized that "[t]he prayers also have a secular purpose, and it is genuine enough and strong enough to meet the constitutional measurement" (Pet. App. 14).

A similar view of opening prayers at legislative sessions was endorsed by the Supreme Judicial Court of Massachusetts in Colo v. Treasurer & Receiver General, supra. The court analyzed the Massachusetts legislature's chaplaincy practice under the three-pronged Lemon test and held with respect to the first prong now under discussion that "[t]he secular purposes of opening invocations are the maintenance of long tradition and the continuation of a ritual which prompts legislators to reflect on the gravity and solemnity of their responsibilities and of the acts they are about to perform" (392 N.E.2d at 1200).

The Eighth Circuit, too, expressed a similar sentiment with regard to the invocation at county board meetings challenged in Bogen v. Doty, 598 F.2d 1110 (1979). There, the court of appeals acknowledged the "clearly secular purpose" of "establishing a solemn atmosphere and serious tone for the board meetings" (id. at 1113). The court further observed that "[t]here is certainly nothing sinister in that purpose," and it could not "say that a prayer will not advance that goal" (id. at 11131114).

In this case, however, the Eighth Circuit rejected the legitimacy of such a secular legislative purpose, concluding that the purpose of the Nebraska practice "must be to advance and give preference to one religious view over others" (Pet. App. 36). The court offered nothing but conjecture to justify its conclusion, asserting that "[t]here is little other reason for singling out one minister of

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one denomination for such an extended period of time *" (ibid.). It is clear, however, that the court of appeals' unsupported assumption cannot withstand reasoned analysis.

The retention of a single minister for a long period of time has no bearing on the legitimacy of the secular legislative purpose of opening each legislative session with a prayer. As explained in the testimony of State Senator Frank Lewis, Chairman of the Executive Board of the Legislative Council of the Nebraska Unicameral (Tr. 123; emphasis added):

Dr. Palmer [the Chaplain] has had the job. He's done it in a very satisfactory way. Dr. Palmer is a personal friend, I think, of most of us. I certainly include him as one of my personal friends. You know, I don't see the necessity for changing. And particularly the necessity would only come if anybody thought that there was an attempt to inject some kind of a religious dogma into that area, which I have not seen.

The key point, as recognized by Senator Lewis and by the district court, is that the chaplain's secular function in opening the day's proceedings with an invocation has nothing to do with any particular "religious dogma." The chaplain does not appear as the representative of any particular church (Tr. 83). The chaplain has testified that he "never, never should, never would, never will, never have infused [his] particular religious convictions into the minds of the Senators" (Dep. 14).18 His prayers are strictly nondenominational in character and content (Dep. 5, 7, 17-18, 35).

Thus, the fact that a single minister of a single denomination has served as the legislature's chaplain for , many years is simply not relevant to the performance

16 "Dep." refers to pages of the deposition testimony of the Reverend Robert E. Palmer, Chaplain of the Nebraska Unicameral, taken on May 27, 1980, and admitted into evidence at trial as Exhibit No. 5 (Tr. 1).