The Eighth Circuit, in Bogen v. Doty, supra, 598 F.2d at 1114, held that the primary effect of the opening prayer at the county board meeting was merely "the accomplishment of the board's purpose of establishing order and a solemn tone for the meeting." The court of appeals then stated the proposition more broadly, as a general rule: "we suggest that establishing solemnity is the primary effect of all invocations at gatherings of persons with differing views on religion" (ibid.). In this case, however, the appellate court abandoned that general rule, ignored the factual findings of the trial court, and concluded without any factual support that the Nebraska chaplaincy practice has a primary effect of advancing religion and giving "preference to one religious view" (Pet. App. 36-37).

Our analysis of the court of appeals' error regarding the secular legislative purpose of the opening prayer is equally applicable here with regard to the primary effect of that prayer. Again, the court's unsupported assumption cannot survive logical scrutiny.

As discussed above, the opening prayers are strictly nondenominational (Dep. 5, 7, 17-18, 35); they typically last only one or two minutes and do not teach "religious dogma" (Tr. 11, 102, 123). The chaplain does not appear as a representative of any particular church (Tr. 83), and he does not instill his own "particular religious convictions into the minds of the Senators" (Dep. 14). Moreover, the chaplain's compensation is paid directly to him. and not to any church (Dep. 4; Tr. 82), and he uses it as he would any other money that he might receive (Tr.

tendance "is not compulsory." 60 Cong. Rec. 2592 (1921). See 6 C. Cannon, Precedents of the House of Representatives $663 (1936). The 1853 Senate Report previously discussed made the same point (S. Rep. No. 376, supra, at 2):

There is no compulsion exercised or attempted, upon any member or officer of either house, to attend their prayers or religious solemnities. No member gains any advantage over another by attending, or incurs any penalty or loses any advantage by declining to attend.


82). No legislator has ever even joined the chaplain's church as a result of his morning invocations (Dep. 49).

In sum, the opening prayers may well acknowledge religion, but they do not advance religion (Tr. 105-106). Rather, their primary effect is simply to accomplish the secular purpose of bringing the legislature to order in a ceremonial and traditional manner that fosters a suitably solemn atmosphere for the conduct of important legislative business (Tr. 96, 111-113, 121-123). It is of no constitutional consequence that the opening prayers might be perceived by some observers to aid religion in a general way (see Tr. 20, 107), for "an indirect and incidental effect beneficial to religious institutions has never been thought a sufficient defect to warrant the invalidation of a state law." Committee for Public Education & Religious Liberty v. Nyquist, supra, 413 U.S. at 775. See also, e.g., McGowan v. Maryland, supra (Sunday Closing Laws sustained even though they foster respect for religious observances and facilitate attendance at church); Walz v. Tax Commissioner, supra (church property tax exemptions sustained notwithstanding obvious financial benefit to religious organizations); Everson v. Board of Education, supra (reimbursement for children's bus fares sustained despite indirect aid to church schools).10

3. Excessive Entanglement. With respect to the third prong of the Lemon test, the district court held that "the saying of the prayers alone entangles the state in religious affairs only nominally. The entanglement is not excessive" (Pet. App. 18). The trial record reflects that the chaplain's invocations are brief (Tr. 11, 102) and that the Legislature exercises no control or influence whatsoever over their content (Tr. 65-69; Dep. 4). Further

10 The irrelevance of the fact that a single denomination has been represented in the chaplaincy over a long period of time has already been discussed and need not be repeated. See pages 16-18, 24-25, supra. The main point is that the invocations are nondenominational; there is thus no reason for the Nebraska Legislature to show concern for denominational variety in selecting its chaplain.


more, the process for appointing a chaplain is the same. as for other legislative officers and is usually a matter of no particular concern (Tr. 115-117, 120-121). Only once, so far as the record reflects, was there any dispute or debate over the selection of a chaplain, and some of that debate was generated by the objections of respondent Chambers himself (Tr. 29-30, 83-85, 117-120). In any event, the matter was quickly resolved by vote on the Senate floor; Senator Chambers' objections were rejected and Chaplain Palmer was retained (Tr. 120).

Thus, the observations of the Supreme Judicial Court of Massachusetts in Colo are equally applicable here (392 N.E.2d at 1200-1201, quoting Lemon v. Kurtzman, supra, 403 U.S. at 622):

There is no evidence that a great degree of government entanglement with religion is occasioned by the employment of legislative chaplains. The prayers offered are brief, the content unsupervised by the State, and attendance completely voluntary. There is no evidence that the State has become embroiled in any difficult decisions about which religions are to be represented or what sorts of invocations are to be offered. [21] As far as the record reveals, there is

20 The only "divisiveness" over the chaplaincy suggested by the record is that respondent Chambers is opposed to that legislative office and has raised his objections through general public announcement (Tr. 6-7, 77), through parliamentary maneuvers (Tr. 7, 119120), and through this lawsuit (Tr. 4-36). Apart from Senator Chambers' objections, the record reflects only that the chaplain indirectly heard that one senator objected to the explicit Christian tone of a prayer offered by a guest chaplain (Tr. 77).

21 As we have demonstrated, the chaplain's formal religious affiliation is irrelevant to fulfillment of his secular duties. Under these circumstances, the sort of excessive concern for denominational variety displayed by the court of appeals is, we suggest, far more likely to lead to impermissible governmental entanglement with religion than the current practice of retaining one chaplain, of whatever denomination, for as long as he properly performs his duties (see page 24, supra). Any requirement for periodic de

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not the slightest hint that the practice of employing legislative chaplains has ever created any of the political divisiveness which "was one of the principal evils against which the First Amendment was intended to protect."

Nevertheless, the Eighth Circuit again summarily rejected the district court's conclusion and announced that the Nebraska chaplaincy practice "engenders serious political division along religious lines. The result is the type of excessive entanglement which must be avoided under the First Amendment" (Pet. App. 37). The main reason for the court of appeals' conclusion on excessive entanglement appears to be the use of "state monies to compensate the same minister for sixteen years" (ibid.). We have already answered the appellate court's mistaken views on lengthy tenure and denominational variety (see pages 16-18, 24-25, supra), and we will now address the question of compensation.22

nominational changes, for example, would likely involve the legislature in such matters as interviewing various candidates about their religious beliefs or examining the content of their prayers. No such difficulties are engendered by the current practice.

22 Although the district court, unlike the court of appeals, treated the salary question as an entirely separate matter, its opinion reflects agreement with the Eighth Circuit's view that payment of compensation to the chaplain is impermissible under the circumstances of this case (Pet. App. 18-21). The district court, however, held that the other elements of the Nebraska chaplaincy practice are constitutionally permissible under the three-part test, whereas the Eighth Circuit heid that all elements of the practice, "taken as a whole," are unconstitutional (Pct. App. 37). We note our disagreement with the court of appeals' indivisible approach to the issues presented. Although the various elements of the chaplaincy practice are obviously related, it makes no sense to hold that the entire practice must fail if, for example, the printing of prayer books is thought to be constitutionally infirm. In any event, as previously noted (see note 11, supra), Nebraska did not appeal the district court's injunction against the printing of prayer books. Thus, the court of appeals surely erred when it included as part of the practice "taken as a whole" a feature no longer in issue.

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There is no inherent constitutional prohibition against government payments to religious figures or institutions. As explained by Justice Blackmun in his plurality opinion announcing the judgment of the Court in Roemer v. Board of Public Works, 426 U.S 736, 746 (1976):

It long has been established, for example, that the State may send a cleric, indeed even a clerical order, to perform a wholly secular task. In Bradfield v. Roberts, 175 U.S. 291 (1899), the Court upheld the extension of public aid to a corporation which, although composed entirely of members of a Roman Catholic sisterhood acting "under the auspices of said church," id., at 297, was limited by its corporate charter to the secular purpose of operating a charitable hospital.

Thus, in Justice Blackmun's words, "Bradfield dispels any notion that a religious person can never be in the State's pay for a secular purpose" (426 U.S. at 746; footnote omitted) (plurality opinion). Here, the State of Nebraska is merely paying a salary to one of its public officers-the Chaplain of the Nebraska Legislature. Once it is determined-as the district court found and as we have shown that the chaplain's pay is for the performance of a predominantly secular function, there can be no constitutional objection to that payment any more than one could object to similar payments to the legislature's clerk or sergeant-at-arms.

Morever, even if a reasonable objection could be raised to a paid legislative chaplaincy if it were a novel concept, the fact is that paid chaplaincies have been in the legislatures of this country from the very beginningand in the Nebraska Legislature since statehood was achieved in 1867 (Pet. App. 11). It is certainly true, as this Court stated in Walz v. Tax Commission, supra, 397 U.S. at 678, that "no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it." But, by the same

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