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of his secular purpose in bringing the session to order and establishing the proper tone and atmosphere for the day's proceedings. Indeed, the legislature's apparent lack of concern over the particular denomination of its chaplain actually serves to reinforce-not to detract fromthe chaplain's secular legislative purpose.17

2. Principal or Primary Effect. The district court also found "as a matter of fact" that "[t]he primary effect of the prayers *** is neither to advance nor to inhibit religion. *The having of prayers in the legislature of Nebraska does not have a direct and immediate effect of advancing or inhibiting religion" (Pet. App. 14). Rather, "the effect of the practice of an invocation * * * is in fact primarily secular" (ibid.). Whether relying "upon the opinions of the witnesses in this case as to

17 We note that the Massachusetts chaplaincy practice upheld in Colo v. Treasurer & Receiver General, supra, involved two Roman Catholic chaplains who had served in the state House and Senate for 24 years and 20 years, respectively. See 392 N.E.2d at 1196. It will also be recalled, as mentioned earlier, that the first eight chaplains of the United States Senate-serving over a period of 18 years were all Episcopalians, and that several individual congressional chaplains have served quite lengthy terms-one as long as 29 years. See page 16, supra. The fact that the early practice of the United States Congress was to appoint a chaplain of a different denomination in each House and interchange them weekly does not undercut our analysis here. It may well be that the Founding Fathers, only recently out from under the established Church of England, desired to avoid the appearance of establishing a single denomination in the Houses of Congress. But any such concern that might have existed at that time rapidly dissipated over the years as the secular, nondenominational purpose of the opening prayer in Congress became the predominant feature. There was no longer any reason to dwell on the particular denomination of the chaplain, and the practice of interchanging chaplains of different denominations was understandably abandoned. In any event, as this Court made clear in McGowan v. Maryland, 366 U.S. 420, 431-449 (1961), an original religious purpose docs not invalidate governmental action if the modern purpose has become predominantly secular. See also, Walz v. Tax Commission, supra, 397 U.S. at 687 n.8 (Brennan J., concurring).

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the actual effect, or, on the other hand, upon evidence of the nature of the practice and my view of the probable consequences rationally to flow from that nature," the trial court's finding remains the same-the Nebraska chaplain's opening invocation does not have the primary effect of advancing or inhibiting religion (Pet. App. 15). The district court found this case readily distinguishable from the "school prayer" cases, which involved impressionable young students whose attendance at public school was compulsory (Pet. App. 16-17). See Abington School District v. Schempp, supra; Engel v. Vitale, supra. As explained in Colo v. Treasurer & Receiver General, supra, 392 N.E.2d at 1200:

By contrast, mature legislators may reasonably be assumed to have fully formed their own religious beliefs or nonbeliefs. The provision of a ceremonial moment of meditation at the opening of the legislative session is unlikely to advance religious belief either among the legislators or their constituency, even if it does give recognition to the traditional place that prayer has occupied in such a ritual for two centuries.

The observation of Justice Brennan in his concurring opinion in Abington (374 U.S. at 299-300) is also instructive in this regard: "Legislators, federal and state, are mature adults who may presumably absent themselves from such public and ceremonial exercises without incurring any penalty, direct or indirect." On the facts of this case, the trial court found that respondent Chambers "has had only minor inconvenience in absenting himself and has suffered no significant obloquý as a result of his nonattendance" (Pet. App. 17).18

18 Respondent Chambers' testimony at trial discloses that he routinely leaves the legislative chamber without incident prior to the chaplain's invocation (Tr. 4, 11, 32). It is worth noting, for purposes of comparison, that it is established precedent in the United States House of Representatives that the chaplain's opening prayer, although a part of the House proceedings, is not a matter of business requiring the presence of a quorum, and at

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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.

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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.

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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