30 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. 21-618 0-83-54 31 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 32 token, "an unbroken practice" of paid legislative chaplaincies "is not something to be lightly cast aside" (ibid.). In Walz, the Court found that the 200-year history of church property tax exemptions showed that such exemptions were not regarded as violative of the Constitution and that no threat to religious liberty had been posed. The Court's observations in Walz are equally applicable here. The two-century history of paid legislative chaplaincies in this country has not "given the remotest sign of leading to an established church or religion" (397 U.S. at 678). Nor is it plausible to suggest that paid legislative chaplaincies are "but the foot in the door' or the 'nose of the camel in the tent' leading to an established church" (ibid.). If paid legislative chaplaincies "can be seen as this first step toward 'establishment' of religion, the second step has been long in coming. Any move that realistically 'establishes' a church or tends to do so can be dealt with 'while this Court sits'" (ibid.). * Thus, the Nebraska Legislature's chaplaincy practice does not involve any excessive government entanglement with religion. The Establishment Clause simply does not require "complete obliteration of all vestiges of religious tradition from our public life." Colo v. Treasurer & Receiver General, supra, 392 N.E.2d at 1201. Rather, the courts, in grappling with the difficult and sensitive. constitutional questions in this area, must demonstrate "the ability and willingness to distinguish between real threat and mere shadow." Abington School District v. Schempp, supra, 374 U.S. at 308 (Goldberg, J., concurring). This Nation's experience with paid legislative chaplaincies over the past 200 years confirms that the practice certainly poses no "real threat" to religious liberty and is, at most, a "mere shadow" of a threat in the eyes of few beholders-a shadow that entirely fades away in the light of history, 33 CONCLUSION The judgment of the court of appeals should be re versed. Respectfully submitted. DECEMBER 1982 REX E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General KATHRYN A. OBERLY Assistant to the Solicitor General LEONARD SCHAITMAN MICHAEL JAY SINGER Attorneys |