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Constitution, statutes and rules-Continued
Act of Sept. 22, 1789, ch. XVII, 1 Stat. 70
Section 4, 1 Stat. 71
6 6 6
6 C. Cannon, Precedents of the House of Repre-
27 Cong. Globe, 34th Cong., 1st Sess. 486 (1856)
13 Cong. Globe, 35th Cong., 1st Sess. 14 (1857)...... 12 Cong. Globe, 36th Cong., 1st Sess. 97 (1859)...
13 60 Cong. Rec. 2592 (1921)
27 Debates and Other Proceedings of the Convention of Virginia (June 2, 1788)
10 Debates, Resolutions and Other Proceedings of the
Convention of the Commonwealth of Massachu-
10 Vol. 3
10 Vol. 5 ...
10 E. Fleet, Madison's "Detached Memoranda," III William and Mary Quarterly (1946)
12 History of the United States House of Representa
tives, H.R. Doc. No. 250, 89th Cong., 1st Sess.
.........13, 16, 17 H.R. Rep. No. 124, 33d Cong., 1st Sess. (1854)......
9, 13 H.R. Rep. No. 171, 31st Cong., 1st Sess. (1850)...... 13 Journal of the Convention of New York (June 17, 1788)
10 Journal of the House of Burgesses of Virginia (Nov, 20 & 21, 1712)
8 Journal of the House of Delegates of Virginia (Oct. 7, 1776)
8-9 1 Journal of the House of Representatives, 1st Cong., 1st Sess. (1789)
3, 10, 11, 12, 13
1 Journal of the House of Representatives, 2d
Cong., 2d Sess. (1792)
Commonwealth of Massachusetts (Mar. 14,
9 Journal of the Proceedings of the General Assem
bly of the State of Vermont (Feb. 23 & Mar. 9,
9 Journal of the Proceedings of the House of Repre
sentatives of the State of New Hampshire (Feb.
9 1 Journal of the Senate, 1st Cong., 1st Sess. (1789)
.3, 10, 11, 13 1 Journal of the Senate, 2d Cong., 2d Sess. (1792).. 12 1 Journals of the Continental Congress 26 (1774).. 9 2 Journals of the Continental Congress 12 (1775).. 9 5 Journals of the Continental Congress 530 (1776)
9 6 Journals of the Continental Congress 886 (1776)
9, 10 27 Journals of the Continental Congress 683 (1784)
10 Letter from John Adams to Abigail Adams (Sept.
16, 1774) reprinted in P. Smith, 1 Letters of
9 Litchfield Monitor (Conn.) (Jan. 14, 1788)
10 New Jersey Minutes of the Convention (Dec. 18, 1787)
10 Pennsylvania Packet (Dec. 15, 1787)
10 L. Pfeffer, Church State and Freedom (Beacon Press rev, ed. 1967)
12 Proceedings of the Virginia Convention of Delegates, 1775-1776 (Dec. 5, 1775)
8 II B. Schwartz, The Bill of Rights: A Documentary History (1971)
....... 11, 12 S. Rep. No. 376, 32d Cong., 2d Sess. (1853)........13, 18, 27 W. Staples, Rhods island in the Continental Congress, 1765-1790 (1971)
A. Stokes & L. Pfeffer, Church and State in the
United States (Harper & Rowe rev. 1st ed.
..........8, 10, 13, 16-17 Votes and Proceedings of the Lower House of As
sembly of the Province of Maryland (Dec. 12,
8 9 Wrtings of James Madison (G. Hunt ed. 1910).. 12
Ju the Supreme Court of the United States Suprente
OCTOBER TERM, 1982
FRANK MARSH, STATE TREASURER, ET AL., PETITIONERS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE
INTEREST OF THE UNITED STATES This case concerns the constitutionality of the Nebraska Unicameral Legislature's chaplaincy practice under the Establishment Clause of the First Amendment. The United States has a substantial interest in this matter because the United States Congress has, since the first session of the Continental Congress in 1774, appointed chaplains to open each legislative day with an invocation. Over a half-century ago, a challenge to the constitutionality of the federal chaplaincy practice was dismissed for lack of standing. Elliott v. White, 23 F.2d 997 (D.C. Cir. 1928). A similar challenge is now pending before the United States Court of Appeals for the District of Columbia Circuit for determination by the court en banc of whether the suit must be dismissed on standing or political question grounds. Murray v. Buchanan,
No. 81-1301 (Mar. 9, 1982), vacated and scheduled for rehearing en banc by orders of May 25 and July 16, 1982.
Although the constitutionality of the chaplaincy practice of the Senate and House of Representatives may not be justiciable, that issue has not been finally resolved by this Court. But see Abington School District V. Schempp, 374 U.S. 203, 300 (1963) (Brennan, J., concurring). Accordingly, the United States retains a keen interest in the Court's ruling in this case because the Nebraska Legislature's chaplaincy bears many basic similarities to the congressional chaplaincies. Moreover, the Nebraska practice is clearly patterned after the longstanding practice of Congress and the other states; thus, the Court's consideration of Nebraska's practice would be enhanced by a complete exposition of the federal experience.
SUMMARY OF ARGUMENT The Establishment Clause of the First Amendment is not violated by the Nebraska Legislature's appointment and compensation of a chaplain to open each day's legislative session with a prayer. The constitutionality of paid legislative chaplaincies is conclusively demonstrated by the fact that the Members of the First Congress appointed and compensated chaplains to open their daily sessions at the same time that they drafted the First Amendment; historical analysis thus shows that the Framers did not intend to invalidate their own chaplaincy, nor those of the states. But, even if more need be shown, the constitutional propriety of the Nebraska chaplaincy is confirmed by application of the now traditional three-part Estab
1 With regard to the question of standing to challenge a legislative chaplaincy, we note that the courts below hold that respondent Chambers had standing to challenge the Nebraska practice not merely as a state taxpayer but as a member of the State Legislature who personally confronts the morning invocation on a daily basis (Pet. App. 22 n.3, 23-24 n.14, 28-29). This circumstance distinguishes the standing issue in this case, which petitioners do not press in this Court, from the federal taxpayer standing issue involved in Murray v, Buchancı, supra.