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.



The judgment of the court of appeals should be re


[blocks in formation]



WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.


SECTION. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

SECTION. 2.1 The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

2 No person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

3 [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.]* The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

NOTE.-This text of the Constitution follows the engrossed copy signed by Gen. Washington and the deputies from 12 States. The superior number preceding the paragraphs designates the number of the clause; it was not in the original.

*The part included in heavy brackets was changed by section 2 of the fourteenth amendment.

« ForrigeFortsett »