The practice of using a chaplain to offer a prayer at the beginning of each legislative session dates back to the first session of the first congress. Since then, state legislatures, the U. S. Congress, and the U. S. Supreme Court have opened sessions with prayers. Some have questioned, however, whether this tradition represents an unlawful entanglement of church and state, violating the Establishment Clause of the Constitution.
The Supreme Court addressed the constitutionality of legislative chaplains in 1983 with Marsh v. Chambers, 463 U.S. 783 (1983). Ernest Chambers, a member of the Nebraska legislature, challenged that legislature’s practice of opening sessions with a prayer. Chief Justice Burger, writing the opinion for the 6–3 majority, looked at the history of legislative chaplains. He noted that the Continental Congress, whose membership included many framers of the Constitution, used legislative chaplains. Therefore, the Court concluded, the framers themselves did not view legislative chaplains as unconstitutional. Burger went on to say that the use of legislative chaplains is a ‘‘tolerable acknowledgement’’ of the role of religion in the United States and the beliefs held by many of its citizens. He claimed that the Establishment Clause is not necessarily violated when the actions of the government coincide with religious ends, and that the fact that legislatures have long used without a negative consequence shows that the practice is harmless.
Justice Brennan’s lengthy dissent outlined some of the arguments against the constitutionality of legislative chaplains. He first noted that the majority failed to subject the issue to any legal tests.
One issue that the majority did not address was whether the use of legislative chaplains failed the Lemon test. When there is a question of whether a practice violates the Establishment Clause, the Supreme Court generally applies the Lemon test, developed in Lemon v. Kurtzman, 403 U.S. 602 (1971). A government action does not violate the Lemon test when (1) the government’s action has a legitimate secular purpose; (2) the primary effect of the action is not to either advance or inhibit religion; and (3) the action does not create an ‘‘excessive government entanglement’’ with religion. Brennan noted that a prayer has an inherently religious, rather than secular, purpose. He also notes that the goal of the prayer, to quiet legislators down and put them in a serious frame of mind, could be accomplished in a secular manner, so the use of a religious prayer to that end does not have a secular purpose. He also claimed that the primary effect of the prayer as to ‘‘explicitly link religious belief and observance to the power and prestige of the State’’ and thus to advance religion. He also claimed that by having the government choose a chaplain or chaplains for the invocation, an excessive government entanglement necessarily exists. There is also government entanglement because the issue of legislative chaplains is politically divisive and could cause voters to choose their legislators based on religion. Thus, in Brennan’s opinion, the use of legislative chaplains violates all three prongs of the Lemon test, and thus violates the Establishment Clause.
The Lemon test aside, Brennan said that the use of legislative chaplains violates the Establishment Clause. He noted historically that the Establishment Clause has been regarded ensuring a separation of church and state and a neutrality of the government with regard to religion. This practice forces citizens to pay taxes to further Judeo–Christian prayer, when they may or may not believe in such traditions, involves government oversight and regulation of chaplains, and, according to Brennan, trivializes religion ‘‘by too close an attachment to the organs of government.’’ The Nebraska legislature was not being neutral toward religion, but was favoring religion over non-religion and Judeo–Christian traditions over others. Similarly, the Nebraska legislature failed to keep the government and religion separate by hiring, employing, and overseeing religious officials performing religious duties. Thus, Brennan stated, the employment of legislative chaplains is unconstitutional.
While it may be true that the framers of the Constitution did not see the use of legislative chaplains as an impermissible establishment of religion, that does not mean the debate ought to end there. There are instances in which we deliberately go against the intent of the framers. Our views on race and gender, for example, have evolved since the passage of the Constitution. Perhaps, even if the framers believed that the Establishment Clause did not apply to legislative chaplains, their employment might be considered no longer appropriate given the ever-increasing religious diversity of our nation.
Thus, despite the holding in Marsh v. Chambers, there are still Constitutional issues to examine regarding legislative chaplains.
FATHER ROBERT F. DRINAN, S. J.
Cases and Statutes Cited