Yesterday’s post about the dismissal and return of Fr. Pat Conroy as Chaplain of the House of Representatives raises the rather obvious question that all of this brings to mind, of course, is why there is a Chaplain for the House of Representatives or the Senate to begin with and how such a position can possibly be constitutional given the fact of the First Amendment’s drawing of a red line between church and state. Newsweek’s Wendy Cadge and Laura Olson tackled that question earlier this week, and they get the basic information mostly correct although they don’t go into very much detail in doing so, but the issues involved are far more detailed than their short essay gets into.
On the first question, the basic answer is that it has been historically the case that legislatures have opened and closed their sessions with a prayer since before the beginning of the Republic. The historical record shows, for example, that the Continental Congress that existed before and during the American Revolution regularly opened their sessions with a prayer and this practice continued when the United States was governed by a Congress convened pursuant to the Articles of Confederation. The practice was also followed by the legislative assemblies in the original Thirteen Colonies and in the states that followed. When the Constitutional Convention met in Philadelphia it was common to open sessions with a prayer, typically led by one of the delegates. Perhaps most notable in the last case is that the idea of opening sessions with a prayer was first raised by Benjamin Franklin, who was at best a Deist and often quite critical of the established religions of the day. With those roots, the idea of appointing Chaplains to preside over the House and the Senate no doubt seemed like a matter of course once the Constitution was ratified, and it doesn’t appear that there were any serious arguments that the position was unconstitutional at the time.
As they note, the answer to that question can be found in a 1983 Supreme Court case called Marsh v. Chambers in which a member of Nebraska’s unicameral state legislature challenged the constitutionality of both the practice of opening each day’s session with a prayer and the fact that the state was paying for the chaplain with taxpayer dollars. The U.S. District Court Judge that first heard the case held that an opening prayer did not violate the Constitution, but that state support for the position and the office did. On appeal, the Eighth Circuit Court of Appeals ruled that both practices were unconstitutional due to the fact that they violated the Establishment Clause of the First Amendment. In its opinion, the Supreme Court overruled the Eighth Circuit in a 6-3 ruling that relied mostly on the history I make note of above and did not address the constitutional arguments raised by the challengers. Instead, the Court essentially said that, like the practice of putting “In God We Trust” on currency, the practice of having a chaplain deliver prayers at the start of a legislative session, and making that a position paid for out of taxpayer funds, was at best a de minimis violation of the Establishment Clause.
In response to the Court’s opinion, the late Justice Brennan noted that the majority opinion didn’t engage in any serious attempt to subject the practice of legislative prayer to the standards that the Court had established in Lemon v. Kurtzman, a 1977 case dealing with Pennsylvania’s practice of using taxpayer dollars to reimburse parochial and religious schools for the salaries of teachers clearly engaged in non-secular education:
The Court makes no pretense of subjecting Nebraska’s practice of legislative prayer to any of the formal “tests” that have traditionally structured our inquiry under the Establishment Clause. That it fails to do so is, in a sense, a good thing, for it simply confirms that the Court is carving out an exception to the Establishment Clause, rather than reshaping Establishment Clause doctrine to accommodate legislative prayer. For my purposes, however, I must begin by demonstrating what should be obvious: that, if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause
(…)
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute [at issue] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.
Based on these tests, Brennan concluded that the practice of legislative prayer, and most specifically the idea of paying the chaplain delivering those prayers with taxpayer funds, clearly violated the Establishment Clause. In a separate dissent, Justice John Paul Stevens noted that there was a strong likelihood that such legislative prayer would obviously be biased in favor of majority religions:
Prayers may be said by a Catholic priest in the Massachusetts Legislature and by a Presbyterian minister in the Nebraska Legislature, but I would not expect to find a Jehovah’s Witness or a disciple of Mary Baker Eddy or the Reverend Moon serving as the official chaplain in any state legislature. Regardless of the motivation of the majority that exercises the power to appoint the chaplain, it seems plain to me that the designation of a member of one religious faith to serve as the sole official chaplain of a state legislature for a period of 16 years constitutes the preference of one faith over another in violation of the Establishment Clause of the First Amendment.
The issue came up again in 2014 in Town of Greece v. Galloway where the Supreme Court dealt with the practice by the town of Greece, New York to open each meeting of its Council with a prayer, a practice that was challenged by a town resident assisted by civil liberties organizations. In a 5-4 ruling, the Court sided with the town and largely follow the precedent set in Marsh. As I noted at the time the court accepted the case, this seems like the ideal ruling in a case like this:
Some government practices that reference religion, I would argue, fall into a de minimis category where it’s recognized that some practices are essentially so harmless that they ought to be permitted as a general rule so long as they don’t become overtly sectarian. One example of that is the whole issue of the inclusion of the words “Under God” in the Pledge of Allegiance, or the appearance of “In God We Trust” on paper currency and coins. As a general rule, there doesn’t seem to me to be anything inherently coercive about either practice. Nobody, including schoolchildren, is legally required to recite the Pledge, and nobody can be legitimately punished for refusing to do so, or for refusing to say “Under God” if they day. Similarly, while we all use coins and paper bills at some point, I doubt anyone pays much attention to what’s written upon them beyond the denomination. Lawsuits challenging both of these practices have been routinely rejected by Federal Courts in no small part because of these facts.
As a general rule, I’d suggest that the idea of opening a legislative session with a prayer falls into this de minimis category in most cases. The prayers that open the House and Senate, for example, are usually fairly general to the point where they can’t be said to be representative of any particular religious tradition beyond, of course, an appeal to a God of some kind. It’s also worth noting, as the Supreme Court did in Marsh, that the practice of opening a legislative session with some kind of prayer has a long history in the United States. Indeed, at one point during the Convention of 1787 when delegates found themselves at an impasse over the drafting of the Constitution, it was Benjamin Franklin, who was, at best, a Deist, who suggested that the body engage in a short prayer. Additionally, the Supreme Court itself opens with the appeal that “God save the United States and this Honorable Court.” Given that history, it seems difficult to argue that those who drafted and ratified the First Amendment intended to ban a practice they themselves engaged in both before and after the Bill of Rights were ratified. Of course, this whole issue becomes arguably problematic when you’re talking about the fact that there are atheists and agnostics in the world, I’m not entirely convinced of the argument that the practice in and of itself is so inherently wrong that it ought to be prohibited for this reason alone. And I say this as someone who considers themselves to be an atheist.
Obviously, this is a policy argument rather than a legal one, but it mostly frames my position on the issue. The idea of prayer opening a legislative session, or a session of the Supreme Court, doesn’t exactly thrill me, but it really doesn’t outrage me very much either. Like “In God We Trust” on our money or “Under God” in the Pledge of Allegiance, it is one of those public displays of piety that really don’t mean much of anything and which don’t really impose a burden on non-believers. In a nation where the overwhelming majority of people believe in some kind of deity, and in which the overwhelming majority of that group are Christians of one form or another, it is something that is sort of to be expected. Obviously, there are limits to what governments can do to recognize these beliefs, and the Courts have issued many rulings on that subject over the years, most of them against the government practice in question. Allowing a short prayer before a town meeting begins business doesn’t strike me as the type of egregious practices requiring a Constitutional bar.
