Petition — Marsh v. Chambers

Supreme Court brief1983

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Nos. 81-1077 and 81-1088 1% 6 1982

* 8 ecvas.

In The CLER

Supreme Court of the United States

October Term, 1981

FRANK MARSH, State Treasurer; ROBERT E

PALMER, Chaplain and Officer of the Nebraska Unicam-

eral; FRANK LEWIS, JOHN DeCAMP, ROBERT I.

CLARK, TOM FITZGERALD, STEVE FOWLER,

HOWARD A. LAMB, RICHARD D. MARVEL, LORAN

SCHMIT, and JEROME WARNER, in their official ca-

pacity as members of the Executive Board of the Legis-

lative Council of the Nebraska Unicameral,

Petitioners,

vs.

ERNEST CHAMBERS,

Respondent.

; =

Vv —

ON WRIT OF CERTIORARI FROM THE

UNITED STATES COURT OF APEALS

FOR THE EIGHTH CIRCUIT

vay

—

PETITION FOR WRIT OF CERTIORARI

PAUL L. DOUGLAS

Attorney General

for the State of Nebraska

SHANLER D. CRONK

Assistant Attorney General

for the State of Nebraska

2115 State Capitol

Lincoln, NE 68509-4906

Tel: (402) 471-2682

Attorneys for Petitioners

EEE

COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102

QUESTIONS PRESENTED FOR REVIEW

. Whether the Tenth Amendment precludes mainten-

ance of this action to abolish the Nebraska State Leg-

islature’s traditional practice of beginning each day’s

sitting with an invocation from its chaplain provided

for by the Legislature’s rules of proceedings.

. Whether other fundamental principles of federalism

require the federal courts to refrain from exercising

jurisdiction over this action.

. Whether petitioners, consisting of the individual mem-

bers of the Legislature’s Executive Board, the Chap-

lain, and the State Treasurer, are entitled to absolute

legislative immunity from respondent’s suit.

Whether the Nebraska Legislature’s compensation and

retention of a single individual as Chaplain for an

extended period of time renders its legislative prayer

practice violative of the Establishment Clause of the

First Amendment to the United States Constitution.

TABLE OF CONTENTS

Pages

Questions Presented for Review 0 ete i

Table of Contents : = 1

Opinions Delivered by the Courts Below Ws 1

Grounds for Jurisdiction . — > Ta

The Constitutional Provisions, Treaties, Statutes,

Ordinances and Regulations the Case Involves ....... 3

r ccneniaeeeiamiaie 6

Reasons for Granting the Writ:

I. This case raises substantial jurisdictional ques-

tions grounded on Tenth Amendment sovereign

immunity, fundamental principles of federalism,

and the common law legislative immunity doc-

I ON 6 11

A. Tenth Amendment sovereign immunity 11

B. Fundamental principles of federalism. 13

C. Legislative immunity. 14

Il. The decision of the Court of Appeals on the

merits is in direct conflict with the decision of

the Supreme Court of Massachusetts, and ap-

pears to a significant degree to be in conflict with

the expressions of the United States Supreme

Court, on the same federal constitutional ques-

tion. 18

III. The merits of this case present important con-

stitutional issues which need be addressed by

this court. 20

iii

TABLE OF CONTENTS—Continued

Pages

IV. The decision of the Court of Appeals on the mer-

its was erroneous 22

e 24

TABLE OF AUTHORITIES

Casks:

Bogen v. Doty, 598 F. 2d 1110 (8th Cir. 19797 21

Colo v. Treasurer and Receiver General, 392 N. E.

2d 1195 (Mass. 19799) 18

Committee for Public Education v. Nyquist, 413

, cenit 24

Doe v. MeMillan, 412 U. S. 306 (1973 17

Elrod v. Burns, 427 U. S. 347 (1976) . 14

Engel v. Vitale, 370 U. S. 421, 446 (1962727 19

Fox v. City of Los Angeles, 587 P. 2d 663 (Cal.

1978) . 20

Gravel v. United States, 408 U. S. 606, 625 (1972) 16, 17

Hall v. Bradshaw, 630 F. 2d 1018 (4th Cir. 1980) 20

Huffman v. Pursue, Ltd., 420 U. S. 592 (19797 13

Juidice v. Vail, 420 U. S. 327 (1977) 13

Kilborn v. Thompson, 103 U. S. 168, 204 (1881) 15, 16

Lake Country Estates, Inc. v. Tahoe Regional

Planning Ageney, 440 U. S. 391 (1979) 14

TABLE OF AUTHORITIES—Continued

Pages

Lemon v. Kurtzman, 403 U. S. 602, 604 (1971) 24

McCollum v. Board of Education, 333 U. S. 203

FTF r = 19

Murray v. Morton, 505 F. Supp. 144 (D. D.C.

ER ee i Mie ꝗͤ—)ä‚ſ; 19, 22

National League of Cities v. User, 426 U. S. 833

D 8 11, 12

Rizzo v. Goode, 423 U. S. 362 (19760) 13

School District of Abington v. Schempp, 347 U. 8.

Supreme Court of Virginia v. Consumers Union,

e ...... 15, 16

Tenney v. Brandhove, 341 U. S. 367 (1950 15

United States v. Brewster, 408 U. S. 501. 512

( — 15, 16, 18

Voswinkel v. City of Charlotte, 495 F. Supp. 588

(W. D. N. C. 1980) 20

Younger v. Harris, 401 U. S. 37 (1971777 13

Zorach v. Clauson, 346 U. S. 306, 312-313 (195257 19

Srarurxs:

28 U. S. C. § 1254 (1) 3

42 U. S. C. § 1983 4, 6, 12, 13

TABLE OF AUTHORITIES—Continued

Pages

CoNSTITUTIONS:

Constitution of Nebraska, Article III. Section 10 4

Constitution of the United States, First Amendment. 4, 7

Constitution of the United States, Tenth Amend-

ment 3, 11, 12, 13

Constitution of the United States, Fourteenth

Amendment +

OTHER AUTHORITIES:

Rule 1, Section 2 of the Rules of the Nebraska

Unicameral 4

Rule 1, Section 21 of the Rules of the Nebraska

Unicameral .... 5

Rule 7 (A), Section 1 (b) of the Rules of the Ne-

braska Unicameral 5

Nos. 81-1077 and 81-1088

eme

In The

Supreme Court of the United States

October Term, 1981

FRANK MARSH, State Treasurer; ROBERT E.

PALMER, Chaplain and Officer of the Nebraska Unicam-

eral; FRANK LEWIS, JOHN DeCAMP, ROBERT L.

CLARK, TOM FITZGERALD, STEVE FOWLER,

HOWARD A. LAMB, RICHARD D. MARVEL, LORAN

SCHMIT, and JEROME WARNER, in their official ca-

pacity as members of the Executive Board of the Legis-

lative Council of the Nebraska Unicameral,

Petitioners,

vs.

ERNEST CHAMBERS,

Respondent.

4).

ON WRIT OF CERTIORARI FROM THE

UNITED STATES COURT OF APEALS

FOR THE EIGHTH CIRCUIT

ray

PETITION FOR WRIT OF CERTIORARI

“7

OPINIONS DELIVERED BY THE COURTS BELOW

1. United States District Court for the District of Ne-

braska (Warren K. Urbom, C. J.).

a. Memorandum and Order filed November 24,

1980, overruling petitioners’ motion to dismiss

on grounds of legislative immunity. See, Ex-

hibit A.

b. Judgment and Memorandum of Decision filed

on December 24, 1980, reported at 504 F. Supp.

585 (1980) (Exhibits B and C). The district

court found the practice of the legislative invo-

cation by a Chaplain constitutional and dismiss-

ed the legislator petitioners from the action.

However, the court further found the expendi-

ture of public funds to compensate the Chaplain

and to print legislative prayer books unconstitu-

tional for violation of the Establishment Clause

and enjoined the Treasurer from making such

expenditures and the Chaplain from accepting

his compensation.

2. United States Court of Appeals for the Eighth Circuit.

a. Opinion of a three-judge panel, filed on April

14, 1982, affirming in part and reversing in part

the judgment of the district court and remand-

ing the case to the district court for further ae-

tion consistent therewith, reported at 675 F. 2d

228 (1982) (Exhibit D). The Court of Appeals

determined that the several elements of the Ne-

braska legislative prayer practice should not

he viewed separately, but as a whole, and ruled

that the prayer practice violated the Establish-

ment Clause because of the retention of a single

clergyman, paid for his services, as the exclu-

sive source of the morning invocations over an

extended period of time, and because it involved

the publishing of prayer books.

b. Order of May 12, 1982, staying the mandate of

the court for 60 days from that date. (Exhibit

E).

The judgment of the United States Distriet Court for

the District of Nebraska was entered on December 24, 1980,

following a trial to the court on December 1, 1980 (Ex-

hibits B and C). Thereafter, petitioners Palmer and Marsh

timely appealed to the Court of Appeals for the Eighth

Cireuit those portions of the district court judgment de-

termining that jurisdiction was proper and finding the ex-

penditure of public funds to pay the Legislative Chaplain

violative of the Establishment Clause. Respondent timely

appealed the balance of the district court judgment finding

the underlying prayer practice constitutional.

Oral arguments were heard by the Court of Appeals

on October 13, 1981. Its opinion affirming in part and re-

versing in part the district court’s judgment was entered

on April 14, 1982 (Exhibit D). Petitioners immediately

moved for a stay of the mandate pending the filing and dis-

position of their petition for writ of certiorari. By order

dated May 12, 1982, the Court of Appeals stayed the man-

date for 60 days from that date, to be extended until final

disposition of the case by this court upon the filing of a

certificate of the clerk of this court stating that the peti-

tion for writ of certiorari has been filed (Exhibit E).

The jurisdiction of this court is invoked under 28

U. S. C. 5 1254 (1), which authorizes the review of civil

cases by writ of certiorari granted upon the petition of

any party thereto after judgment of the Court of Appeals.

THE CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES AND REGULATIONS

THE CASE INVOLVES

1. The Tenth Amendment to the United States Constitu-

tion

The powers not delegated to the United States

by the Constitution, nor prohibited by it to the States,

are reserved to the States, respectively, or to the

people.

2. The First Amendment to the United States Constitu-

tion

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof; ...

3. The Fourteenth Amendment to the United States

Constitution

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

4. 42 U.S.C. § 1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects,

or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall

be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for re-

5. Article III, Section 10 of the Nebraska Constitution

[Tjhe Legislature shall determine the rules of its

— I = Se ae

turns, and qualifications of its members, shall choose

its own officers, including a Speaker to preside when

the Lieutenant Governor shall be absent, incapaci-

tated, or shall act as Governor

6. Rule 1, Section 2 of the Rules of the Nebraska Uni-

cameral

RULE 1—OFFICERS AND EMPLOYEES

A. Election of Officers

Sec. 2. Officers To Be Approved. In addition, the

Legislature shall advise and consent to the recom-

mendations of the Executive Board of the Legislative

Council for the following officers :

Chief Clerk of the Legislature

Assistant Clerk of the Legislature

Sergeant at Arms

Chaplain

7. Rule 1, Section 21 of the Rules of the Nebraska Uni-

cameral

RULE 1— OFFICERS AND EMPLOYEES

E. Other Offices

Section 21. Chaplain. The Chaplain shall attend and

shall open with prayer each day’s sitting of the Leg-

islature.

8. Rule 7 (A), Section 1(b) of the Rules of the Nebraska

Unicameral

RULE 7— PROCEEDINGS AND MOTIONS

(A) Order of Business

Section 1. Meeting Time, Restrictions.

(b) The order of business of the Legislature shall be

as follows; except as otherwise provided by the

Speaker.

a. Prayer by the Chaplain

b. Roll call

STATEMENT OF THE CASE

Respondent invoked the jurisdiction of the district

court authorized by 42 U. S. C. § 1983 to challenge the Ne-

braska Legislature’s longstanding tradition of opening

each day’s legislative sitting with an invocation from the

legislative Chaplain.

Respondent is a taxpayer and citizen of the State of

Nebraska, and a duly elected member of the Nebraska Uni-

cameral Legislature. Petitioner Palmer is an ordained

Presbyterian clergyman, and has served as Legislative

Chaplain for every session since 1965. Petitioner Marsh

at the time of this action was State Treasurer and was

responsible for administering the expenditure of funds

compensating the Chaplain monthly and defraying the

costs of publishing several hundred copies of prayer books

in the legislative years 1975, 1978, and 1979. The remain-

ing petitioners are members of the Legislature’s Executive

Board.

Pursuant to the internal rules of the Legislature, at

the onset of each two year legislative session its Execu-

tive Board recommends an individual to serve as Chaplain

for that session to the full Legislature for its advice and

consent. The Legislature typically sits for three or four

months of each year. The Chaplain is compensated in

the approximate amount of $320.00 per month by the State

Treasurer in the same neuer as are all legislative em-

ployees at the Legislature’s direc.ion for each month of

service. The internal rules of the Legislature declare the

Chaplain’s sole responsibility to be to open each day’s sit-

ting with an invocational prayer, which is the first step

of each day’s official proceedings.

In three past years, 1975, 1978 and 1979, upon motion

from the floor, assorted invocations were collected and pub-

lished in very limited supply at state expense, for dis-

tribution to the legislative membership and to the public

upon request 80 long as the supply would last. Two hun-

dred copies of the 1975 book, two hundred copies of the

1978 book, and one hundred copies of the 1979 book were

printed.

The relief :ought by respondent is a permanent in-

junction enjoining petitioner members of the Nebraska

Legislature’s Executive Board from implementing the leg-

islative rules providing for the retention of a Chaplain,

and enjoining the current Chaplain, Robert E. Palmer,

from assuming the post of Chaplain and receiving compen-

sation from the state in that capacity. He further seeks to

enjoin the State Treasurer from expending publie fands

for the payment of the Chaplain’s salary and for the print-

ing and transcription of the daily prayers and their subse-

quent printing and publication. Respondent finally seeks

a declaration that the legislative rules providing for the

legislative Chaplain are unconstitutional, void and unen-

forceable.

Prior to trial, petitioners moved to dismiss the action

on grounds of legislative immunity, which motion was over-

ruled. After trial, the district court found that the Estab-

lishment Clause of the First Amendment to the Constitu-

tion was not violated by having the daily prayers to open

each day’s sitting, but was violated by compensating a

Chaplain and by publishing and distributing the prayer

books. The district court distinguished this case from

other Establishment Clause cases decided by the Supreme

Court by noting that the prayer practice represented an

internal act—that is one directed at the Legislature itself

for its own members, rather than toward the public. On

the basis of this distinction, the court found that provid-

ing for the morning invocations by internal rule did not

amount to the “making of a law” as contemplated by the

Establishment Clause.

Applying the traditional, purpose-effect-entanglement

analysis employed in Establishment Clause cases, the court

found a clearly secular purpose fur the practice to be

bringing the legislators to order by means of brief, solemn

and thoughtful act in a traditional manner. It further

found the effect of the prayer practice to be primarily

secular, declaring that any actual effect of the legislative

prayers on religion was virtually nonexistent on the basis

of the record made in this case. The court finally found

that the prayer practice did not excessively entangle the

state in religious affairs.

Beyond the morning prayer practice, however, the dis-

trict court did conclude that the expenditure of public

funds for the Chaplain’s salary and the costs of printing

the prayer books, and the very publication of the prayer

books itself, did violate the Establishment Clause. It was

the payment of a Chaplain, the court said, that had a direct

and immediate religious effect of securing a continuing

relationship with a particular cleric of one denomination,

at least for the several-month session of the Legislature.

This apparently was deemed to violate the Establishment

Clause. The printing and publication of the prayer books

was invalidated as having no secular purpose.

Consistent with these findings, the district court dis-

missed the defendant members of the Executive Board

from the lawsuit, declared the payment of the Chaplain

from public funds and the printing at state expense of the

prayers in prayer books unconstitutional, and enjoined the

State Treasurer and the Chaplain from undertaking such

acts.

Petitioners Marsh and Palmer appealed to the Court

of Appeals for the Eighth Circuit the district court’s judg-

ment regarding jurisdiction of the action, and its finding

on the merits that the compensation of the Chaplain vio-

lated the Establishment Clause. The ruling as to the print-

ing of prayer books was not appealed. Respondent cross-

appeaied the balance of the judgment finding the under-

lying prayer practice constitutional. The Court of Ap-

peals affirmed in part and reversed in part the judgment

of the district court, employing a significantly different

analysis of the case.

The Court of Appeals first ruled that the district court

erred in examining the compensation of the chaplain in-

dependently from the other elements of the prayer prac-

tice since respondent essentially challenged the practice

as a whole. Nevertheless, in subsequently declaring the

practice as a whole violative of the Establishment Clause,

it singled out the retention and compensation of a single

chaplain for an extended period of time and the printing

of the prayer books as determinative of its inquiry, while

at the same time noting that it did not intend to hold legis-

lative prayer practices, or legislative chaplains—even paid

chaplains—per se unconstitutional. The opinion does not

recognize or address the fact that petitioners did not raise

the prayer book issue on appeal.

In applying the three-part Establishment Clause test,

the court summarily concluded: “[T]he purpose of the

practice as a whole must be to advance and give prefer-

ence to one religious view over others. There is little other

reason for singling out one minister of one denomination

for such an extended period of time, . . .” (Exhibit D, p.

11). No reference to any evidence in the record support-

ing that conclusion is made, nor is the testimony of the

Executive Board chairman, that Palmer was retained be-

cause he had done a good job over the years and would

have been removed if it were thought his retention would

be viewed as an endorsement of his religion, acknowledged

(T123). Similarly, the opinion does not acknowledge

Palmer’s testimony that he had “never made salary a

point of my being asked to be Chaplain.” (Dep., p. 4).

The Court of Appeals also found the Nebraska prayer

practice to have the primary effect “unmistakably to ad-

vance religion and to give preference to one religious

view”, (Exhibit D, p. 12), on the basis of its conclusion

that Palmer’s retention for sixteen years amounted to the

Legislature’s seal of approval of his religious views, and

would have led observers to conclude that the Legisla-

ture had an official view on religion. No evidence in the

record was cited in support of these findings.

Finally, the court found, again without reference to

any compelling evidence in the record in support thereof,

that compensating the same clergyperson chaplain for

sixteen years engenders serious political division along

religious lines amounting to an excessive entanglement be-

tween government and religion. After moving for and re-

ceiving a stay of the mandate of the Court of Appeals,

petitioners filed this petition for a writ of certiorari, seek-

ing review of that court’s judgment declaring the Nebraska

Legislature’s retention and compensation of a single Chap-

lain for an extended period of time violative of the Estab-

lishment Clause.

383

REASONS FOR GRANTING THE WRIT

This case raises substantial jurisdictional

questions grounded on Tenth Amendment sover-

eign immunity, fundamental principles of federal-

ism, and the common law legislative immunity

doctrine.

This action is nothing less than an attempt to use the

federal judiciary to override the Nebraska State Legisla-

ture’s will on a matter of purely internal operations, which

respondent admits (T21-24). The use of the federal judi-

ciary to interfere in such a manner with the internal pro-

ceedings of a state legislature raises the following juris-

dictional questions.

Tenth Amendment Sovereign Immunity

In its most notable examination of the Tenth Amend-

ment to the United States Constitution to date, this court

determined in National League of Cities v. Usery, 426

U. S. 833 (1976), that valid exercises of Congress’ legisla-

tive power cannot be used in a fashion that would impair

the integrity of the states or their ability to function in a

federal system. Clarifying this principle further, the court

stated that if constitutionally valid exercises of federal leg-

islative power would impair “functions essential to sep-

arate and independent existence” of the states, Id. at 845,

or would “operate to directly displace the States’ freedom

to structure integral operations in areas of traditional gov-

ernmental functions”, Id. at 852, such exercise would not

be permitted.

Petitioners remain steadfast in their contention that

maintenance of this action pursuant to the authority of

42 U. S. C. § 1983 would have the precise consequence fore-

closed by the National League of Cities’ decision. Not-

withstanding that respondent’s complaint meets the tech-

nical pleading prerequisites for stating a 5 1983 claim, it

is unmistakably clear that a grant of the relief he requests

would have the effect of displacing the Nebraska State

Legislature’s freedom to structure for itself its own inter-

nal proceedings. Certainly, that freedom is the kind of

attribute of state sovereignty contemplated by that de-

cision as protected by the Tenth Amendment from federal

interference.

Petitioners are mindful that National League of Cities

articulated the scope of the Tenth Amendment’s restraint

on exercises of federal legislative power in the context of

certain Commerce Clause legislation, and that the court

has expressed reluctance to extend its application to situ-

ations involving other kinds of constitutionally authorized

exercises of federal legislative power. Further, it is recog-

nized that a determination of the Tenth Amendment’s pre-

clusive effect on federal legislation authorizing civil rights

lawsuits, such as 42 U.S. C. § 1983, well may turn on con-

siderations not addressed in National League of Cities.

However, the fact remains that due to the uniqueness of

the activities challenged here, the consequence of maintain-

ing this action is precisely that which was of concern to

the court in its decision. Indeed, it is this very uniqueness

which sets this case apart from the mainstream of 5 1983

lawsuits and which could be acknowledged as warranting

only a limited extension of Tenth Amendment restraint

on such civil rights lawsuits.

Fundamental Principles of Federalism

Limits on federal interference with state functions

and activities do not derive exclusively from notions of

state sovereignty and balance of power embodied in the

Tenth and Eleventh Amendments. Fundamental prin-

ciples of federalism have been cited in recent cases as re-

quiring federal judicial restraint where the consequence

would be to interfere with state criminal proceedings,

Younger v. Harris, 401 U. S. 37 (1971), to impair state’s

civil proceedings, Huffman v. Pursue, Ltd., 420 U. S. 592

(1974), or to obstruct other judicial activities or functions

deserving of substantial and proper respect by the federal

courts. Juidice v. Vail, 420 U. S. 327 (1977).

Rizzo v. Goode, 423 U. S. 362 (1976), extended the

doctrine of federal judicial restraint based on principles

of federalism and equity beyond cases involving state judi-

cial functions to those concerned with state executive

branch functions. Even though the complainants in that

case satisfied the technical standing and pleading pre-

requisites of § 1983, this court indicated that the federal

courts still were obliged to discern the real nature of the

lawsuit in deciding upon the availability and scope of re-

lief :

When the frame of reference moves from a uni-

tary court system, governed by the principles just

stated, to a system of federal courts representing the

Nation, subsisting side by side with 50 state judicial,

legislative and executive branches, appropriate con-

sideration must be given to principles of federalism in

determining the availability and scope of equitable

relief. Doran v. Salem Inn, Inc., 442 U. S. 922, 928,

45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975).

423 U. S. at 379.

The same consideration is equally warranted where

state legislative functions are involved. The substantial

interest of the State of Nebraska in the freedom of its

Legislature to structure its own internal operations and

proceedings could not be more obvious. Maintenance of

this action would serve as a precedent for other challenges

in federal court to the Legislature’s will with respect to a

host of internal matters which are and should be political

and controversial within the legislative chamber. The

secognition that state legislators may not contest the jus-

ticiability of outside challenges to their internal delibera-

tions on such matters by invoking the political question

doctrine, as their federal counterparts can do, E rod v.

Burns, 427 U. S. 347 (1976), compels a greater deference

to principles of federalism in exercising federal judicial

restraint in entertaining such challenges, particularly

where, as here, the complainant has made no effort to seek

relief through the state judiciary.

Legislative Immunity

It is now settled that state legislators sued in federal

court cannot invoke the Speech and Debate Clause in-

munity provided by the United States Constitution, they

are entitled to invoke common law legislative immunity

in appropriate instances. Lake Couniry Estates, Inc. v.

Tahoe Regional Planning Agency, 440 U. S. 391 (1979),

Supreme Court of Virginia v. Consumer’s Union, 446 U. 8.

719 (1980). Moreover, the principles determining the scope

and application of Speech and Debate Clause immunity for

federal legislators are the same as those used in determin-

ing the scope and application of common law legislative

immunity in civil suits against state legislators. Supreme

Court of Virginia v. Consumer's Union, supra. Common

law legislative immunity properly invoked by state legis-

lators or their aides is absolute; it bars both damage and

perspective injunctive actions. Id. at 731-733.

Respondent has sought to enjoin the following specific

acts mandated by the internal rules of the Legislature: (1)

the biennial vote of its Executive Board by which an in-

dividual is recommended to serve as Chaplain for the en-

suing session, (2) the giving of the invocation each morn-

ing by the Chaplain to begin each day’s official proceed-

ings, (3) the monthly payment of the Chaplain for each

month the Legislature sits, and (4) the printing of prayer

books. The printing of prayer books has been abandoned

by petitioners, was not appealed to the Court of Appeals,

and is not at issue herein. The remaining acts are legis-

lative acts” to which common law legislative immunity ap-

plies if they are things generally done in a session of the

house by one of its members in relation to the business be-

fore it”, Kilborn v. Thompson, 103 U. S. 168, 204 (1881),

or take place in the “sphere of legitimate legislative ac-

tivity”, Tenney v. Brandhove, 341 U. S. 367 (1950), or are

things “generally said or done in the house or the senate

in the performance of official duties”, United States v.

Brewster, 408 U. S. 501, 512 (1972), or are an “integral

part of the deliberative and communicative processes by

which Members participate in committee and house pro-

ceedings with respect to the consideration and passage or

rejection of proposed legislation or with respect to other

matters which the Constitution places within the jurisdie-

tion of either house.” Gravel v. United States, 408 U. S.

606, 625 (1972).

The acts respondent challenges meet the “legislative

act” standard. The vote recommending a Ghaplain occurs

during a regular meeting of the Executive Board which

clearly is a legislative proceeding, and is a recurring mat-

ter of business for that body. That the recommendation

comes in a form of a vote is determinative of legislative

immunity. See, Kilborn v. Thompson, supra at 204-205,

United States v. Brewster, supra at 514. Moreover, the

Executive Board’s recommendation of a Chaplain, com-

manded by legislative rule, is an official duty of the mem-

bers comprising the board. The Legislature’s decision that

the first step in the official proceedings of each day should

be an invocation given by a Chaplain who serves as an

ex officio officer respects a matter which the Nebraska

Constitution has placed within the jurisdiction of the Leg-

islature exclusively. Gravel v. United States, swpra at

625, made operational by Supreme Court of Virginia v.

Consumer's Union, supra.

The morning invocation of the Chaplain similarly is

a “legislative act”. It is speech. It occurs in the legisla-

tive chamber during official proceedings, and is in rela-

tion to the business before the Legislature. The morning

prayer is cominanded by the rules of the Legislature, and

is thus, an official duty of the Chaplain. Since the Legis-

lature has intended the invocation serve as the first step

of the daily official proceedings, it clearly respects a mat-

ter which the Nebraska Constitution has placed exclusively

within the jurisdiction of the Legislature.

The payment of the Chaplain each month is carried

out by the State Treasurer at the direction of the Ne-

braska Legislature pursuant to the latter’s statutory au-

thority to compensate its employees and provide for its

own administration. The Treasurer acts as a functionary

of the Legislature in paying the Chaplain monthly. That

such tasks may be more administrative or operational in

nature than the other acts complained of, compels no find-

ing that it is any less a part of the deliberative and com-

municative process by which legislators participate in leg-

islative proceedings. Gravel v. United States, supra at

611, footnote 6.

In rejecting respondents’ legislative immunity claim,

The Court of Appeals relied significantly on its observa-

tion that no speech activity by any egislator was at issue,

nor was individual prayer by elected legislators at issue.

Thereby, the court apparently presumed that legislative

aides or functionaries who are not elected members of the

legislative body are not entitled to claim legislative im-

munity in appropriate situations. This is totally contrary

to expressions from this court that non-legislator aides,

assistants, or officials are entitled to invoke such immunity

for “legislative acts” which would have been privileged

had the legislators themselves undertaken them. Gravel

v. United States, supra, Doe v. McMillan, 412 U. S. 306

(1973).

The Court of Appeals additionally found that the de-

liberative process of the Legislature will not be impaired

to any degree by judicial resolution of petitioner’s claim,

and that the prayer practice bore no substantive relation

to the process of enacting legislation, citing only United

States v. Brewster, supra, in support therefor. This sum-

mary conclusion failed to take into account the other above-

cited legislative immunity decisions of this court, some of

which occurred subsequent to Brewster and clarified it

considerably.

II.

The decision of the Court of Appeals on the

merits is in direct conflict with the decision of

the Supreme Court of Massachusetts, and appears

to a significant degree to be in conflict with the

expressions of the United States Supreme Court,

on the same federal constitutional question.

In Colo v. Treasurer and Receiver General, 392 N. E.

2d 1195 (Mass. 1979), the Supreme Court of Massachusetts

decided an action brought pursuant to the Establishment

Clause to enjoin the expenditure of public funds to pay the

salaries of the Massachusetts’ legislative chaplains and for

a declaration that the state statute authorizing such ex-

penditures was unconstitutional. The chaplains had served

for 24 and 20 years respectively. Their primary duty was

to open each daily session with a brief prayer. Visiting

ministers of various faiths, usually at the request of the

members of the Legislature, occasionally gave the open-

ing prayer without compensation. At the time of the ac-

tion the Senate Chaplain received $9,550 annually for his

services and the House Chaplain received $7,883 annually.

While the specific act alleged as unconstitutional in the

complaint was the expenditure of public funds, it was the

underlying prayer practice which the court assessed

against the purpose-effect-entanglement test of Establish-

ment Clause cases. The court concluded that no Estab-

lishment Clause violation had occurred.

The facts of and legal issues raised by the Massa-

chusetts case are virtually identical to those presented by

this action. Moreover, the Massachusetts Supreme Court

specifically addressed the tenure of the chaplains inde-

pendent from the underlying prayer practice, said tenure

having been claimed to be an equal protection violation.

While the question was resolved expressly on equal pro-

tection grounds, it clearly had been brought to the atten-

tion of the Massachusetts Supreme Court and its finding

that no Establishment Clause violation had occurred can

be taken as a determination that a showing of a lengthy

tenure alone does not necessarily invalidate an otherwise

constitutional prayer practice. So viewed, the decisions

of the Massachusetts Supreme Court and the Court of

Appeals for the Eighth Circuit are in direct conflict.

Numerous justices sitting on this court have had occa-

sion to strongly suggest that legislative prayer practices

such as that in Nebraska present no Establishment Clause

problem. Zorach v. Clauson, 346 U. S. 306, 312-313 (1952);

School District of Abington v. Schempp, 347 U. S. 203, 214,

299-300 (1963). In McCollum v. Board of Education, 333

U. S. 203 (1948), Mr. Justice Reed expressed this view

when referring to the opening prayers offered by United

States Senate Chaplains, and citing by a footnote the Sen-

ate’s internal rules providing for same. Id. at 253. See

also, Mr. Justice Stewart’s discussion in Engel v. Vitale,

370 U. S. 421, 446 (1962). United States Senate rules also

provide for the compensation of a chaplain in addition to

his mere retention. Murray v. Morton, 505 F. Supp. 144

(D. D. C. 1981). Thus, while these expressions may not

have been intended by their authors as definitive conclu-

sions, they nevertheless do reflect a degree of conflict with

the Court of Appeals’ decision.

III.

The merits of this case present important

constitutional issues which need be addressed by

this court.

Establishment Clause cases typically fall into two

categories: (1) those involving governmentally supported

or financed programs or activities undertaken outside the

halls of government; and (2) those involving activities or

conduct having religious connotations undertaken within

the operation or halls of government. While this court

has freely admitted that the principles of the Establish-

ment Clause do not lend themselves to easy application

from one case to another, it is nonetheless true that most

of the decisions forming the core of contemporary Estab-

lishment Clause law have been handed down in cases of the

first variety.

However, a trend toward increased litigation of cases

such as this, representing the second variety, clearly is

discernible. See, Fox v. City of Los Angeles, 587 P. 2d

663 (Cal. 1978) (illuminating city hall windows with a

cross during Easter), Hall v. Bradshaw, 630 F. 2d 1018

(4th Cir. 1980) (motorist’s prayer on state highway maps),

and Voswinkel v. City of Charlotte, 495 F. Supp. 588

(W. D. N. C. 1980) (police department chaplain). Appli-

cation of the purpose-effect-entanglement analysis and de-

termination of the threshold showing required to support

a finding of unconstitutionality are particularly difficult

in such cases because of the dearth of guidance from this

court. This action presents the opportunity for the court

to take a substantial step in filling this void in its Estab-

lishment Clause pronouncements.

Moreover, while similar chalienges to state legislative

prayer practices arcund the country specifically are now

ripe for litigation, the decision of the Court of Appeals

for the Eighth Circuit provides virtually no guidance in

resolving them. Confined in its examination by its prior

decision in Bogen v. Doty, 598 F. 2d 1110 (8th Cir. 1979),

validating opening invocations at county board meetings,

the Court of Appeals was forced to tailor its opinion spe-

cifically to the Nebraska practice, and in so doing left sev-

eral critical questions certain to arise elsewhere unre-

solved. In holding that the retention of one particular

chaplain for an ‘‘extended period of time” may transform

an otherwise constitutionai practice into an unconstitu-

tional one, the court failed to give any guidance as to what

constitutes an extended period of time. Further, the

“viewed as a whole” analysis employed by the court was

felt compelled only because respondent challenged the en-

tire legislative prayer practice as a whole, rather than only

one element thereof. This leaves unresolved, as the court

hinted, the question of what analysis is proper when only

one element is questioned, for example only the compensa-

tion of a legislative chaplain.

This question is hardly academic, for just such a chal-

lenge to the compensation of the federal House and Sen-

ate Chaplains is currently pending in the federal courts

in the District of Columbia. The district court there, tak-

ing care to point out that the complaint challenged only

the compensation of the chaplains, and not the 200 year

old practice of their appointment or their morning prayers,

dismissed the original complaint for lack of standing and

justiciability. Murray v. Morton, supra. A three-judge

panel of the Court of Appeals to the District of Columbia

reversed the district court’s dismissal, but on May 25, 1982,

a rehearing before the court en bane was ordered. Thus,

it is highly likely that some, if not all, of the issues peti-

tioners seek now to raise before this court eventually will

also be raised by the parties to that action.

If the Court of Appeals’ decision is correct, this court

should take the opportunity to so find in a manner that

will be helpfal in resolving similar questions in other

states. If wrongly decided, this court should take the

opportunity to so find and foreclose at an early date sim-

ilar lawsuits which otherwise surely can be anticipated.

IV.

The decision of the Court of Appeals on the

merits was erroneous.

The Court of Appeals’ decision the: the Nebraska leg-

islative prayer practice violated the Establishment Clause

turned on two factors: (1) the printing of prayer books

in certain years, and (2) the length of tenure of the cur-

rent chaplain. Reliance on these factors by the court in

its finding of unconstitutionality was clearly erroneous.

Intending not to contest the district court’s judgment

respecting the printing of the prayer books, but desiring

review of its judgment invalidating the chaplain’s compen-

sation, petitioners appealed only that portion of the court’s

judgment dealing with the latter issue in reliance on Fed-

eral Rule of Appellate Procedure 28 and the rules of the

Eighth Cireuit Court of Appeals providing for the appeal

of only a portion of a district court’s judgment. Respond-

ent’s cross-appeal bore only on the propriety of the daily

prayer and similarly did not put the printing of the prayer

books into issue, no doubt because he had prevailed there-

on at trial. Thus, the Nebraska legislative prayer practice

which was before the Court of Appeals for review was one

which did not include the printing of the prayer books.

In grounding its decision in large part on the printing of

the prayer books, the court put the appeal in a posture not

intended by the parties, thereby rendering a judgment

which fails to clearly resolve the constitutionality of the

specific legislative prayer practice the parties desired be

addressed. In this manner, the court committed grave

error.

Absent consideration of the prayer book issue, the

sole feature of the Nebraska legislative prayer practice

distinguishing it from what the Court of Appeals itself

indicated would be a constitutional practice, is the reten-

tion and compensation of the Nebraska Chaplain for an

extended period of time. For this reason, the court con-

cluded that the purpose of the legislative prayer practice

as a whole must be to advance and give preference to one

religious view. However, it is noteworthy that the court

did not refer at all to any evidence in the record support-

ing this conclusion, for none exists. The only evidence

directly on this point was Chaplain Palmer’s testimony

that compensation had never been a condition to his serv-

ice, and Executive Board Chairman Lewis’ testimony that

Palmer was retained for several consecutive years because

it was felt he had done a good job, but would have been re-

moved had his retention been perceived as an endorsement

of his religious persuasion (Supra, pp. 10-11). Against

this background, the determination of the Court of Ap-

peals on this issue was clearly erroneous for relying on

factual inference rather than the evidence in the record.

Additionally, the Court of Appeals determined a pri-

mary effect of Palmer’s continued retention was a per-

ception that the Legislature had an official view on re-

ligion. Again, there is absolutely no evidence in the rec-

ord to support a finding of any such perception, or that

it was engendered solely because of the chaplain’s particu-

lar length of tenure. More importantly, even if such a

perception did exist, at the very most it could amount only

to a minimal accommodation of religion by the State Leg-

islature which does not contravene the Establishment

Clause. The Court of Appeals totally ignored numerous

decisions of this court indicating unmistakably that indi-

rect or incidental accommodations of religion by the state

are not thereby prohibited. Committee for Public Educa-

tion v. Nyquist, 413 U. S. 756, 760 (1973) ; Lemon v. Kurtz-

man, 403 U. S. 602, 604 (1971).

—

CONCLUSION

For the foregoing reasons, the petitioners’ application

for writ of certiorari should be granted.

Respectfully submitted,

FRANK MARSH, State Treasurer;

ROBERT E. PALMER, Chaplain and

Officer of the Nebraska Unicameral;

FRANK LEWIS, JOHN DeCAMP,

ROBERT L. CLARK, TOM FITZGER-

ALD, STEVE FOWLER, HOWARD A.

LAMB, RICHARD D. MARVEL, LOR-

AN SCHMIT, and JEROME WARNER,

in their official capacity as members of

the Executive Board of the Legislative

Council of the Nebraska Unicameral,

Petitioners,

By PAUL L. DOUGLAS

Attorney General

By SHANLER D. CRONK

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509-4906

Tel: (402) 471-2682

Attorneys for Petitioners

Ls nen .f ii. DWex

App. 1

APPENDIX

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CV79-L-294

ERNEST CHAMBERS,

Plaintiff,

vs.

FRANK MARSH, et al.,

Defendants.

MEMORANDUM AND ORDER

(Filed November 24, 1980)

The plaintiff Chambers, a member of the Nebraska

Legislature, brought this civil rights action against the

state treasurer, the legislative chaplain, and the members

of the Executive Board of the Legislative Council of the

Nebraska Legislature, alleging that the giving of the morn-

ing prayer at legislative sessions, the compensation of the

chaplain from public funds, and the printing of the prayers

with public funds have deprived him of his First Amend-

ment constitutional right to be free of establishment of re-

ligion. The plaintiff asks this court to enjoin the enforce-

ment of and declare unconstitutional Legislative Rule 1,

Sections 2 and 21, which provide for the election of the

chaplain and prescribe his or her duties. The defendants

have filed a motion, filing 11, to dismiss the plaintiff’s ac-

tion against them on the basis of their possession of ab-

solute legislative immunity from actions of this sort.

It is true, as the defendants contend, that § 1983 did

not abrigate the common law immunity of state legislators,

App. 2

regardless of whether the relief sought in the civil rights

action is damages or, as here, prospective relief. Supreme

Court of Virginia v. Consumers Union, 48 U. S. L. W. 4620,

4623, 100 S. Ct. 1967 (1980); Tenny v. Brandhove, 341

U. S. 367, 376 (1951). However, the common law immunity

afforded state legislators, which is construed to be sim-

ilar to that afforded Congressmen under the Speech and

Debate Clause, see Consumers Union, supra, 48 U. S. L. W.

at 4623-4624, does not extend beyond the “legitimate legis-

lative sphere.” Gravel v. United States, 408 U. S. 606, 624-

625 (1972); Doe v. McMillan, 412 U. S. 306, 313 (1973);

and Eastland v. United States Servicemen’s Fund, 421

U. S. 491, 503 (1975). Therefore, if it is determined that

the acts of the defendant legislators in this case do not fall

within the sphere of legitimate legislative activity, legis-

lative immunity is not available. Eastland, supra, 421

U. S. at 503; Green v. DeCamp, 612 F. 2d 368, 371 (C. A.

8th Cir. 1980).

In speaking of the “legitimate legislative sphere,” the

Supreme Court of the United States in Hutchinson v. Proz-

mire, 443 U. S. 111, 126-127 (1978) said:

Legislative acts are not all-encompassing. The

heart of the Clause is speech or debate in either House.

Insofar as the Clause is construed to reach other mat-

ters, they must be an integral part of the deliberative

and communicative processes by which Members par-

ticipate in committee and House proceedings with re-

spect to the consideration and passage or rejection of

proposed legislation or with respect to other matters

which the Constitution places within the j

of either House. As the Court of Appeals put it, the

courts have extended the privilege to matters beyond

pure speech or debate in either house, but ‘‘only when

necessary to prevent indirect impairment of such de-

App. 3

liberations.”’ Gravel v. United States, 408 U. S. at

625 (quoting United States v. Doe, 455 F. 2d 753, 760

(Cal. 1972) (emphasis added.”

Therefore, the questions presented herein are (1)

whether the selection and compensation of the chaplain,

the giving of prayers by the chaplain, and the recording

and printing of those prayers at state expense are activi-

ties which fall within the “legitimate legislative sphere”

and, if so, (2) whether the defendants Marsh and Palmer,

who are not state legislators, are protected by this same

legislative immunity which extends to both legislators and

their aids. See Doe v. McMilian, 412 U. S. at 312-313.

It is apparent from the pleadings and the uncontro-

verted facts set out in the pretrial order that the chal-

lenged activities of the defendants do not fall within the

definition of legislative activities. The selection and com-

pensation of the chaplain and the recording and printing

of the prayers given by the chaplain are in no way an “in-

tegral part of the deliberative and communicative proc-

esses” respecting the functioning of the legislative proc-

ess. It is only those acts done in the course of the proc-

ess of enacting legislation which are protected by legisla-

tive immunity. See United States v. Brewster, 408 U. S.

501, 513-516 (1972).

As noted in the plaintiff’s brief in opposition to the

defendants’ motion to dismiss, the activities of the defend-

ants are more akin to “enforcement” activities rather than

“legislative” activities. In Supreme Court of Virginia

v. Consumers Union, supra, the Supreme Court of the

United States held that whiie the Virginia Supreme Court

was immune from suit when acting in a legislatwe capacity

(adopting rules of practice for attorneys), the court and

App. 4

its chief justice were properly held liable in their enforce-

ment capacities. Such an analysis is similarly applicable

to the instant case, where the plaintiff is requesting not

that this court enjoin the defendants from enacting Rule

1, Sections 2 and 21, but that this court enjoin the ‘‘en-

forcement” of those sections of the rule.

Furthermore, as observed in United States v. Brew-

ster, 408 U. S. at 507, the constitutional immunity pro-

vided Congressmen was not ‘‘simply for the personal or

private benefit of the Members of Congress, but to pro-

tect the integrity of the legislative process by insuring the

independence of individual legislators.” The defendants

in their answer claim that the activities which are the sub-

ject of this action are “constitutionally permissible religi-

ous accomodations [sic] by the Legislature” and are “con-

sistent with and protected by the rights of the members

of the J egislature bestowed by the free exercise clause of

the First Amendment of the Constitution of the United

States.” While these defenses may or may not be valid,

they are indicative that the activities complained of are

carried on for the “personal or private benefit” of the leg-

islative members, rather than for the purposes of the leg-

islative process.

Because I find that the activities of the defendant leg-

islators do not fall within the legitimate legislative

sphere,” there is no need to reach the question of whether

the defendants Marsh and/or Palmer are “aids” for the

purposes of legislative immunity.

App. 5

IT THEREFORE HEREBY IS ORDERED that the

defendants’ motion to dismiss on the grounds of legisla-

tive immunity, filing 11, is denied.

Dated November 24, 1980.

BY THE COURT

/s/ Warren K. Urbom

Chief Judge

EXHIBIT B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CV79-L-294

ERNEST CHAMBERS,

vs.

FRANK MARSH, State Treasurer; ROBERT E. PALM-

ER, Chaplain and Officer of the Nebraska Unicameral;

FRANK LEWIS, JOHN DeCAMP, ROBERT L. CLARK,

TOM FITZGERALD, STEVE FOWLER, HOWARD A.

LAMB, RICHARD D. MARVEL, LORAN SCHMIT, and

JEROME WARNER, in their official capacity as members

of the Executive Board of the Legislative Council of the

Nebraska Unicameral,

Defendants.

Plaintiff,

JUDGMENT

(Filed December 24, 1980)

Pursuant to the accompanying memorandum of deci-

sion of today,

App. 6

IT IS ORDERED, DECLARED AND ADJUDGED:

1. That the paying from public funds of a chaplain

to open daily sessions of the Nebraska Unicameral Legis-

lature is violative of the Establishment Clause of the First

Amendment to the Constitution of the United States;

2. That the printing at state expense of prayers de-

livered by a chaplain at legislative sessions and distribut-

ing them to members and nonmembers of the Nebraska

Unicameral Legislature contravene the Establishment

Clause of the First Amendment to the Constitution of the

United States;

3. That for reasons stated in the memorandum of

today,

A. The defendant Frank Marsh, State Treasurer,

is enjoined from expending public funds for the pay-

ment of the salary of the defendant Robert E. Palmer,

Chaplain and Officer of the Nebraska Unicameral Leg-

islature or for printing of prayers,

B. The defendant Robert E. Palmer, Chaplain

and Officer of the Nebraska Unicameral, is enjoined

from accepting public funds as salary as Chaplain of

the Nebraska Unicameral Legislature, and

C. The action is dismissed as to the defendants

other than those named in paragraphs 3A and 3B of

this judgment.

Dated December 24, 1980.

BY THE COURT

/s/ Warren K. Urbom

Chief Judge

App. 7

EXHIBIT C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CV79-L-294

ERNEST CHAMBERS,

Plaintiff,

vs.

FRANK MARSH, State Treasurer; ROBERT E. PALM-

ER, Chaplain and Officer of the Nebraska Unicameral;

FRANK LEWIS, JOHN DeCAMP, ROBERT L. CLARK,

TOM FITZGERALD, STEVE FOWLER, HOWARD A.

LAMB, RICHARD D. MARVEL, LORAN SCHMIT, and

JEROME WARNER, in their official capacity as mem-

bers of the Executive Board of the Legislative Council of

the Nebraska Unicameral,

Defendants.

MEMORANDUM OF DECISION

(Filed December 24, 1980)

At stake is the practice of having each day’s proceed-

ings of the Nebraska Unicameral Legislature open with a

prayer by a chaplain who is paid with public funds and of

having those prayers published at state expense and dis-

tributed to members and nonmembers. I conclude that the

Establishment Clause of the First Amendment to the Con-

stitution of the United States is not breached by having

the prayers, but is breached by paying the chaplain to say

them and by publishing and distributing them.

THE FACTS OF THE CASE

Ernest Chambers is a duly elected state senator of the

Nebraska Unicameral Legislature, District 11, a citizen

App. 8

and taxpayer of the State of Nebraska, and is not a Chris-

tian.

At the beginning of each session of the Nebraska Uni-

cameral Legislature the Executive Board of the Legisla-

tive Council of the Legislature recommends the selection

of court officers, one of them being called ‘‘chaplain.” The

selection of the chaplain is provided for by Rule 1, section

2, of the Rules of the Nebraska Unicameral, Officers and

Employees, which says:

“In addition, the Legislature shall advise and consent

to the recommendations of the Executive Board of the

Legislative Council for the following officers: .. .

Chaplain.”

Rule 1, section 21, of the Rules states:

“The Chaplain shall attend and shall open with prayer

each day’s sitting of the Legislature.”

Robert E. Palmer, one of the defendants, has been the duly

selected chaplain of the Nebraska Legislature since 1965.

His salary is $319.75 per month for each month the legis-

lature is in session. The salary is paid from the general

funds of the State of Nebraska and is disbursed by the

State Treasurer, the defendant Frank Marsh. The pray-

ers at each day’s opening are recorded each day in the

Legislative Journal. In the years 1975, 1978 and 1979

prayer books containing selected offerings given during

the legislative sessions of those years were prepared pur-

suant to motions made and approved on the floor of the

legislature. Copies of the book were distributed to the leg-

islative membership and to other individuals upon re-

quest. Two hundred copies of the 1975 book were printed

at state expense totaling $70.01; 200 copies of the 1978

App. 9

book were printed at state expense totaling $260.40; and

100 copies of the 1979 book cost the state $128.15. Robert

E. Palmer is and for a number of years prior to the filing

of this action has been an ordained clergyman in the State

of Nebraska of the Christian faith, is head of staff of West-

minster Presbyterian Church in Lincoln, Nebraska, and

has been since 1963.

The defendant Frank Marsh is the duly elected State

Treasurer, charged with the payment of public funds as

salaries to members of the legislature and particularly

to the defendant Robert E. Palmer. The other defendants

are members of the Executive Board of the Legislative

Council of the Nebraska Unicameral Legislature and are

duly elected state legislators.

Other findings of fact, developed as a result of a trial

in this court, will be noted as they become appropriate to

the discussion throughout this memorandum.

DISCUSSION

The turmoil over the proper interplay between gov-

ernment and religion in America antedates the Constitu-

tion and has been continual throughout the Republic’s his-

tory. The struggle has been to find that decent accommo-

dation which allows full virility of government within its

distinct sphere and full virility of religion within its dis-

tinct sphere. When the spheres have overlapped, sparks

have often flown.

The Constitutional Congress in 1774 opened its ses-

sion with prayer over the objections of John Jay and John

App. 10

Rutledge based upon the diversity of religious preferences

in that body.' A decade later the Constitutional Conven-

tion in Philadelphia failed to adopt Benjamin Franklin’s

motion for an opening prayer, but the Congress which

emerged from the Convention took on the custom of the

Continental Congress of having its sessions opened with

prayer and has continued with that custom to this day. It

is probably true that the legislatures of each of the fifty

states begin each session with an opening prayer, and it is

has been said that eighteen states, as well as the United

States Congress, employ a chaplain or chaplains to give

the prayers.’ The constitutionality of employment of leg-

islative chaplains by the United States Congress was chal-

lenged in Elliott v. White, 57 App. D. C. 389, 23 F. 2d 997

(1928), but the case was dismissed on the ground that the

plaintiff, as a taxpayer, had no standing to bring the com-

plaint under the rule of Frothingham v. Mellon, 262 U. 8.

447 (1923).

From the beginning of our country’s life, friction has

come between those who favor and those who disfavor

having prayers in legislative chambers by paid or unpaid

members of the clergy. New York, for example, had some

stormy times. When the state’s first constitution was

adopted, it stated that all members of the clergy were in-

eligible for any “civil . . . office or place within this state.”

For about fifty years thereafter no prayer opened the

legislative sessions and no chaplains for the legisla-

ture were allowed. By statute in 1829, however, payment

with civil funds of chaplains for the legislature began by

both houses. So many petitions against the practice—

whether against the appointments or the paying is not

App. 11

known—were received that a select committee was com-

missioned to study the matter and report. It did so, urg-

ing abolition of any statute authorizing chaplaincies, as

being unconstitutional. The legislature repealed the stat-

ute authorizing payment of the chaplains, but did not di-

rectly resolve the principle of legislative chaplaincies, as

such, in the state.“

Nebraska’s use of a chaplain for opening of its daily

legislative sessions began as early as 1855, twelve years

before statehood.’ The laws of 1867 provided that the

chaplain would be a salaried officer or employee of the

House of Representatives with the duty of opening the

session of each house of the legislature with prayer.’ The

statutes continuously made provision for a chaplain with

that duty until 1973, when the present statute was enacted,

declaring that the Executive Board of the Legislative

Council was to make recommendations for “such other offi-

cers as may be deemed necessary.“ The rules of the Ne-

braska Unicameral since then have required the Execu-

tive Board’s recommending a chaplain with the duty of

attending and opening each day’s sitting with prayer.

II.

The Establishment Clause of the First Amendment to

the Constitution of the United States is:

„Congress shall make no law respecting the estab-

lishment of religion.

That clause is made applicable to each state by the Four-

teenth Amendment. Cantwell v. Connecticut, 310 U. 8.

296, 303 (1940). For a state, then, the clause could be said

to read, “A legislature shall Cake no law respecting the

App. 12

establishment of religion.” Although a broad statement

misses the nooks and crannies, it may be helpful concept-

ually to say that the clause forbids a legislature from mak-

ing any law that tends to firm up or support religion or to

prefer one branch of religion or one religious belief over

another. From that can begin an analysis of the specific

features of the practice being challenged here.

In distinction from cases decided by the Supreme

Court of the United States under the Establishment

Clause, this case springs from a prayer practice that is,

for the most part, an internal act—that is, one directed at

the governmental unit itself or its own members. The

legislature’s causing invocational prayers and the prayers

themselves are for the legislators’ own benefit. Any hear-

ing of the prayers by anyone other than the legislators is

quite coincidental. The legislators, during the saying of

the prayers, are not in their law-making stance vis-a-vis

the public. Such an internal or in-house practice is not

well suited to analysis by standards developed for judg-

ing practices mandated by governmental bodies upon non-

members of the bodies, such as prayers and bible read-

ing by or for public school children, as in Engel v. Vitale,

370 U. S. 421 (1962), and Abington School District v.

Schempp, 374 U. S. 203 (1963), or posting of the Ten Com-

mandments on the wall of a public classroom, as in Stone

v. Graham, — U. S. —, 49 U. S. L. W. 3369 (11-17-80), or

the uce of funds collected from taxpayers to provide finan-

cial aid to nonpublic schools, as in Committee for Public

Education and Religious Liberty v. Nyquist, 413 U. S. 756

(1973).

The First Amendment, through the Fourteenth, de-

clares that state legislatures shall make no law respect-

App. 13

ing the establishment of religion.” It occurs to me that

not everything that a legislature does is “making” a “law.”

It makes a law when it decrees that someone else must do

something. I doubt that allowing prayer for or by its

own members is “making a law” in any sense. Neither

what legislators do for and by themselves nor what a legis-

lature does for and by itself with no significant impact on

anyone else is the making of laws. A legislator walks

to church for worship; he or she is not thereby making

a law. Each of the legislators walks to church for wor-

ship—even to the same church; they are not thereby mak-

ing a law. A legislator, or some legislators, or all the

legislators hear a prayer in their chamber or offices; they

are not thereby making a law. The legislature by ma-

jority vote invites a clergyman to give a prayer; neither

the voting nor the inviting nor the giving nor the hearing

of the prayer is making a law.

On this basis alone, it seems to me, I must hold that

the saying of prayers, per se, in the legislative halls at

the opening of each session is not prohibited by the First

and Fourteenth Amendments.

Bogen v. Doty, 598 F. 2d 1110 (C. A. 8th Cir. 1979),

reaches the same conclusion through the test promulgated

in Nyquist, supra—the purpose-effect-entanglement test.“

If the same test is put to the Nebraska legislative prac-

tice, aside from payment of the chaplain and the printing

at public expense and distributing of the prayers, the re-

sult is the same as in the Bogen case. There is reflected

by the practice a clearly secular purpose: bringing the

legislators to order by means of a brief, solemn and

thoughtful act in a traditional manner. To say that the

prayers have no religious purpose would reach incred-

App. 14

ibility; they do indeed have a religious purpose for the

chaplain and those who choose to listen for spiritual rea-

sons. The prayers also have a secular purpose, and it is

genuine enough and strong enough to meet the constitu-

tional measurement.

As to the effect of the practice of an invocation, it is

in fact primarily secular. Irrespective of what some per-

sons might hope for or wish to be true, the actual effect

of these prayers on religion, I am persuaded by the ree-

ord made in this case, is virtually nonexistent. The prob-

lem is not new. James Madison observed with respect to

prayers in Congress in his day that “the daily devotions

conducted by these legal Ecclesiastics [were] already de-

generating into a scanty attendance and a tiresome formal-

ity.” The constitutional test is not, as the plaintiff as-

serts, whether the prayers have any effect or could have

some effect. The test, rather, is whether the primary

effect is to advance or inhibit religion. Nyquist, supra,

413 U. S. at 773, and Abington, supra, 374 U. S. at 222. The

primary effect of the prayers, I find as a matter of fact,

is neither to advance nor to inhibit religion. Other ex-

pressions have been used to state the ‘‘primary effect”

idea. It must not have the “direct and immediate effect

of advancing religion,” as opposed to à remote and inci-

dental effect.” Nyquist, supra, at 784, n. 39. That revision

of wording, carrying perhaps a stricter test, does not

change my findings here. The having of prayers in the

legislature of Nebraska does not have a direct and im-

mediate effect of advancing or inhibiting religion.

For me or any other judge to say that these particu-

lar prayers have no effect upon the spiritual life of in-

App. 15

dividual senators would be presumptuous, and I do not

say it. Whether a prayer is vibrant or flat or irritating

or irrelevant in a privately spiritual sense is too personal

for a judge to decide, except as to himself. It is at this

point that I find the effect test, which was developed in

other settings by the Supreme Court, awkward to apply

to cases, such as this one, in which the religious act is done

by and for the legislators themselves, rather than by and

for someone else at the legislators’ direction. The test can

be adjusted to this case by saying that my assignment is

to decide whether the practice of saying prayers in the

legislature is advancing or inhibiting religion in religion’s

institutional or generic sense. As to that, I find that it is

not. There is neither hurting nor helping of institutional

or generic religion or any subpart of it. The same result

obtains whether I rely, on the one hand, upon the opinions

of the witnesses in this case as to the actual effect, or,

on the other hand, upon evidence of the nature of the

practice and my view of the probable consequences ration-

ally to flow from that nature.

It is true, as the plaintiff’s counsel point out, that

the Supreme Court of Nebraska has said: “Prayer is al-

ways worship.” It is also true that the Supreme Court

of the United States has said:

“The nature of such a prayer [a solemn avowal of

divine faith and supplication for the blessings of the

Almighty] has always been religious.

Nonetheless, neither court was declaring that prayer can

have no possible effect other than one that is primarily

religious or that prayer always has a direct and immedi-

ate effect of advancing religion. Praying by its nature

may be always religious; its significant effect may be—

and in the context of this case is—otherwise.

App. 16

One worthy admonition for us in this area is to avoid

being tightly clutched by the particular words used in a

different setting by an opinion writer. Chief Justice Bur-

ger reminded us in Walz v. Tax Commission, 397 U. 8.

664, 668 (1970):

“ . . In attempting to articulate the scope of the two

Religion Clauses, the Court’s opinions reflect the limi-

tatiors inherent in formulating general principles on

a case-by-case basis. The considerable internal incon-

sistency in the opinions of the Court derives from

what, in retrospect, may have been too sweeping utter-

ances on aspects of these clauses that seemed clear in

relation to the particular cases but have limited mean-

ing as general principles.”

The plaintiff argues that the effect test is failed if the

secular effect could be achieved without using a religious

means. I am not able to accept that as a flat constitu-

tional proposition, and the plaintiff’s counsel has cited no

ease for it, except a concurring opinion of Justice Bren-

nan in Abington School District v. Schempp, supra, 374

U. S. at 281, and Ring v. Grand Forks Public School Dis-

trict No. 1, 483 F. Supp. 272, 274 (U.S. D. C. N. D. 1980).

When Justice Brennan made that statement, however, he

was not speaking for the court and was not speaking of

prayers in legislative halls. Indeed, later in that same

concurring opinion he did speak of prayers in legislative

chambers and said they “might well represent no involve-

ments of the kind prohibited by the Establishment Clause.”

374 U. S. at 299. The Ring opinion merely cited the Bren-

nan concurring opinion in Abington and does not have to

do with legislative prayers or chaplains.

Distinguishing this case from the school-prayer and

bible-reading cases is not difficult. I agree with the court

App. 17

in that respect in Colo v. Treasurer and Receiver General,

Mass. 392 N. E. 2d 1195, 1200 (1979) :

„ . . The purpose of a school is to teach impression-

able children, many of whom, because of their ages,

cannot be expected to comprehend that school-spon-

sored prayers are not necessarily ‘lessons’ to be

learned like other aspects of the school program

By contrast, mature legislators may reasonably be

assumed to have fully formed their own religious be-

liefs or non-beliefs. The provision for a ceremonial mo-

ment of meditation at the opening of the . . . sessions

is unlikely to advance religious belief among the leg-

islators or their constituency, even if it does give ree-

ognition to the traditional place that prayer has oc-

eupied in such a ritual for two centuries.”

See, also, State ex rel. Finger v. Weedman, 55 S. D. 343,

226 N. W. 348 (1929).

Moreover, the voluntariness of attendance makes a

difference. The children are in school mandatorily; the

senators are not in the senate mandatorily, but by choice.”

While voluntariness is properly a consideration under

the Free Exercise Clause of the First Amendment," it is

also a factor in assessing the effect of a practice under the

Establishment Clause. See Abington, supra, concurring

opinion of Justice Brennan, at pp. 299-300, saying:

“Legislators, federal and state, are mature adults

who may presumably absent themselves from such

public and ceremonial exercises without incurring any

penalty, direct or indirect... .”

Senator Chambers, although personally offended by the

practice of having the prayers and by their content, has

had only minor inconvenience in absenting himself and

has suffered no significant obloquy as a result of his non-

attendance.

App. 18

Excessive entanglement is the third part of the an-

alysis used by the Court of Appeals in Bogen v. Doty, su-

pra. As in the Bogen case, I think that the saying of the

prayers alone entangles the state in religious affairs only

nominally. The entanglement is not excessive. The court

in Bogen cautioned the state governmental unit of the

“quagmire” of excessive entanglement which may result

from refusing volunteers of one religious persuasion while

inviting others to give prayers. Bogen, 598 F. 2d at 1114.

The same quagmire may be near in Nebraska, but the

record is so far barren of the legislature’s having entered

it.

III.

Paying a salary to the chaplain and paying for and

causing the printing of prayer books containing selections

from the chaplain’s legislative offerings, all at the tax-

payers’ expense, are in a different posture.” Directing

the treasurer to pay tax money either to the chaplain or

to a printer for prayer books is making a law. It is done

by the legislature in its governmental capacity and impos-

es obligations upon nonmembers. It respects religion be-

cause it has an immediate and direct effect, substantial

in scope, in advancing religion.

The process of printing and distributing books of

prayers suffers an additional defect: It has no secular

purpose. Whereas an invocation offers the rewards of

a starting of the business of the day in a thoughtful mood

and the extension of a tradition, the prayer book is devoid

of any such goals, and no other secular purpose has been

suggested by counsel. The use of the prayer book does

not fall into a category of private meditational material

App. 19

for the legislators, because distribution has been to non-

legislators as well as to legislators."

The Supreme Court of the United States has mapped

out the road regarding payment of public funds for re-

ligious activities. The federal government cannot give

unrestricted construction funds or loans to sectarian col-

leges, because the money could be used for a religious

need." A state cannot loan religiously neutral equipment,

such as tape recorders and laboratory supplies to non-

public schools, because the ultimate effect of the state’s

activity might be a religious one.“ A state cannot return

a portion of a private school’s tuition fees to parents, be-

cause the ultimate effect might be a religious one.“ The

court in Hunt v. McNair, 413 U. S. 734, 743 (1973), said:

„Aid normally may be thought to have a primary

effect of advancing religion . . when it funds a spe-

cifically religious activity in an otherwise substan-

tially secular setting.”

The chaplain’s salary is no small amount, but the

amount is immaterial.

“No tax in any amount, large or small, can be levied

to support any religious activities or institutions,

whatever they may be called, or whatever form they

may adopt to teach or practice religion.”

Everson v. Board of Education, 330 U.S. 1, 16

(1947).

The imposition of taxes to pay ministers’ salaries

... aroused their indignation. It was these feelings

which found expression in the First Amendment.”

Id., at 11.

The direct and immediate religious effect of Ne-

braska's funding a chaplain's salary is in securing a firm

App. 20

and continuing relationship with a particular elerie of

one denomination to the virtual exclusion of all others

for at least the several-month session of the legislature.

That does not mean that no clergypersons of other re-

ligious persuasions are afforded an opportunity to offer

opening prayers. Over the years the chaplain has asked

others to fill in for him when he is absent. From time to

time various senators have asked whether their own

clergypersons might be invited, and in those instances the

chaplain has always honored the requests, including one

of the Jewish faith. Nevertheless, the chaplain for fifteen

years has been of one faith, of one denomination, of one

set of religious beliefs, embodied in one person. Use of

public money to finance that arrangement—and to finance

the printing for distribution to members and nonmembers

of the resulting prayers—has resulted in the placing of

“the power, prestige and financial support of government

. . .« behind a particular religious belief” or set of be-

liefs, which the Establishment Clause is designed to pre-

vent. Engel v. Vita/e, 370 U.S. 421, 431 (1963).

“Tt is neither sacrilegious nor antireligious to say

that each separate government in this country should

stay out of the business of writing or sanctioning of-

ficial prayers and leave that purely religious function

to the people themselves and to those the people

choose to look to for religious guidance.”

Id., 370 U. S. at 435.

The result of this holding is that prayers may be had

in the legislative hall, but not at public expense, and those

prayers may be published and distributed, but not at pub-

lie expense. That distinction is not new. James Madison,

the author of the First Amendment’s Religion Clauses,“

App. 21

participated in the selection of the first Congressional

chaplain but later expressed the opinion that such a chap-

laincy should be at the members’ own expense. He said:

“If Religion consist in voluntary acts of individuals,

singly, or voluntarily associated, and it be proper that

public functionaries, as well as their Constituents

should discharge their religious duties, let them like

their Constituents, do so at their own expense. How

small a contribution from each member of Congress

would suffice for the purpose? How just would it be

in its principle? How noble in its exemplary sacri-

fice to the genius of the Constitution; and the divine

right of conscience?’ Why should the expense of a

religious worship be allowed for the Legislature, be

paid by the public, more than that for the Executive

or Judiciary branch of the Government?”

Pfeffer, Church State and Religion (rev. ed. 1967),

p. 249.

I have not dealt separately with the appointment of a

chaplain, as distinguished from paying one. Whether

the legislature can avoid advancing or inhibiting religion

and excessive entanglement with religion by appointing

a single chaplain on a continuing basis for year after year

or even for a several-month session is problematical. I

leave the matter where the Court of Appeals for the

Eighth Circuit left it in Bogen v. Doty:

“We would be less than candid if we did not warn

the county of the quagmire it is near. Up to the time

of oral argument, all persons delivering invocations

were members of the Christian faith. We have no

reason to believe that persons of any religious per-

suasions have volunteered and been turned down by

the board. If in the future this should occur the

board will be in a very difficult position to defend

against an allegation that it is excessively entangled

App. 22

in religion by giving public approval to some groups

while denying it to others. We will not speculate on

what, if any, criteria the county might permissibly

use in selecting speakers; we only suggest that the

process might prove more burdensome in time

money than is justified by the benefits.”

598 F. 2d at 1114.

The members of the Executive Committee of tie

Legislative Council merely recommend the person to be

appointed chaplain. They do not, so far as I can tell,

direct payment for the chaplain or the printing of the

prayer books. The lawsuit, therefore, should be dismissed

as to them.

JURISDICTION OF THE COURT

The action was filed under 42 U.S.C. § 1983, and the

court has jurisdiction because of 28 U.S.C. § 1343(3).

Dated December 24, 1980.

BY THE COURT

/s/ Warren K. Urbom

Chief Judge

Footnote 1/ Stokes & Pfeffer, Church and State in the

United States (1st ed. 1964), pp. 83, 478-482.

Footnote 2/ Colo v. Treasurer and Receiver General,

Mass. 392 N. E. 2d 1195 (1979).

Footnote 3/ Here, Sis aed tte ane o tee

lature and no question has been raised of his standing to

this action, except as discussed in footnote 14, infra.

Footnote 4/ Blau, Cornerstones of Religious Freedom in

America (1949), pp. 136-156.

. .. I 1

January 22, “‘on motion of Mr. Ric Mr. Richardson, RESOLVED that

— authorized to invite — — 1 JI

Opening of its daily sessions.”

App. 23

Footnote 6/ Laws, 1867, Sections 2, 3 and 4.

Footnote 7/ Section 50-111, R. R. S. Neb. (1943, as

amended).

Footnote 8/

“. . . [T)o pass muster under the Establishment Clause

the law in question, first, must reflect a clearly secular leg-

eee

that neither advances nor inhibits religion, . . . „third,

must avoid excessive governmental entanglement with

religion

413 U. S. at 773

Footnote 9/ Pfeffer, Church State and Freedom (1967),

. 248, citing Fleet, Madison's Detached Memorandum,” Wil-

iam & Mary Quarterly, October, 1946, p. 559.

Footnote 10/ Ancient & Accepted Scottish Rite of Free-

masonry v. Board of County Commissioners, 122 Neb. 586, 241

— 1 be (1932), quoting People v. Board of Education, 245 Ill.

34, ,

Footnote 11/ Engel v. Vitale, supra, at 424-425.

Footnote 12/ A rule of the Nebraska Legislature requires

that “ member shall be present within the Legislative

Chamber during the meetings of the Legislature . . . , unless

excused ...” Unless the excuse for nonattendance is deemed

sufficient by the legislature, the presence of any member m

be compelled, if necessary, by sending the Sergeant at Arms.”

Footnote 13/ Hamilton v. Regents of the University of

California, 293 U. S. 245 (1934).

ing the chaplain and ishing the books, the de-

argue that the ntiff has no standing to raise those

issues, on theory that he is seeking to raise

them only because of his status as a taxpayers, as

App. 24

distribution, as a non-Christian member of the legislature, not

merely as a taxpayer. He has standing.

Footnote 15/ The foreword to the published book of

an yey ae 4°

a encouragin use of t

others abe wish to — them “as expressions of faith,

before God others.” it continues:

have the distinct impression that a new hunger for the

transcendent is abroad in our land. The vertical dimen-

sion of life is again asserting its claims. Even the more

meg secularism cannot fully stifle — Son —

to . We need God's power, presence purpose in

our pilgri , and we need the opportunity to e

this need. is discovery may yet be the most significant

fact as our nation begins the decade of the 1980's.”

wh 16/ Tilton v. Richardson, 403 U.S. 672, 683

Footnote 17/ Meek pittenger, 421 U. S. 349 (1975); Wol-

man v. Walter, 433 U. S. 229 (1977).

Footnote 18/ Sloan v. Lemon, 413 U. S. 825 (1973).

Footnote 19/ On September 23, 1789, Madison pre-

sented to the House of Lr Seen,

recommending adoption of a stronger version of the Religion

Clauses than the Senate had prev accepted. “As Irving

Brant puts it, ‘Of all the versions of the religious guarantee, this

most aye covered the thing he was aiming at—absolute

separation of church and state and total exclusion of govern-

ment aid to religion.“ The House and Senate immediately

the amendments in the Conference Report,

followed, and the wording remains to this x

Schwartz, The Bill of Rights: A Documentary History (1971),

Volume ll, p. 1159.

App. 25

EXHIBIT D

No. 81-1077

UNITED STATES COURT OF APPEALS

For The Eighth Circuit

Ernest Chambers,

Appellee,

Frank Marsh, State Treasurer, and Robert E. Palmer,

Chaplain and Officer of the Nebraska Unicameral,

Appellants.

Frank Lewis; John DeCamp; Robert L. Clark; Tom Fitz-

gerald; Steve Fowler; Howard A. Lamb; Richard D.

Marvel; Loran Schmit and Jerome Warner, in their of-

ficial capacity as members of the Executive Board of the

Legislative Council of the Nebraska Unicameral.

No. 81-1088

Ernest Chambers,

Appellant,

Frank Marsh, State Treasurer, and Robert E. Palmer,

Chaplain and Officer of the Nebraska Unicameral; Frank

Lewis; John DeCamp; Robert L. Clark; Tom Fitzgerald;

Steve Fowler; Howard A. Lamb; Richard D. Marvel;

Loran Schmit and Jerome Warner, in their official capa-

city as members of the Executive Board of the Legisla-

tive Council of the Nebraska Unicameral,

Appellees.

App. 26

Appeal and Cross-Appeal from the United States

District Court for the District of Nebraska.

Submitted: October 13, 1982

Filed: April 14, 1982

Before HEANEY and STEPHENSON, Circuit Judges,

and OLIVER,“ Senicr District Judge.

HEANEY, Circuit Judge.

The Nebraska legislature compensates a chaplain to

open each legislative session with a prayer and, from time

to time, collects and publishes the prayers in book form.

Ernest Chambers, a Nebraska legislator, challenges this

practice as violating the Establishment Clause of the First

Amendment. The district court' enjoined some elements

of the practice and upheld others, from which both Cham-

bers and the defendants’ appeal. We affirm in part and

*The Honorable JOHN W. OLIVER, United States Senior

District Judge for the Western District of Missouri, sitting by

designation.

he Honorable Warren Kk. Urbom, Chief judge, United

States District Court for Nebraska.

App. 27

reverse in part, and remand the matter for further action

consistent with this opinion.

The essential facts are undisputed. Rule 1, sections

2 and 21, of the Rulrs of the Nebraska Unicameral provide

that a chaplain shall be selected by the legislature through

its Executive Board and that such chaplain shall attend

and “open with prayer” each day of each session. Rever-

end Robert Palmer, an ordained Presbyterian clergyman,

has been selected and has served as the sole legislative

chaplain for every session since 1965. Chaplain Palmer is

compensated out of general tax revenues at the rate of

$320 per month for each month the legislature is in session.

In 1975, 1978 and 1979, several hundred copies of prayer

books were prepared and distributed pursuant to express

legislative authorization, at a total cost to taxpayers of

several hundred dollars. The books are comprised of the

daily prayers offered in those years and have been distrib-

uted to both members and nonmembers of the legislature.

Senator Chambers is a taxpayer and citizen of Ne-

braska, as well as a duly elected member of the legislature.

In 1979, he commenced a section 1983 action challenging

the foregoing practice in its entirety—the compensation

of the chaplain, the printing of the prayer books and the

offering of daily prayers—arguing that the practice vio-

lates the Establishment Clause. The district court dis-

tinguished these three elements, ruling that compensation

of the chaplain and financing of the prayer books are un-

constitutional, but that offering daily pravers is not.

Before reaching the merits of this case, we must ad-

dress the defendants’ claims that the action is barred by

App. 28

the Tenth Amendment and by doctrines of standing, ab-

stention and legislative immunity. We find no merit in

any of these contentions.

The defendants argue that Nebraska’s prayer prac-

tice is immune from federal judicial scrutiny under the

Tenth Amendment, relying on National League of Cities

v. Usury, 426 U.S. 833 (1976). National Cities, however,

involved limits on congressional power to interfere, under

‘he commerce clause, with certain essential state govern-

mental functions.“ Here, the issue is whether the First

Amendment prohibits the Nebraska prayer practice, not

whether Congress has interfered with state sovereignty.‘

Nothing in National Cities even hints that the Tenth

Amendment immunizes state action from constitutional

scrutiny. Indeed, if we adopted the defendants’ position,

the Tenth Amendment would shield state action from the

entire Bill of Rights. We decline to do so.

The defendants next contend that Senator Chambers

lacks standing, arguing that Chambers’ taxpayer status

is insufficient and that, under more general standing prin-

ciples, he lacks : ny individualized injury that is different

It appears that the reasoning of National Cities is limited

action under the commerce clause. Ne

State of New Hampshire v. Marshall, 616 F.2d 240 (1st Cir.

Because the present action was brought under section

1983, the defendants attempt to construe it as a federal statu-

J.. Se ae ee eS eee

App. 29

from the general grievance which any Nebraska citizen

might assert. To support these contentions, the defend-

ants attempt to separate the expenditure aspect of the

chaplaincy from the prayers themselves, notwithstanding

that defendants elsewhere argue the two elements cannot

be treated separately. The defendants also attempt to

construe the expenditure aspects as incidental adminis-

trative items that one lacks standing to challenge unless

one is challenging a more general program of expendi-

tures.

We think it is clear that Chambers has standing to

assert his claim. The chaplain is selected and compen-

sated for performing ostensibly one function—opening

each legislative day with a prayer. Chambers challenges

the formal legislative rule and established practice as a

whole, not merely incidental elements of it. A taxpayer

clearly has standing to challenge the expenditure founda-

tion of such a practice because of the nexus between his

taxpayer status and the Establishment Clause claim. See

Flast v. Cohen, 392 U.S. 83 (1968); Murray v. Buchanan,

No. 81-1301 (D. C. Cir. Mar. 9, 1982) (taxpayer standing to

challenge congressional chaplaincy) ; cf. Stone v. Graham,

449 U.S. 39 (1980) (standing not even disputed). More-

over, Chambers properly asserts particularized injury in

that, as a member of the legislature, he squarely confronts

the prayer program on a daily basis.“ We thus have no

difficulty finding standing to assert the present claim.

prayers.

App. 30

The defendants also contend that the abstention doc-

trine precludes federal courts from entertaining the pres-

ent action. We cannot agree. Abstention ordinarily in-

volves deferring federal judicial action when ongoing state

proceedings might obviate the need for federal relief. See

Younger v. Harris, 401 U. S. 37 (1971). Under quite nar-

row circumstances, the Supreme Court has extended the

comity basis of nonintervention to certain state-level exe-

cutive branch functions. See Rizzo v. Goode, 423 U. S. 362,

379-380 (1976). Federalism principles, however, do not

in any manner bar the present action. There have never

been any state proceedings relative to the present action,

much less are any proceedings presently outstanding. Nor

is the challenged prayer practice an isolated incident un-

related to official state policy. The prayer practice has

been followed with the same minister for over sixteen years

and the record as a whole suggests that the practice will

continue unless it is held violative of the First Amend-

ment. The present action is thus a proper assertion of a

federal claim in a federal court and is fully ripe for de-

cision. See Zablocki v. Redhail, 434 U.S. 374, 380 n.5

(1978) (“[t]here is, of course, no doctrine requiring ab-

stention merely because resolution of a federal question

may result in the overturning of a state policy”).

The defendants finally contend that the prayer prac-

tice may not be challenged because it is subject to legisla-

‘Rizzo v. Goode, SS > Wee econ vere om renee

federal jude n The Supreme Court deemed

-K

App. 31

tive immunity. Immunity for state legislators under sec-

tion 1983 has been generally equated with the immunity

accorded congressmen under the Speech and Debate

Clause. See Supreme Court of Virginia v. Consumers

Union, 446 U. S. 719, 731-733 (1980). The defendants

argue that the chaplain’s prayers constitute immune speech

and that virtually every act relating to the prayers—the

rules requiring such prayers and the compensation paid

therefor—are legislative acts immune from challenge.

As the Supreme Court clarified in Gravel v. United States,

408 U. S. 606, 625 (1972) :

Legislative acts are not all-encompassing. The

heart of the Clause is speech or debate in either

House. Insofar as the Clause is construed to reach

other matters, they must be an intergral part of the

deliberative and communicative processes by which

Members participate in committee and House proceed-

ings with respect to the consideration and passage or

rejection of proposed legislation or with respect to

other matters which the Constitution places within

the jurisdiction of either House. As the Court of

Appeals put it, the courts have extended the privilege

to matters beyond pure speech or debate in either

House, but “only when necessary to prevent indirect

impairment of such deliberations.” [Citation omitted,

emphasis added.]

Here, no speech activity by any legislator is at issue.

Moreover, the deliberative process of the legislature will

not be impaired to any degree by judicial resolution of

the claim brought by Chambers. The prayer practice, as

the district court found, bears no substantive relation to

the process of enacting legislation. Nor is the independ-

App. 32

ence of any individual legislator threatened by this action.’

See United States v. Brewster, 401 U. S. 501 (1972). In-

dividual prayer by legislators is not at issue. We hold

that legislative immunity does not bar an otherwise proper

First Amendment challenge to the formal, established

practice of the Nebraska legislature by which it compen-

sates a chaplain to open each session with prayer.

The First Amendment, applicable to the states through

the Fourteenth Amendment, requires that states “make no

law respecting the establishment of religion.” See Cant-

well v. Connecticut, 310 U.S. 296, 303 (1940). The de-

fendants argue that the Nebraska prayer practice does

not involve “making a law” for purposes of the Establish-

ment Clause. The district court accepted this argument

in part, hypothetically separating the prayer from the

practice as a whole.

The legislature by majority vote invites a clergy-

man to give a prayer; neither the inviting nor the

giving nor the hearing of the prayer is making a law.

On this basis alone“ * * the saying of prayers, per

se, in the legislative halls at the opening session is

not prohibited by the First and Fourteenth Amend-

ments.

504 F. Supp. at 588.

The present action, however, does not focus on iso-

lated utterances or invitations during legislative sessions

We note that the district court dismissed this action as to

the legislator-defendants and only the state treasurer

and the chaplain. Because we do not extend the injunction

any legislators, we need not address whether such relief

be barred by legislative immunity.

App. 33

and there is no reason to speculate whether prayer prac-

tices other than the one at issue here would constitute

“law making” for purposes of the Establishment Clause.

Here, the Nebraska legislature has adopted formal rules

requiring the selection of a chaplain and the offering of

prayer by such chaplain on each day of the legislative

session. By express authorization, the chaplain is com-

pensated for this service and, from time to time, the

prayers are collected and published in book form. Such

state sanctioned, sponsored and financed prayer activities

certainly reflect sufficient “law making” to present a

justiciable claim under the Establishment Clause. See, e. g.,

Bogen v. Doty, 598 F. 2d 1110 (8th Cir. 1979) (informal

rule); Voswinkel v. City of Charlotte, 495 F. Supp. 588

(W. D. N.C. 1980) (employment contract).

We thus reach the substantive issue on its merits—

does the Nebraska prayer practice violate the standard

embodied in the Establishment Clause. The test for this

inquiry is clear: the challenged state action must (1)

serve a clearly secular purpose, (2) have a primary effect

which neither advances nor inhibits religion, and (3)

avoid excessive government entanglement with religion.

Comm. for Public Education and Religious Liberty v. Ny-

quist, 413 U. S. 756, 773 (1973).

In applying this test, the district court separated the

actual prayers and chaplaincy from the compensation of

the chaplain and the printing of the prayer books. Ana-

lyzing these elements independently, the court concluded

that the chaplaincy and prayers are permissible, but that

compensation of the chaplain and publication of the books

are unconstitutional.

App. 34

It might be proper to separate funding from the acts

which are funded when, for example, the only disputed

state involvement relates to funding.“ Here, however, the

legislative prayers are state sanctioned and, indeed, are

required by formal rule. The funding is inextricably

bound up with the prayers themselves. The principal

function of the chaplain is to offer the daily prayers and

he is compensated for performing this function. Parsing

out these elements leads to what the defendants empha-

sized is an incongruous result: sanctioning a chaplain

to offer prayers is deemed permissible but compensating

him for doing so is not.

In our view, to assess whether the prayer practice

has an impermissible purpose or effect, or whether it

results in excessive entanglement, the established practice

must be viewed as a whole. Whether the prayer practice

crosses the line which separates church and state is not

always easily discerned. As the Supreme Court has noted:

“(t]he line of separation * * is a blurred, indistinct and

variable barrier depending on all the circumstances of a

particular relationship.” Lemon v. Kurtzman, 403 U.S.

602, 614 (1971) (emphasis added). We, therefore, must

analyze the various elements of Nebraska’s practice as

parts of a whole, not as independent unrelated actions.

In so doing, we recognize that the present case falls with-

in what might be labeled the “ceremonial prayer” cate-

gory. Ceremonial recitals have a widespread role in many

of our institutions: our presidents traditionally have

taken their oath of office on a Bible, many federal courts

SE. g., Gilfillan v. of Philadelphia, 637 F. 2d 924 (3d Cir.

= — e

App. 35

open their sessions with a declaration that invokes the

deity, and the federal congresses, both before and after

adoption of the First Amendment, elected legislative chap-

lains who offered ceremonial prayers. See 1 Journals of

the Continental Congress 26 (1774); 1 House J. 16,610

1, Senate J. 12,452. Similarly, our coinage states “In

God we Trust,” which has been held not to violate the

First Amendment. See Aronow v. United States, 432 F.

2d 242 (9th Cir. 1970). None of this suggests that legis-

latures or other public bodies are free to promote religion

while claiming to stand on ceremonial tradition. As has

been noted by the Supreme Court: “While our institu-

tions reflect a firm conviction that we are a religious

people, those institutions by solemn constitutional injune-

tion may not officially involve religion in such a way as

to prefer, discriminate against, or oppress, a particular

sect or religion.” (Emphasis added.) Abington School

Dist. of Schempp, 374 U. S. 203, 231 (1963) (Brennan, J.,

concurring).

In assessing whether Nebraska’s practice transcends

permissible bounds, we are guided by this Court’s deci-

sion in Bogen v. Doty, supra. Bogen involved a county

board’s practice of opening each of its public meetings

with a prayer offered by a local member of the clergy.

This was a voluntary program. Representatives of vari-

ous denominations were invited to give the prayer, none

were compensated and no prayers were recorded or pub-

lished. This Court upheld that practice, finding that it

advanced a clearly secular purpose of “establishing a

solemn atmosphere and serious tone for the board meet-

ings.” Id. at 1113. The only issue was the offering of

App. 36

“establishing solemnity is the primary effect of all invo-

cation, at gatherings of persons with differing views on

religion.” Id. at 1114. In also finding that the practice

did not excessively entangle government and religion, the

Bogen Court underscored that no public monies were ex-

pended and that there was no evidence the county had

given preference to one religious denomination over an-

other. Id. Denominational preference and use of public

funds were thought to carry a serious potential for divid-

ing persons in the political arena along religious lines,

resulting in excessive entanglement between the govern-

ment and religion. The Bogen Court, while upholding the

practice as a whole, sternly warned the county “of the

quagmire it is near.” Id.

In our view, Nebraska has fallen into that quagmire

with its legislative prayer practice. For sixteen years,

the Nebraska legislature has selected and paid one min-

ister, representing one denomination, to open each legis-

lative session with prayer. The state has compensated

the minister for offering such prayers. It has published

his prayers for distribution to members and nonmembers

of the legislature.

Such a practice violates all three elements of the

constitutional test applicable here. The purpose of the

practice as a whole must be to advance and give prefer-

ence to one religious view over others. There is little

other reason for singling out one minister of one denomi-

nation for such an extended period of time, and for fur-

ther promoting that minister’s religious expressions by

publishing his prayers under state auspices.

The primary effect of the practice as a whole is un-

mistakeably to advance religion and to give preference

App. 37

to one religious view. The state has placed its official

seal of approval on one religious view for sixteen years

and has stood behind that seal with its funds—both to

compensate the minister and to publish his prayer books.

There is no merit to defendants’ claim that such acts are

only internal to the legislature and have no effect on the

public. The prayer books have been distributed to mem-

bers and nonmembers of the legislature. Moreover, the

legislative sessions clearly are public meetings at which

the press and general public are ordinarily present. Those

who have observed or participated in Nebraska’s legisla-

tive process over the last sixteen years would have to con-

clude that the legislature has an official view on religion

which is expressed by its minister and promoted with the

use of state funds.

The prayer practice also entangles the state with re-

ligion in precisely the manner warned of in Bogen. By

using state monies to compensate the same minister for

sixteen years and to publish his prayer books, the state

engenders serious political division along religious lines.

The result is the type of excessive entanglement which

must be avoided under the First Amendment.

We therefore hold that Nebraska’s legislative prayer

practice, taken as a whole, is unconstitutional as a viola-

tion of the Establichment Clause of the First Amendment.

We do not hold that invocations alone are unconstitu-

tional. Indeed, Bogen demonstrates that some invocation

practices can be constitutionally conducted. Nor do we

hold that a legislative chaplaincy, even a paid chaplaincy,

is per se unconstitutional. We recognize that a paid chap-

lain might be assigned functions other than offering offi-

cial prayers, functions that could be deemed proper in

App. 38

some contexts.’ As indicated in Bogen v. Doty, supra. u

chaplainey program also might rely on volunteer members

of the clergy and involve diverse theological representa-

tives. The purpose and effect of such alternatives, how-

ever, must be examined in the light of a full record when

they present an actual controversy. We cannot speculate

on the constitutionality of practices that are not before us.

We decide only the questions presented here. We

hold that the Nebraska legislature cannot continue to en-

gage in its established practice by which a single minister

is paid to offer legislative prayers and is retained as the

exclusive source of such prayers over an extended period

of time. The publishing of prayer books is similarly an

impermissible part of such practice. The injunction en-

tered below should be modified to reflect that the state

is enjoined from engaging in the established practice by

which it has operated the chaplaincy.

The only remaining issue involves attorneys’ fees.

The district court considered the plaintiff to be a partially

prevailing party and awarded part of the fees requested

by plaintiff’s counsel. The court denied certain time and

expense items that were deemed unnecessarily duplicative,

which we cannot say was an abuse of discretion. The court

also indicated, however, that in arriving at an overall fee,

it took into account the fact that the plaintiff was only

App. 39

partially successful. Both the plaintiff and defendants

construe this as meaning that the fee award was reduced

from what it would have been had the plaintiff fully pre-

vailed. Such a reduction appears improper under Brown

v. Bathke, 588 F. 2d 634, 638 (8th Cir. 1978), but we need

not reach the issue of fee awards for partially prevailing

parties. The plaintiff challenged the prayer practice as a

whole and, under our holding, the state is enjoined from

engaging in its present practice. The plaintiff is a fully

prevailing party for purposes of a fee award. Thus, it

would not be proper to reduce fees on the theory plaintiff

prevailed only partially, and a new fee award should be

made on remand. A determination of costs and fees on

the appeal will be made upon proper motion.

The district court is affirmed in part and reversed in

part and the case is remanded for further proceedings con-

sistent with this opinion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

App. 40

EXHIBIT E

Nos. 81-1077 and 81-1088

UNITED STATES COURT OF APPEALS

For The Eighth Circuit

September Term, 1981

Ernest Chambers,

Appellee/Cross-A ppellant,

vs.

Frank Marsh, ete. et al.,

Appellants/Cross-Appellees.

Appeal from the United States District Court

for the District of Nebraska.

On motion of appellants/cross-appellees, it is now

here ordered that the issuance of the mandate herein be,

and the same is hereby, stayed for a period of sixty days

from this date. If within that time there is filed with

the Clerk of this Court a certificate of the Clerk of the

Supreme Court of the United States that a petition for

writ of certiorari has been filed, the stay hereby granted

shall continue until the final disposition of the case by the

Supreme Court.

May 12, 1982

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.