# Petition — Marsh v. Chambers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 463 U.S. 783

## Text

2999289 Ines ee 3
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LED

Nos. 81-1077 and 81-1088 1% 6 1982
* 8 ecvas.

In The CLER

Supreme Court of the United States

October Term, 1981

*
My

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

ra
4

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

i
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.

ii

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

iv

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

V

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

4
ww

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).
17

ON WRIT OF CERTIORARI FROM THE
UNITED STATES COURT OF APEALS
FOR THE EIGHTH CIRCUIT

ray

PETITION FOR WRIT OF CERTIORARI

s.
“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

2

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).

45
2

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

3

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.

K
=>

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.

4

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

6
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.

7

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

8

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

9

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

10

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-

11

lain for an extended period of time violative of the Estab-
lishment Clause.

4
383

REASONS FOR GRANTING THE WRIT

I.

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.

A.
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,

12

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

13

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.

B.
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

14

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.

C.
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.

15

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

16

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-

17

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

18

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-

19

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

20

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

21

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

22

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-

23

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-

24

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
L

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,
v.

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,
v.

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.

4.

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.

B.

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.

i;

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0365%3A01. Public record. Not legal advice.