Amicus Brief — Marsh v. Chambers

IN THE

Supreme Court of the United R L. STEVAS.

OCTOBER TERM, 1982

>

FRANK MARSH, STATE TREASURER, et al.,

Petitioners,

—V.—

ERNEST CHAMBERS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF AMICUS CURIAE OF ANTI-DEFAMATION

LEAGUE OF B’NAI BRITH IN SUPPORT

OF RESPONDENT

er —_——— —_ — —

= —— ——_ —

DAVID J. EISEMAN

Golenbock, Eiseman & Assor

300 East 42nd Street

Of Counsel: New York, New York 10017

NATHAN E. ASSOR

Golenbock, Eiseman & Assor

300 East 42nd Street

New York, New York 10017

JUSTIN J. FINGER

JEFFREY P. SINENSKY

LESLIE K. SHEDLIN

Anti-Defamation League of B’nai Brith

823 United Nations Plaza

New York, New York 10017

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Interest of the Amicus Curiae... .........ccccccccees

ees GF GS Ge 0 occ decndsecusnsiséinnaene

SD GE AGREES. 5 oc ccvcccvaseteusssebeedesse

GSES Sc vicececiccvcecacesccesdseanGeaneel

THE NEBRASKA LEGISLATURE’S CHAP-

LAINCY PRACTICE VIOLATES THE FIRST

ARTGIEIGE ccccccccvcvcecceccescosesoccs

Il. NEBRASKA'S CHAPLAINCY PRACTICE

INVOLVES RELIGIOUS ACTIVITY .......

Il. NEBRASKA’S CHAPLAINCY PRACTICE

IS UNCONSTITUTIONAL UNDER THIS

COURT’S RULING IN LARSON V. VA-

A. Nebraska’s Chaplaincy Practice Is Subject

To Strict Scrutiny Under Larson ........

The Chaplaincy Practice Does Not Serve

A Compelling Governmental Interest And,

In Any Event, Is Not Closely Fitted To

Furthering Any Such Interest ...........

Ill. NEBRASKA’S CHAPLAINCY PRACTICE

IS UNCONSTITUTIONAL UNDER LEM-

GIN K RURRTEMAN . oc ccccccccvvesvecess

A.

Nebraska’s Practice Has The Direct Effect

Of Advancing Religion Because It Involves

Governmental Financial Support Of Reli-

CD GRD. «00 + 0c cbnenedédeues sekee

Nebraska’s Chaplaincy Practice Has The

Prohibited Effect Of Advancing Religion

Both In The Legislature And In Society As

WEE s ccc vccosddanccatuteeheacevas

10

14

TABLE OF AUTHORITIES

Cases PAGE

Board of Education v. Allen, 392 U.S. 236 (1968)... .2, 6, 12

Cantwell v. Connecticut, 310 U.S. 296 (1940) ......... 6

Chambers v. Marsh, 504 F. Supp. 585 (D. Neb. 1980).. 3,7

Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982)...... 3

Committee for Public Education v. Nyquist, 413 U.S.

DE 66¢60e6u6Geboceccescceccocécecoecs 12, 13, 15

Engel v. Vitale, 370 U.S. 421 (1962) .... 6.666660 cee 7,14

Everson v. Board of Education, 330 U.S. | (1947)..... 12

Karen B. v. Treen, 653 F.2d 897 (Sth Cir. 1981), aff'd

without opinion, 102 S. Ct. 1267 (1982)............ 8

Larson v. Valente, 102 S. Ct. 1673 (1982).......... 5, 6, 8, 9

Lemon v. Kurtzman, 403 U.S. 602 (1971)...... 2, 5, 6, 11, 15

Lemon v. Sloan, 413 U.S. 825 (1973) .........005000: 2

McGowan v. Maryland, 366 U.S. 420 (1961).......... 13, 18

Meek v. Pittenger, 421 U.S. 349 (1975)... 2... ee eee ee 2, 6

School District of Abington Township, Pennsylvania v.

Schempp, 374 U.S. 203 (1963) ............ 2, 8, 14, 15, 19

Sherbert v. Verner, 374 U.S. 399 (1963) ..........055. 2

Stone v. Graham, 449 U.S. 39 (1980) ..... 06.6665 005s 8, 11

Tilton v. Richardson, 403 U.S. 672 (1971)..........5. 12

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63

MM dtteedtiends ceeudesseteeovesceseeéooceses 2

Waiz v. State Tax Commission, 397 U.S. 664 (1970) ... 6, 7,

11, 18

PAGE

West Virginia Board of Education v. Barnette, 319 U.S.

Pc cacdstacseshosteebddedese es socconéts 15

Wolman v. Walter, 433 U.S. 229 (1977)... 2... 6.66005 2

Constitution, Statutes and Rules

United States Constitution

Pele CEES sc coves cccccceccccsccssosons passim

Nebraska Revised Statutes

SU CUE ocd 6cvecccoctorncoaseoncss 3

PD POPES oxbdccceshocscconscsoesee

Rules of the Nebraska Unicameral Legislature

ee GB Biicccctesccecocegtbestiececsces 3

BD FE, DEED BERD oc ceccccedcctvicccoscccs 3,4

Rate 1A, Gectiem 28... ccccvcccccccscscccccces 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-23

>

FRANK MARSH, STATE TREASURER, et al.,

Petitioners,

—_f ==

ERNEST CHAMBERS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

>

BRIEF AMICUS CURIAE OF ANTI-DEFAMATION

LEAGUE OF B'NAI BRITH IN SUPPORT

OF RESPONDENT

Amicus supports the position of respondent and respectfully

submits that the judgment of the United States Court of

Appeals for the Eighth Circuit in the above-captioned case

should be affirmed.'

Interest of the Amicus Curiae

The Anti-Defamation League of B’nai Brith was organized

in 1913 as a section of B’nai Brith, the oldest civic service

I Amicus has filed with the Clerk of the Court letters, from counsel

for all parties, consenting to the filing of this brief.

2

organization of American Jews, to advance good will and

mutual understanding among Americans of all creeds and

races, and to combat racial and religious prejudice in the

United States.

The Anti-Defamation League has always adhered to the

principle, as an important priority, that the above goals and the

general stability of our democracy are best served through the

separation of church and state and the right to free exercise of

religion.

In support of this principle, the Anti-Defamation League

has previously filed amicus briefs before this Court in such

cases as School District of Abington Township, Pennsylvania

v. Schempp, 374 U.S. 203 (1963), Sherbert v. Verner, 374 U.S.

399 (1963), Board of Education v. Allen, 392 U.S. 236 (1968),

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

413 U.S. 825 (1973), Meek v. Pittenger, 421 U.S. 349 (1975),

Trans World Airlines v. Hardison, 432 U.S. 63 (1977), and

Wolman v. Walter, 433 U.S. 229 (1977). The League is able to

bring to the issues raised on this appeal the perspective of a

national organization dedicated to safeguarding all persons’

religious freedoms.

In this case, the Court is asked to decide whether the

chaplaincy practice of the Nebraska Unicameral Legislature

violates the Establishment Clause of the First Amendment.

Amicus believes that Nebraska’s retention of a chaplain of one

denomination for an extended period of time, and its expendi-

ture of funds during that time to support the daily recitation of

prayers, grant a denominational preference and constitute the

type of governmental support for religion prohibited by the

Establishment Clause. Accordingly, amicus urges the Court to

affirm the Eighth Circuit’s holding that Nebraska may not

continue its present chaplaincy practice.

3

Statement of the Case

At the beginning of cach session of Nebraska’s Unicameral

Legislature, the Executive Board of the Legislative Council of

the Legislature recommends the selection of a chaplain. Cham-

bers v. Marsh, 504 F. Supp. 585, 586 (D. Neb. 1980). Expressly

authorized by statute until 1973, the procedure has since taken

place pursuant to internal leglislative rules promulgated under

a statute authorizing the selection of legislative officers. Ru/es

of the Nebraska Unicameral Legisiature, Rule 1, Section 2

(“Nebraska Rules”); Nebraska Revised Statutes § 50-111

(1978). The procedure has resulted in the selection of Robert

Palmer, a Presbyterian clergyman, as the Legislature’s sole

chaplain since 1965. 504 F. Supp. at 586.

Mr. Palmer’s duties, set by the Nebraska Rules, include

opening every session of the Legislature with a prayer. Ne-

braska Rules, Rule 7(a), Section 1(b). The Legislature compen-

sates the chaplain for his services out of public funds pursuant

to statutory authorization. Nebraska Revised Statutes § 50-112

(1978). Compensation is paid at the rate of $320 per month for

every month the Legislature is in session. Chambers v. Marsh,

675 F.2d 228, 230 (8th Cir. 1982).

On three occasions during Mr. Palmer’s 16-year tenure,

prayer books containing compilations of his opening prayers

have been published and made available for public distribu-

tion. Financing for this also came from state funds, the

expenditure of which was approved by vote of the Legislature.

504 F. Supp. at 586.

A sampling of Mr. Palmer’s published opening prayers,

which is included in the record before this Court, reveals that

the prayers which Mr. Palmer has used to open the legislative

sessions are both religious and denominational.’ All of them

2 Charles Stephen, Jr., a clergyman who testified at the tria! of this

case as an expert witness, observed:

“Roughly half the prayers that | have seen in those booklets . . .

had Christian terminology, such as Jesus Christ or Our Lord or

terminology such as that. . . .” Joint Appendix, 36 (“J.A.”)

4

contain a theistic message and many contain references to basic

tenets of the Christian faith. Indeed, Mr. Palmer himself

characterized the prayers as Christian, although in his view

they nevertheless remained non-sectarian since most Americans

are Christian.’

The prayer practice is an integral part of the Nebraska

Legislature’s daily routine whenever it is in session. The Rules

mandate that the chaplain “shall open with prayer each day’s

sitting of the Legislature.” Nebraska Rules, Rule 1A, Section

21. And the prayer is part of the official proceedings; under

the Rules, the chaplain’s prayer is the first item in the “order

of business.” Nebraska Rules, Rule 7(a), Section 1(b).

This case presents a challenge to this particular chaplaincy

practice—involving the retention of a chaplain c* one denomi-

nation for an extended length of time and payment of state

funds to compensate the chaplain for reciting prayers which

are religious and emphasize the precepts of one denomination.

This case does not involve a challenge to legislative chaplaincy

practices in general.

3 At his deposition, Mr. Palmer testified as follows about prayers he

had offered in the Legislature:

“Q. The last sentence, what does the last sentence say? A. In

the name of Christ Our Lord.

Q. You'd agree, | assume, that— A. It's a Christian—

Q. Narrows it down to a Christian prayer? A. I wouldn't say

sectarian, but I'd say Christian.” (J.A. 76)

“Q. The flavor. Would you say that they're Christian prayers, at

least in the sense that you use the word ‘Jesus’ and ‘Christ’? Would

that be fair to say? A. No, that wouldn't be fair to say atall. . .

The majority of the prayers reflect more of what I don’t like to use

as a phrase, but | will, to clarify things, just civil religion in

America. The kind of religious expressions that are common to the

vast majority of most all Americans. (J.A. 83)

Summary of Argument

The Nebraska Legislature’s chaplaincy practice grants a

denominational preference and involves governmental finan-

cial support of religious activity. These two factors void the

chaplaincy practice under the principles developed by this

Court.

The chaplaincy practice here involves religious activity—the

daily recitation of prayers which are religious in nature and the

periodic publication of those prayers. By appointing a chaplain

of one denomination to perform this religious activity for 16

straight years, Nebraska’s Legislature has effectively granted a

denominational preference. Under the Court’s recent ruling in

Larson v. Valente, 102 S. Ct. 1673 (1982), such a preference

calls for strict scrutiny of the challenged practice. Nebraska’s

chaplaincy practice cannot withstand that analysis.

Nebraska’s chaplaincy practice also cannot survive under the

traditional three tests enumerated in Lemon v. Kurtzman, 403

U.S. 602 (1971). Compensating the chaplain for offering pray-

ers which are both religious and denominational has the direct

effect of advancing religion in general and his religion in

particular. In addition, church and state in Nebraska have

become excessively entangled by virtue of the close and long-

standing relationship between the Legislature and its chaplain

and the potential that exists for political divisiveness.

Nebraska’s chaplaincy practice cannot be upheld on the

basis of legislative history which shows that the First Congress

of the United States had chaplains, and compensated them, at

the time that same Congress approved the language and con-

tent of the First Amendment. The First Congress’ own nascent

chaplaincy practice is the only one which that Congress can be

deemed to have approved. That practice cannot be equated

with the one challenged here.

ARGUMENT

THE NEBRASKA LEGISLATURE’S CHAPLAINCY

PRACTICE VIOLATES THE FIRST AMENDMENT

A state practice cannot be sanctioned if it violates the First

Amendment’s prohibition against “establishment of religion.”

Cantwell v. Connecticut, 310 U.S. 296 (1940). To come within

the ambit of the Establishment Clause, a practice must relate in

some way to religion or religious activity.

The three tests articulated in Lemon v. Kurtzman, 403 U.S.

602 (1971), have served most often as this Court’s tool for

analyzing whether a practice which does involve religious

activity conflicts with the Establishment Clause.

“First, the statute must have a secular legislative purpose;

second, its principal or primary effect must be one that

neither advances nor inhibits religion, Board of Education

v. Allen, 392 U.S. 236, 243 (1968); finally, the statute

must not foster ‘an excessive governmental entanglement

with religion.’ Walz [v. State Tax Commission, 397 U.S.

664, 674 (1970)}. . . .” 403 U.S. at 612-613.

In addition, the Court has given special consideration to

certain factors, because their presence serves to “identify

instances in which the objectives of the Establishment Clause

have been impaired.” Meek v. Pittenger, 421 U.S. 349, 358-59

(1975). These factors weight analysis heavily toward a finding

of unconstitutionality. Thus, in Larson v. Valente, 102 S. Ct.

1673 (1982), the Court recently held that the presence of one

such factor—that the practice effectively grants a denomina-

tional preference—requires that the law involved must be

treated as suspect and its constitutionality adjudged under a

strict scrutiny standard. Government financial support of reli-

gious activity is another factor which arouses heightened con-

cern. Like denominational preference, it touches a central

nerve of the Establishment Clause; indeed, the Court has

;

termed it one of the three dangers the Framers meant to guard

against with the Establishment Clause. Walz v. State Tax

Commission, 397 U.S. 664, 668 (1970).

As we show below, Nebraska’s chaplaincy practice does

involve religious activity and must accordingly be analyzed for

infirmity under the Establishment Clause. And whether consid-

ered under the standard developed in Larson or that set forth

in Lemon, the practice’s grant of a denominational preference

and the use of state funds in support of religious activity makes

Nebraska’s chaplaincy practice violative of the Establishment

Clause.

NEBRASKA’S CHAPLAINCY PRACTICE INVOLVES

RELIGIOUS ACTIVITY

The morning prayers recited by Nebraska’s chaplain are

religious in nature. As the district court found in this case: “To

say that the prayers have no religious purpose would reach

incredibility; they do indeed have a religious purpose for the

chaplain and for those who choose to listen for spiritual

reasons.” 504 F. Supp. at 589.

It could not be otherwise, given the numerous references to

God, Christ and precepts of Christianity. Indeed, the prayers

here have far more religious content than the twenty-two word

prayer whose recitation in New York schools was struck down

in Engel v. Vitale, 370 U.S. 421 (1962), of which the Court

said: “There can, of course, be no doubt that [it] . . . is a

religious activity.” /d. at 424.

That there is also a secular objective for offering the pray-

ers—“bringing the legislators to order by means of a brief,

solemn and thoughtful act in a traditional manner,” 504 F.

Supp. at 589—does not change its inherently religious charac-

ter. This Court has repeatedly refused to overlook the religious

nature of practices involving the use of religious text, even

where the stated objective of the practice is wholly secular. In

School District of Abington Township, Pennsylvania v.

Schempp, 374 U.S. 203, 224 (1963), for example, the Court

rejected the state’s argument that the purposes of bible reading

exercises were wholly secular, stating: “[s]urely the place of the

Bible as an instrument of religion cannot be gainsaid.” Simi-

larly, in Stone v. Graham, 449 U.S. 39, 41 (1980), the Court

rejected arguments that the Ten Commandments were being

used in a classroom in a wholly secular way: “The Ten

Commandments is undeniably a religious text in the Jewish

and Christian faiths, and no legislative recitation of a supposed

secular purpose can blind us to that fact.” See also Karen B. v.

Treen, 653 F.2d 897, 901 (Sth Cir. 1981), aff'd without opinion,

102 S. Ct. 1267 (1982) (“That [prayer] may contemplate some

wholly secular objective cannot alter the inherently religious

character of the exercise”).

Given the inherently religious character of the prayers—

which the chaplain recites daily in the Legislature when it is in

session and which have been published periodically, pursuant

to the Legislature’s authorization—Nebraska’s chaplaincy

practice must be subjected to examination to determine

whether it “establishes” religion in contravention of the First

Amendment.

NEBRASKA’S CHAPLAINCY PRACTICE IS UNCON-

STITUTIONAL UNDER THIS COURT’S RULING IN

LARSON \. VALENTE

A. Nebraska’s Chaplaincy Practice Is Subject To Strict

Scrutiny Under Larson

In Larson v. Valente, 102 S. Ct. 1673 (1982), the Court held

that strict scrutiny is required of a statute which grants a

denominational preference, because prevention of governmen-

tal preference of one religion over another is at the very heart

of the Establishment Clause. “The clearest command of the

9

Establishment Clause is that one religious denomination can-

not be officially preferred over another.” /d. at 1683.

The challenge in Larson was to a statute which exempted

religious organizations from registration and disclosure re-

quirements applicable to charitable organizations. The statute

contained a “fifty percent rule,” providing that the exemption

was available only to those religious organizations that re-

ceived more than half their total contributions from members

or affiliated organizations. This, the Court found, “effectively

distinguishes” between well-established churches and churches

which are either new, lacking in members or favor public

solicitation as a matter of policy. /d. at 1684 n. 23.

Applying the strict scrutiny test, the Court agreed that the

statute did have a valid secular purpose: protecting citizens

from abusive practices in solicitation of funds for charitable

purposes. /d. at 1685. But, it held, even assuming arguendo

that this could satisfy the requirement of a “compelling”

governmental interest, the fifty percent rule was nevertheless

constitutionally infirm because it was not “closely fitted” to

furthering that interest: there was nothing in the record before

the Court showing that the fifty percent rule was necessary to

protect citizens from abusive practices, or that it was even

logically related to the promotion of that interest. /d. at

1685-87.

Nebraska’s chaplaincy practice poses the same danger—

denominational preference—as the statute struck down in

Larson. Retaining a chaplain of one denomination to perform

a religious function over an extended period of time gives the

unmistakable impression that the particular religion is pre-

ferred by those doing the choosing—in this case, the Legisla-

ture. The practice, accordingly, should be subjected to the

same strict scrutiny.’

4 Unlike the situation in Larson, denominational preference is not

evident on the face of Nebraska's rule or statute. This difference,

however, does not alter the need for strict scrutiny here. It is the

Legislature’s practice that is being challenged, not its statute or rule.

[footnote continued]

10

B. The Chaplaincy Practice Does Not Serve A Compelling

Governmental Interest And, In Any Event, Is Not Closely

Fitted To Furthering Any Such Interest

Although the chaplaincy practice unquestionably serves a

valid secular interest, in addition to a religious purpose, this

secular interest—bringing the legislators to order in a solemn

and thoughtful manner—cannot fairly be characterized as

compelling. It is at most only tangentially related to the real

governmental interest implicated here: the legislative function.

Bringing the legislators to order is preliminary. The calling-to-

order by means of a ceremony is, in fact, probably not

necessary at all, for the sound of a gavel can do that. And

while the prayer may serve to create a sense of solemnity,

ceremony or history, these are only matters of atmosphere.

They do not have any significant relationship to the essence of

lawmaking—dissemination of information and debate.

Even if the interest served were deemed to be compelling, the

practice is not “closely fitted” to it. The religious nature of the

invocations is unrelated to the secular objective of calling the

legislators to order in a solemn, thoughtful manner. There are

numerous invocations without religious overtones which would

create an atmosphere of order and solemnity. Similarly, re-

stricting the chaplaincy to a representative of only one religion

for an extended length of time has no relationship to this

secular objective.

Nor is there the required close fit between the secular

objective here and Nebraska’s practice of compensating the

chaplain with taxpayer funds. There is nothing to suggest that

it is the use of taxpayers’ funds, rather than funds from some

other source, that enables the Legislature to secure chaplain

services. In any event, using funds from some other source

[footnote continued]

That practice violates the “clearest command of the Fstablishment

Clause” no less than the statute in Larson. The facial neutrality of

Nebraska’s statute and rule cannot save the practice, any more than an

unconstitutional act of the executive branch can be validated by the

soundness of the underlying statute which cloaks it with authority.

would not cure the problem. The state may not provide

funds—directly or indirectly—for use in connection with an

activity which is religious in character. See discussion at 11-14

infra.

Because Nebraska’s Legislature, through its chaplaincy prac-

tice, has granted a denominational preference, and because

that practice neither furthers a compelling governmental in-

terest nor is closely fitted to furthering any valid secular

interest, the practice cannot be sanctioned.

NEBRASKA’S CHAPLAINCY PRACTICE IS UNCON-

STITUTIONAL UNDER LEMON k KURTZMAN

Even if Nebraska’s chaplaincy practice could survive strict

scrutiny, it could not pass muster under the standard of Lemon

v. Kurzman, supra. A practice must satisfy all three of the tests

in Lemon in order to avoid the prohibition of the Establish-

ment Clause. Stone v. Graham, 449 U.S. 39, 40 (1980).

Nebraska’s chaplaincy practice fails two of those tests. It has

the direct effect of advancing religion and it fosters an exces-

sive government entanglement with religion.

A. Nebraska’s Practice Has The Direct Effect Of Advancing

Religion Because It Involves Governmental Financial

Support Of Religious Activity

The Establishment Clause was designed to guard against

governmental financial support of religious activity. Walz v.

State Tax Commission, 397 U.S. 664, 668 (1970). This Court,

accordingly, has closely scrutinized schemes that funnel funds

to religious institutions or otherwise subsidize or aid religious

practices. Indeed, the proscription against providing financial

support to religion is so central to the Establishment Clause,

the Court has held that the mere possibility that government

funds might be used in connection with religious activity is

enough to void a practice under that Clause.

12

In Committee for Public Education v. Nyquist, 413 U.S. 756

(1973), the Court struck down a financial aid program which

gave money grants to non-public schools for maintenance and

repair because nothing in the statute barred use of the funds to

pay salaries of employees who maintained the school chapel,

or the cost of renovating, heating or lighting classrooms in

which religion was taught. /d. at 774. To pass muster, the

Court said, there must be “an effective means of guaranteeing

that the state aid derived from public funds will be used

exclusively for secular, neutral and nonideological purposes.”

Id. at 780. See also Tilton v. Richardson, 403 U.S. 672 (1971)

(voiding that part of a statute which entitled the government to

recover construction grants to sectarian colleges if the money

was used to promote religious interests, but which provided for

expiration of that condition after twenty years).

The Court has upheld state aid only where it is for use solely

in connection with a wholly secular function. In such in-

stances, the mere fact that aid goes to a religious institution

does not invalidate the practice, since the aid to the institution

is only incidental to the provision of support for the secular

activity. See Everson v. Board of Education, 330 U.S. 1 (1947)

(reimbursement for public transportation); Board of Educa-

tion v. Allen, 392 U.S. 236 (1968) (provision of secular text-

books). But supported activities must be “ ‘so separate and so

indisputably marked off from the religious function,’ . . . that

they may be fairly viewed as reflections of a neutral posture

toward [religion]. . . .” Committee for Public Education v.

Nyquist, supra, 413 U.S. at 782, quoting Everson v. Board of

Education, 330 U.S. 1, 18 (1947).

Nebraska’s chaplaincy practice does not fit within that

limited category of practices which are “so separate and

indisputably marked off from the religious function,” and it

does not provide the necessary “guarantee” that state funds

will be used only for secular functions. The prayer practice

serves both religious and secular functions. The functions are

intertwined and cannot be separated from each other. Expendi-

ture of state funds in connection with the practice thus inevi-

13

tably involves financial support of religious activity. That

invalidates the practice. Expenditures for the purpose of pub-

lishing the prayers are impermissible for the same reasons.

It makes no difference that the payments go to the chaplain

individually, rather than to his church. It is not the identity of

the recipient that matters; it is the nature of the activity for

which the state is providing support. If the activity is religious

in nature—even if it also has aspects which are secular—the

government cannot support it financially. The Court made this

clear in Nyquist, invalidating a tuition reimbursement program

which provided payments directly to low income parents who

sent their children to non-public schools.

The presence of both secular and religious components in

Nebraska’s chaplaincy practice distinguishes this case from

McGowan v. Maryland, 366 U.S. 420 (1961), where the Court

rejected a challenge to Sunday Closing Laws. The holding

there rested on the Court’s finding that the Closing Laws had

shed their religious character over time. Tracing the develop-

ment of Sunday iegislation over the years, the Court concluded

that the Laws had “undergone extensive changes from its

earliest forms, id. at 431; that over time Sunday had been

transformed into a day of “recreation, cheerfulness, repose

and enjoyment,” id. at 448; and that legislation prohibiting

certain activities on Sunday could no longer be characterized as

religious in character, as evidenced by exemptions given to

various activities, such as sale of alcoholic beverages and

operation of beaches and amusement parks, id. On the basis of

these findings, the Court held that any benefit to religion, such

as facilitating church attendance, was incidental and not suffi-

cient to invalidate the laws as “respecting an establishment of

religion.”

Unlike the Sunday closing practice at issue in McGowan, the

purpose and character of Nebraska's chaplaincy practice re-

main religious to this day. And because Nebraska’s chaplaincy

practice involves religious activity, under the principles es-

tablished by this Court in Nyquist and the other financial

14

support cases, the use of state funds in connection with that

activity has the proscribed effect of advancing religion, both

directly and immediately.

B. Nebraska's Chaplaincy Practice Has The Prohibited Ef-

fect Of Advancing Religion Both In The Legislature And

In Society As A Whole

It is amicus’ contention that Nebraska’s chaplaincy practice

has the prohibited effect of advancing religion even though the

prayers are directed at the legislative membership, not at the

public at large, and even though the members of the Legisla-

ture are apparently free to absent themselves during the morn-

ing prayer.

There is no state function more public than the making of

laws. The sessions of the Legislature, at which this function

takes place, are the subject of the attention of a broad

spectrum of the citizenry, from politically minded adults to

impressionable school children who study it in civics. The

chaplaincy practice is part and parcel of those legislative

sessions. Regardless of whom the chaplaincy practice was

intended to benefit, its effects carry beyond the legislative

chamber; indeed it is difficult to imagine a forum that would

serve more effectively to convey a message to all Nebraskans.

Since the effects of the chaplaincy practice are not confined

to the Legislature, the legislators’ freedom to waix out during

the prayer ceremony is of no significance. In any event, the

Court has consistently held that the Establishment Clause

cannot be circumvented by making a practice voluntary:

“Neither the fact that the prayer may be denominationally

neutral nor the fact that its observance on the part of

* students is voluntary can serve to free it from the limita-

tions of the Establishment Clause. . . .”

Engel v. Vitale, 370 U.S. 421, 430 (1962). See also School

District of Abington Township, Pennsylvania v. Schempp,

supra, 374 U.S. at 224-25.

15

Nor does it matter that, apart from the challenge respondent

has mounted in this case, there has apparently been little

concern voiced by either the Legislature or citizens over Ne-

braska’s chaplaincy practice. It is enough that respondent

objects. Whether a practice is or is not constitutional has no

relationship to the number of people who agree with it. School

District of Abington Township, Pennsylvania v. Schempp,

supra, 374 U.S. at 226. In fact, the very purpose of the Bill of

Rights was to take certain matters away from “the vicissitudes

of political controversy.” West Virginia Board of Education v.

Barnette, 319 U.S. 624, 638 (1943). “One’s rights to. . .

freedom of worship . . . may not be submitted to vote; they

depend on the outcome of no elections.” /d.

The Court has always shown great sensitivity to practices

that threaten to impinge on the First Amendment. Even a

minor encroachment is enough to warrant invalidating a prac-

tice. As the Court said in Schempp:

“[(I}t is no defense to urge that the religious practice here

may be a relatively minor encroachment on the First

Amendment. The breach of neutrality that is today a

trickling stream may all too soon become a raging tor-

rent. . . .” 374 U.S. at 225.

Nebraska’s chaplaincy practice has an effect that advances

religion. It is not necessary to determine the extent to which

religion is advanced. The fact that there is an effect, and that it

is direct and immediate, makes it inconsistent with the First

Amendment.

C. Nebraska’s Practice Fosters An Excessive Entanglement

With Religion

The “entanglement” component of the Lemon tests guards

against “the intrusion of either [church or state] into the

precincts of the other,” Lemon v. Kurtzman, 403 U.S. 602, 614

(1971), and the potential for political divisiveness along reli-

gious lines, Committee for Public Education v. Nyquist, supra.

16

The same aspects of Nebraska’s chaplaincy practice which

trigger strict scrutiny under Larson and directly advance reli-

gion also give rise to an excessive entanglement of church and

state. The extended tenure of the chaplain and the use of state

funds to pay his salary and publish his prayers result in so close

a relationship between the chaplain and the Legislature that

they have “invaded each other’s precincts.”

Additionally, the chaplaincy practice here has the potential

for political divisiveness. The respondent in this case testified

at trial that the prayer practice, and his response to it, create

political divisiveness between him and the other legislators.

(J.A., 24-25) And the longer the legislature’s employment of a

chaplain of one denomination goes on—foreclosing the chap-

laincy from others—the greater the likelihood that legislators

and their constituents with a different religious orientation will

balk at the seeming preference of another religion and press to

have someone of their own religion occupy the post.

In short, Nebraska’s chaplaincy practice cannot survive the

“effect” or “entanglement” tests of Lemon. As reflected in the

application of those tests, Nebraska’s practice entails a rela-

tionship between religion and the Legislature which does not

comport with the constitutional principle of separation of

church and state.

IV.

NEITHER THE LEGISLATIVE HISTORY OF THE

FIRST AMENDMENT NOR HISTORICAL ACCEPT-

ANCE OF CHAPLAINCIES SAVES NEBRASKA’S CHA-

PLAINCY PRACTICE FROM UNCONSTITUTIONALITY

Petitioners, and the United States in its amicus brief, point

out that members of the First Congress appointed and voted to

compensate chaplains about the time that the First Amend-

ment was ratified. On the basis of this legislative history, they

argue that the Framers did not mean to disallow chaplaincies

and Nebraska’s present chaplaincy practice must therefore be

held constitutional.

17

The argument proves too much. The existence of paid

Congressional chaplaincies at the time the language of the First

Amendment was accepted shows only that chaplaincies were

not viewed as necessarily inconsistent with the First Amend-

ment. But it does not follow, and there is nothing in the

legislative history to suggest, that the First Congress gave, or

intended to give, blanket and prospective approval to any and

all chaplaincy practices.

The chaplaincy practice challenged in this case is different

than the practice in Congress at the time it approved the

content of the First Amendment. The practice at issue here

involves a Legislature with but one House and the retention

and compensation of a chaplain of one denomination for 16

consecutive years. These factors were not present in the chap-

laincy practice the First Congress had. At the time Congress

reached final agreement on the wording and content of the Bill

of Rights, the Senate and House chaplaincies had been in

effect only five months; and legislation to compensate the

chaplains was only three days old. Brief for the United States

as Amicus Curiae, at 11. Furthermore, the practice approved

by Congress specifically provided for the hiring of two chap-

lains—one in each House, to be interchanged weekly—each of

different faith. Brief for the United States as Amicus Curiae,

at 10-11.° The use of two chaplains, and the practice of

rotating them between Houses, is, of course, not even possible

in Nebraska, which has only one House.

In light of these differences, it cannot reasonably be con-

cluded that the implicit approval the First Congress gave to its

own practice extends to the Nebraska practice at issue here.

5 The United States points out that this rotation practice was discon-

tinued in 1856, although as it happens, both Houses have always had

chaplains of different denominations. Brief for the United States as

Amicus Curiae, at 13. The fact that the rotation practice was discon-

tinued is not relevant to the intent of the First Congress, which

approved the language of the First Amendment some seventy years

earlier.

Nor does the use of legislative chaplaincies over the years by

Congress and the States serve to validate the chaplaincy prac-

tice challenged here. The mere fact of long use cannot validate

an otherwise unconstitutional practice.

“It is obviously correct that no one acquires a vested or

protected right in violation of the Constitution by long

use, even when that span of time covers our entire

national existence and indeed predates it.” Walz v. State

Tax Commission, supra, 397 U.S. at 678.

Although the Court did review the history of challenged

practices in both Walz and McGowan v. Maryland, supra,

these historical overviews were provided because they illumi-

nated aspects of the practices which negated any finding of

unconstitutional effect. In Walz, the Court looked at history in

explaining that tax exemptions for religious institutions were a

response to earlier use of the tax to oppress religion as well as

the product of a desire to minimize government involvement in

religious affairs. 397 U.S. at 675. And in McGowan v. Mary-

land, supra, the passage of time was significant because during

it, the practice of Sunday closing had shed its religious charac-

ter.

Unlike the tax exemption upheld in Wa/z, Nebraska’s chap-

laincy practice does not derive from considerations underlying

the Establishment Clause or any other constitutional source.

And in contrast to the Sunday Closing Laws, Nebraska’s

chaplaincy has not shed its religious character.

The appropriate method for resolving the constitutionality

of Nebraska’s practice is by applying the principles the Court

has developed in the context of Establishment Clause adjudica-

tion. Applying those principles here compels the conclusion

that Nebraska’s chaplaincy practice is unconstitutional.

19

Conclusion

“In the relationship between man and religion, the State is

firmly committed to a position of neutrality.” School District

of Abington Township, Pennsylvania v. Schempp, supra, 314

U.S. at 203. Through its chaplaincy practice, the State of

Nebraska has deviated from that position by granting a

denominational preference and using state funds to advance

religion.

Amicus urges the Court to restore the constitutionally man-

dated neutrality by voiding Nebraska’s chaplaincy practice.

Respectfully submitted,

DAVID J. EISEMAN

Golenbock, Eiseman & Assor

300 East 42nd Street

New York, New York 10017

Of Counsel:

NATHAN E. ASSOR

Golenbock, Eiseman & Assor

300 East 42nd Street

New York, New York 10017

JUSTIN J. FINGER

JEFFREY P. SINENSKY

LESLIE K. SHEDLIN

Anti-Defamation League of B'nai Brith

823 United Nations Plaza

New York, New York 10017

Attorneys for Amicus Curiae