# Amicus Brief — Marsh v. Chambers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0365%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1983 - **Citation:** 463 U.S. 783 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0365%3A08. Public record. Not legal advice.