CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 82-23 Argued: April 20, 1983 --- Decided: July 5, 1983
CHIEF JUSTICE BURGER delivered the opinion of the Court.
The question presented is whether the Nebraska Legislature's practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishment Clause of the First Amendment.
The Nebraska Legislature begins each of its sessions with a prayer offered by a chaplain who is chosen biennially by the Executive Board of the Legislative Council and paid out of [p785] public funds. [n1] Robert E. Palmer, a Presbyterian minister, has served as chaplain since 1965 at a salary of $319.75 per month for each month the legislature is in session.
Ernest Chambers is a member of the Nebraska Legislature and a taxpayer of Nebraska. Claiming that the Nebraska Legislature's chaplaincy practice violates the Establishment Clause of the First Amendment, he brought this action under 42 U.S.C. § 1983 seeking to enjoin enforcement of the practice. [n2] After denying a motion to dismiss on the ground of legislative immunity, the District Court held that the Establishment Clause was not breached by the prayers, but was violated by paying the chaplain from public funds. 504 F.Supp. 585 (Neb.1980). It therefore enjoined the legislature from using public funds to pay the chaplain; it declined to enjoin the policy of beginning sessions with prayers. Cross-appeals were taken. [n3]
The Court of Appeals for the Eighth Circuit rejected arguments that the case should be dismissed on Tenth Amendment, legislative immunity, standing, or federalism grounds. On the merits of the chaplaincy issue, the court refused to treat respondent's challenges as separable issues, as the District Court had done. Instead, the Court of Appeals assessed the practice as a whole because "[p]arsing out [the] [p786] elements" would lead to "an incongruous result." 675 F.2d 228, 233 (1982).
Applying the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), as set out in Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973), the court held that the chaplaincy practice violated all three elements of the test: the purpose and primary effect of selecting the same minister for 16 years and publishing his prayers was to promote a particular religious expression; use of state money for compensation and publication led to entanglement. 675 F.2d at 234-235. Accordingly, the Court of Appeals modified the District Court's injunction and prohibited the State from engaging in any aspect of its established chaplaincy practice.
We granted certiorari limited to the challenge to the practice of opening sessions with prayers by a state-employed clergyman, 459 U.S. 966 (1982), and we reverse. [n4]
The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, "God save the United States and this Honorable Court." The same invocation occurs at all sessions of this Court. [p787]
The tradition in many of the Colonies was, of course, linked to an established church, [n5] but the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain. See, e.g., 1 J.Continental Cong. 26 (1774); 2 id. at 12 (1775); 5 id. at 530 (1776); 6 id. at 887 (1776); 27 id. at 683 (1784). See also 1 A. Stokes, Church and State in the United States 448-450 (1950). Although prayers were not offered during the Constitutional Convention, [n6] the First Congress, as one of [p788] its early items of business, adopted the policy of selecting a chaplain to open each session with prayer. Thus, on April 7, 1789, the Senate appointed a committee "to take under consideration the manner of electing Chaplains." S.Jour., 1st Cong., 1st Sess., 10 (1820 ed.). On April 9, 1789, a similar committee was appointed by the House of Representatives. On April 25, 1789, the Senate elected its first chaplain, id. at 16; the House followed suit on May 1, 1789, H.R.Jour., 1st Cong., 1st Sess., 26 (1826 ed.). A statute providing for the payment of these chaplains was enacted into law on September 22, 1789. [n7] 2 Annals of Cong. 2180; § 4, 1 Stat. 71. [n8]
On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights, S.Jour., supra, at 88; H.R.Jour., supra, at 121. [n9] Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. [n10] It has also been followed consistently [p789] in most of the states, [n11] including Nebraska, where the institution of opening legislative sessions with prayer was adopted even before the State attained statehood. Neb. [p790] Jour. of Council, General Assembly, 1st Sess., 16 (Jan. 22, 1855).
Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns. In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress -- their actions reveal their intent. An Act
passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, . . . is contemporaneous and weighty evidence of its true meaning.
Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888).
In Walz v. Tax Comm'n, 397 U.S. 664, 678 (1970), we considered the weight to be accorded to history:
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. Yet an unbroken practice . . . is not something to be lightly cast aside.
No more is Nebraska's practice of over a century, consistent with two centuries of national practice, to be cast aside. It can hardly be thought that, in the same week, Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable. In applying the First Amendment to the states through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296 (1940), it would be incongruous to interpret that Clause as imposing more stringent [p791] First Amendment limits on the states than the draftsmen imposed on the Federal Government.
This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged. We conclude that legislative prayer presents no more potential for establishment than the provision of school transportation, Everson v. Board of Education, 330 U.S. 1 (1947), beneficial grants for higher education, Tilton v. Richardson, 403 U.S. 672 (1971), or tax exemptions for religious organizations, Walz, supra.
Respondent cites JUSTICE BRENNAN's concurring opinion in Abington School Dist. v. Schempp, 374 U.S. 203, 237 (1963), and argues that we should not rely too heavily on "the advice of the Founding Fathers," because the messages of history often tend to be ambiguous, and not relevant to a society far more heterogeneous than that of the Framers, id. at 240. Respondent also points out that John Jay and John Rutledge opposed the motion to begin the first session of the Continental Congress with prayer. Brief for Respondent 60. [n12]
We do not agree that evidence of opposition to a measure weakens the force of the historical argument; indeed it infuses it with power by demonstrating that the subject was considered carefully and the action not taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic society. Jay and Rutledge specifically grounded their objection on the fact that the delegates to the Congress "were so divided in religious sentiments . . . that [they] could not join in the same act of worship." Their objection [p792] was met by Samuel Adams, who stated that
he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the same time a friend to his country.
C. Adams, Familiar Letters of John Adams and his Wife, Abigail Adams, during the Revolution 37-38, reprinted in Stokes, at 449.
This interchange emphasizes that the delegates did not consider opening prayers as a proselytizing activity or as symbolically placing the government's "official seal of approval on one religious view," cf. 675 F.2d at 234. Rather, the Founding Fathers looked at invocations as "conduct whose . . . effect . . . harmonize[d] with the tenets of some or all religions." McGowan v. Maryland, 366 U.S. 420, 442 (1961). The Establishment Clause does not always bar a state from regulating conduct simply because it "harmonizes with religious canons." Id. at 462 (Frankfurter, J., concurring). Here, the individual claiming injury by the practice is an adult, presumably not readily susceptible to "religious indoctrination," see Tilton, supra, at 686; Colo v. Treasurer & Receiver General, 378 Mass. 550, 559, 392 N.E.2d 1195, 1200 (1979), or peer pressure, compare Abington, supra, at 290 (BRENNAN, J., concurring).
In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 (1952).
We turn then to the question of whether any features of the Nebraska practice violate the Establishment Clause. [p793] Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination -- Presbyterian -- has been selected for 16 years; [n13] second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo-Christian tradition. [n14] Weighed against the historical background, these factors do not serve to invalidate Nebraska's practice. [n15]
The Court of Appeals was concerned that Palmer's long tenure has the effect of giving preference to his religious views. We cannot, any more than Members of the Congresses of this century, perceive any suggestion that choosing a clergyman of one denomination advances the beliefs of a particular church. To the contrary, the evidence indicates that Palmer was reappointed because his performance and personal qualities were acceptable to the body appointing him. [n16] Palmer was not the only clergyman heard by the legislature; guest chaplains have officiated at the request of various legislators and as substitutes during Palmer's absences. Tr. of Oral Arg. 10. Absent proof that the chaplain's reappointment stemmed from an impermissible motive, we conclude [p794] that his long tenure does not in itself conflict with the Establishment Clause. [n17]
Nor is the compensation of the chaplain from public funds a reason to invalidate the Nebraska Legislature's chaplaincy; remuneration is grounded in historic practice initiated, as we noted earlier, supra at 788, by the same Congress that drafted the Establishment Clause of the First Amendment. The Continental Congress paid its chaplain, see, e.g., 6 J.Continental Cong. 887 (1776), as did some of the states, see, e.g., Debates of the Convention of Virginia 470 (June 26, 1788). Currently, many state legislatures and the United States Congress provide compensation for their chaplains, Brief for National Conference of State Legislatures as Amicus Curiae 3; 2 U.S.C. §§ 61d and 84-2 (1982 ed.); H.R. Res. 7, 96th Cong., 1st Sess. (1979). [n18] Nebraska has paid its chaplain for well over a century, see 1867 Neb. Laws 85, §§ 2-4 (June 21, 1867), reprinted in Neb. Gen.Stat. 459 (1873). The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, [p795] or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.
We do not doubt the sincerity of those, who like respondent, believe that to have prayer in this context risks the beginning of the establishment the Founding Fathers feared. But this concern is not well-founded, for as Justice Goldberg aptly observed in his concurring opinion in Abington, 374 U.S. at 308:
It is, of course, true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.
The unbroken practice for two centuries in the National Congress and for more than a century in Nebraska and in many other states gives abundant assurance that there is no real threat "while this Court sits," Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223 (1928) (Holmes, J., dissenting).
The judgment of the Court of Appeals is
1. Rules of the Nebraska Unicameral, Rules 1, 2, and 21. These prayers are recorded in the Legislative Journal and, upon the vote of the legislature, collected from time to time into prayerbooks, which are published at public expense. In 1975, 200 copies were printed; prayerbooks were also published in 1978 (200 copies), and 1979 (100 copies). In total, publication costs amounted to $458.56.
2. Respondent named as defendants State Treasurer Frank Marsh, Chaplain Palmer, and the members of the Executive Board of the Legislative Council in their official capacity. All appear as petitioners before us.
3. The District Court also enjoined the State from using public funds to publish the prayers, holding that this practice violated the Establishment Clause. Petitioners have represented to us that they did not challenge this facet of the District Court's decision, Tr. of Oral Arg.19-20. Accordingly, no issue as to publishing these prayers is before us.
4. Petitioners also sought review of their Tenth Amendment, federalism, and immunity claims. They did not, however, challenge the Court of Appeals' decision as to standing, and we agree that Chambers, as a member of the legislature and as a taxpayer whose taxes are used to fund the chaplaincy, has standing to assert this claim.
5. The practice in Colonies with established churches is, of course, not dispositive of the legislative prayer question. The history of Virginia is instructive, however, because that Colony took the lead in defining religious rights. In 1776, the Virginia Convention adopted a Declaration of Rights that included, as Article 16, a guarantee of religious liberty that is considered the precursor of both the Free Exercise and Establishment Clauses. 1 B. Schwartz, The Bill of Rights: A Documentary History 231-236 (1971); S. Cobb, The Rise of Religious Liberty in America 491-492 (1970). Virginia was also among the first to disestablish its church. Both before and after disestablishment, however, Virginia followed the practice of opening legislative sessions with prayer. See, e.g., J. House of Burgesses 34 (Nov. 20, 1712); Debates of the Convention of Virginia 470 (June 2, 1788) (ratification convention); J. House of Delegates of Va. 3 (June 24, 1788) (state legislature).
Rhode Island's experience mirrored that of Virginia. That Colony was founded by Roger Williams, who was among the first of his era to espouse the principle of religious freedom. Cobb, supra at 426. As early as 1641, its legislature provided for liberty of conscience. Id. at 430. Yet the sessions of its ratification convention, like Virginia's, began with prayers, see W. Staples, Rhode Island in the Continental Congress, 1765-1790, p. 668 (1870) (reprinting May 26, 1790, minutes of the convention).
6. History suggests that this may simply have been an oversight. At one point, Benjamin Franklin suggested that
henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business.
1 M. Farrand, Records of the Federal Convention of 1787, p. 452 (1911). His proposal was rejected not because the Convention was opposed to prayer, but because it was thought that a midstream adoption of the policy would highlight prior omissions, and because "[t]he Convention had no funds." Ibid.; see also Stokes at 455-456.
7. The statute provided:
[T]here shall be allowed to each chaplain of Congress . . . five hundred dollars per annum during the session of Congress. This salary compares favorably with the Congressmen's own salaries of $6 for each day of attendance, 1 Stat. 70-71.
8. It bears note that James Madison, one of the principal advocates of religious freedom in the Colonies and a drafter of the Establishment Clause, see, e.g., Cobb, supra, n. 5, at 495-497; Stokes, at 537-552, was one of those appointed to undertake this task by the House of Representatives, H.R. Jour., at 11-12; Stokes, at 541-549, and voted for the bill authorizing payment of the chaplains, 1 Annals of Cong. 891(1789).
9. Interestingly, September 25, 1789, was also the day that the House resolved to request the President to set aside a Thanksgiving Day to acknowledge "the many signal favors of Almighty God," H.R.Jour. at 123. See also S.Jour. at 88.
10. The chaplaincy was challenged in the 1850's by "sundry petitions praying Congress to abolish the office of chaplain," S.Rep. No. 376, 32d Cong., 2d Sess., 1 (1853). After consideration by the Senate Committee on the Judiciary, the Senate decided that the practice did not violate the Establishment Clause, reasoning that a rule permitting Congress to elect chaplains is not a law establishing a national church, and that the chaplaincy was no different from Sunday Closing Laws, which the Senate thought clearly constitutional. In addition, the Senate reasoned that, since prayer was said by the very Congress that adopted the Bill of Rights, the Founding Fathers could not have intended the First Amendment to forbid legislative prayer or viewed prayer as a step toward an established church. Id. at 2-4. In any event, the 35th Congress abandoned the practice of electing chaplains in favor of inviting local clergy to officiate, see Cong.Globe, 35th Cong., 1st Sess., 14, 27-28 (1857). Elected chaplains were reinstituted by the 36th Congress, Cong.Globe, 36th Cong., 1st Sess., 162 (1859); id. at 1016 (1860).
11. See Brief for National Conference of State Legislatures as Amicus Curiae. Although most state legislatures begin their sessions with prayer, most do not have a formal rule requiring this procedure. But see, e.g., Alaska Legislature Uniform Rules 11 and 17 (1981) (providing for opening invocation); Ark.Rule of Senate 18 (1983); Colo.Legislator's Handbook, H.R.Rule 44 (1982); Idaho Rules of H.R. and Joint Rules 2 and 4 (1982); Ind.H.R.Rule 10 (1983); Kan.Rule of Senate 4 (1983); Kan.Rule of H.R. 103 (1983); Ky.General Assembly H.Res. 2 (1982); La.Rules of Order, Senate Rule 10.1 (1983); La.Rules of Order, H.R.Rule 8.1 (1982); Me.Senate and House Register, Rule of H.R. 4 (1983); Md.Senate and House of Delegates Rules 1 (1982 and 1983); Mo.Rules of Legislature, Joint Rule 1-1 (1983); N.H.Manual for the General Court of N.H., Rule of H.R. 52(a) (1981); N.D. Senate and H.R.Rules 101 and 301 (1983); Ore.Rule of Senate 4.01 (1983); Ore.Rule of H.R. 4.01 (1983) (opening session only); 104 Pa. Code § 11.11 (1983), 107 Pa.Code § 21.17 (1983); S.D.Official Directory and Rules of Senate and H.R., Joint Rule of the Senate and House 4-1 (1983); Tenn.Permanent Rules of Order of the Senate 1 and 6 (1981-1982) (provides for admission into Senate chamber of the "Chaplain of the Day"); Tex.Rule of H.R. 2, § 6 (1983); Utah Rules of Senate and H.R. 4.04 (1983); Va. Manual of Senate and House of Delegates, Rule of Senate 21(a) (1982) (session opens with "period of devotions"); Wash.Permanent Rule of H.R. 15 (1983); Wyo.Rule of Senate 4-1 (1983); Wyo.Rule of H.R. 2-1 (1983). See also P. Mason, Manual of Legislative Procedure § 586(2) (1979).
12. It also could be noted that objections to prayer were raised, apparently successfully, in Pennsylvania while ratification of the Constitution was debated, Penn. Herald, Nov. 24, 1787, and that, in the 1820's, Madison expressed doubts concerning the chaplaincy practice. See L. Pfeffer, Church, State, and Freedom 248-249 (rev. ed.1967), citing Fleet, Madison's "Detached Memoranda," 3 Wm. & Mary Quarterly 534, 558-559 (1946).
13. In comparison, the First Congress provided for the appointment of two chaplains of different denominations who would alternate between the two Chambers on a weekly basis, S.Jour., 1st Cong., 1st Sess., 12 (1820 ed.); H.R.Jour., 1st Cong., 1st Sess., 16 (1826 ed.).
14. Palmer characterizes his prayers as "nonsectarian," "Judeo Christian," and with "elements of the American civil religion." App. 75 and 87 (deposition of Robert E. Palmer). Although some of his earlier prayers were often explicitly Christian, Palmer removed all references to Christ after a 1980 complaint from a Jewish legislator. Id. at 49.
15. It is also claimed that Nebraska's practice of collecting the prayers into books violates the First Amendment. Because the State did not appeal the District Court order enjoining further publications, see n. 3, supra, this issue is not before us, and we express no opinion on it.
16. Nebraska's practice is consistent with the manner in which the First Congress viewed its chaplains. Reports contemporaneous with the elections reported only the chaplains' names, and not their religions or church affiliations, see, e.g., 2 Gazette of the U.S. 18 (Apr. 25, 1789); 5 id. at 18 (Apr. 27, 1789) (listing nominees for Chaplain of the House); 6 id. at 23 (May 1, 1789). See also S.Rep. 376, supra, n. 10, at 3.
17. We note that Dr. Edward L. R. Elson served as Chaplain of the Senate of the United States from January, 1969, to February, 1981, a period of 12 years; Dr. Frederick Brown Harris served from February, 1949, to January, 1969, a period of 20 years. Senate Library, Chaplains of the Federal Government (rev. ed.1982).
18. The states' practices differ widely. Like Nebraska, several states choose a chaplain who serves for the entire legislative session. In other states, the prayer is offered by a different clergyman each day. Under either system, some states pay their chaplains, and others do not. For States providing for compensation statutorily or by resolution, see, e.g., Cal.Gov't Code Ann. §§ 9170, 9171, 9320 (West 1980), and S.Res. No. 6, 1983-1984 Sess.; Colo.H.R.J., 54th Gen. Assembly, 1st Sess., 17-19 (Jan. 5, 1983); Conn.Gen.Stat.Ann. § 2-9 (1983-1984); Ga.H.R. Res. No. 3, § 1(e) (1983); Ga.S.Res. No. 3, § 1(c) (1983); Iowa Code § 2.11 (1983); Mo.Rev.Stat. § 21.150 (1978); Nev.Rev.Stat. § 218.200 (1981); N.J.Stat.Ann. § 52 2 (West 1970); N.M. Const., Art. IV, § 9; Okla.Stat.Ann., Tit. 74, §§ 291.12 and 292.1 (West Supp.1982-1983); Vt.Stat.Ann., Tit. 2, § 19 (Supp.1982); Wis.Stat.Ann. § 13.125 (West Supp.1982).