Establishment Clause, Marsh v. Chambers

[A18]

Marsh v. Chambers, 463 U.S. 783 (1983)

The respondent, a member of the Nebraska legislature, brought an action in federal district court claiming that the legislature's chaplaincy practice violated the Establishment Clause of the First Amendment and seeking injunctive relief. The district court held that the Establishment Clause was not breached by the prayer but was violated by paying the chaplain from public funds, and accordingly enjoined the use of such funds to pay the chaplain. The court of appeals held that the whole chaplaincy practice violated the Establishment Clause, and accordingly prohibited the state from engaging in any aspect of the practice.

The Supreme Court reversed the judgment of the court of appeals.

BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and O’CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined. STEVENS, J., filed a dissenting opinion.

[Emsworth]

The decision was unsound. It is important to note that the establishment clause prohibits not only de jure establishments of religion, but also de facto establishments. If the clause prohibited nothing but formal declarations that a religion or religious doctrine is official, then it would be an empty and idle enactment. In reality, it prohibits everything like a religious establishment.

Few things come closer to completely establishing a religion than funding it with public money. When a government pays members of the clergy for performing religious functions, it has undoubtedly exceeded its authority. Compelling members of the public to pay the salaries of clergymen may be accepted in theocracies, but is forbidden by the Constitution. That members of the public are coerced to support religion in this particular case is beyond any shadow of a doubt.

Lest it be thought that this line of reasoning is the product of modern activism, I would point to the words of James Madison:

"Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In the strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation?"

The fact that this practice is historical does not discharge the Nebraska legislature from obedience to the strict letter of the establishment clause. Mere passage of time does not make anything constitutional.

[A18]

Constitutionally sound.

We have drifted too far from the original understanding of the Establishment Clause. The First United States Congress began its legislative sessions with a prayer. The same week that Congress submitted the Establishment Clause as part of the Bill of Rights to the states for ratification, it enacted legislation providing for paid chaplains in the House and Senate.

At the end of the day, Madison's sentiments still represent the thoughts of one man.

[Bleeding heart conservative, HTMLdon]

Well I'm not rally as much of a student of the Constitution as the two previous posters in this thread....

But I'm going to say it was Constitutionally sound.  I'm all for respecting other religions and not adding too much preference to one over another.  But government should not be forced to deny the inherent spirituality of humanity.  As long as the chaplains who are hired are basically ecumenical and can represent a broad spectrum of the communities in which they serve, I don't see the problem.

I hope the loser who filed that case got his teeth knocked out at the ballot box for this crap.

[Emsworth]

We have drifted too far from the original understanding of the Establishment Clause. The First United States Congress began its legislative sessions with a prayer. The same week that Congress submitted the Establishment Clause as part of the Bill of Rights to the states for ratification, it enacted legislation providing for paid chaplains in the House and Senate.

I disagree with this appeal to original meaning. As Justice Story wrote, "contemporary interpretation must be resorted to with much qualification and reserve ... It can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations."

It is true that the meaning of the establishment clause is not completely clear. However, at least one thing is clear: the government may not directly fund religion by paying the salaries of clergymen. This is the plain and obvious meaning of the text. Textualism must always be first, and originalism only second.

[A18]

Does text not get its meaning from how it is understood?

[David S]

The decision was unsound. It is important to note that the establishment clause prohibits not only de jure establishments of religion, but also de facto establishments. If the clause prohibited nothing but formal declarations that a religion or religious doctrine is official, then it would be an empty and idle enactment. In reality, it prohibits everything like a religious establishment.

Few things come closer to completely establishing a religion than funding it with public money. When a government pays members of the clergy for performing religious functions, it has undoubtedly exceeded its authority. Compelling members of the public to pay the salaries of clergymen may be accepted in theocracies, but is forbidden by the Constitution. That members of the public are coerced to support religion in this particular case is beyond any shadow of a doubt.

Lest it be thought that this line of reasoning is the product of modern activism, I would point to the words of James Madison:

"Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In the strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation?"

The fact that this practice is historical does not discharge the Nebraska legislature from obedience to the strict letter of the establishment clause. Mere passage of time does not make anything constitutional.

I was about to  vote "sound" until I read your post. OK you convinced me. Perhaps the legislature could open their sessions with a moment of silence during which members can pray to God , or Allah or Budda or just think about their shopping list depending on their personal preference.

[Emsworth]

Does text not get its meaning from how it is understood?

Indeed it does. However, it is entirely possible that Congress merely ignored the establishment clause. The First Congress was not perfect; just like the 109th, it was capable of passing unconstitutional legislation. For that reason, contemporary interpretation must be investigated carefully.

Consider, for example, the Judiciary Act of 1789. This act conferred original jurisdiction on the Supreme Court in areas not enumerated in the Constitution. It could be argued that the act represented the contemporary understanding of Article III. Does it follow that the Supreme Court was wrong in Marbury v. Madison?

Although there was no corresponding court case, the chaplaincy practice was equally unconstitutional. Just because the First Congress put its imprimatur on it, it does not follow that the practice becomes permissible.

The deciding factor here must be the presence of coercion. The taxpayers are coerced into paying the salary of a clergyman. If that is not establishment of religion, then nothing is.

[A18]

The statute in Marbury was poorly worded. The Congress clearly was not trying to extend the Supreme Court's original jurisdiction.

Anyway, it's true that an early Congress could violate the Constitution. However, these actions reflected the wide-spread beliefs of the era; I find no historical basis for an alternate reading.