Petitioner
Frank Marsh, Nebraska State Treasurer, et al.
Respondent
Ernest Chambers
Petitioner's Claim
That prayer led by a publicly paid chaplain to open Nebraska legislature sessions should not be found in violation of the First Amendment's EstablishmentClause due to its historical and secular role.
Chief Lawyer for Petitioner
Shanler D. Cronk
Chief Lawyer for Respondent
Herbert J. Friedman
Justices for the Court
Harry A. Blackmun, Warren E. Burger (writing for the Court), Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, Byron R. White
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
5 July 1983
Decision
Upheld the state of Nebraska's claim and overturned two lower courts' decisions prohibiting legislative prayer and its public funded support.
Significance
The ruling found legislative prayer not in violation of the First Amendment based on an historical analysis rather than application of standard Court tests to determine applicability of the Establishment Clause. Legislative prayerplays an historic secular role in establishing a serious atmosphere for legislative work and does not promote a particular religion. Acceptance of ceremonial religious activities in governmental proceedings continues to foster debate as the Supreme Court wrestles with organized society's ability to recognize and accommodate religion.
For over a century the Nebraska legislature, similar to other state legislatures and even the U.S. Congress, opened each daily session with a prayer givenby a chaplain paid with public funds. Presbyterian minister Robert E. Palmerhad, in fact, been employed by the legislature for 16 years since 1965 to perform the duty. Issues concerning prayer had generally been resolved as theysurfaced through the years. For instance, Palmer dropped reference to Christfrom the prayer after receiving a complaint from a Jewish legislator. However, by 1980, disputes arose again within the legislature over the prayer. Thistime, no agreement was reached and legislator Ernest Chambers formally filedwith Federal District Court seeking to end the practice.
Two clauses contained in the First Amendment concern freedom of religion: theEstablishment Clause and the Free Exercise Clause. The complaint regarding Nebraska legislative prayer focused on the Establishment Clause, which states,"Congress shall make no law respecting an establishment of religion." The Establishment Clause guarantees the separation of church and government, more commonly known as the "separation of church and state" doctrine. Congress extended application of the Establishment Clause to state governments in the 1947Everson v. Board of Education case. The Supreme Court subsequently established several tests to assess the constitutionality of laws and actions that came before it. The Lemon Test, formulated in the 1971 Lemon v. Kurtzman decision, has three parts, addressing purpose, effect, and involvement. To pass the test, government action must be: (1) only for secular purposes;(2) not to promote or prohibit a specific religion; and (3) not to "excessively entangle," meaning substantially involve, government in religious matters. Failure on any one of the three parts indicates a violation of the Establishment Clause.
Regarding Nebraska legislature prayer, the district court ruled in 1980 the prayer itself was not contrary to the Establishment Clause, but paying the chaplain from public funds was, and such use of funds must cease. Chambers appealed to the U.S. Court of Appeals. By applying the Lemon Test the court foundthe practice failed decisively. The 1982 decision held that repeated use of the same minister promoted a single religion and the use of state money led toentanglement. Consequently, the court ruled the Nebraska prayers fundamentally violated the Establishment Clause and ordered the entire practice to cease. The case then was petitioned by the state of Nebraska to the Supreme Court.
Is There an American Civil Religion?
On behalf of Nebraska, the state attorney general's office argued that the practice of legislative prayer was embedded in U.S. history, even performed inthe U.S. Congress since the founding of the nation. The state contended thatthe prayers were not limited to any one religion and served a secular purposeby bringing order to the start of daily business and symbolizing the seriousness of that business before the legislature. The prayers were, in essence, "elements of the American civil religion." "Civil religion" refers to a general use of religious symbols and practices for ceremonial purposes, apart fromactual worship in a particular religious tradition.
Chambers argued on the basis of the Lemon Test. He emphasized that: (1) the prayers' purpose was promoting the Judeo-Christian tradition; (2) the use of the same clergyman established the effect of involving only a single denomination for over 16 years; and (3) the chaplain offered prayer at public expensethus constituting entanglement.
The Supreme Court, however, chose not to apply the Lemon Test in this case, instead focusing on the historic use of legislative prayer in the United States. Chief Justice Burger, in delivering the opinion of the Court for the 6-3 vote, recognized that the U.S. Congress had opened sessions with prayer for over 200 years following a practice begun by the Continental Congress in 1774.In fact, in September of 1789 Congress authorized the appointment of paid chaplains three days before reaching agreement on the wording of the First Amendment. On that same day, the House of Representatives passed a resolution requesting the President to set aside a Thanksgiving Day to acknowledge "the manysignal favors of Almighty God." Burger noted that James Madison, an outspoken advocate of religious freedom and drafter of the Establishment Clause, wasappointed the task of selecting a chaplain to open each session of the FirstCongress with prayer. Madison also personally voted for a bill authorizing public financial support. Burger thus wrote, "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." He emphasized "their actionsreveal their intent." Burger concluded, "To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment ofbeliefs widely held among the people of this country." That debate in the original Congress focused on this issue demonstrated the "subject was consideredcarefully" before adoption.
The Court recognized that "prayer is deeply embedded in the history and tradition of this country" and "the practice of legislative prayer has coexisted with the principles" of the First Amendment. In fact, court proceedings in thedistrict court, court of appeals, and U.S. Supreme Court routinely opened with an announcement concluding, "God save the United States and this HonorableCourt." The Court did not consider such prayers and statements as promotinga particular religious viewpoint. The Court, by reversing the opinion of thecourt of appeals, condoned the practice of legislative prayers.
A Nation in Change
Joined in dissent by Justice Marshall, Justice Brennan contended that "messages of history often tend to be ambiguous and not relevant to a society far more heterogeneous [diverse]" than 200 years earlier. Brennan believed application of the Lemon Test would have clearly demonstrated the practice of official invocational prayer in state legislatures is contrary to the EstablishmentClause and unconstitutional. By not applying the test, Brennan stressed, theCourt's finding was truly recognizing an exception "rather than reshaping Establishment Clause doctrine." Then in applying the Lemon Test elements, Brennan found legislative prayers placed at least "indirect coercive pressure uponreligious minorities to conform," linked religious belief to the power and prestige of the state, and led to excessive entanglement by placing the state in a position of monitoring and overseeing the prayers, selecting a chaplain,and resolving complaints by legislators that arise. In sum, Brennan regardedthe prayers as distinctly religious in nature, not secular, and stated that the quieting of legislators and the setting of a serious tone could be accomplished in some other manner.
Impact
The Marsh case and another that soon followed, Lynch v. Donnelly (1984), drew considerable criticism and debate due to apparent inconsistency with other Supreme Court decisions. The Court had not uniformly applied theLemon Test designed to maintain government neutrality in religious matters,totally ignoring it in Marsh. Many advocates of a firm separation of church and state tried to limit the implications of this decision by assertingthat the historical-based analysis used is unique to the legislative prayerquestion, as did Brennan in his dissent. Some became alarmed that, despite the Establishment Clause, the trend in the 1980s and 1990s was toward greater inclusion of religion in public programs. The Marsh decision served tofurther focus debate on the Establishment Clause and to what extent government action constitutes endorsing official religious belief.
Regarding the use of standard Establishment Clause tests by the Court, many justices believed the Lemon Test is too strict and difficult to apply consistently in all cases, specifically those in which tradition is a strong factor.Following Marsh, two other tests were offered by Supreme Court justices. Justice O'Connor created the Endorsement Test in 1984 to better evaluate the effect element in the Lemon Test. It seeks to determine if some plausiblesecular justification for a law exists and if the legislation actually endorses a religion. Unacceptable endorsement occurs when certain persons, such asreligious minorities, are not treated as full members of a political community. In 1989 Justice Kennedy offered the Coercion Test. The test asserts that the Establishment Clause is violated only when a statute coerces an individualinto accepting a particular religious doctrine. These two tests still require subjective determinations as demonstrated in County of Allegheny v. ACLU. In addition, law scholars consider the Coercion Test inconsistent withthe intent of the First Amendment by ignoring unintended and more subtle restrictions on religious practice that regularly occur. Though the Lemon Test has been regularly criticized and even ignored, as in Marsh, no better test has been developed.
The Court stimulated further debate over the role of religion in government by accepting legislative prayer. The debate at times focused on the concept of"ceremonial deism." Deism is the belief in existence of a Supreme Being worthy of adoration. Ceremonial deism then means a more secular use of religiousconcepts in maintaining civil order in a society, as part of a civil religion. Other examples of ceremonial deism related to government action in the United States include invocations in courts, observance of Thanksgiving, the national motto "In God We Trust," the words "under God" in the Pledge of Allegiance, use of "in the year of our Lord" to date public documents, prayers in Presidential inaugurations, use of the Bible to administer oaths, and a NationalDay of Prayer. Protection of these uses from the Establishment Clause has been argued on the grounds that any particular religious meaning has been largely lost through their rote repetitious use in public. Thus they serve whollysecular purposes for inspiring commitment, celebrating patriotic values, andinfusing a solemn context. They are not part of specific religious practice.Many believe ceremonial deism plays an integral role in preserving the integrity of civil society. Therefore, they believe such general public use of religious concepts should be exempt from Establishment Clause scrutiny. The Courtstill struggles over the issue of ceremonial deism and how to best accommodate it in the U.S. constitutional framework while prohibiting other religiouspractices.
Related Cases
Frank Marsh, Nebraska State Treasurer, et al.
Respondent
Ernest Chambers
Petitioner's Claim
That prayer led by a publicly paid chaplain to open Nebraska legislature sessions should not be found in violation of the First Amendment's EstablishmentClause due to its historical and secular role.
Chief Lawyer for Petitioner
Shanler D. Cronk
Chief Lawyer for Respondent
Herbert J. Friedman
Justices for the Court
Harry A. Blackmun, Warren E. Burger (writing for the Court), Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, Byron R. White
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
5 July 1983
Decision
Upheld the state of Nebraska's claim and overturned two lower courts' decisions prohibiting legislative prayer and its public funded support.
Significance
The ruling found legislative prayer not in violation of the First Amendment based on an historical analysis rather than application of standard Court tests to determine applicability of the Establishment Clause. Legislative prayerplays an historic secular role in establishing a serious atmosphere for legislative work and does not promote a particular religion. Acceptance of ceremonial religious activities in governmental proceedings continues to foster debate as the Supreme Court wrestles with organized society's ability to recognize and accommodate religion.
For over a century the Nebraska legislature, similar to other state legislatures and even the U.S. Congress, opened each daily session with a prayer givenby a chaplain paid with public funds. Presbyterian minister Robert E. Palmerhad, in fact, been employed by the legislature for 16 years since 1965 to perform the duty. Issues concerning prayer had generally been resolved as theysurfaced through the years. For instance, Palmer dropped reference to Christfrom the prayer after receiving a complaint from a Jewish legislator. However, by 1980, disputes arose again within the legislature over the prayer. Thistime, no agreement was reached and legislator Ernest Chambers formally filedwith Federal District Court seeking to end the practice.
Two clauses contained in the First Amendment concern freedom of religion: theEstablishment Clause and the Free Exercise Clause. The complaint regarding Nebraska legislative prayer focused on the Establishment Clause, which states,"Congress shall make no law respecting an establishment of religion." The Establishment Clause guarantees the separation of church and government, more commonly known as the "separation of church and state" doctrine. Congress extended application of the Establishment Clause to state governments in the 1947Everson v. Board of Education case. The Supreme Court subsequently established several tests to assess the constitutionality of laws and actions that came before it. The Lemon Test, formulated in the 1971 Lemon v. Kurtzman decision, has three parts, addressing purpose, effect, and involvement. To pass the test, government action must be: (1) only for secular purposes;(2) not to promote or prohibit a specific religion; and (3) not to "excessively entangle," meaning substantially involve, government in religious matters. Failure on any one of the three parts indicates a violation of the Establishment Clause.
Regarding Nebraska legislature prayer, the district court ruled in 1980 the prayer itself was not contrary to the Establishment Clause, but paying the chaplain from public funds was, and such use of funds must cease. Chambers appealed to the U.S. Court of Appeals. By applying the Lemon Test the court foundthe practice failed decisively. The 1982 decision held that repeated use of the same minister promoted a single religion and the use of state money led toentanglement. Consequently, the court ruled the Nebraska prayers fundamentally violated the Establishment Clause and ordered the entire practice to cease. The case then was petitioned by the state of Nebraska to the Supreme Court.
Is There an American Civil Religion?
On behalf of Nebraska, the state attorney general's office argued that the practice of legislative prayer was embedded in U.S. history, even performed inthe U.S. Congress since the founding of the nation. The state contended thatthe prayers were not limited to any one religion and served a secular purposeby bringing order to the start of daily business and symbolizing the seriousness of that business before the legislature. The prayers were, in essence, "elements of the American civil religion." "Civil religion" refers to a general use of religious symbols and practices for ceremonial purposes, apart fromactual worship in a particular religious tradition.
Chambers argued on the basis of the Lemon Test. He emphasized that: (1) the prayers' purpose was promoting the Judeo-Christian tradition; (2) the use of the same clergyman established the effect of involving only a single denomination for over 16 years; and (3) the chaplain offered prayer at public expensethus constituting entanglement.
The Supreme Court, however, chose not to apply the Lemon Test in this case, instead focusing on the historic use of legislative prayer in the United States. Chief Justice Burger, in delivering the opinion of the Court for the 6-3 vote, recognized that the U.S. Congress had opened sessions with prayer for over 200 years following a practice begun by the Continental Congress in 1774.In fact, in September of 1789 Congress authorized the appointment of paid chaplains three days before reaching agreement on the wording of the First Amendment. On that same day, the House of Representatives passed a resolution requesting the President to set aside a Thanksgiving Day to acknowledge "the manysignal favors of Almighty God." Burger noted that James Madison, an outspoken advocate of religious freedom and drafter of the Establishment Clause, wasappointed the task of selecting a chaplain to open each session of the FirstCongress with prayer. Madison also personally voted for a bill authorizing public financial support. Burger thus wrote, "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." He emphasized "their actionsreveal their intent." Burger concluded, "To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment ofbeliefs widely held among the people of this country." That debate in the original Congress focused on this issue demonstrated the "subject was consideredcarefully" before adoption.
The Court recognized that "prayer is deeply embedded in the history and tradition of this country" and "the practice of legislative prayer has coexisted with the principles" of the First Amendment. In fact, court proceedings in thedistrict court, court of appeals, and U.S. Supreme Court routinely opened with an announcement concluding, "God save the United States and this HonorableCourt." The Court did not consider such prayers and statements as promotinga particular religious viewpoint. The Court, by reversing the opinion of thecourt of appeals, condoned the practice of legislative prayers.
A Nation in Change
Joined in dissent by Justice Marshall, Justice Brennan contended that "messages of history often tend to be ambiguous and not relevant to a society far more heterogeneous [diverse]" than 200 years earlier. Brennan believed application of the Lemon Test would have clearly demonstrated the practice of official invocational prayer in state legislatures is contrary to the EstablishmentClause and unconstitutional. By not applying the test, Brennan stressed, theCourt's finding was truly recognizing an exception "rather than reshaping Establishment Clause doctrine." Then in applying the Lemon Test elements, Brennan found legislative prayers placed at least "indirect coercive pressure uponreligious minorities to conform," linked religious belief to the power and prestige of the state, and led to excessive entanglement by placing the state in a position of monitoring and overseeing the prayers, selecting a chaplain,and resolving complaints by legislators that arise. In sum, Brennan regardedthe prayers as distinctly religious in nature, not secular, and stated that the quieting of legislators and the setting of a serious tone could be accomplished in some other manner.
Impact
The Marsh case and another that soon followed, Lynch v. Donnelly (1984), drew considerable criticism and debate due to apparent inconsistency with other Supreme Court decisions. The Court had not uniformly applied theLemon Test designed to maintain government neutrality in religious matters,totally ignoring it in Marsh. Many advocates of a firm separation of church and state tried to limit the implications of this decision by assertingthat the historical-based analysis used is unique to the legislative prayerquestion, as did Brennan in his dissent. Some became alarmed that, despite the Establishment Clause, the trend in the 1980s and 1990s was toward greater inclusion of religion in public programs. The Marsh decision served tofurther focus debate on the Establishment Clause and to what extent government action constitutes endorsing official religious belief.
Regarding the use of standard Establishment Clause tests by the Court, many justices believed the Lemon Test is too strict and difficult to apply consistently in all cases, specifically those in which tradition is a strong factor.Following Marsh, two other tests were offered by Supreme Court justices. Justice O'Connor created the Endorsement Test in 1984 to better evaluate the effect element in the Lemon Test. It seeks to determine if some plausiblesecular justification for a law exists and if the legislation actually endorses a religion. Unacceptable endorsement occurs when certain persons, such asreligious minorities, are not treated as full members of a political community. In 1989 Justice Kennedy offered the Coercion Test. The test asserts that the Establishment Clause is violated only when a statute coerces an individualinto accepting a particular religious doctrine. These two tests still require subjective determinations as demonstrated in County of Allegheny v. ACLU. In addition, law scholars consider the Coercion Test inconsistent withthe intent of the First Amendment by ignoring unintended and more subtle restrictions on religious practice that regularly occur. Though the Lemon Test has been regularly criticized and even ignored, as in Marsh, no better test has been developed.
The Court stimulated further debate over the role of religion in government by accepting legislative prayer. The debate at times focused on the concept of"ceremonial deism." Deism is the belief in existence of a Supreme Being worthy of adoration. Ceremonial deism then means a more secular use of religiousconcepts in maintaining civil order in a society, as part of a civil religion. Other examples of ceremonial deism related to government action in the United States include invocations in courts, observance of Thanksgiving, the national motto "In God We Trust," the words "under God" in the Pledge of Allegiance, use of "in the year of our Lord" to date public documents, prayers in Presidential inaugurations, use of the Bible to administer oaths, and a NationalDay of Prayer. Protection of these uses from the Establishment Clause has been argued on the grounds that any particular religious meaning has been largely lost through their rote repetitious use in public. Thus they serve whollysecular purposes for inspiring commitment, celebrating patriotic values, andinfusing a solemn context. They are not part of specific religious practice.Many believe ceremonial deism plays an integral role in preserving the integrity of civil society. Therefore, they believe such general public use of religious concepts should be exempt from Establishment Clause scrutiny. The Courtstill struggles over the issue of ceremonial deism and how to best accommodate it in the U.S. constitutional framework while prohibiting other religiouspractices.
Related Cases
- Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947).
- Lemon v. Kurtzman, 403 U.S. 602 (1971).
- Lynch v. Donnelly, 465 U.S. 668 (1984).
- County of Allegheny v. ACLU, 492 U.S. 573 (1989).
User Comments Add a comment…