Marsh v. Chambers

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 in the U.S. Congress since the founding of the nation. The state contended that the prayers were not limited to any one religion and served a secular purpose by 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 from actual 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 expense thus 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 many signal favors of Almighty God." Burger noted that James Madison, an outspoken advocate of religious freedom and drafter of the Establishment Clause, was appointed the task of selecting a chaplain to open each session of the First Congress 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 actions reveal 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 of beliefs widely held among the people of this country." That debate in the original Congress focused on this issue demonstrated the "subject was considered carefully" 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 the district court, court of appeals, and U.S. Supreme Court routinely opened with an announcement concluding, "God save the United States and this Honorable Court." The Court did not consider such prayers and statements as promoting a particular religious viewpoint. The Court, by reversing the opinion of the court of appeals, condoned the practice of legislative prayers.