Chambers v. Nebraska
463 US 783 (Decided July 5, 1983)
Bill Long
In this 6-3 decision authored by Chief Justice Burger, the Court held that the practice of paying a pastor by the Nebraska legislature to offer nonsectarian prayers at the beginning of each legislative day did not violate the Establisment Clause of the First Amendment. Marsh, in the case caption, was the Nebrasks state treasurer; Chambers was an aggrieved legislator.
For 16 years, from 1965 to 1981, the Rev. Robert Palmer, a Presbyterian clergyman, offered prayers at the beginning of each day the legislature was in session, for which he received a stipend of $319.75 per month while the legislature was in session. Until 1980 the prayers were expressly Christian prayers; at the request of a Jewish legislator in 1980 he removed the exclusive Christian focus of the prayers.*
[*Justice Stevens, in a stinging dissent, provided an example of the Rev. Palmer's prayer from 1978. It made liberal use of references to salvation through Christ, defeating Satan's plans and other indicia of pervasive Christian sentiment].
In dealing with the question of the constitutionality of the practice, Chief Justice Burger focused on two things: (1) the history of allowing official prayer in legislative gatherings; and (2) specific features of the Nebraska situation that might violate the Clause. He relied heavily on a historical argument: that the First Congress (1789) itself approved the appointment of chaplains for both the Senate and the House, and that this was done in the same months that the bill of rights was being voted on and approved by that body. In other words, if the founding fathers had thought that having chaplains who led prayer in legislative bodies would have violated the letter or spirit of the Establishment Clause, they never have approved both items within a short period of time. Armed with this "unique history," as he called it, the Chief Justice concluded that the legislative prayer provided no more potential for establishment than other practices the court had approved (provision of school transportation; beneficial grants for higher education, etc.).
He still had to deal, however, with the specific features of the Nebraska situation. Three concerns occupied him: (1) the fact that only one pastor in 16 years was officially charged with the praying responsibility; (2) that public funds were expended for him; and (3) that the prayers were sectarian. First, he concluded that the Rev. Palmer was employed because of his performance and not because of his denomination and that he often invited clergy of other denominations to pray. Second, remuneration is "grounded in historic practice," and third, the court was in no position to weigh and evaluate the difference between sectarian and nonsectarian prayer. While not using the language of accommodation, the Chief Justice concluded that this long-approved practice was no threat to the Establishment Clause.
Justice Brennan's dissent was three times as long as the majority opinion, and is the most sophisticated and thorough development of his own philosophy of the Establishment Clause. Brennan was perhaps the one Justice most committed to the Lemon framework, even though it was first penned by Chief Justice Burger. He first subjected legislative prayer to the three-fold requirement of that framework, concluding that its purpose and effect was preminently religious, and that the state was entangled with religion because it hired the chaplain and conflict broke out (the latter was one of the "sub-prongs" of the entanglement test).
The greater part of his dissent focused, however, on the "underlying function" of the Establishment Clause. Justice Brennan contended that the principles of "separation" (quoting Thomas Jefferson) and "neutrality (quoting the 1968 Epperson case), are implicated when the government requires individuals to support the practices of a faith with which they do not agree. But separation and neutrality have another task, and that is to keep the state from interfering with the essential autonomy of the religious life. Finally, separation and neutrality serve to prevent the "trivialization and degradation of religion" by attaching it too closely to the organs of government.
Though these principles are paramount, Brennan also recognized that his principles had to meet the hard realities of facts in specific cases. He then divided several Establishment Clause cases that had come the Court's way in the preceding decades into five categories, relating to various benefits that might be available to religious entities that were not necessarily available to others.
Most significant in his analysis, from the perspective of a student of theology or religion, is that the practice of legislative prayer cheapens the theological meaning of prayer to the specific religious communities. That is, the Nebraska prayer had to be made "nonsectarian" after a Jewish legislator objected, but Brennan notes that many Christian groups believe that prayer in Jesus' name is really the proper way to do it. Brennan thus argues that the victory of those wanting to affirm legislative prayer is a phyrric one indeed: the battle is officially won while the troops are substantially lost.
His response to the Chief Justice's argument on the long-standing practice of legislative prayer also provides a window into his legal and constitutional philosophy. The "Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers." It is thus a dynamic document that has to expand its meaning given the new realities of life in the 20th century. The Court's task is therefore to translate the majestic generalities of the Bill of Rights to the exigencies of later ages.
Copyright © 2004-2007 William R. Long |