Marsh v. Chambers, 463 U.S. 783; 103 S. Ct. 3330; 77 L. Ed. 2d 1019 (1983)
Facts—Chambers, a taxpayer and Nebraska legislator, called into question the long-standing practice of the state legislature to pay a chaplain to begin each session with prayer. The U.S. District Court held that the prayers were not unconstitutional, but state payment to a chaplain was. The U.S. Eighth Circuit applied the three-part test in Lemon v. Kurtzman, 403 U.S. 602 (971) and declared both practices unconstitutional.
Question—Does Nebraska’s practice of opening its sessions with prayers by a paid chaplain violate the establishment clause of the First Amendment as applied to the states by the Fourteenth?
Reasons—C.J. Burger (6–3). The practice of opening legislative sessions with prayers “is deeply embedded in the history and tradition of this country,” and has long coexisted with the principle of disestablishment of religion. The practice dates back to the Continental Congress, and the Congress at the time the Bill of Rights was proposed (a Congress that consisted of many individuals who had been present at the Constitutional Convention), and has been followed in most states. Such prayers do not constitute an establishment but are “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” The compensation of chaplains is also a long-standing practice.
J. Brennan, dissenting, would have overturned the practice on the basis of the three-part Lemon Test. Brennan argued that the law had no secular purpose, had the primary effect of advancing religion, and fostered excessive entanglement between church and state and led to political divisiveness. The practice was contrary to four purposes of the establishment clause, namely, the guarantee of individual right to conscience, keeping the state from interfering with the autonomy of political life, preventing “the trivialization and degradation of religion by too close an attachment to the organs of government,” and reducing political battles. He thought the practice violated “the imperatives of separation and neutrality.” He argued against historical analysis in part because of his view that “the Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers.”
J. Stevens dissented on the basis that he thought the religious beliefs expressed by chaplains would “tend to reflect the faith of the majority of the lawmakers’ constituents,” making it unlikely that leaders of minority faiths would be so chosen.
Note—This is an example in which the majority relied on historical practice and essentially ignored the Lemon Test.