Russell Shaw The speaker and the chaplain

May 19, 2018

Barring further developments (and let's hope that there aren't any), the kerfuffle over the Catholic chaplain of the House of Representatives seems to be over. Speaker of the House Paul Ryan asked for the resignation of Father Patrick Conroy, S.J., Father Conroy resigned, then withdrew his resignation, and Ryan withdrew his request. May everyone involved in this flap now live happily ever after. Personally, I'm glad to leave it at that.

But the incident did serve one useful purpose by inviting attention to the constitutional footing of legislative chaplaincies, considered in light of the First Amendment's ban on an "establishment" of religion. And that's something well worth looking at for what it can tell us about the disputes over church-state relations that continue to plague the nation.

Go back, then, to 1983 and a Supreme Court decision in a case called Marsh v. Chambers.

The case arose when a Nebraska state senator named Ernie Chambers brought suit in federal court against the practice of opening sessions of the state legislature with a prayer by a chaplain paid by the state. Chambers found this a violation of the First Amendment's no-establishment clause. The district court upheld the prayer but not the payment to the chaplain. The U.S. 8th Circuit Court of Appeals ruled against both things. The case then went to the Supreme Court.

At that time the Supreme Court labored to shape its thinking in church-state matters according to a 1971 ruling in a case called Lemon v. Kurtzman. The Lemon decision identified three criteria that church-state interactions were required to meet: secular legislative purpose, primary effect that neither promoted nor inhibited religion, and no "excessive entanglement" by government with religion. Not surprisingly, attempts to apply this complex test threatened to produce the entanglement the test was supposed to rule out.

In weighing Ernie Marsh's complaint, the Supreme Court by a vote of 6-3 overturned the lower court and gave the Nebraska arrangement – and by implication similar arrangements involving state-paid chaplaincies elsewhere – a clean bill of health.

This didn't please Justice William Brennan, who wrote in dissent that the majority made "no pretense of subjecting Nebraska's practice" of legislative prayer to the three-part Lemon test. But, he added tartly, "if the court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause."

The majority opinion in Marsh was written by Chief Justice Warren Burger, who, strange to say, also wrote the opinion in Lemon. Noting that legislative chaplaincies had been common since the nation's earliest days, he said: "In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice…has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not…an 'establishment' of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."

Note that in framing their opposition to legislative chaplaincies, the liberal dissenters in Marsh were playing the role usually played by conservatives and taking a narrowly literalist view of the First Amendment. The conservatives for their part argued for a practical approach to the question that relied on history and custom instead of rigid textualism as their standard of evaluation. 

Always assuming a decent respect for the limits imposed by constitutional principle and good sense, that still seems about right.