Marsh v. Chambers (1983)
Supreme Court Decisions on Religious Liberty
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Background Information
Ernest Chambers was a member of the Nebraska state legislature who objected to its chaplaincy policy on three grounds:
- the state funding of a chaplain violated the Establishment Clause;
- the legislature had employed the same chaplain, a Presbyterian, for 16 years, creating a preferential treatment for one religion over others;
- the chaplain's prayers were distinctly Judeo-Christian in content, showing a preference for one tradition over others.
Court Decision
By a 6-3 vote the Supreme Court permitted the practice of beginning a legislative session with a prayer delivered by a publicly funded chaplain, with Chief Justice Warren Burger writing the majority opinion.
The Court relied almost entirely on historical practice and tradition. Congress had paid a chaplain and opened sessions with prayers for almost 200 years. Indeed, the fact that Congress had continued the practice after considering constitutional objections in the Court's view strengthened rather than weakened the historical argument.
The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, "God save the United States and this Honorable Court." The same invocation occurs at all sessions of this Court.
In light of the unambiguous and unbroken history of more then 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making laws is not, in these circumstances, an "establishment" or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country.
Basically, the decision argued that both the Supreme Court and Congress have traditionally begun their sessions with prayers. Since individual states do not have to abide by more stringent First Amendment limits than the federal government, then they, too, are permitted to use prayers. The "Establishment Clause does not always bar a state from regulating conduct simply because it harmonizes with religious concerns.".
Significance
This decision did not address the lower court's findings, amplified in Justice Brennan's dissent, that each aspect of the Lemon v. Kurtzman tripartite test had been violated. Indeed, the majority opinion never invoked the Lemon Test at all. It may be that Burger felt that the historical argument was sufficient to reach his conclusion and so the test was unnecessary. Or perhaps he knew that using the test would have invalidated legislative chaplains and so specifically avoided it so that he could reach a conclusion more in harmony with tradition and popular opinion.
Because the lower court of appeals decision and two of the dissenting opinions found that the legislative chaplain failed all three parts of the Lemon Test, it is impossible that Burger was not aware of the argument. Instead of constituting an application of the tests, therefore, Marsh can be read as representing an exception to their application. As such, it is commonly seen as marking the beginning of the end of "strict separation" in interpreting the Establishment Clause in the court and the start of a more accomodationist approach.
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