ABOUT THIS EPISODE

Photo courtesy New York Times

In 1965, the Nebraska Unicameral legislature hired a Presbyterian minister as its official chaplain to deliver prayers before each session. 15 years later, maverick Nebraska senator Ernie Chambers sued, claiming the practice of paying a minister to deliver prayers before a government body violated the First Amendment's Establishment Clause.

Chambers won in the Eighth Circuit Court of Appeals. But in 1983, the U.S. Supreme Court agreed to review the case, and take up the question of whether legislative prayer, a tradition in the federal Congress and most of the states for over two centuries, created a constitutional problem.

Bypassing precedent set just a decade before, the Court, by a vote of 6-3, upheld the Nebraska chaplain scheme, ruling that the practice of legislative prayer, even when exclusively Christian in substance and compensated with state funds, was part of a unique national history and therefore not unconstitutional. 

Question:  Did the chaplaincy practice of the Nebraska legislature violate the Establishment Clause of the First Amendment?

Answer: No.

Majority:

  • Warren Burger (majority opinion)
  • Byron White
  • Harry Blackmun
  • Lewis Powell
  • William Rehnquist
  • Sandra Day O'Connor

Dissent:

  • William Brennan (w/ opinion)
  • Thurgood Marshall
  • John Paul Stevens (w/ opinion)

Audio sources:

English
United States

TRANSCRIPT

00:00:00welcome to heightened scrutiny a podcast about the Supreme Court and civil rights on Joe Dundon
00:00:24the first Clause of the first sentence of the First Amendment to the United States Constitution says that Congress shall make no law respecting an establishment of religion but what does that mean does it require the government be totally secular there be a very tall and very thick wall separating church and state where is there a whole lot of wiggle room in the government pay for facilitate certain religious ceremonies without running afoul of the First Amendment this is Marsh versus Chambers the legislative prayer case
00:00:55the state of Nebraska has a unique legislative system it has just one house called the unicameral in 1934 voters and then did the Nebraska Constitution to abolish the state's Old House of Representatives leaving behind just one legislative body whose members are still known today as senators in 1965 the Nebraska unicameral hired an official chaplain a presbyterian Minister named Robert Palmer
00:01:24no not that Robert Palmer Reverend Robert T Palmer the minister as the official chaplain of the unicameral Palmer or nearly $320 a month from public funds to give opening prayers on days legislature was in session the other ministers sometimes filled in for him or gave prayers and special occasions Palmer provided the primary religious voice in the state government around the same time Palmer was hired in the mid-1960s Ernie Chambers an army veteran who was the son of an Omaha Minister emerged as a charismatic civil rights agitator in the mostly black area of North Omaha in 1966 while working as a barber Chambers appeared in the documentary a time for burning about hostel race relations in Omaha
00:02:24you guys drop the bombs that keep on Kidz straight to the ghetto restrictive covenants responsibility for over 400 years to the documentary Propel Chambers to a larger public notoriety he began to ponder a new career in politics that notoriety did not result in immediate electoral success however Chambers first ran for Omaha School Board as a write-in candidate but lost he also failed to win a seat on The All White City Council for the death of long-time Nebraska state senator Edward and opened up a major opportunity for Chambers Danner a fellow African-American represented the primarily black 11th District throughout the 1960s Danner died in January 1970 a local black businessmen George off house was appointed to replace him but they'll all house was African-American he was very conservative and he seemed created resentment among his constituents when he publicly spoke in support of white supremacy
00:03:24shortly after that the death of an Omaha police officer led to a Crackdown in the black community in the city Chamber spoke harshly against the police response that fold stand along with a growing unpopularity of all house propelled Universe to a very close Victory the November 1970 election Chambers immediately cause discomfort among his all white colleagues in the state legislature however he refused to wear suits or even a tie while in the Senate chambers and said opting for jeans t-shirts and sweatshirts and he refused to tone down his rhetoric Society this modern world and these particular Community have to be even if it's Kicking and Screaming into the 20th century and when I came down and said that they drill holes in that beautiful wood and the ceiling of the chamber and install these television cameras so they can keep an eye on me and brought state troopers into the chamber
00:04:24cuz I thought I came down here to do physical battle perhaps he didn't mean to do physical battle but Chambers certainly did verbal battle with Nebraska's privileged white majority about being angry at their white federal government then I hear these kriney white man talking about there being discriminated against but almost always outnumbered on Progressive issues by his mini conservative colleagues Chambers happily accepted what he felt was a special role as a representative of the predominantly black community of North Omaha a lot of what I do in this legislature is symbolic it's the show us that one black man can stand against that among all these white people don't walk like a dress like and do anything they do and yet compel them
00:05:16the knuckle under on issues
00:05:28the state to the extent in the legislature after nearly a decade in office Chambers eventually gave his voice to complaints by atheist that the practice of legislative prayer was a government endorsement of religious belief in 1980 Chambers sue the Nebraska legislature as well as state treasurer Frank Marsh arguing that the practice of paying Chaplin Palmer State money to give regular prayers before state government violated The Establishment Clause Chambers rely primarily on the so-called lemon test to bolster his argument in the 1971 case of lemon vs. kurtzman the Supreme Court created a three-part test to assess violations of The Establishment Clause writing 471 majority the court Chief Justice Warren Burger wrote that in order to survive Establishment Clause scrutiny a government action must first have a secular legislative purpose second night
00:06:28have a principle or primary effect of advancing or inhibiting religion and third not Foster excessive government entanglement with religion now and Chambers case the lower District Court ruled that the prayers themselves did not violate The Establishment Clause but paying the chaplain from public money did an appeal the 8th circuit disagreed in their view the entire skiing violated all three prongs of the lemon test paying a chaplain to deliver prayers obviously had no secular purpose and also obviously Advanced religion specifically the Presbyterian religion because Palmer have been employed continuously as the only Chaplin for over 15 years and third the payments created clear entanglement State funds were going directly to a religious official to spread religious messages having loss of the 8th circuit Nebraska appealed further and in 1982 the US Supreme Court agreed to hear the case oral argument was held on April 20th 1983 with Chief Justice Berger presiding
00:07:26Jim Marsh against to Chambers Nebraska was Assistant Attorney Chandler D Croc Croc open his argument by providing the court with some historical background about the role of chaplain in the Nebraska unicameral the office was originally established in 1855 12 years before Nebraska officially became a state ever since then the chaplain have been giving prayers during each legislative session until 1980 when Chambers filed his lawsuit nobody really seem to care much
00:07:59and the evidence is quite clear although it's not overly abundant that the legislature itself had never considered
00:08:09over the course of time the post of chaplain or any particular individuals retention is Chaplin as important we have not one hint of any controversy in a complaint any concern
00:08:26about either the poster chaplain or any particular trap on whatsoever prior to the time that responded as a member of the executive board a 1979 attempted to get that body to recommend that the post be totally eliminated and if you put it like that at least compensation this immediately prompted questioning from Justice Thurgood Marshall this chaplain practice wasn't just logistically consistent overtime was it it was consistent and religious message to Christian you don't know that your are the only thing we know about we never had any evidence that all in the record about the denominational affiliation even the identities of any Chaplin's prior to Palmer
00:09:29on three occasions during Southland certain chori St
00:09:41can you show me one I believe there are prayers that make reference to deity identifiable to the judeo-christian heritage is Chaplin Palmer put it there are certain prayers that expressly mention Jesus Christ I think the record reflect roughly half a little less than half of the prayers in addition to making reference to do that might be identified in the judeo-christian Heritage do mention Jesus Christ
00:10:09don't admit what you are. They're all Christians all of us happens if we simply have no idea absolutely not Justice Marshall was correct in his assumption every single legislative chaplain in Nebraska's history had been a Protestant Christian but that didn't necessarily mean that Nebraska legislative prayers that always been Presbyterian or even product after a question from Justice O'Connor crock no to the chaplain Palmer head always on her request for guest from other denominations including Jewish rabbis hands cross earlier reference to a broader judeo-christian Heritage being the subject of the prayers not a specific Christian denomination Crompton pivoted to his main argument that the employment of a chaplain to deliver prayers to the legislative body must be considered constitutional reviewed and it's full historical context specific component as it's centrally
00:11:09tradition of a legislature more steeped in ceremony than actual any substitute import by which the legislature has sought to begin each day's business you know solemn tone hopefully setting an attitude of high purpose although Chaplin Palmer quite readily admits that he would be hard-pressed to admit that happens on All Occasions and the fact the chaplain Palmer has served in his post does not change that fact the fact that he serve for some 16 years fundamental we believe in this analysis is recognition clearly are relevant because of the fact that legislating chaplaincies substantially if not virtually identical to that in Nebraska have a history the benefit of examining and activity today
00:12:01that not only existed at the time the framers were drafting the First Amendment but was actually practiced by them at the very time the 1st Amendment was drafted
00:12:123 days before the final wording of the first amendment was settle on including the religion Clauses the very same framers enacted legislation compensating the officers are both of their houses in the federal practice has been virtually identical to that that has been employed in Nebraska history of the states sell Crocs said forget the lemon test what matters is history when the original framers of the First Amendment sat down to prohibit Congress from respecting an establishment of religion legislative prayer was not only common but something those same framers actually allowed themselves and therefore can't be argued that legislator prayer even the paying of a dedicated chaplain from one particular faith for a long time
00:13:13violate The Establishment Clause as it was originally understood Justice John Paul Stevens was less concerned about history and more concerned about the possibilities of the future what if the Court ruled in favor of the Nebraska legislative prayer scheme but Nebraska later passed the more specific role should be conducted by a presbyterian minister
00:13:40I think that that moves this more toward they have the suggestion in your question is it that singles out the upper to particular denomination officially
00:13:53just wondering if instead of looking at it in hindsight we look at it and Van would it bother you at all by the situation that we actually have before us
00:14:08I think clearly would be would be good cost for an inquiry as to what the purpose for that requirement was all that we know now and a drug back to the unique circumstances of this case we know now is a chaplain Palmer was retained simply because he did a good job considered as a traditional relatively unimportant ceremonial functions of the legislature again Croc insisted that Nebraska's practice of legislative prayer was not an improper attempt to establish a particular religion over the state but instead nothing more than a ceremonial have it routed in a long National History next step to the like there was Nebraska civil rights attorney Herbert Freeman on behalf of Senator Chambers Freeman barely got a word in before Justice is Harry blackmun Byron white and William rehnquist became probing the nuances of this position if any of the facts were changed would Chambers even have a case at all chief justice Berger especially wanted to see just how far Chambers arguments really went
00:15:07the question presented is this legislators compensation and retention of a single individual as chaplain for an extended period of time Raiders its legislative prayer in violation of The Establishment Clause issue that is presented as part of the issue
00:15:40I'd still be here but certainly the compensation is part of this issue we are using public funds for a religious I think so
00:15:58Northside said that you're hundred
00:16:08economy make sure they drive to gym
00:16:13give the invocation every morning every morning questions very frequently
00:16:48gets up and has an invocation everyday
00:16:59same religion everyday we take its own Constitution all right let's change it to next town soon after that why is it because it makes it less obvious that there is that one religion is singled out as being the official religion believe for about Joe recently happened by coincidence or Presbyterian chaplain for about 8 or 10 years. That was unconstitutional
00:17:51how about our indication that the Marshall announced this morning and he concluded calling the courts and said at the end of the United States I don't think this lawsuit is asking the court to take a Judicial hammer and chisel and do away with all of the opening ceremony by Mark that's not what we're trying to do martial law ceremonial opening is probably lost any religious significance in Manhattan and Marshall one is not a chaplain he's not a question then we go back to the members of the legislature
00:18:32Frontier than members of the legislature could get up and individually give opening prayers every morning constitutional issue got it seems to Senator Chambers the anytime you have a prayer in the legislature it's probably on Constitution
00:19:06that is mixing of religion was government Senator Chambers he was very simple elected to represent his constituents and he is exposed to a religious prayer each morning that's against his religious values and he doesn't think he should have to be supposed to be but this point early in his argument and must have been clear to Freeman that he was not going this way chief justice Berger with the argument the Supreme Court show prohibit legislative prayer in Nebraska or anywhere else just because a single member of the legislature was offended by a long-standing historical practice but what about that practice was it really is historically consistent is Crockett argued I have a prayer to open each session in Philadelphia
00:20:04at that particular time
00:20:15it would appear that there that was unconstitutional then to before the first what's the retroactive wasn't there opposition to the prayer in the first country
00:20:36but that was just buy a minority
00:20:44that time they didn't
00:20:52the First Amendment Bar and that would have continuing the having prayer
00:20:57well I don't know that the list that isn't it a pretty decent temporary though that's what they thought there's
00:21:06your daughter and I just wanted to know if an inquiry as to what the framers intended
00:21:12it's an interesting historical inquiry but I think it's boring
00:21:18I don't believe it has the legal I don't have I don't believe it has binding legal so I think that our nation has changed significantly in the past two decades to fancy centuries I can say
00:21:34and that's Friedman in the court struck upon the sometimes intractable battle between so-called originalist and so-called living constitutionalist what matters more with the framers of the Constitution intended or understood the time they wrote the words in it or what is going on today in a country far more developed in diverse than those framers ever could have imagined after all the framers of the 14th amendment in 1868 did not understand the term equal protection to require the desegregation of State schools or even in the interracial marriage bans if their original understanding or attention didn't matter in those cases why should it matter when it comes to legislative prayer a pivoting away from history Freeman tries to focus on the Contemporary problems of the Nebraska unicameral the chaplain is an official officer of the legislature his sole purpose is to deliver prayers he is paid directly out of the public offer every single official chaplain in the history of Nebraska has been a Christian and not just a Christian but a Mainline Protestant Christian those facts of the focus of both Senator Chambers complaint
00:22:34underground upon which the 8th circuit agree with him Justice William rank was noted the chaplain Palmer have removed references to Christ in his prayers at the request of a Jewish member of the legislature why didn't that also a piece Senator Chambers well Freeman said Chambers doesn't believe in God at all so the prayer itself is the problem even with the specific references to Christ removed so what's a drink with you no one was far as him to Justice rehnquist he doesn't have to be there but I don't think that's the question even in the school prayer cases the children didn't have to be there but nonetheless they were there and it was certain peer pressure peer pressure within the members of the legislature the fact is that the legislative rule although it's not a band to the letter it says You must be there must be there for the opening prayer and that he finds constitutionally offencive so according to Friedman there's a course of elements of the legislative prayer even if
00:23:34Cambridge is not forced to pray chief justice Berger than return to his original line of questioning what if the Nebraska legislature just had an open Rotation of prayer givers that weren't off in the same Faith even if Chambers would still be offended by that doesn't that eliminate Palmer's presbyterianism as a relevant issue in the case no set Freeman because as a presbyterian Palmer is representative of Mainline Protestant Christianity which would still dominate the legislative prayers even if the legislature enlisted rotation for the larger Community Justice rehnquist Rhymes and again
00:24:13you're such a Justice rehnquist I think that basically deals with the Protestant sects who have the most members in that basically the Lutheran in Nebraska
00:24:28I'm treading on thin ice in Mesquite Justice Marshall
00:24:33Freeman and more carefully said that the dominant denominations in both Congressional and Nebraska history have been Presbyterian Episcopalian and Methodist all some smaller groups have gotten a chance to say prayers the Jewish and Muslim face have been consistently ignored chief justice Berger again returns to his original line of questioning is there any difference between prayers in the legislature and prayers before court such as the invocation of God before The Supreme Court begin its hearings earlier in your argument between
00:25:07you think
00:25:10standard prayer as distinguished invocation
00:25:24who's Ashley is going to be asking and answering I suspect I don't suppose anybody would look forward to telling us that perhaps the opening ceremony maybe on Constitution secular kind of absorption of something as well as the name of God on the buildings of God of the currency I have lost all religious significance and they're not religious at all with the chaplain prayers and Nebraska those are definitely religious prayers constructed differently each day in the name of God most of them and broke the name of Jesus they were definitely
00:26:24images prayers and you can't get around then so Freeman said there's a big difference between brief and habitual indications of references to God and the legislative first game in Nebraska after some discussion about the role played by military prison chaplains Justice O'Connor turns the focus back to the history of legislative prayer why shouldn't let history decide this case
00:26:49the practice in Congress that the formation of this nation and at the time of the adoption of the 1st Amendment
00:26:57Justice O'Connor up at the time of the first Congress I believe most of the just most of the member sent their children to segregate at the time of the passing of the 14th amendment in 1868 they all send their children to segregated school but times have changed as chief justice Warren said it was
00:27:24it was okay
00:27:29Brown versus the Board of Education
00:27:33I think you had something to do with that case
00:27:36we can't turn the clocks back to 1868 are we simply must recognize the fact that our civilization is changed and our civilization has changed Justice O'Connor exchange completely two centuries ago our forefathers new religious differences primarily among the different types of preparing for this argument today I went through the Washington telephone book and I noticed the difference of the various religious points of view right here in the nation's capital we are we were in a pluralistic society two centuries ago Congress of the United States represents all of the people that represents the Muslims and Hindus in the Bahamas and the Jews
00:28:23and unfortunately the Congress of the United States has not kept I'm Catholic constituency certainly some juice some DS or what work both Jefferson and Madison. It was not nearly as pluralistic that accept the meaning that was intended by the people of draft of the Amendment of the Constitution today what except the practice in Nebraska they may have accepted it two centuries ago but when they look today I'm sure they would not approve of this practice or whatever the value of this counterfactual exchange one big Undisputed historical fact Loom barely mentioned by anyone so far that is snorkel fact was the
00:29:23piece of Lemon versus kurtzman that is the Lemon test Justice Lewis pal eventually brought it up even if the court apply the lemon test is it really possible for Chambers to prove any of the prongs have been violated do you have to split the position don't you that the primary effect
00:29:41what has been done in the legislature can I get to promote the establishment of religion
00:29:47circumstantial evidence only Mainline Protestant churches increased since 1955 in Nebraska
00:30:20I understand what you're saying just as Paula is the only thing I can tell the court is it this practice is having a one uniquely religious figure who belongs to one religion is just like having a small statute or small pennant on the flag with a religious symbol on it it may be small but it's there and you can see it and everybody knows it's there and that's the problem here everybody knows that the officer of that court or the officer of the legislature is a Protestant Christian and always has been always will be
00:31:01I perceive it as an establishment problem symbolically one religion appears to dominate
00:31:09true government number of years ago Mr Orwell wrote Oh and I suppose it would go to the Nebraska legislature every legislative day during its session are going to Congress every legislative day and hear the opening ceremony one would walk away with a distinct impression is that all religions maybe equal in this country but one is more equal than others
00:31:41after prefer bottle by Chandler Cronk the case was submitted on July 5th 1983 the Supreme Court reverse the 8th circuit and ruled in favor of the Nebraska legislature to vote was 623 chief justice Berger writing the majority opinion even though he also wrote the Court's opinion in lemon vs. kurtzman and articulated the lemon test was the a circuit had applied to rule in favor of Chambers this time chief justice Berger took a very different approach what matters in this case was history he said the framers of The Establishment Clause hit themselves employee Chaplin's to say prayers before Congress and the practice of legislative prayer had continued not only in Washington DC but all over the country uninterrupted for more than 200 years if the framers and everyone since them and never received an establishment problem caused by legislator prayer then there wasn't one in the chief Justice's words like I said a prayer quote has become part of the fabric of our society but what about Chaplin Palmer's long 10 year did it matter that one particular denomination had held sway over that office for more than 15 years
00:32:41no the court said Palmer have been fired and rehired due to his good job performance and had allowed guess Chaplin's and prayer give us to fill in for him periodically. Justice William Brennan joined by Justice Marshall to send Jesse's friend wrote to the Court's opinion in this case was both bad and good bad because Chief Justice Berger totally ignored his very own test for establishment violations and under that test the lemon test Nebraska's legislative prayer obviously failed for the same reasons the 8th circuit head articulated explain the purpose of legislative prayer is pre-eminently religious and the primary effect is also religious because it creates indirect course of pressure upon religious minorities to conform and is there a legislator prayer created an entanglement tween religion and government because it created a situation of religious debate and controversy in a place of secular government but Brandon said the chief Justice's opinion was good because it was so nearly focus on the quote unique history of legislative prayer that it didn't overruled lemon or any other previous establishment cases and couldn't be applied to any
00:33:41other potential Establishment Clause violations Justice Stevens for his part wrote a very short $0.02 with unusual brevity he's simply concluded that it was obvious that the employment of a chaplain for 16 years from just one religious faith quote constitutes the preference of One Faith over another and that's was a violation of The Establishment Clause these disagreements aside legislative prayer was upheld today a vast majority of State legislatures offer prayer at least once during each legislative session most offer a prayer the start of each session day and according to the National Conference of State legislatures 27 states have a designated chaplain in 22 of those States compensate them through public funds Nebraska however no longer employed full-time Chaplin instead legislator prayers are given by Guess Chaplin's or the Senators themselves and speaking of senators Ernie Chambers lost in the Supreme Court but we continue to serve as senator for Nebraska's 11th District for another three decades in fact he was the longest serving Senator in Nebraska history until 2009
00:34:41when the legislature imposed term limits upon itself and force them out of office I was eliminated from the legislature I was sprung from prison instead of a life sentence I was paroled but I didn't want to be paroled in the way that it happened because my enemies got what made them so happy but that didn't mean he was retired for good it only meant he had to wait for years before returning which he was certainly considering at the time
00:35:09and there's a possibility that I might have to go back to the legislature at one time France had two calls Degaulle out of retirement so who knows but the person there now has three years to do some things and circumstances may be such that that would be the best person to have in the legislature
00:35:30when people ask me what are my plans I pulled Stonewall Jackson and old General he said if the sleeves of my codes know my plans I should have to burn my coat
00:35:46in other words my plans are mine
00:35:49sure enough Chambers rain again for the state legislature in 2013 and one now the age of 80 is once again the senator for the 11th District and once again the only African American member of the Nebraska unicameral is this clip from the 2016 legislative session will the test neither old age nor loss of the Supreme Court has softened him one bit thank you mr. president members of the legislature white people don't listen to black people I told you at the beginning you're not going to reach an agreement you didn't pay attention to me so here you are and when Senators nor talked about the ones who mention what happened in Omaha he mentioned the two white Senators but I'm the one who talked about it the most black people are 0 but I'm still able to stop what's happening here when I think it's wrong Senator brownie talks about standing on the Constitution I don't have to go that far I'm looking at the rules of the legislation that's how I'm going to whip you with your rules my amendments and motions are going to stop
00:36:49from offering any amendments
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