U.S. Supreme Court Marsh v. Chambers, 463
U.S. 783 (1983) Marsh v. Chambers No. 82-23 Argued April 20, 1983 Decided July 5, 1983 463
U.S. 783 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH
CIRCUIT Syllabus The Nebraska Legislature begins each of its sessions with a
prayer by a chaplain paid by the State with the legislature's
approval. Respondent member of the Nebraska Legislature brought an
action in Federal District Court, claiming that the legislature's
chaplaincy practice violates the Establishment Clause of the First
Amendment, and seeking injunctive relief. The District Court held
that the Establishment Clause was not breached by the prayer, but
was violated by paying the chaplain from public funds, and
accordingly enjoined the use of such funds to pay the chaplain. The
Court of Appeals held that the whole chaplaincy practice violated
the Establishment Clause, and accordingly prohibited the State from
engaging in any aspect of the practice. Held: The Nebraska Legislature's chaplaincy practice
does not violate the Establishment Clause. Pp. 463 U. S.
786 -795.

															(a) The practice of opening sessions of Congress with prayer has
continued without interruption for almost 200 years, ever since the
First Congress drafted the First Amendment, and a similar practice
has been followed for more than a century in Nebraska and many
other states. While historical patterns, standing alone, cannot
justify contemporary violations of constitutional guarantees,
historical evidence in the context of this case sheds light not
only on what the drafters of the First Amendment intended the
Establishment Clause to mean, but also on how they thought that
Clause applied to the chaplaincy practice authorized by the First
Congress. In applying the First Amendment to the states through the
Fourteenth Amendment, it would be incongruous to interpret the
Clause as imposing more stringent First Amendment limits on the
states than the draftsmen imposed on the Federal Government. In
light of the history, 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 the laws is not, in these circumstances, a
violation of the Establishment Clause; it is simply a tolerable
acknowledgment of beliefs widely held among the people of this
country. Pp. 463 U. S.
786 -792.

															(b) Weighed against the historical background, the facts that a
clergyman of only one denomination has been selected by the
Nebraska Legislature Page 463 U. S. 784 for 16 years, that the chaplain is paid at public expense, and
that the prayers are in the Judeo-Christian tradition do not serve
to invalidate Nebraska's practice. Pp. 463 U. S.
792 -795.

															675 F.2d 228, reversed.

															BURGER, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post, p. 463 U. S. 795 .
STEVENS, J., filed a dissenting opinion, post, p. 463 U. S.
822 .

															CHIEF JUSTICE BURGER delivered the opinion of the Court.

															The question presented is whether the Nebraska Legislature's
practice of opening each legislative day with a prayer by a
chaplain paid by the State violates the Establishment Clause of the
First Amendment. I The Nebraska Legislature begins each of its sessions with a
prayer offered by a chaplain who is chosen biennially by the
Executive Board of the Legislative Council and paid out of Page 463 U. S. 785 public funds. [ Footnote 1 ]
Robert E. Palmer, a Presbyterian minister, has served as chaplain
since 1965 at a salary of $319.75 per month for each month the
legislature is in session.

															Ernest Chambers is a member of the Nebraska Legislature and a
taxpayer of Nebraska. Claiming that the Nebraska Legislature's
chaplaincy practice violates the Establishment Clause of the First
Amendment, he brought this action under 42 U.S.C. § 1983, seeking
to enjoin enforcement of the practice. [ Footnote 2 ] After denying a motion to dismiss on the
ground of legislative immunity, the District Court held that the
Establishment Clause was not breached by the prayers, but was
violated by paying the chaplain from public funds. 504 F.
Supp. 585 (Neb.1980). It therefore enjoined the legislature
from using public funds to pay the chaplain; it declined to enjoin
the policy of beginning sessions with prayers. Cross-appeals were
taken. [ Footnote 3 ]

															The Court of Appeals for the Eighth Circuit rejected arguments
that the case should be dismissed on Tenth Amendment, legislative
immunity, standing, or federalism grounds. On the merits of the
chaplaincy issue, the court refused to treat respondent's
challenges as separable issues, as the District Court had done.
Instead, the Court of Appeals assessed the practice as a whole
because "[p]arsing out [the] Page 463 U. S. 786 elements" would lead to "an incongruous result." 675 F.2d 228,
233 (1982).

															Applying the three-part test of Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S.
612 -613 (1971), as set out in Committee for Public
Education & Religious Liberty v. Nyquist, 413 U.
S. 756 , 413 U. S. 773 (1973), the court held that the chaplaincy practice violated all
three elements of the test: the purpose and primary effect of
selecting the same minister for 16 years and publishing his prayers
was to promote a particular religious expression; use of state
money for compensation and publication led to entanglement. 675
F.2d at 234-235. Accordingly, the Court of Appeals modified the
District Court's injunction and prohibited the State from engaging
in any aspect of its established chaplaincy practice.

															We granted certiorari limited to the challenge to the practice
of opening sessions with prayers by a state-employed clergyman, 459
U.S. 966 (1982), and we reverse. [ Footnote 4 ] II 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. Page 463 U. S. 787 The tradition in many of the Colonies was, of course, linked to
an established church, [ Footnote
5 ] but the Continental Congress, beginning in 1774, adopted the
traditional procedure of opening its sessions with a prayer offered
by a paid chaplain. See, e.g., 1 J.Continental Cong. 26
(1774); 2 id. at 12 (1775); 5 id. at 530 (1776);
6 id. at 887 (1776); 27 id. at 683 (1784). See also 1 A. Stokes, Church and State in the United
States 448-450 (1950). Although prayers were not offered during the
Constitutional Convention, [ Footnote 6 ] the First Congress, as one of Page 463 U. S. 788 its early items of business, adopted the policy of selecting a
chaplain to open each session with prayer. Thus, on April 7, 1789,
the Senate appointed a committee "to take under consideration the
manner of electing Chaplains." S.Jour., 1st Cong., 1st Sess., 10
(1820 ed.). On April 9, 1789, a similar committee was appointed by
the House of Representatives. On April 25, 1789, the Senate elected
its first chaplain, id. at 16; the House followed suit on
May 1, 1789, H.R.Jour., 1st Cong., 1st Sess., 26 (1826 ed.). A
statute providing for the payment of these chaplains was enacted
into law on September 22, 1789. [ Footnote 7 ] 2 Annals of Cong. 2180; § 4, 1 Stat. 71.
[ Footnote 8 ]

															On September 25, 1789, three days after Congress authorized the
appointment of paid chaplains, final agreement was reached on the
language of the Bill of Rights, S.Jour., supra, at 88;
H.R.Jour., supra, at 121. [ Footnote 9 ] Clearly the men who wrote the First Amendment
Religion Clauses did not view paid legislative chaplains and
opening prayers as a violation of that Amendment, for the practice
of opening sessions with prayer has continued without interruption
ever since that early session of Congress. [ Footnote 10 ] It has also been followed
consistently Page 463 U. S. 789 in most of the states, [ Footnote 11 ] including Nebraska, where the institution of
opening legislative sessions with prayer was adopted even before
the State attained statehood. Neb. Page 463 U. S. 790 Jour. of Council, General Assembly, 1st Sess., 16 (Jan. 22,
1855).

															Standing alone, historical patterns cannot justify contemporary
violations of constitutional guarantees, but there is far more here
than simply historical patterns. In this context, historical
evidence sheds light not only on what the draftsmen intended the
Establishment Clause to mean, but also on how they thought that
Clause applied to the practice authorized by the First Congress --
their actions reveal their intent. An Act

															"passed by the first Congress assembled under the Constitution,
many of whose members had taken part in framing that instrument, .
. . is contemporaneous and weighty evidence of its true
meaning." Wisconsin v. Pelican Ins. Co., 127 U.
S. 265 , 127 U. S. 297 (1888).

															In Walz v. Tax Comm'n, 397 U.
S. 664 , 397 U. S. 678 (1970), we considered the weight to be accorded to history:

															"It is obviously correct that no one acquires a vested or
protected right in violation of the Constitution by long use, even
when that span of time covers our entire national existence, and
indeed predates it. Yet an unbroken practice . . . is not something
to be lightly cast aside."

															No more is Nebraska's practice of over a century, consistent
with two centuries of national practice, to be cast aside. It can
hardly be thought that, in the same week, Members of the First
Congress voted to appoint and to pay a chaplain for each House and
also voted to approve the draft of the First Amendment for
submission to the states, they intended the Establishment Clause of
the Amendment to forbid what they had just declared acceptable. In
applying the First Amendment to the states through the Fourteenth
Amendment, Cantwell v. Connecticut, 310 U.
S. 296 (1940), it would be incongruous to interpret that
Clause as imposing more stringent Page 463 U. S. 791 First Amendment limits on the states than the draftsmen imposed
on the Federal Government.

															This unique history leads us to accept the interpretation of the
First Amendment draftsmen who saw no real threat to the
Establishment Clause arising from a practice of prayer similar to
that now challenged. We conclude that legislative prayer presents
no more potential for establishment than the provision of school
transportation, Everson v. Board of Education, 330 U. S. 1 (1947),
beneficial grants for higher education, Tilton v.
Richardson, 403 U. S. 672 (1971), or tax exemptions for religious organizations, Walz,
supra. Respondent cites JUSTICE BRENNAN's concurring opinion in Abington School Dist. v. Schempp, 374 U.
S. 203 , 374 U. S. 237 (1963), and argues that we should not rely too heavily on "the
advice of the Founding Fathers," because the messages of history
often tend to be ambiguous, and not relevant to a society far more
heterogeneous than that of the Framers, id. at 374 U. S. 240 .
Respondent also points out that John Jay and John Rutledge opposed
the motion to begin the first session of the Continental Congress
with prayer. Brief for Respondent 60. [ Footnote 12 ]

															We do not agree that evidence of opposition to a measure weakens
the force of the historical argument; indeed it infuses it with
power by demonstrating that the subject was considered carefully
and the action not taken thoughtlessly, by force of long tradition
and without regard to the problems posed by a pluralistic society.
Jay and Rutledge specifically grounded their objection on the fact
that the delegates to the Congress "were so divided in religious
sentiments . . . that [they] could not join in the same act of
worship." Their objection Page 463 U. S. 792 was met by Samuel Adams, who stated that

															"he was no bigot, and could hear a prayer from a gentleman of
piety and virtue, who was at the same time a friend to his
country."

															C. Adams, Familiar Letters of John Adams and his Wife, Abigail
Adams, during the Revolution 37-38, reprinted in Stokes, at
449.

															This interchange emphasizes that the delegates did not consider
opening prayers as a proselytizing activity or as symbolically
placing the government's "official seal of approval on one
religious view," cf. 675 F.2d at 234. Rather, the Founding
Fathers looked at invocations as "conduct whose . . . effect . . .
harmonize[d] with the tenets of some or all religions." McGowan
v. Maryland, 366 U. S. 420 , 366 U. S. 442 (1961). The Establishment Clause does not always bar a state from
regulating conduct simply because it "harmonizes with religious
canons." Id. at 366 U. S. 462 (Frankfurter, J., concurring). Here, the individual claiming injury
by the practice is an adult, presumably not readily susceptible to
"religious indoctrination," see Tilton, supra, at 403 U. S. 686 ; Colo v. Treasurer & Receiver General, 378 Mass. 550,
559, 392
N.E.2d 1195 , 1200 (1979), or peer pressure, compare Abington, supra, at 374 U. S. 290 (BRENNAN, J., concurring).

															In light of the unambiguous and unbroken history of more than
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 the laws is not, in these circumstances, 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. As Justice Douglas observed, "[w]e are a
religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 313 (1952). III We turn then to the question of whether any features of the
Nebraska practice violate the Establishment Clause. Page 463 U. S. 793 Beyond the bare fact that a prayer is offered, three points have
been made: first, that a clergyman of only one denomination --
Presbyterian -- has been selected for 16 years; [ Footnote 13 ] second, that the chaplain is
paid at public expense; and third, that the prayers are in the
Judeo-Christian tradition. [ Footnote 14 ] Weighed against the historical background,
these factors do not serve to invalidate Nebraska's practice.
[ Footnote 15 ]

															The Court of Appeals was concerned that Palmer's long tenure has
the effect of giving preference to his religious views. We cannot,
any more than Members of the Congresses of this century, perceive
any suggestion that choosing a clergyman of one denomination
advances the beliefs of a particular church. To the contrary, the
evidence indicates that Palmer was reappointed because his
performance and personal qualities were acceptable to the body
appointing him. [ Footnote
16 ] Palmer was not the only clergyman heard by the legislature;
guest chaplains have officiated at the request of various
legislators and as substitutes during Palmer's absences. Tr. of
Oral Arg. 10. Absent proof that the chaplain's reappointment
stemmed from an impermissible motive, we conclude Page 463 U. S. 794 that his long tenure does not in itself conflict with the
Establishment Clause. [ Footnote
17 ]

															Nor is the compensation of the chaplain from public funds a
reason to invalidate the Nebraska Legislature's chaplaincy;
remuneration is grounded in historic practice initiated, as we
noted earlier, supra at 463 U. S. 788 ,
by the same Congress that drafted the Establishment Clause of the
First Amendment. The Continental Congress paid its chaplain, see, e.g., 6 J.Continental Cong. 887 (1776), as did some
of the states, see, e.g., Debates of the Convention of
Virginia 470 (June 26, 1788). Currently, many state legislatures
and the United States Congress provide compensation for their
chaplains, Brief for National Conference of State Legislatures as Amicus Curiae 3; 2 U.S.C. §§ 61d and 84-2 (1982 ed.); H.R.
Res. 7, 96th Cong., 1st Sess. (1979). [ Footnote 18 ] Nebraska has paid its chaplain for well
over a century, see 1867 Neb. Laws 85, §§ 2-4 (June 21,
1867), reprinted in Neb. Gen.Stat. 459 (1873). The content of the
prayer is not of concern to judges where, as here, there is no
indication that the prayer opportunity has been exploited to
proselytize or advance any one, Page 463 U. S. 795 or to disparage any other, faith or belief. That being so, it is
not for us to embark on a sensitive evaluation or to parse the
content of a particular prayer.

															We do not doubt the sincerity of those, who like respondent,
believe that to have prayer in this context risks the beginning of
the establishment the Founding Fathers feared. But this concern is
not well-founded, for as Justice Goldberg aptly observed in his
concurring opinion in Abington, 374 U.S. at 374 U. S.
308 :

															"It is, of course, true that great consequences can grow from
small beginnings, but the measure of constitutional adjudication is
the ability and willingness to distinguish between real threat and
mere shadow."

															The unbroken practice for two centuries in the National Congress
and for more than a century in Nebraska and in many other states
gives abundant assurance that there is no real threat "while this
Court sits," Panhandle Oil Co. v. Mississippi ex rel.
Knox, 277 U. S. 218 , 277 U. S. 223 (1928) (Holmes, J., dissenting).

															The judgment of the Court of Appeals is Reversed. [ Footnote 1 ]

															Rules of the Nebraska Unicameral, Rules 1, 2, and 21. These
prayers are recorded in the Legislative Journal and, upon the vote
of the legislature, collected from time to time into prayerbooks,
which are published at public expense. In 1975, 200 copies were
printed; prayerbooks were also published in 1978 (200 copies), and
1979 (100 copies). In total, publication costs amounted to
$458.56.

															[ Footnote 2 ]

															Respondent named as defendants State Treasurer Frank Marsh,
Chaplain Palmer, and the members of the Executive Board of the
Legislative Council in their official capacity. All appear as
petitioners before us.

															[ Footnote 3 ]

															The District Court also enjoined the State from using public
funds to publish the prayers, holding that this practice violated
the Establishment Clause. Petitioners have represented to us that
they did not challenge this facet of the District Court's decision,
Tr. of Oral Arg.19-20. Accordingly, no issue as to publishing these
prayers is before us.

															[ Footnote 4 ]

															Petitioners also sought review of their Tenth Amendment,
federalism, and immunity claims. They did not, however, challenge
the Court of Appeals' decision as to standing, and we agree that
Chambers, as a member of the legislature and as a taxpayer whose
taxes are used to fund the chaplaincy, has standing to assert this
claim.

															[ Footnote 5 ]

															The practice in Colonies with established churches is, of
course, not dispositive of the legislative prayer question. The
history of Virginia is instructive, however, because that Colony
took the lead in defining religious rights. In 1776, the Virginia
Convention adopted a Declaration of Rights that included, as
Article 16, a guarantee of religious liberty that is considered the
precursor of both the Free Exercise and Establishment Clauses. 1 B.
Schwartz, The Bill of Rights: A Documentary History 231-236 (1971);
S. Cobb, The Rise of Religious Liberty in America 491-492 (1970).
Virginia was also among the first to disestablish its church. Both
before and after disestablishment, however, Virginia followed the
practice of opening legislative sessions with prayer. See,
e.g., J. House of Burgesses 34 (Nov. 20, 1712); Debates of the
Convention of Virginia 470 (June 2, 1788) (ratification
convention); J. House of Delegates of Va. 3 (June 24, 1788) (state
legislature).

															Rhode Island's experience mirrored that of Virginia. That Colony
was founded by Roger Williams, who was among the first of his era
to espouse the principle of religious freedom. Cobb, supra at 426. As early as 1641, its legislature provided for liberty of
conscience. Id. at 430. Yet the sessions of its
ratification convention, like Virginia's, began with prayers, see W. Staples, Rhode Island in the Continental Congress,
1765-1790, p. 668 (1870) (reprinting May 26, 1790, minutes of the
convention).

															[ Footnote 6 ]

															History suggests that this may simply have been an oversight. At
one point, Benjamin Franklin suggested that

															"henceforth prayers imploring the assistance of Heaven, and its
blessings on our deliberations, be held in this Assembly every
morning before we proceed to business."

															1 M. Farrand, Records of the Federal Convention of 1787, p. 452
(1911). His proposal was rejected not because the Convention was
opposed to prayer, but because it was thought that a midstream
adoption of the policy would highlight prior omissions, and because
"[t]he Convention had no funds." Ibid.; see also Stokes at
455-456.

															[ Footnote 7 ]

															The statute provided:

															"[T]here shall be allowed to each chaplain of Congress . . .
five hundred dollars per annum during the session of Congress. This
salary compares favorably with the Congressmen's own salaries of $6
for each day of attendance, 1 Stat. 70-71."

															[ Footnote 8 ]

															It bears note that James Madison, one of the principal advocates
of religious freedom in the Colonies and a drafter of the
Establishment Clause, see, e.g., Cobb, supra, n.
5, at 495-497; Stokes, at 537-552, was one of those appointed to
undertake this task by the House of Representatives, H.R. Jour., at
11-12; Stokes, at 541-549, and voted for the bill authorizing
payment of the chaplains, 1 Annals of Cong. 891(1789).

															[ Footnote 9 ]

															Interestingly, September 25, 1789, was also the day that the
House resolved to request the President to set aside a Thanksgiving
Day to acknowledge "the many signal favors of Almighty God,"
H.R.Jour. at 123. See also S.Jour. at 88.

															[ Footnote 10 ]

															The chaplaincy was challenged in the 1850's by "sundry petitions
praying Congress to abolish the office of chaplain," S.Rep. No.
376, 32d Cong., 2d Sess., 1 (1853). After consideration by the
Senate Committee on the Judiciary, the Senate decided that the
practice did not violate the Establishment Clause, reasoning that a
rule permitting Congress to elect chaplains is not a law
establishing a national church, and that the chaplaincy was no
different from Sunday Closing Laws, which the Senate thought
clearly constitutional. In addition, the Senate reasoned that,
since prayer was said by the very Congress that adopted the Bill of
Rights, the Founding Fathers could not have intended the First
Amendment to forbid legislative prayer or viewed prayer as a step
toward an established church. Id. at 2-4. In any event,
the 35th Congress abandoned the practice of electing chaplains in
favor of inviting local clergy to officiate, see Cong.Globe, 35th Cong., 1st Sess., 14, 27-28 (1857). Elected
chaplains were reinstituted by the 36th Congress, Cong.Globe, 36th
Cong., 1st Sess., 162 (1859); id. at 1016 (1860).

															[ Footnote 11 ] See Brief for National Conference of State Legislatures
as Amicus Curiae. Although most state legislatures begin
their sessions with prayer, most do not have a formal rule
requiring this procedure. But see, e.g., Alaska
Legislature Uniform Rules 11 and 17 (1981) (providing for opening
invocation); Ark.Rule of Senate 18 (1983); Colo.Legislator's
Handbook, H.R.Rule 44 (1982); Idaho Rules of H.R. and Joint Rules 2
and 4 (1982); Ind.H.R.Rule 10 (1983); Kan.Rule of Senate 4 (1983);
Kan.Rule of H.R. 103 (1983); Ky.General Assembly H.Res. 2 (1982);
La.Rules of Order, Senate Rule 10.1 (1983); La.Rules of Order,
H.R.Rule 8.1 (1982); Me.Senate and House Register, Rule of H.R. 4
(1983); Md.Senate and House of Delegates Rules 1 (1982 and 1983);
Mo.Rules of Legislature, Joint Rule 1-1 (1983); N.H.Manual for the
General Court of N.H., Rule of H.R. 52(a) (1981); N.D. Senate and
H.R.Rules 101 and 301 (1983); Ore.Rule of Senate 4.01 (1983);
Ore.Rule of H.R. 4.01 (1983) (opening session only); 104 Pa. Code §
11.11 (1983), 107 Pa.Code § 21.17 (1983); S.D.Official Directory
and Rules of Senate and H.R., Joint Rule of the Senate and House
4-1 (1983); Tenn.Permanent Rules of Order of the Senate 1 and 6
(1981-1982) (provides for admission into Senate chamber of the
"Chaplain of the Day"); Tex.Rule of H.R. 2, § 6 (1983); Utah Rules
of Senate and H.R. 4.04 (1983); Va. Manual of Senate and House of
Delegates, Rule of Senate 21(a) (1982) (session opens with "period
of devotions"); Wash.Permanent Rule of H.R. 15 (1983); Wyo.Rule of
Senate 4-1 (1983); Wyo.Rule of H.R. 2-1 (1983). See also P. Mason, Manual of Legislative Procedure § 586(2) (1979).

															[ Footnote 12 ]

															It also could be noted that objections to prayer were raised,
apparently successfully, in Pennsylvania while ratification of the
Constitution was debated, Penn. Herald, Nov. 24, 1787, and that, in
the 1820's, Madison expressed doubts concerning the chaplaincy
practice. See L. Pfeffer, Church, State, and Freedom
248-249 (rev. ed.1967), citing Fleet, Madison's "Detached
Memoranda," 3 Wm. & Mary Quarterly 534, 558-559 (1946).

															[ Footnote 13 ]

															In comparison, the First Congress provided for the appointment
of two chaplains of different denominations who would alternate
between the two Chambers on a weekly basis, S.Jour., 1st Cong., 1st
Sess., 12 (1820 ed.); H.R.Jour., 1st Cong., 1st Sess., 16 (1826
ed.).

															[ Footnote 14 ]

															Palmer characterizes his prayers as "nonsectarian," "Judeo
Christian," and with "elements of the American civil religion."
App. 75 and 87 (deposition of Robert E. Palmer). Although some of
his earlier prayers were often explicitly Christian, Palmer removed
all references to Christ after a 1980 complaint from a Jewish
legislator. Id. at 49.

															[ Footnote 15 ]

															It is also claimed that Nebraska's practice of collecting the
prayers into books violates the First Amendment. Because the State
did not appeal the District Court order enjoining further
publications, see n. 3, supra, this issue is not
before us, and we express no opinion on it.

															[ Footnote 16 ]

															Nebraska's practice is consistent with the manner in which the
First Congress viewed its chaplains. Reports contemporaneous with
the elections reported only the chaplains' names, and not their
religions or church affiliations, see, e.g., 2 Gazette of
the U.S. 18 (Apr. 25, 1789); 5 id. at 18 (Apr. 27, 1789)
(listing nominees for Chaplain of the House); 6 id. at 23
(May 1, 1789). See also S.Rep. 376, supra, n. 10,
at 3.

															[ Footnote 17 ]

															We note that Dr. Edward L. R. Elson served as Chaplain of the
Senate of the United States from January, 1969, to February, 1981,
a period of 12 years; Dr. Frederick Brown Harris served from
February, 1949, to January, 1969, a period of 20 years. Senate
Library, Chaplains of the Federal Government (rev. ed.1982).

															[ Footnote 18 ]

															The states' practices differ widely. Like Nebraska, several
states choose a chaplain who serves for the entire legislative
session. In other states, the prayer is offered by a different
clergyman each day. Under either system, some states pay their
chaplains, and others do not. For States providing for compensation
statutorily or by resolution, see, e.g., Cal.Gov't Code
Ann. §§ 9170, 9171, 9320 (West 1980), and S.Res. No. 6, 1983-1984
Sess.; Colo.H.R.J., 54th Gen. Assembly, 1st Sess., 17-19 (Jan. 5,
1983); Conn.Gen.Stat.Ann. § 2-9 (1983-1984); Ga.H.R. Res. No. 3, §
1(e) (1983); Ga.S.Res. No. 3, § 1(c) (1983); Iowa Code § 2.11
(1983); Mo.Rev.Stat. § 21.150 (1978); Nev.Rev.Stat. § 218.200
(1981); N.J.Stat.Ann. § 52 2 (West 1970); N.M. Const., Art. IV, §
9; Okla.Stat.Ann., Tit. 74, §§ 291.12 and 292.1 (West
Supp.1982-1983); Vt.Stat.Ann., Tit. 2, § 19 (Supp.1982);
Wis.Stat.Ann. § 13.125 (West Supp.1982).

															JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.

															The Court today has written a narrow and, on the whole, careful
opinion. In effect, the Court holds that officially sponsored
legislative prayer, primarily on account of its "unique history," ante at 463 U. S. 791 ,
is generally exempted from the First Amendment's prohibition
against "an establishment of religion." The Court's opinion is
consistent with dictum in at least one of our prior decisions,
[ Footnote 2/1 ] and its limited
rationale should pose little threat to the overall fate of the
Establishment Clause. Moreover, disagreement with the Court Page 463 U. S. 796 requires that I confront the fact that, some 20 years ago, in a
concurring opinion in one of the cases striking down official
prayer and ceremonial Bible reading in the public schools, I came
very close to endorsing essentially the result reached by the Court
today. [ Footnote 2/2 ] Nevertheless,
after much reflection, I have come to the conclusion that I was
wrong then, and that the Court is wrong today. I now believe that
the practice of official invocational prayer, as it exists in
Nebraska and most other state legislatures, is unconstitutional. It
is contrary to the doctrine as well the underlying purposes of the
Establishment Clause, and it is not saved either by its history or
by any of the other considerations suggested in the Court's
opinion.

															I respectfully dissent. I The Court makes no pretense of subjecting Nebraska's practice of
legislative prayer to any of the formal "tests" that have
traditionally structured our inquiry under the Establishment
Clause. That it fails to do so is, in a sense, a good thing, for it
simply confirms that the Court is carving out an exception to the
Establishment Clause, rather than reshaping Establishment Clause
doctrine to accommodate legislative prayer. For my purposes,
however, I must begin by demonstrating what should be obvious:
that, 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 most commonly cited formulation of prevailing Establishment
Clause doctrine is found in Lemon v. Kurtzman, 403 U. S. 602 (1971): Page 463 U. S. 797 "Every analysis in this area must begin with consideration of
the cumulative criteria developed by the Court over many years.
Three such tests may be gleaned from our cases. First, the statute
[at issue] must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances nor
inhibits religion; finally, the statute must not foster 'an
excessive government entanglement with religion.'" Id. at 403 U. S.
612 -613 (citations omitted). [ Footnote 2/3 ]

															That the "purpose" of legislative prayer is preeminently
religious, rather than secular, seems to me to be self-evident.
[ Footnote 2/4 ] "To invoke Divine
guidance on a public body entrusted with making the laws," ante at 463 U. S. 792 ,
is nothing but a religious act. Moreover, whatever secular
functions legislative prayer might play -- formally opening the
legislative session, getting the members of the body to quiet down,
and imbuing them with a sense of seriousness and high purpose --
could so plainly be performed in a purely nonreligious fashion that
to claim a secular purpose for the prayer is an insult to the
perfectly Page 463 U. S. 798 honorable individuals who instituted and continue the
practice.

															The "primary effect" of legislative prayer is also clearly
religious. As we said in the context of officially sponsored
prayers in the public schools, "prescribing a particular form of
religious worship," even if the individuals involved have the
choice not to participate, places "indirect coercive pressure upon
religious minorities to conform to the prevailing officially
approved religion. . . ." Engel v. Vitale, 370 U.
S. 421 , 370 U. S. 431 (1962). [ Footnote 2/5 ] More
importantly, invocations in Nebraska's legislative halls explicitly
link religious belief and observance to the power and prestige of
the State.

															"[T]he mere appearance of a joint exercise of legislative
authority by Church and State provides a significant symbolic
benefit to religion in the minds of some by reason of the power
conferred." Larkin v. Grendel's Den, Inc., 459 U.
S. 116 , 459 U. S.
125 -126 (1982). [ Footnote
2/6 ] See Abington School Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 224 (1963).

															Finally, there can be no doubt that the practice of legislative
prayer leads to excessive "entanglement" between the State and
religion. Lemon pointed out that "entanglement" can take
two forms: first, a state statute or program might involve the
state impermissibly in monitoring and overseeing Page 463 U. S. 799 religious affairs. 403 U.S. at 403 U. S.
614 -622. [ Footnote 2/7 ]
In the case of legislative prayer, the process of choosing a
"suitable" chaplain, whether on a permanent or rotating basis, and
insuring that the chaplain limits himself or herself to "suitable"
prayers, involves precisely the sort of supervision that agencies
of government should if at all possible avoid. [ Footnote 2/8 ]

															Second, excessive "entanglement" might arise out of "the
divisive political potential" of a state statute or program. 403
U.S. at 403 U. S.
622 .

															"Ordinarily political debate and division, however vigorous or
even partisan, are normal and healthy manifestations of our
democratic system of government, but political division along
religious lines was one of the principal evils against which the
First Amendment was intended to protect. The potential divisiveness
of such conflict is a threat to the normal political process." Ibid. (citations omitted). In this case, this second
aspect of entanglement is also clear. The controversy between
Senator Chambers and his colleagues, which had reached the stage of
difficulty and rancor long before this lawsuit was brought, has
split the Nebraska Page 463 U. S. 800 Legislature precisely on issues of religion and religious
conformity. App. 21-24. The record in this case also reports a
series of instances, involving legislators other than Senator
Chambers, in which invocations by Reverend Palmer and others led to
controversy along religious lines. [ Footnote 2/9 ] And in general, the history of legislative
prayer has been far more eventful -- and divisive -- than a hasty
reading of the Court's opinion might indicate. [ Footnote 2/10 ]

															In sum, I have no doubt that, if any group of law students were
asked to apply the principles of Lemon to the question Page 463 U. S. 801 of legislative prayer, they would nearly unanimously find the
practice to be unconstitutional. [ Footnote 2/11 ] II The path of formal doctrine, however, can only imperfectly
capture the nature and importance of the issues at stake in this
case. A more adequate analysis must therefore take Page 463 U. S. 802 into account the underlying function of the Establishment
Clause, and the forces that have shaped its doctrine. A Most of the provisions of the Bill of Rights, even if they are
not generally enforceable in the absence of state action,
nevertheless arise out of moral intuitions applicable to
individuals as well as governments. The Establishment Clause,
however, is quite different. It is, to its core, nothing less and
nothing more than a statement about the proper role of government
in the society that we have shaped for ourselves in this land.

															The Establishment Clause embodies a judgment, born of a long and
turbulent history, that, in our society, religion "must be a
private matter for the individual, the family, and the institutions
of private choice. . . ." Lemon v. Kurtzman, 403 U.S. at 403 U. S.
625 .

															"Government in our democracy, state and national, must be
neutral in matters of religious theory, doctrine, and practice. It
may not be hostile to any religion or to the advocacy of
no-religion; and it may not aid, foster, or promote one religion or
religious theory against another or even against the militant
opposite. The First Amendment mandates governmental neutrality
between religion and religion, and between religion and
nonreligion." Epperson v. Arkansas, 393 U. S. 97 , 393 U. S.
103 -104 (1968) (footnote omitted).

															"In the words of Jefferson, the clause against establishment of
religion by law was intended to erect 'a wall of separation between
church and State.'" Everson v. Board of Education, 330 U. S.
1 , 330 U. S. 16 (1947), quoting Reynolds v. United States, 98 U. S.
145 , 98 U. S. 164 (1879). [ Footnote 2/12 ] Page 463 U. S. 803 The principles of "separation" and "neutrality" implicit in the
Establishment Clause serve many purposes. Four of these are
particularly relevant here.

															The first, which is most closely related to the more general
conceptions of liberty found in the remainder of the First
Amendment, is to guarantee the individual right to conscience.
[ Footnote 2/13 ] The right to
conscience, in the religious sphere, is not only implicated when
the government engages in direct or indirect coercion. It is also
implicated when the government requires individuals to support the
practices of a faith with which they do not agree.

															"'[T]o compel a man to furnish contributions of money for the
propagation of [religious] opinions which he disbelieves, is sinful
and tyrannical; . . . even . . . forcing him to support this or
that teacher of his own religious persuasion, is depriving him of
the comfortable liberty of giving his contributions to the
particular pastor, whose morals he would make his pattern. . .
.'" Everson v. Board of Education, supra, at 330 U. S. 13 ,
quoting Virginia Bill for Religious Liberty, 12 Hening, Statutes of
Virginia 84 (1823).

															The second purpose of separation and neutrality is to keep the
state from interfering in the essential autonomy of religious life,
either by taking upon itself the decision of religious Page 463 U. S. 804 issues, [ Footnote 2/14 ] or by
unduly involving itself in the supervision of religious
institutions or officials. [ Footnote
2/15 ]

															The third purpose of separation and neutrality is to prevent the
trivialization and degradation of religion by too close an
attachment to the organs of government. The Establishment
Clause

															"stands as an expression of principle on the part of the
Founders of our Constitution that religion is too personal, too
sacred, too holy, to permit its 'unhallowed perversion' by a civil
magistrate." Engel v. Vitale, 370 U.S. at 370 U. S. 432 ,
quoting Memorial and Remonstrance against Religious Assessments, 2
Writings of Madison 187. See also Schempp, 374 U.S. at 374 U. S.
221 -222; id. at 374 U. S.
283 -287 (BRENNAN, J., concurring). [ Footnote 2/16 ] Page 463 U. S. 805 Finally, the principles of separation and neutrality help assure
that essentially religious issues, precisely because of their
importance and sensitivity, not become the occasion for battle in
the political arena. See Lemon, 403 U.S. at 403 U. S.
622 -624; Board of Education v. Allen, 392 U. S. 236 , 392 U. S. 249 (Harlan, J., concurring); Engel, supra, at 370 U. S.
429 -430. With regard to most issues, the government may
be influenced by partisan argument and may act as a partisan
itself. In each case, there will be winners and losers in the
political battle, and the losers' most common recourse is the right
to dissent and the right to fight the battle again another day.
With regard to matters that are essentially religious, however, the
Establishment Clause seeks that there should be no political
battles, and that no American should at any point feel
alienated Page 463 U. S. 806 from his government because that government has declared or
acted upon some "official" or "authorized" point of view on a
matter of religion. [ Footnote
2/17 ]

															The imperatives of separation and neutrality are not limited to
the relationship of government to religious institutions or
denominations, but extend as well to the relationship of government
to religious beliefs and practices. In Torcaso v. Watkins, 367 U. S. 488 (1961), for example, we struck down a state provision requiring a
religious oath as a qualification to hold office, not only because
it violated principles of free exercise of religion, but also
because it violated the principles of nonestablishment of religion.
And, of course, in the pair of cases that hang over this one like a
reproachful set of parents, we held that official prayer and
prescribed Bible reading in the public schools represent a serious
encroachment on the Establishment Clause. Schempp, supra;
Engel, supra. As we said in Engel, "[i]t is neither sacrilegious nor antireligious to say that each
separate government in this country should stay out of the business
of writing or sanctioning official prayers and leave that purely
religious function to the people themselves, and to those the
people choose to look to for religious guidance."

															370 U.S. at 370 U. S. 435 (footnote omitted).

															Nor should it be thought that this view of the Establishment
Clause is a recent concoction of an overreaching judiciary. Page 463 U. S. 807 Even before the First Amendment was written, the Framers of the
Constitution broke with the practice of the Articles of
Confederation and many state constitutions, and did not invoke the
name of God in the document. This "omission of a reference to the
Deity was not inadvertent; nor did it remain unnoticed." [ Footnote 2/18 ] Moreover, Thomas Jefferson
and Andrew Jackson, during their respective terms as President,
both refused on Establishment Clause grounds to declare national
days of thanksgiving or fasting. [ Footnote 2/19 ] And James Madison, writing subsequent to
his own Presidency on essentially the very issue we face today,
stated:

															"Is the appointment of Chaplains to the two Houses of Congress
consistent with the Constitution, and with the pure principle of
religious freedom?"

															"In strictness, the answer on both points must be in the
negative. The Constitution of the U.S. forbids everything like an
establishment of a national religion. The law appointing Chaplains
establishes a religious worship for the national representatives,
to be performed by Ministers of religion, elected by a majority
of Page 463 U. S. 808 them; and these are to be paid out of the national taxes. Does
not this involve the principle of a national establishment,
applicable to a provision for a religious worship for the
Constituent as well as of the representative Body, approved by the
majority, and conducted by Ministers of religion paid by the entire
nation."

															Fleet, Madison's "Detached Memoranda," 3 Wm. & Mary
Quarterly 534, 558 (1946). C Legislative prayer clearly violates the principles of neutrality
and separation that are embedded within the Establishment Clause.
It is contrary to the fundamental message of Engel and Schempp. It intrudes on the right to conscience by forcing
some legislators either to participate in a "prayer opportunity," ante at 463 U. S. 794 ,
with which they are in basic disagreement, or to make their
disagreement a matter of public comment by declining to
participate. It forces all residents of the State to support a
religious exercise that may be contrary to their own beliefs. It
requires the State to commit itself on fundamental theological
issues. [ Footnote 2/20 ] It has
the potential for degrading religion by allowing a religious call
to worship to be intermeshed with a secular call to order. And it
injects religion into the political sphere by creating the
potential that each and every selection of a chaplain, or
consideration of a particular prayer, or even reconsideration of
the practice itself, will provoke a political battle along
religious lines and ultimately alienate some religiously identified
group of citizens. [ Footnote
2/21 ] Page 463 U. S. 809 D One response to the foregoing account, of course, is that
"neutrality" and "separation" do not exhaust the full meaning of
the Establishment Clause as it has developed in our cases. It is
indeed true that there are certain tensions inherent in the First
Amendment itself, or inherent in the role of religion and religious
belief in any free society, that have shaped the doctrine of the
Establishment Clause, and required us to deviate from an absolute
adherence to separation and neutrality. Nevertheless, these
considerations, although very important, are also quite specific,
and where none of them is present, the Establishment Clause gives
us no warrant simply to look the other way and treat an
unconstitutional practice as if it were constitutional. Because the
Court occasionally suggests that some of these considerations might
apply here, it becomes important that I briefly identify the most
prominent of them and explain why they do not, in fact, have any
relevance to legislative prayer. (1) A number of our cases have recognized that religious
institutions and religious practices may, in certain contexts,
receive the benefit of government programs and policies generally
available, on the basis of some secular criterion, to a wide class
of similarly situated nonreligious beneficiaries, [ Footnote 2/22 ] and the precise cataloging of those
contexts is not necessarily an easy task. I need not tarry long
here, however, because the provision for a daily official
invocation by a nonmember officer of Page 463 U. S. 810 a legislative body could by no stretch of the imagination appear
anywhere in that catalog. (2) Conversely, our cases have recognized that religion can
encompass a broad, if not total, spectrum of concerns, overlapping
considerably with the range of secular concerns, and that not every
governmental act which coincides with or conflicts with a
particular religious belief is, for that reason, an establishment
of religion. See, e.g., McGowan v. Maryland, 366 U.
S. 420 , 366 U. S.
431 -445 (1961) (Sunday Laws); Harris v. McRae, 448 U. S. 297 , 448 U. S.
319 -320 (1980) (abortion restrictions). The Court seems
to suggest at one point that the practice of legislative prayer may
be excused on this ground, ante at 463 U. S. 792 ,
but I cannot really believe that it takes this position seriously.
[ Footnote 2/23 ] The practice of
legislative prayer is nothing like the statutes we considered in McGowan and Harris v. McRae; prayer is not merely
"conduct whose . . . effect . . . harmonize[s] with the tenets of
some or all religions," McGowan, supra, at 366 U. S. 442 ;
prayer is fundamentally and necessarily religious.

															"It is prayer which distinguishes religious phenomena from all
those which resemble them or lie near to them, from the moral
sense, for instance, or aesthetic feeling. [ Footnote 2/24 ]" Accord, Engel, 370 U.S. at 370 U. S.
424 . (3) We have also recognized that government cannot, without adopting
a decidedly anti -religious point of view, be forbidden Page 463 U. S. 811 to recognize the religious beliefs and practices of the American
people as an aspect of our history and culture. [ Footnote 2/25 ] Certainly, bona fide classes in
comparative religion can be offered in the public schools.
[ Footnote 2/26 ] And certainly,
the text of Abraham Lincoln's Second Inaugural Address which is
inscribed on a wall of the Lincoln Memorial need not be purged of
its profound theological content. The practice of offering
invocations at legislative sessions cannot, however, simply be
dismissed as "a tolerable acknowledgment of beliefs widely
held among the people of this country." Ante at 463 U. S. 792 (emphasis added). "Prayer is religion in act. " [ Footnote 2/27 ] "Praying means to take
hold of a word, the end, so to speak, of a line that leads to God."
[ Footnote 2/28 ] Reverend Palmer
and other members of the clergy who offer invocations at
legislative sessions are not museum pieces put on display once a
day for the edification of the legislature. Rather, they are
engaged by the legislature to lead it -- as a body -- in an act of
religious worship. If upholding the practice requires denial of
this fact, I suspect that many supporters of legislative prayer
would feel that they had been handed a pyrrhic victory. (4) Our cases have recognized that the purposes of the Establishment
Clause can sometimes conflict. For example, in Walz v. Tax
Comm'n, 397 U. S. 664 (1970), we upheld tax exemptions for religious institutions in part
because subjecting those institutions to taxation might foster
serious administrative entanglement. Id. at 397 U. S.
674 -676. Here, however, no Page 463 U. S. 812 such tension exists; the State can vindicate all the
purposes of the Establishment Clause by abolishing legislative
prayer. (5) Finally, our cases recognize that, in one important respect, the
Constitution is not neutral on the subject of religion: under the
Free Exercise Clause, religiously motivated claims of conscience
may give rise to constitutional rights that other strongly held
beliefs do not. See 463
U.S. 783 fn2/13|>n. 13, supra. Moreover, even when
the government is not compelled to do so by the Free Exercise
Clause, it may to some extent act to facilitate the opportunities
of individuals to practice their religion. [ Footnote 2/29 ] See Schempp, 374 U.S. at 374 U. S. 299 (BRENNAN, J., concurring) ("hostility, not neutrality, would
characterize the refusal to provide chaplains and places of worship
for prisoners and soldiers cut off by the State from all civilian
opportunities for public communion"). This is not, however, a case
in which a State is accommodating individual religious interests.
We are not faced here with the right of the legislature to allow
its members to offer prayers during the course of Page 463 U. S. 813 general legislative debate. We are certainly not faced with the
right of legislators to form voluntary groups for prayer or
worship. We are not even faced with the right of the State to
employ members of the clergy to minister to the private religious
needs of individual legislators. Rather, we are faced here with the
regularized practice of conducting official prayers, on behalf of
the entire legislature, as part of the order of business
constituting the formal opening of every single session of the
legislative term. If this is free exercise, the Establishment
Clause has no meaning whatsoever. III With the exception of the few lapses I have already noted, each
of which is commendably qualified so as to be limited to the facts
of this case, the Court says almost nothing contrary to the above
analysis. Instead, it holds that "the practice of opening
legislative sessions with prayer has become part of the fabric of
our society," ante at 463 U. S. 792 ,
and chooses not to interfere. I sympathize with the Court's
reluctance to strike down a practice so prevalent and so ingrained
as legislative prayer. I am, however, unconvinced by the Court's
arguments, and cannot shake my conviction that legislative prayer
violates both the letter and the spirit of the Establishment
Clause. A The Court's main argument for carving out an exception
sustaining legislative prayer is historical. The Court cannot --
and does not -- purport to find a pattern of "undeviating
acceptance," Walz, supra, at 397 U. S. 681 (BRENNAN, J., concurring), of legislative prayer. See ante at 463 U. S. 791 ,
and n. 12; n. 10, supra. It also disclaims exclusive
reliance on the mere longevity of legislative prayer. Ante at 463 U. S. 790 .
The Court does, however, point out that, only three days before the
First Congress reached agreement on the final wording of the Bill
of Rights, it authorized the appointment of paid chaplains for Page 463 U. S. 814 its own proceedings, ante at 463 U. S. 788 ,
and the Court argues that in light of this "unique history," ante at 463 U. S. 791 ,
the actions of Congress reveal its intent as to the meaning of the
Establishment Clause, ante at 463 U. S.
788 -790. I agree that historical practice is "of
considerable import in the interpretation of abstract
constitutional language," Walz, 397 U.S. at 397 U. S. 681 (BRENNAN, J., concurring). This is a case, however, in which --
absent the Court's invocation of history -- there would be no
question that the practice at issue was unconstitutional. And
despite the surface appeal of the Court's argument, there are at
least three reasons why specific historical practice should not in
this case override that clear constitutional imperative. [ Footnote 2/30 ]

															First, it is significant that the Court's historical argument
does not rely on the legislative history of the Establishment
Clause itself. Indeed, that formal history is profoundly
unilluminating on this and most other subjects. Rather, the Court
assumes that the Framers of the Establishment Clause would not have
themselves authorized a practice that they thought violated the
guarantees contained in the Clause. Ante at 463 U. S. 790 .
This assumption, however, is questionable. Legislators, influenced
by the passions and exigencies of the moment, the pressure of
constituents and colleagues, and the press of business, do not
always pass sober constitutional judgment on every piece of
legislation they enact, [ Footnote
2/31 ] and this Page 463 U. S. 815 must be assumed to be as true of the Members of the First
Congress as any other. Indeed, the fact that James Madison, who
voted for the bill authorizing the payment of the first
congressional chaplains, ante at 463 U. S. 788 ,
n. 8, later expressed the view that the practice was
unconstitutional, see supra at 463 U. S.
807 -808, is instructive on precisely this point.
Madison's later views may not have represented so much a change of mind as a change of role, from a Member of
Congress engaged in the hurly-burly of legislative activity to a
detached observer engaged in unpressured reflection. Since the
latter role is precisely the one with which this Court is charged,
I am not at all sure that Madison's later writings should be any
less influential in our deliberations than his earlier vote.

															Second, the Court's analysis treats the First Amendment simply
as an Act of Congress, as to whose meaning the intent of Congress
is the single touchstone. Both the Constitution and its Amendments,
however, became supreme law only by virtue of their ratification by
the States, and the understanding of the States should be as
relevant to our analysis as the understanding of Congress.
[ Footnote 2/32 ] See
Richardson v. Ramirez, 418 U. S. 24 , 418 U. S. 43 (1974); Maxwell v. Dow, 176 U. S. 581 , 176 U. S. 602 (1900). [ Footnote 2/33 ] This
observation is especially compelling in considering Page 463 U. S. 816 the meaning of the Bill of Rights. The first 10 Amendments were
not enacted because the Members of the First Congress came up with
a bright idea one morning; rather, their enactment was forced upon
Congress by a number of the States as a condition for their
ratification of the original Constitution. [ Footnote 2/34 ] To treat any practice authorized by the
First Congress as presumptively consistent with the Bill of Rights
is therefore somewhat akin to treating any action of a party to a
contract as presumptively consistent with the terms of the
contract. The latter proposition, if it were accepted, would of
course resolve many of the heretofore perplexing issues in contract
law.

															Finally, and most importantly, the argument tendered by the
Court is misguided because the Constitution is not a static
document whose meaning on every detail is fixed for all time by the
life experience of the Framers. We have recognized in a wide
variety of constitutional contexts that the practices that were in
place at the time any particular guarantee was enacted into the
Constitution do not necessarily fix forever the meaning of that
guarantee. [ Footnote 2/35 ] To be
truly faithful to the Framers, "our use of the history of their
time must limit itself to broad purposes, not specific practices." Abington School Dist. v. Schempp, 374 U.S. at 374 U. S. 241 (BRENNAN, J., concurring). Our primary task must be to
translate

															"the majestic generalities of the Bill of Rights, conceived as
part of the pattern of liberal government in the eighteenth
century, into concrete restraints on officials dealing with the Page 463 U. S. 817 problems of the twentieth century. . . ." West Virginia Bd. of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 (1943).

															The inherent adaptability of the Constitution and its amendments
is particularly important with respect to the Establishment
Clause.

															"[O]ur religious composition makes us a vastly more diverse
people than were our forefathers. . . . In the face of such
profound changes, practices which may have been objectionable to no
one in the time of Jefferson and Madison may today be highly
offensive to many persons, the deeply devout and the nonbelievers
alike." Schempp, supra, at 374 U. S.
240 -241 (BRENNAN, J., concurring). Cf. McDaniel v.
Paty, 435 U. S. 618 , 435 U. S. 628 (1978) (plurality opinion). President John Adams issued during his
Presidency a number of official proclamations calling on all
Americans to engage in Christian prayer. [ Footnote 2/36 ] Justice Story, in his treatise on the
Constitution, contended that the "real object" of the First
Amendment

															"was, not to countenance, much less to advance Mahometanism, or
Judaism, or infidelity, by prostrating Christianity; but to exclude
all rivalry among Christian sects. . . . [ Footnote 2/37 ]"

															Whatever deference Adams' actions and Story's views might once
have deserved in this Court, the Establishment Clause must now be
read in a very different light. Similarly, the Members of the First
Congress should be treated, not as sacred figures whose every
action must be emulated, but as the authors of a document meant to
last for the ages. Indeed, a proper respect for the Framers
themselves forbids us to give so static and lifeless a meaning to
their work. To my mind, the Court's focus here on a narrow piece of
history is, in a fundamental sense, a betrayal of the lessons of
history. Page 463 U. S. 818 B Of course, the Court does not rely entirely on the practice of
the First Congress in order to validate legislative prayer. There
is another theme which, although implicit, also pervades the
Court's opinion. It is exemplified by the Court's comparison of
legislative prayer with the formulaic recitation of "God save the
United States and this Honorable Court." Ante at 463 U. S. 786 .
It is also exemplified by the Court's apparent conclusion that
legislative prayer is, at worst, a " mere shadow'" on the
Establishment Clause, rather than a "`real threat'" to it. Ante at 463 U. S. 795 ,
quoting Schempp, supra, at 374 U. S. 308 (Goldberg, J., concurring). Simply put, the Court seems to regard
legislative prayer as at most a de minimis violation,
somehow unworthy of our attention. I frankly do not know what
should be the proper disposition of features of our public life
such as "God save the United States and this Honorable Court," "In
God We Trust," "One Nation Under God," and the like. I might well
adhere to the view expressed in Schempp that such mottos
are consistent with the Establishment Clause, not because their
import is de minimis, but because they have lost any true
religious significance. 374 U.S. at 374 U. S.
303 -304 (BRENNAN, J., concurring). Legislative
invocations, however, are very different. First of all, as JUSTICE STEVENS' dissent so effectively
highlights, legislative prayer, unlike mottos with fixed wordings,
can easily turn narrowly and obviously sectarian. [ Footnote 2/38 ] I agree with the Court that the
federal judiciary should not sit as a board of censors on
individual prayers, but, to my mind, the better way of avoiding
that task is by striking down all official legislative
invocations. Page 463 U. S. 819 More fundamentally, however, any practice of legislative prayer,
even if it might look "nonsectarian" to nine Justices of the
Supreme Court, will inevitably and continuously involve the State
in one or another religious debate. [ Footnote 2/39 ] Prayer is serious business -- serious
theological business -- and it is not a mere "acknowledgment of
beliefs widely held among the people of this country" for the State
to immerse itself in that business. [ Footnote 2/40 ] Some religious individuals or groups
find it theologically problematic to engage in joint religious
exercises predominantly influenced by faiths not their own.
[ Footnote 2/41 ] Some might object
even to the attempt to fashion a "nonsectarian" prayer. [ Footnote 2/42 ] Some would find it
impossible to participate in any "prayer opportunity," ante at 463 U. S. 794 ,
marked by Page 463 U. S. 820 Trinitarian references. [ Footnote
2/43 ] Some would find a prayer not invoking the name of Christ
to represent a flawed view of the relationship between human beings
and God. [ Footnote 2/44 ] Some
might find any petitionary prayer to be improper. [ Footnote 2/45 ] Some might find any prayer that
lacked a petitionary element to be deficient. [ Footnote 2/46 ] Some might be troubled by what they
consider shallow public prayer, [ Footnote 2/47 ] or nonspontaneous prayer, [ Footnote 2/48 ] or prayer without adequate
spiritual preparation or concentration. [ Footnote 2/49 ] Some might, of course, have theological objections to any prayer sponsored by an organ
of government. [ Footnote 2/50 ]
Some Page 463 U. S. 821 might object on theological grounds to the level of political
neutrality generally expected of government-sponsored invocational
prayer. [ Footnote 2/51 ] And some
might object on theological grounds to the Court's requirement, ante at 463 U. S. 794 ,
that prayer, even though religious, not be proselytizing. [ Footnote 2/52 ] If these problems arose in
the context of a religious objection to some otherwise decidedly
secular activity, then whatever remedy there is would have to be
found in the Free Exercise Clause. See 463
U.S. 783 fn2/13|>n. 13, supra. But, in this case, we
are faced with potential religious objections to an activity at the
very center of religious life, and it is simply beyond the
competence of government, and inconsistent with our conceptions of
liberty, for the State to take upon itself the role of
ecclesiastical arbiter. IV The argument is made occasionally that a strict separation of
religion and state robs the Nation of its spiritual identity. I
believe quite the contrary. It may be true that individuals cannot
be "neutral" on the question of religion. [ Footnote 2/53 ] But the judgment of the Establishment
Clause is that neutrality by the organs of government on
questions of religion is both possible and imperative. Alexis de
Tocqueville wrote the following concerning his travels through this
land in the early 1830's:

															"The religious atmosphere of the country was the first thing
that struck me on arrival in the United States. . . ."

															"In France, I had seen the spirits of religion and of freedom
almost always marching in opposite directions. In America, I found
them intimately linked together in joint reign over the same
land. Page 463 U. S. 822 "

															"My longing to understand the reason for this phenomenon
increased daily."

															"To find this out, I questioned the faithful of all communions;
I particularly sought the society of clergymen, who are the
depositaries of the various creeds and have a personal interest in
their survival. . . . I expressed my astonishment and revealed my
doubts to each of them; I found that they all agreed with each
other except about details; all thought that the main reason for
the quiet sway of religion over their country was the complete
separation of church and state. I have no hesitation in stating
that, throughout my stay in America, I met nobody, lay or cleric,
who did not agree about that."

															Democracy in America 295 (G. Lawrence trans., J. Mayer ed.,
1969). More recent history has only confirmed De Tocqueville's
observations. [ Footnote 2/54 ] If
the Court had struck down legislative prayer today, it would likely
have stimulated a furious reaction. But it would also, I am
convinced, have invigorated both the "spirit of religion" and the
"spirit of freedom."

															I respectfully dissent.

															[ Footnote 2/1 ] See Zorach v. Clauson, 343 U.
S. 306 , 343 U. S.
312 -313 (1952); cf. Abington School Dist. v.
Schempp, 374 U. S. 203 , 374 U. S. 213 (1963).

															[ Footnote 2/2 ]

															"The saying of invocational prayers in legislative chambers,
state or federal, and the appointment of legislative chaplains,
might well represent no involvements of the kind prohibited by the
Establishment Clause. Legislators, federal and state, are mature
adults who may presumably absent themselves from such public and
ceremonial exercises without incurring any penalty, direct or
indirect." Schempp, supra, at 374 U. S.
299 -300 (BRENNAN, J., concurring) (footnote
omitted).

															[ Footnote 2/3 ] See, e.g., Larkin v. Grendel's Den, Inc., 459 U.
S. 116 , 459 U. S. 123 (1982); Widmar v. Vincent, 454 U.
S. 263 , 454 U. S. 271 (1981); Wolman v. Walter, 433 U.
S. 229 , 433 U. S. 236 (1977); Committee for Public Education & Religious Liberty
v. Nyquist, 413 U. S. 756 , 413 U. S.
772 -773 (1973).

															[ Footnote 2/4 ] See Stone v. Graham, 449 U. S. 39 , 449 U. S. 41 (1980) (finding "preeminent purpose" of state statute requiring
posting of Ten Commandments in each public school classroom to be
"plainly religious in nature," despite legislative recitations of
"supposed secular purpose"); Epperson v. Arkansas, 393 U. S. 97 , 393 U. S.
107 -109 (1968) (state "anti-evolution" statute clearly
religious in purpose); cf. Schempp, supra, at 374 U. S.
223 -224 (public school exercise consisting of Bible
reading and recitation of Lord's Prayer).

															As Reverend Palmer put the matter: "I would say that I strive to
relate the Senators and their helpers to the divine." Palmer
Deposition, at 28.

															"[M]y purpose is to provide an opportunity for Senators to be
drawn closer to their understanding of God as they understand God.
In order that the divine wisdom might be theirs as they conduct
their business for the day." Id. at 46. Cf. Prayers of the Chaplain of the
Massachusetts Senate, 1963-1968, p. 58 (1969) (hereinafter
Massachusetts Senate Prayers) ("Save this moment, O God, from
merely being a gesture to custom").

															[ Footnote 2/5 ] Cf. Stone v. Graham, supra, at 449 U. S.
42 .

															The Court argues that legislators are adults, "presumably not
readily susceptible to . . . peer pressure." Ante at 463 U. S. 792 .
I made a similar observation in my concurring opinion in Schempp. See 463
U.S. 783 fn2/2|>n. 2, supra. Quite apart from the
debatable constitutional significance of this argument, see
Schempp, 374 U.S. at 374 U. S.
224 -225; Engel v. Vitale, 370 U.S. at 370 U. S. 430 ,
I am now most uncertain as to whether it is even factually correct:
legislators, by virtue of their instinct for political survival,
are often loath to assert in public religious views that their
constituents might perceive as hostile or nonconforming. See
generally P. Blanshard, God and Man in Washington 94-106
(1960).

															[ Footnote 2/6 ]

															As I point out infra at 463 U. S.
803 -804, 463 U. S. 808 ,
official religious exercises may also be of significant symbolic
detriment to religion.

															[ Footnote 2/7 ] See Larkin v. Grendel's Den, Inc., supra, at 459 U. S. 125 ,
n. 9; Walz v. Tax Comm'n, 397 U.
S. 664 , 397 U. S.
674 -676 (1970).

															[ Footnote 2/8 ]

															In Lemon, we struck down certain state statutes
providing aid to sectarian schools, in part because

															"the program requires the government to examine the school's
records in order to determine how much of the total expenditures is
attributable to secular education and how much to religious
activity."

															403 U.S. at 403 U. S. 620 .
In this case, by the admission of the very government officials
involved, supervising the practice of legislative prayer requires
those officials to determine if particular members of the clergy
and particular prayers are "too explicitly Christian," App. 49
(testimony of Rev. Palmer) or consistent with "the various
religious preferences that the Senators may or may not have," id. at 48 (same), or likely to "inject some kind of a
religious dogma" into the proceedings, id. at 68
(testimony of Frank Lewis, Chairman of the Nebraska Legislature
Executive Board).

															[ Footnote 2/9 ] See id. at 49 (testimony of Rev. Palmer) (discussing
objections raised by some Senators to Christological references in
certain of his prayers and in a prayer offered by a guest member of
the clergy).

															[ Footnote 2/10 ]

															As the Court points out, the practice of legislative prayers in
Congress gave rise to serious controversy at points in the 19th
century. Ante at 463 U. S.
788 -789, n. 10. Opposition to the practice in that
period arose

															"both on the part of certain radicals and of some rather extreme
Protestant sects. These have been inspired by very different
motives, but have united in opposing government chaplaincies as
breaking down the line of demarcation between Church and State. The
sectarians felt that religion had nothing to do with the State,
while the radicals felt that the State had nothing to do with
religion."

															3 A. Stokes, Church and State in the United States 130 (1950)
(hereinafter Stokes). See also id. at 133-134. Similar
controversies arose in the States. See Report of the
Select Committee of the New York State Assembly on the Several
Memorials Against Appointing Chaplains to the Legislature (1832)
(recommending that practice be abolished), reprinted in J. Blau,
Cornerstones of Religious Freedom in America 141-156 (1949).

															In more recent years, particular prayers and particular
chaplains in the state legislatures have periodically led to
serious political divisiveness along religious lines. See,
e.g., The Oregonian, Apr. 1, 1983, p. C8 ("Despite protests
from at least one representative, a follower of an Indian guru was
allowed to give the prayer at the start of Thursday's [Oregon]
House [of Representatives] session. Shortly before Ma Anand Sheela
began the invocation, about a half-dozen representatives walked off
the House floor in apparent protest of the prayer"); Cal.Senate
Jour., 37th Sess., 171-173, 307-308 (1907) (discussing request by a
State Senator that State Senate Chaplain not use the name of Christ
in legislative prayer, and response by one local clergyman claiming
that the legislator who made the request had committed a "crowning
infamy" and that his "words were those of an irreverent and godless
man"). See also infra, at 463 U. S.
805 -806, 463 U. S. 808 , 463 U. S.
818 -821.

															[ Footnote 2/11 ]

															The Lemon tests do not, of course, exhaust the set of
formal doctrines that can be brought to bear on the issues before
us today. Last Term, for example, we made clear that a state
program that discriminated among religious faiths, and not merely
in favor of all religious faiths,

															"must be invalidated unless it is justified by a compelling
governmental interest, cf. Widmar v. Vincent, 454 U. S.
263 , 454 U. S. 269 -270 (1981),
and unless it is closely fitted to further that interest, Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S.
116 -117 (1943)." Larson v. Valente, 456 U. S. 228 , 456 U. S. 247 (1982). In this case, the appointment of a single chaplain for 16
years, and the evident impossibility of a Buddhist monk's or Sioux
Indian religious worker's being appointed for a similar period,
App. 69-70, see post, p. 463 U. S. 822 (STEVENS, J., dissenting), might well justify application of the Larson test. Moreover, given the pains that petitioners
have gone through to emphasize the "ceremonial" function of
legislative prayer, Brief for Petitioners 16, and given the ease
with which a similar "ceremonial" function could be performed
without the necessity for prayer, cf. supra, at 463 U. S.
797 -798, I have little doubt that the Nebraska practice,
at least, would fail the Larson test.

															In addition, I still find compelling the Establishment Clause
test that I articulated in Schempp: "What the Framers meant to foreclose, and what our decisions
under the Establishment Clause have forbidden, are those
involvements of religious with secular institutions which (a) serve
the essentially religious activities of religious institutions; (b)
employ the organs of government for essentially religious purposes;
or (c) use essentially religious means to serve governmental ends,
where secular means would suffice."

															374 U.S. at 374 U. S.
294 -295. See Roemer v. Marland Board of Public
Works, 426 U. S. 736 , 426 U. S.
770 -771 (1976) (BRENNAN, J., dissenting); Hunt v.
McNair, 413 U. S. 734 , 413 U. S. 750 (1973) (BRENNAN, J., dissenting); Lemon v. Kurtzman, 403
U.S. at 403 U. S. 643 (BRENNAN, J., concurring); Walz v. Tax Comm'n, 397 U.S. at 397 U. S.
680 -681 (BRENNAN, J., concurring). For reasons similar
to those I have already articulated, I believe that the Nebraska
practice of legislative prayer, as well as most other comparable
practices, would fail at least the second and third elements of
this test.

															[ Footnote 2/12 ] See also, e.g., Larkin v. Grendel's Den, Inc., 459 U.S.
at 459 U. S.
122 -123; Stone v. Graham, 449 U.S. at 449 U. S. 42 ; Abington School Dist. v. Schempp, 374 U.S. at 374 U. S.
214 -225; id. at 374 U. S.
232 -234, 374 U. S.
243 -253 (BRENNAN, J., concurring).

															[ Footnote 2/13 ] See, e.g., Larson v. Valente, supra, at 456 U. S.
244 -247; Schempp, supra, at 374 U. S. 222 ; Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 490 , 367 U. S.
494 -496 (1961); McDaniel v. Paty, 435 U.
S. 618 , 435 U. S. 636 (1978) (BRENNAN, J., concurring in judgment).

															The Free Exercise Clause serves a similar function, though often
in a quite different way. In particular, we have held that, under
certain circumstances, an otherwise constitutional law may not be
applied as against persons for whom the law creates a burden on
religious belief or practice. See, e.g., Thomas v. Review Bd.
of Indiana Employment Security Division, 450 U.
S. 707 (1981); Wisconsin v. Yoder, 406 U.
S. 205 (1972); Sherbert v. Verner, 374 U.
S. 398 (1963).

															[ Footnote 2/14 ] See, e.g., Presbyterian Church v. Mary Elizabeth Blue Hull
Memorial Presbyterian Church, 393 U.
S. 440 (1969); United State v. Ballard, 322 U. S. 78 (1944).

															[ Footnote 2/15 ] See Lemon v. Kurtzman, 403 U.S. at 403 U. S.
614 -622; NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 , 440 U. S.
501 -504 (1979).

															This and the remaining purposes that I discuss cannot be reduced
simply to a question of individual liberty. A court, for example,
will refuse to decide an essentially religious issue even if the
issue is otherwise properly before the court, and even if it is
asked to decide it.

															[ Footnote 2/16 ]

															Consider, in addition to the formal authorities cited in text,
the following words by a leading Methodist clergyman:

															"[Some propose] to reassert religious values by posting the Ten
Commandments on every school-house wall, by erecting cardboard
nativity shrines on every corner, by writing God's name on our
money, and by using His Holy Name in political oratory. Is this not
the ultimate in profanity?"

															" * * * *" "What is the result of all this display of holy things in public
places? Does it make the market-place more holy? Does it improve
people? Does it change their character or motives? On the contrary,
the sacred symbols are thereby cheapened and degraded. The effect
is often that of a television commercial on a captive audience --
boredom and resentment."

															Kelley, Beyond Separation of Church and State, 5 J. Church &
State 181, 190-191 (1963). Consider also this condensed version of
words first written in 1954 by one observer of the American
scene:

															"The manifestations of religion in Washington have become pretty
thick. We have had opening prayers, Bible breakfasts, [and so on];
now we have added . . . a change in the Pledge of Allegiance. The
Pledge, which has served well enough in times more pious than ours,
has now had its rhythm upset but its anti-Communist spirituality
improved by the insertion of the phrase 'under God.' . . . A bill
has been introduced directing the post office to cancel mail with
the slogan 'Pray for Peace.' (The devout, in place of daily
devotions, can just read what is stuck and stamped all over the
letters in their mail.)"

															" * * * *" "To note all this in a deflationary tone is not to say that
religion and politics don't mix. Politicians should develop deeper
religious convictions, and religious folk should develop wiser
political convictions; both need to relate political duties to
religious faith -- but not in an unqualified and public way that
confuses the absolute and emotional loyalties of religion with the
relative and shifting loyalties of politics."

															" * * * *" "All religious affirmations are in danger of standing in
contradiction to the life that is lived under them, but none more
so than these general, inoffensive, and externalized ones which are
put together for public purposes."

															W. Miller, Piety along the Potomac 41-46 (1964). See also
e.g., Prayer in Public Schools and Buildings -- Federal Court
Jurisdiction, Hearings before the Subcommittee on Courts, Civil
Liberties, and the Administration of Justice of the House Committee
on the Judiciary, 96th Cong., 2d Sess., 46-47 (1980) (testimony of
M. William Howard, President of the National Council of the
Churches of Christ in the U.S.A.) (hereinafter Hearings); cf. Fox, The National Day of Prayer, 29 Theology Today 258
(1972).

															[ Footnote 2/17 ]

															It is sometimes argued that to apply the Establishment Clause
alienates those who wish to see a tighter bond between religion and
state. This is obviously true. (I would vigorously deny, however,
any claim that the Establishment Clause disfavors the much broader
class of persons for whom religion is a necessary and important
part of life. See supra at 463 U. S.
803 -804; infra, at 463 U. S.
821 -822.) But I would submit that even this
dissatisfaction is tempered by the knowledge that society is
adhering to a fixed rule of neutrality, rather than rejecting a
particular expression of religious belief.

															[ Footnote 2/18 ]

															Pfeffer, The Deity in American Constitutional History, 23
J.Church & State 215, 217 (1981). See also 1 Stokes
523.

															[ Footnote 2/19 ] See L. Pfeffer, Church, State, and Freedom 266 (rev.
ed.1967) (hereinafter Pfeffer). Jefferson expressed his views as
follows:

															"'I consider the government of the United States as interdicted
by the Constitution from intermeddling with religious institutions,
their doctrines, discipline, or exercises. [I]t is only proposed
that I should recommend not prescribe a day of fasting and prayer.
[But] I do not believe it is for the interest of religion to invite
the civil magistrate to direct its exercises, its discipline, or
its doctrine. . . . Fasting and prayer are religious exercises; the
enjoining of them an act of discipline. Every religious society has
a right to determine for itself the times for these exercises, and
the objects proper for them, according to their own particular
tenets; and the right can never be safer than in their hands, where
the Constitution has deposited it.'" Ibid., quoting 11 Jefferson's Writings 428-430
(Monticello ed.1905).

															[ Footnote 2/20 ] See also infra, at 463 U. S.
819 -821.

															[ Footnote 2/21 ]

															In light of the discussion in text, I am inclined to agree with
the Court that the Nebraska practice of legislative prayer is not
significantly more troubling than that found in other States. For
example, appointing one chaplain for 16 years may give the
impression of "establishing" one particular religion, but the
constant attention to the selection process which would be the
result of shorter terms might well increase the opportunity for
religious discord and entanglement. The lesson I draw from all
this, however, is that any regular practice of official
invocational prayer must be deemed unconstitutional.

															[ Footnote 2/22 ] See, e.g., Everson v. Board of Education, 330 U. S.
1 (1947) (transportation of students to and from
school); Walz v. Tax Comm'n, 397 U.
S. 664 (1970) (charitable tax exemptions).

															[ Footnote 2/23 ]

															The Court does sensibly, if not respectfully, ascribe this view
to the Founding Fathers, rather than to itself. See ante at 463 U. S.
792 .

															[ Footnote 2/24 ]

															A. Sabatier, Outlines of a Philosophy of Religion 25-26 (T. Seed
trans., 1957 ed.). See also e.g., W. James, The Varieties
of Religious Experience 352-353 (New American Library ed., 1958);
F. Heiler, Prayer xiii-xvi (S. McComb trans., 1958 ed.).

															[ Footnote 2/25 ] See Schempp, 374 U.S. at 374 U. S.
300 -304 (BRENNAN, J., concurring); Illinois ex rel.
McCollum v. Board of Education, 333 U.
S. 203 , 333 U. S.
236 -236 (1948) (Jackson, J., concurring).

															[ Footnote 2/26 ] See Schempp, supra, at 374 U. S.
226 .

															[ Footnote 2/27 ]

															Sabatier, supra, at 25 (emphasis added).

															[ Footnote 2/28 ]

															A. Heschel, Man's Quest for God 30 (1964).

															[ Footnote 2/29 ]

															Justice Douglas' famous observation that "[w]e are a religious
people whose institutions presuppose a Supreme Being," Zorach
v. Clauson, 343 U.S. at 343 U. S. 313 , see ante at 463 U. S. 792 ,
arose in precisely such a context. Indeed, a more complete
quotation from the paragraph in which that statement appears is
instructive here:

															"We are a religious people whose institutions presuppose a
Supreme Being. We guarantee the freedom to worship as one chooses.
We make room for as wide a variety of beliefs and creeds as the
spiritual needs of man deem necessary. We sponsor an attitude on
the part of government that shows no partiality to any one group
and that lets each flourish according to the zeal of its adherents
and the appeal of its dogma. . . . The government must be neutral
when it comes to competition between sects. It may not thrust any
sect on any person. It may not make a religious observance
compulsory. It may not coerce anyone to attend church, to observe a
religious holiday, or to take religious instruction. But it can
close its doors or suspend its operations as to those who want to
repair to their religious sanctuary for worship or instruction. No
more than that is undertaken here."

															343 U.S. at 343 U. S.
313 -314.

															[ Footnote 2/30 ]

															Indeed, the sort of historical argument made by the Court should
be advanced with some hesitation in light of certain other
skeletons in the congressional closet. See, e.g., An Act
for the Punishment of certain Crimes against the United States, §
16, 1 Stat. 116 (1790) (enacted by the First Congress and requiring
that persons convicted of certain theft offenses "be publicly
whipped, not exceeding thirty-nine stripes"); Act of July 23, 1866,
1 Stat. 216 (reaffirming the racial segregation of the public
schools in the District of Columbia; enacted exactly one week after
Congress proposed Fourteenth Amendment to the States).

															[ Footnote 2/31 ] See generally D. Morgan, Congress and the Constitution
(1966); E. Eidenberg & R. Morey, An Act of Congress (1969); cf. C. Miller, The Supreme Court and the Uses of History
61-64 (1969).

															One commentator has pointed out that the chaplaincy established
by the First Congress was

															a carry-over from the days of the Continental Congress, which .
. . exercised plenary jurisdiction in matters of religion; and
ceremonial practices such as [this] are not easily dislodged after
becoming so firmly established.

															Pfeffer 170.

															[ Footnote 2/32 ]

															As a practical matter, "we know practically nothing about what
went on in the state legislatures" during the process of ratifying
the Bill of Rights. 2 B. Schwartz, The Bill of Rights: A
Documentary History 1171 (1971). Moreover, looking to state
practices is, as the Court admits, ante at 463 U. S. 787 ,
n. 5, of dubious relevance, because the Establishment Clause did
not originally apply to the States. Nevertheless, these
difficulties give us no warrant to give controlling weight on the
constitutionality of a specific practice to the collateral acts of
the Members of Congress who proposed the Bill of Rights to the
States.

															[ Footnote 2/33 ] See also 1 J. Story, Commentaries on the Constitution §
406 (1st ed., 1833); Fleet, Madison's "Detached Memoranda," 3 Wm.
& Mary Quarterly 534, 544 (1946); Wofford, The Blinding Light:
The Uses of History in Constitutional Interpretation, 31
U.Chi.L.Rev. 502, 508-509 (1964).

															[ Footnote 2/34 ] See generally 1 Annals of Cong. 431-433, 662, 730
(1789); Barron v. Mayor and City
Council of Baltimore , 7 Pet. 243, 250 (1833); E.
Dumbauld, The Bill of Rights and What it Means Today 10-34 (1957);
2 Schwartz, supra, at 697-980, 983-984.

															[ Footnote 2/35 ] See, e.g., Frontiero v. Richardson, 411 U.
S. 677 (1973) (gender discrimination); Brown v.
Board of Education, 347 U. S. 483 (1954) (race discrimination); Colgrove v. Battin, 413 U. S. 149 , 413 U. S.
155 -158 (1973) (jury trial); Trop v. Dulles, 356 U. S. 86 , 356 U. S. 101 (1958) (cruel and unusual punishment); Katz v. United
States, 389 U. S. 347 (1967) (search and seizure).

															[ Footnote 2/36 ] See Pfeffer 266; 1 Stokes 513.

															[ Footnote 2/37 ]

															3 Story, supra, § 1871. Cf. Church of Holy Trinity v.
United States, 143 U. S. 457 , 143 U. S.
470 -471 (1892); 43 U. S. Girard's
Executors, 2 How. 127, 43 U. S.
197 -199 (1844).

															[ Footnote 2/38 ]

															Indeed, the prayers said by Reverend Palmer in the Nebraska
Legislature are relatively "nonsectarian" in comparison with some
other examples. See, e.g., Massachusetts Senate Prayers
11, 14-17, 71-73, 108; Invocations by Rev. Fred S. Holloman,
Chaplain of the Kansas Senate, 1980-1982 Legislative Sessions, pp.
40-41, 46-47, 101-102, 106-107.

															[ Footnote 2/39 ] See generally Cahn, On Government and Prayer, 37
N.Y.U.L.Rev. 981 (1962); Hearings, at 47 (testimony of M. Howard)
("there is simply no such thing as nonsectarian' prayer . .
."). Cf. N.Y. Times, Sept. 4, 1982, p. 8, col. 2 ("Mr.
[Jerry] Falwell [founder of the organization "Moral Majority"] is
quoted as telling a meeting of the Religious Newswriters
Association in New Orleans that, because members of the Moral
Majority represented a variety of denominations, if we ever
opened a Moral Majority meeting with prayer, silent or otherwise,
we would disintegrate'"). [ Footnote 2/40 ]

															I put to one side, not because of its irrelevance, but because
of its obviousness, the fact that any official prayer will pose
difficulties both for nonreligious persons and for religious
persons whose faith does not include the institution of prayer, see, e.g., H. Smith, The Religions of Man 138 (Perennial
Library ed.1965) (discussing Theravada Buddhism).

															[ Footnote 2/41 ] See, e.g., Hearings, at 46-47 (testimony of M. Howard)
("We are told that [school] prayers could be nonsectarian,' or
that they could be offered from various religious traditions in
rotation. I believe such a solution is least acceptable to those
most fervently devoted to their own religion"); S. Freehof, Modern
Reform Responsa 71 (1971) (ecumenical services not objectionable in
principle, but they should not take place too frequently); J.
Bancroft, Communication in Religious Worship with Non-Catholics
(1943). [ Footnote 2/42 ] See, e.g., Hearings, at 47 (testimony of M. Howard)
(nonsectarian prayer, even if were possible, would likely be
"offensive to devout members of all religions").

															[ Footnote 2/43 ] See, e.g., S. Freehof, Reform Responsa 115 (1960).

															[ Footnote 2/44 ] See, e.g., D. Bloesch, The Struggle of Prayer 36-37
(1980) (hereinafter Bloesch) ("Because our Savior plays such a
crucial role in the life of prayer, we should always pray having in
mind his salvation and intercession. We should pray not only in the
spirit of Christ, but also in the name of Christ. . . . To pray in
his name means that we recognize that our prayers cannot penetrate
the tribunal of God unless they are presented to the Father by the
Son, our one Savior and Redeemer"); cf. Fischer, The Role
of Christ in Christian Prayer, 41 Encounter 153, 155-156
(1980).

															As the Court points out, Reverend Palmer eliminated the
Christological references in his prayers after receiving complaints
from some of the State Senators. Ante at 463 U. S. 793 ,
n. 14. Suppose, however, that Reverend Palmer had said that he
could not in good conscience omit some references. Should he have
been dismissed? And, if so, what would have been the implications
of that action under both the Establishment and the Free Exercise
Clauses?

															[ Footnote 2/45 ] See, e.g., Meister Eckhart 88-89 (R. Blakney
trans.1941); T. Merton, Contemplative Prayer (1971); J. Williams,
What Americans Believe and How they Worship 412-413 (3d ed.1969)
(hereinafter Williams) (discussing Christian Science belief that
only proper prayer is prayer of communion).

															[ Footnote 2/46 ] See, e.g., Bloesch 72-73; Stump, Petitionary Prayer, 16
Am.Philosophical Q. 81 (1979); Wells, Prayer: Rebelling Against the
Status Quo, Christianity Today, Nov. 2, 1979, pp. 32-34.

															[ Footnote 2/47 ] See, e.g., Matthew 6:6 ("But thou, when thou prayest,
enter into thy closet, and when thou hast shut thy door, pray to
thy Father which is in secret; and thy Father which seeth in secret
shall reward thee openly").

															[ Footnote 2/48 ] See, e.g., Williams 274-275 (discussing traditional
Quaker practice).

															[ Footnote 2/49 ] See, e.g., Heschel, supra, 463
U.S. 783 fn2/28|>n. 28, at 53; Heiler, supra, 463
U.S. 783 fn2/24|>n. 24, at 283-285.

															[ Footnote 2/50 ] See, e.g., Williams 256; 3 Stokes 133-134; Hearings, at
65-66 (statement of Baptist Joint Committee on Public Affairs).

															[ Footnote 2/51 ] See, e.g., R. Niebuhr, Faith and Politics 100 (R. Stone
ed.1968) ("A genuinely prophetic religion speaks a word of judgment
against every ruler and every nation, even against good rulers and
good nations").

															[ Footnote 2/52 ] See, e.g., Bloesch 159 ("World evangelization is to be
numbered among the primary goals in prayer, since the proclaiming
of the gospel is what gives glory to God").

															[ Footnote 2/53 ] See W. James, The Will to Believe 1-31 (1st ed.
1897).

															[ Footnote 2/54 ] See generally J. Murray, We Hold These Truths 73-74
(American religion "has benefited . . . by the maintenance, even in
exaggerated form, of the distinction between church and state");
Martin, Revived Dogma and New Cult, 111 Daedalus 53, 54-55 (1982)
(The "icy thinness of religion in the cold airs of Northwest Europe
and in the vapors of Protestant England is highly significant,
because it represents a fundamental difference in the Protestant
world between North America and the original exporting countries.
In all those countries with stable monarchies and Protestant state
churches, [religious] institutional vitality is low. In North
America, lacking either monarch or state church, it is high."
(footnote omitted)).

															JUSTICE STEVENS, dissenting.

															In a democratically elected legislature, the religious beliefs
of the chaplain tend to reflect the faith of the majority of
the Page 463 U. S. 823 lawmakers' constituents. Prayers may be said by a Catholic
priest in the Massachusetts Legislature and by a Presbyterian
minister in the Nebraska Legislature, but I would not expect to
find a Jehovah's Witness or a disciple of Mary Baker Eddy or the
Reverend Moon serving as the official chaplain in any state
legislature. Regardless of the motivation of the majority that
exercises the power to appoint the chaplain, [ Footnote 3/1 ] it seems plain to me that the designation
of a member of one religious faith to serve as the sole official
chaplain of a state legislature for a period of 16 years
constitutes the preference of one faith over another in violation
of the Establishment Clause of the First Amendment.

															The Court declines to "embark on a sensitive evaluation or to
parse the content of a particular prayer." Ante at 463 U. S. 795 .
Perhaps it does so because it would be unable to explain away the
clearly sectarian content of some of the prayers given by
Nebraska's chaplain. [ Footnote 3/2 ]
Or perhaps the Court is unwilling to Page 463 U. S. 824 acknowledge that the tenure of the chaplain must inevitably be
conditioned on the acceptability of that content to the silent
majority.

															I would affirm the judgment of the Court of Appeals.

															[ Footnote 3/1 ]

															The Court holds that a chaplain's 16-year tenure is
constitutional as long as there is no proof that his reappointment
"stemmed from an impermissible motive." Ante at 463 U. S. 793 .
Thus, once again, the Court makes the subjective motivation of
legislators the decisive criterion for judging the
constitutionality of a state legislative practice. Cf. Roger v.
Lodge, 458 U. S. 613 (1982), and City of Mobile v. Bolden, 446 U. S.
55 (1980). Although that sort of standard maximizes the
power of federal judges to review state action, it is not conducive
to the evenhanded administration of the law. See 458 U.S.
at 458 U. S.
642 -650 (STEVENS, J., dissenting); 446 U.S. at 446 U. S. 91 -94
(STEVENS, J., concurring in judgment).

															[ Footnote 3/2 ]

															On March 20, 1978, for example, Chaplain Palmer gave the
following invocation:

															"Father in heaven, the suffering and death of your son brought
life to the whole world moving our hearts to praise your glory. The
power of the cross reveals your concern for the world and the
wonder of Christ crucified."

															"The days of his life-giving death and glorious resurrection are
approaching. This is the hour when he triumphed over Satan's pride;
the time when we celebrate the great event of our redemption."

															"We are reminded of the price he paid when we pray with the
Psalmist:"

															"My God, my God, why have you forsaken me, far from my prayer,
from the word of my cry?"

															"O my God, I cry out by day, and you answer not; by night, and
there is no relief for me."

															"Yet you are enthroned in the Holy Place, O glory of
Israel!"

															"In you our fathers trusted; they trusted, and you delivered
them."

															"To you they cried, and they escaped; in you they trusted, and
they were not put to shame."

															"But I am a worm, not a man; the scorn of men, despised by the
people."

															"All who see me scoff at me; they mock me with parted lips, they
wag their heads:"

															"He relied on the Lord; let Him deliver him, let Him rescue him,
if He loves him."

															"Amen."

															App. 103-104.