Partisan Prayers by Charles Cheves (April 2000)

The New York Times recently reported that the selection of a Presbyterian chaplain for the U.S. House of Representatives “has left bruised feelings, partisan rancor and charges that . . . senior House Republican leaders [Hastert and Armey] passed over another candidate because he is a Catholic priest.”

It seems that a select committee narrowed a field of 40 candidates to three, and the candidate with the most support was a Catholic priest, while the Presbyterian was number three. “In the rancorous aftermath,” said the Times, “several Democrats said they thought House leaders were trying to placate the religious right or were uncomfortable with naming a Catholic priest.”

The House chaplain is paid $135,200 (plus an office and staff) to open each daily session with a prayer and counsel members and their families and staffs. This “rancorous aftermath” is a tempest in a teapot relatively speaking, but it presents a classic example of the unfortunate and undesirable divisiveness which is always certain to arise when government becomes entangled with religion. Religious belief (or rejection of it) is an intensely personal matter with numerous rationalities and doctrinal variations.

One person’s salvation is another’s ticket to Hell. Witness the recent international uproars over a Southern Baptist booklet teaching that Hindus are pathetic sinners, and the National Transportation Safety Board’s possible misinterpretation of an Egyptian pilot’s completely ordinary (for Muslims) reference to Allah as a preface to suicide.

Undoubtedly numerous Jewish congressmen cringe when their expensive chaplain prays in the name of Jesus, and what self respecting Catholic representative could possibly seek religious counseling from a Presbyterian, or vice versa? And the United States Supreme Court is presently devoting considerable time and energy, in violation of its own well reasoned precedent, to rationalizing the expenditure of my tax money to purchase computers for sectarian schools, freeing up millions that can be devoted to teaching religious ideas that contradict logic, science, and the personal or political beliefs of many citizens.

The constitutional basis for strict separation of church and state is highly relevant to the House chaplain controversy, or at least it would be if the late Chief Justice Warren Burger had not ignored his own pronouncements.

Burger wrote the Court’s decision in Lemon v. Kurtzman, a case involving state statutes which allowed reimbursement of sectarian schools for teacher salaries, textbooks, etc. Burger said that “the three main evils against which the Establishment Clause [of the First Amendment] was intended to afford protection were ‘sponsorship, financial support, and active involvement of the sovereign in religious activity.’ ” He announced what came to be called the “three pronged test” for acceptable government involvement with religion: there must be a secular legislative purpose, it cannot advance or inhibit religion, and it cannot foster “an excessive government entanglement with religion.”

Advocates of state-church separation breathed a sigh of relief At last there was a relatively precise test which courts could apply in order to determine whether the Establishment Clause has been breached. Only twelve years later, Chief Justice Burger found himself about to be impaled on his own three pronged test and chose to ignore it. Writing the opinion of the Court in Marsh v. Chambers, he noted that “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.”

Conscientiously applying Burger’s three pronged test, the U.S. Court of Appeals for the Eighth Circuit had easily reached the obvious conclusion that “the chaplaincy practice violated all three elements of the test.” There was no secular purpose for prayer in the Nebraska legislature, and it clearly advanced religion and fostered excessive government entanglement.

Having briefly noted the basis for the lower court ruling, and without ever mentioning his own test again, Burger (with three justices dissenting) held that legislative chaplains are OK because they have been common practice for a long time. This pitiful excuse for judicial analysis completely ignored the fact that such unconscionable customs as segregated schools and the Georgia county unit vote had been common practices for a long time, and had even been endorsed by the Court in earlier cases before they were held unconstitutional.

A tax funded legislative chaplaincy is about as clear an example of the literal establishment of a religion as one can imagine, but the most repulsive aspect is that while a few Catholic congressmen complain that their boy wasn’t selected, the vast majority proceed with their usual venal business, preferring to ignore the gross corruption of the First Amendment because they don’t want to alienate religious constituents. Foundation member Charles Cheves is a retired attorney from Florida

Freedom From Religion Foundation