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Marsh
v. Chambers
463
U.S. 783 (1983)
The
Rothgerber Johnson & Lyons Religious Institutions
Group gratefully acknowledges the contribution of the
Ethics and Public Policy Center which provided the following case commentary taken from Terry Eastland, Religious
Liberty in the Supreme Court: The Cases That Define
the Debate over Church and State (1993).
Whether
a state-sponsored legislative chaplaincy could survive First
Amendment challenge was a question the Supreme Court was
bound to consider once the two provisions of the religion
clause had been applied to the states, and in 1983 such
a case made its way to the Court. In Marsh v. Chambers
the Court affirmed the constitutionality of the legislative
chaplaincy sponsored and paid for by the state of Nebraska.
Chief
Justice Warren Burger, author of the three-part Lemon
test for determining the constitutionality of a challenged
government action, did not examine the Nebraska chaplaincy
in those terms in his opinion for the Court. Indeed, except
in his summary of the facts in the case, which required
him to refer to the Lemon test because the federal
court of appeals had used it in striking down the chaplaincy,
Burger did not mention the three-part test or even Lemon
itself. Instead he argued from the "unambiguous and unbroken
history of more than 200 years"—a history including both
federal and state chaplaincies — in order to sustain the
Nebraska practice.
Justice
William Brennan, who in Abington School District v. Schempp
(1963) had said such practices might be constitutional,
was now convinced they were not and argued in a dissent
that the Nebraska chaplaincy violated all three parts of
the Lemon test. Justice John Paul Stevens also wrote
in dissent. All three opinions are presented here.
The
Court's opinion cast doubt upon the notion that the no-establishment
provision prohibits government promotion of religion—a principle
as old as its first articulation in Everson v. Board
of Education (1947)—and, in turn, upon the durability
of the school-prayer and Bible-reading cases. After all,
if the state may sponsor prayer for its legislators, why
may it not do so for those attending its public schools?
Perhaps the answer lay in the Court's arguments about the
"impressionability" of minors. On the other hand—and the
Court's subsequent decisions seem to bear this out—it may
be that Marsh was only an aberration from establishment
doctrine, not the beginning of a new direction, and certainly
not one fraught with the kind of implications that would
compel the Court to overrule Engel v. Vitale (1962)
and Schempp.
The
Nebraska legislature began each of its sessions with a prayer
offered by a chaplain chosen by a council appointed for
the task and paid with public funds. Robert E. Palmer, a
Presbyterian minister, had served as chaplain since 1965.
A member of the legislature, Ernest Chambers, sued, challenging
the chaplaincy as an unconstitutional establishment of religion.
The U.S. Court of Appeals for the Eighth Circuit held that
the chaplaincy violated the Lemon test. The U.S.
Supreme Court then reversed.
Participating
in Marsh v. Chambers, decided July 5, 1983, were
Chief Justice Warren E. Burger and Associate Justices Harry
A. Blackmun, William J. Brennan, Jr., Thurgood Marshall,
Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist,
John Paul Stevens, and Byron R. White.
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