Marsh v. Chambers - Oral Argument

ORAL ARGUMENT OF SHANLER D. CRONK, ESQ., ON BEHALF OF PETITIONERS

Chief Justice Burger: We will hear arguments next in Marsh v. Chambers.

Mr. Cronk, I think you may proceed whenever you're ready.

Mr. Cronk: Mr. Chief Justice, may it please the Court:

This matter is here on petition for certiorari to the Eighth Circuit Court of Appeals.

It derived from an action brought by Respondent, a member of the Nebraska legislature, over three years ago by which he sought to challenge the legislature's traditional method of opening each legislative day's sitting with a brief invocation offered by a cleric chaplain, a non-legislator officer of the legislature.

The basis of that challenge was that legislative prayers employed by the legislature in that manner per se violated the establishment clause of the First Amendment.

Unidentified Justice: On the basis of his claim, would it make any difference whether it was a paid or an unpaid clergyman?

Mr. Cronk: Senator Chambers' precise claim was that the prayers, apparently definitionally being a per se violation of the Constitution, by practical operation obviated the necessity for compensating anyone to provide them, obviated the necessity obviously, again, from practical considerations of even having a prayer book, and in that way the compensation of the chaplain would fall.

It's pretty clear from the record that his case focused exclusively on the proposition that prayers, at least the prayers offered by the then chaplain, the only ones that we have any evidence of in the record, themselves violated the Constitution, so obviously we now would have no reason to compensate anybody to give them, at least Reverend Palmer.

I do not believe and I do not think the record reflects any independent basis for invalidating the compensation of the chaplain, and I think that the Court of Appeals realized somewhat of an incongruity in declining to rule the legislative prayers per se unconstitutional and at the same time finding a fault with their compensation, in the absence of any independent basis.

I think it is pretty clear that the Court of Appeals attempted to link the compensation problem with the tenure of Chaplain Palmer.

Unidentified Justice: Does the record show what the compensation was, how much it was?

Mr. Cronk: It changed from time to time.

At the time of filing the action, it was approximately $320 per month.

The legislature sits in biannual sessions, the first year four months, the second year three months.

Unidentified Justice: So it is seven months, $320.

Mr. Cronk: Roughly, seven months per two-year session.

As I mentioned, I think it is pretty clear from the Court of Appeals decision that the per se challenge initiated by the Respondent was rejected by the court and instead, surprising in view of the case that was presented at trial, the Court of Appeals singled out principally an additional factor, and that was the retention and compensation of a particular chaplain for an extended period of time, without any indication of what constituted an extended period of time.

We are to conclude from the opinion that 16 years at least is such an extended period of time.

There are some particular facts in the record that should be briefly alluded to because they bear directly on what facts and circumstances at all appear in the record relevant to that basis for the court's decision.

The chaplaincy practice has existed in Nebraska since 1855, 12 years before statehood.

At the time of filing the action, the chaplain, along with three other non-legislator traditional officers, the other three being the clerk, the assistant clerk and the sergeant at arms, were recommended at the beginning of each biannual session by the legislature's Executive Board, its administrative oversight body, for the legislature's full approval.

These individuals were essentially treated as employees of the legislature.

They were compensated as part of the usual process by which the legislature compensated its employees.

And the evidence I think is quite clear, although it's not overly abundant, that the legislature itself had never considered over the course of time the post of chaplain or any particular individual's retention as chaplain as an issue of substantive importance in the legislative process.

We have not one hint of any controversy, of any complaint, any concern about either the post of chaplain or any particular chaplain whatsoever prior to the time that Respondent, as a member of the Executive Board in 1979, attempted to get that body to recommend that the post be totally eliminated and, as he put it, failing that at least compensation.

Unidentified Justice: Well, Mr. Attorney General, you never had a non-Christian chaplain, did you?

Mr. Cronk: We don't know that, Your Honor.

The only thing we know about--

Unidentified Justice: Well, I was going to ask you, if you said so, name him, because I'm sure there's not... I thought that was admitted.

Mr. Cronk: --No, I don't believe it was, Your Honor.

We never had any evidence at all in the record about the denominational affiliations, even the identities, of any chaplains prior to Palmer.

Unidentified Justice: Well, you have the prayers are in the record, aren't they?

Mr. Cronk: On three occasions during chaplain--

Unidentified Justice: Aren't the prayers in the record?

Mr. Cronk: --Certain of them are.

Unidentified Justice: Do you have any prayer in there that doesn't invoke the guidance of Christ, C-h-r-i-s-t?

Can you show me one?

Mr. Cronk: I believe there are prayers that make reference to deity identifiable to the Judaeo-Christian heritage, as Chaplain Palmer put it.

There are certain prayers that expressly mention Jesus Christ.

I think the record reflects roughly half, a little less than half of the prayers, in addition to making reference to deity, that might be identified in the Judaeo-Christian heritage, do mention Jesus Christ.

Unidentified Justice: But you don't admit it, do you?

You don't admit it?

Mr. Cronk: Don't admit what, Your Honor?

Unidentified Justice: That they're all Christians, all of the chaplains have been Christians?

Mr. Cronk: We simply have no idea, Your Honor.

Unidentified Justice: You have no idea?

Mr. Cronk: Absolutely none.

Unidentified Justice: I see.

Mr. Cronk: The only thing we know about any prior chaplain is that Chaplain Palmer himself became a candidate for the post because of the death of his predecessor in office.

One of the important facts relevant to the Court of Appeals' basis for this conclusion is simply the fact that over the entire some 130 year history of the Nebraska chaplaincy, in keeping with the fact that the legislative post and any particular individual had never caused any concern from the public or from the legislature, the practice developed that the chaplain, as well as the other non-legislator traditional officers, would be reappointed.

Both Respondent Senator Chambers and Executive Board Chairman Lewis indicated that it simply was the common practice that the four incumbents to the office would be slated again, unless there was an objection from somebody.

All that was needed in order to have the Executive Board recommend an incumbent for an ensuing session of the legislature was a five to four vote.

There simply had never been any objection to that process, which I think is reflective of the fact that it had never engendered any controversy or concern whatsoever up to this point, up to the filing of the action.

Chaplain Palmer, who has served since 1965, clearly indicated that he became a candidate for the vacancy at that time as an individual, not as a representative of his church.

His church allows him to become involved in civic activities to the extent his time permits.

It's in that capacity that he has served.

The only evidence that is in the record concerning Chaplain Palmer's own individual retention comes from the Executive Board Chairman, Frank Lewis, who had been a member of the legislature since 1972 and was Chairman of the Executive Board at time of trial in 1979, that Palmer had simply been reappointed because he had done a good job, very much consistent with what the usual process was.

Unidentified Justice: Mr. Cronk, is there evidence in the record that Chaplain Palmer ever refused to allow any guest chaplain to appear?

Mr. Cronk: There is no evidence in the record that there was any such refusal.

In fact, the record makes quite clear that on frequent occasion he solicited clergypersons of other denominations to fill in for him.

It was frequently the occasion that a member of the legislature, because of a special occasion, the death of a friend or what-not, would suggest that a particular chaplain fill in.

No such request was ever denied.

Chaplain Palmer indicated there were other denominations and religions represented, mentioning clerics of the Jewish faith in particular.

I might add--

Unidentified Justice: Does the record disclose when the prayers were recited and at what point in the orders of the day that that practice occurred?

Mr. Cronk: --The record does, Your Honor.

The prayer was essentially the first step beginning each legislative day's sitting.

The legislature typically was called to order at 9:00 in the morning, sometimes 10:00.

That would be the first matter of business, depending on when each day's starting time was scheduled.

The Petitioners have always maintained that, on the basis of this particular record and on the basis of any record that could have been developed by any different approach to this establishment clause challenge to the legislative practice, that it stands in its entirety, and is not changed by specific analysis on any one of its several components, as essentially a tradition of the legislature, more steeped in ceremony than actually any substantive import, by which the legislature has sought to begin each day's business in a solemn tone, hopefully setting an attitude of high purpose, although Chaplain Palmer quite readily admits that he would be hard pressed to admit that happens on all occasions.

And the fact that Chaplain Palmer has served in his post does not change that fact, the fact that he served for some 16 years.

Fundamental, we believe, in this analysis is recognition of several historical considerations which clearly are relevant because of the fact that legislative chaplaincies substantially, if not virtually, identical to that in Nebraska have a rich history in our national heritage.

I think the importance with regard to certain activities that are interpreted under the religion clauses today that have such a history, of an investigation into that history and of a taking into account in the establishment clause analysis of that history, has been clearly indicated by this Court in cases such as Walz versus Maryland... Walz versus Tax Commissioner and McGowan versus Maryland.

And I believe the factors that were singled out there and that played a substantial part in the decisions in those Courts are also existent here and were totally ignored by the Court of Appeals, which fundamentally flawed its analysis.

We do have the benefit of examining an activity today that not only existed at the time the framers were drafting the First Amendment, but was actually practiced by them at the very time the First Amendment was drafted.

The existence of evidence contemporaneous with the drafting of any particular amendment which we are today attempting to interpret was recently underscored by this Court in the Minneapolis Star and Tribune case.

I think the record before the Court quite convincingly indicates that three days before the final wording of the First Amendment was settled on, including the religion clauses, the very same framers enacted legislation compensating the officers of both of their houses, including chaplains.

Even some 15 years prior to that time, the First Continental Congress employed or utilized a cleric to begin its legislative sessions.

He was compensated at the end of his tenure and his tenure was for a number of years.

Subsequent to the drafting of the First Amendment and the convening of the first Congress under the Constitution, the federal practice has been virtually identical to that that has been employed in Nebraska.

Equally important is the fact that the same activity, the same practice in substantially identical form, has enjoyed widespread acceptance throughout the states.

The amicus brief filed by the National Conference of State Legislatures reaffirms what had previously been noted in the decisions of a few courts construing cases such as this, that legislative bodies in every state traditionally have opened their legislative daily sessions with prayer, that over half of them have compensated the individuals performing that service, and--

Unidentified Justice: Mr. Cronk, in this case did the chaplain do anything other than give a prayer?

Mr. Cronk: --I think the record indicates that his only service is the provision of the morning prayer, and that's provided for by legislative rule.

Unidentified Justice: Yes, but I mean that was actually true?

Mr. Cronk: This is true.

Unidentified Justice: May I ask you if you think the result would be the same if the rule had provided that every committee hearing shall open with a prayer?

Mr. Cronk: It's difficult to assess whether the result would be the same in any particular situation, because this, like most establishment clause cases, has to be determined on the basis of its own facts and circumstances.

We would simply have to know, we would have to inquire, we would have to find out, what the reason for requiring--

Unidentified Justice: The same reason here, to have a solemn beginning and get everybody in the proper mood to start their deliberations.

Mr. Cronk: --It doesn't strike me that we necessarily would conclude that that, such a practice, moves us more toward the impermissible.

But there could be a number of explanations for why such a requirement would ever be evolved in a particular legislature, just as there could be a number of explanations as to why specific state legislatures employ legislative prayer practices or retain particular individuals.

What we know here is that there is nothing inform in the way that the Nebraska legislature has done so over the past 100 years.

Unidentified Justice: Would you have any trouble with the Nebraska rule if it said... if 16 years ago they passed a rule that said, for the next 16 years the prayer shall be conducted by a Presbyterian minister?

Mr. Cronk: I think that that moves us more toward... the suggestion in your question is that that singles out a particular denomination officially.

Unidentified Justice: Well, that's one of the things that apparently troubled the Court of Appeals.

I was just wondering if, instead of looking at it in hindsight, we looked at it in advance, would it bother you at all?

Mr. Cronk: I think that that would cause more problem than has been caused by this situation that we actually have before us.

I think clearly it would be good cause for an inquiry as to what the purpose for the requirement was.

All that we know now... and it draws back to the unique circumstances of this case... all that we know now is that Chaplain Palmer was retained simply because he did a good job, considered as a traditional, relatively unimportant ceremonial functionary of the legislature.

Unidentified Justice: How was his appointment... how often was his appointment made, did you say?

Mr. Cronk: The sessions, the actual process, is every two years.

Unidentified Justice: Is it for every... is he reappointed every session?

Mr. Cronk: Every two-year session.

So at the time of trial it was 14, he would have been in his sixth or seventh reappointment.

Unidentified Justice: And who designates him?

Mr. Cronk: The Executive Board recommends to the full legislature for approval.

That approval has essentially been a rubber stamp.

Unidentified Justice: Is that one of the early... is that one of the first things a new session does, is to--

Mr. Cronk: The Executive Board?

That's not clear.

In fact, it's not clear... well, the session begins the first of the year, I believe, about the second or third week in January.

So this action has to be taken by the Executive Board prior thereto, within a reasonable amount of time.

And I would presume that selecting the officers is one of the first orders of business.

The provision that requires the selection of these officers is the--

Unidentified Justice: --Does he, does the chaplain, have an office?

Mr. Cronk: --No, he does not.

He travels--

Unidentified Justice: He just comes in every morning--

Mr. Cronk: --Yes.

Unidentified Justice: --for a few minutes?

Mr. Cronk: Yes.

Unidentified Justice: So he has no place to hang his hat?

Mr. Cronk: As far as I know, and the record is silent on whether that's the case.

My personal knowledge is that he does not.

In fact, I believe it can be gathered from his testimony.

He indicated that he usually prepares the prayers in his church before getting in the morning to the legislature to give them.

This Court I think is aware that in attempting to define the limits of the permissible accommodation--

Unidentified Justice: Excuse me.

Do you know whether anybody else has ever applied to be the chaplain?

Have there been lots of... down through the years, has every session... have there been several every session who are applying, and they've always chosen him?

Mr. Cronk: --We don't know.

There is evidence in the record that in 1979 there was some confusion between the outgoing Executive Board and the incoming Executive Board prior to the session that began in January of 1980 as to which Board was to select or to recommend the officers.

As to how frequently clerics apply, if they even apply at all, the record is simply silent.

Unidentified Justice: Well, what about the Lutheran minister that applied?

Mr. Cronk: I have been asking myself the same question, Your Honor.

Unidentified Justice: Well, I know, but the record said that at least one did apply.

Mr. Cronk: The record says nothing about the denominational affiliation of any other chaplain except Reverend Palmer.

Unidentified Justice: I said applicant, not chaplain.

Mr. Cronk: There is an indication that in 1979 the outgoing Executive Board recommended another cleric--

Unidentified Justice: That's what I thought.

Mr. Cronk: --denomination unknown.

The new incoming board, feeling that it was authorized or not knowing that the outgoing board had already taken the action, recommended Chaplain Palmer.

When that inconsistency was brought to a head, the confusion was cleared up on the floor of the legislature.

Unidentified Justice: General Cronk, let me ask you one other question.

I'm a little puzzled about it.

The Court of Appeals relied on the publication of the prayers at state expense.

But yet, as I understand it there was no... the district court's order which held that invalid, I believe, was not appealed.

What is the status of that part of the case in your view?

Mr. Cronk: I wish I knew for certain.

Unidentified Justice: Kind of puzzling.

Mr. Cronk: The Plaintiff, Respondent here, challenged the expenditure of state funds for the prayer book.

He specifically requested relief that the expenditure of funds be enjoined.

The district court judgment I believe purports to enjoin not only the expenditure of funds but the printing of the prayer book.

Being of the view that the printing of the prayer book has never been an official part of the legislative chaplaincy anyway, that matter was not appealed to the Court of Appeals.

We have been of that view for the reason that in three years during the latter portion of Dr. Palmer's tenure individuals on the floor of the legislature, not pursuant to any legislative rules, apparently toward the end of the session got up and said: I think it would be a good idea if maybe we had some of these printed up for our own use.

It is indicated on page 32 or 33 of Reverend Palmer's deposition, Exhibit 5 on the record, that the request was that these books be prepared for the legislators' use.

Apparently some of them felt that it had been somewhat inspirational and they thought it would be nice to have copies of the thing.

Evidence of the fact that it was intended primarily for their use is quite clear from the print runs of the book.

The 1970 book, there were 100 copies that have been made.

This chain of events at the time the action was filed was not at all guaranteed to occur in the future.

We had no idea whether anybody was going to get up and order that or not.

It simply wasn't, a part of this case as we viewed it, and for that reason we didn't appeal it.

Because the Court of Appeals changed the analysis that the district court had undertaken and insisted that it had to consider the challenge against something called a prayer practice in its entirety, whatever the court meant by that, the prayer book issue was kind of dragged back into the fray.

Our position is that it is distinct from the legislative chaplaincy, it is distinct from the principal controlling factor by which the Court of Appeals decided this case, but even if it is considered on its merits, that the district court and the Court of Appeals were wrong to the extent that their decisions stand as a judgment that on an independent analysis those prayer books transcend the establishment clause.

I think that the record, portions of the record I have just cited, indicate there was a secular enough purpose for them.

To say that 100 of these books given to the legislators for their own personal use amounts to a direct and immediate effect advancing religion, notwithstanding the fact that there were a few odd copies left over and somebody among the public found out about it and requested it and they were given to them, we think stretches the meaning of the primary effect test.

I think at this point I would like to reserve any remaining time for rebuttal, Your Honors.

Chief Justice Burger: Very well.

Mr. Friedman.

ORAL ARGUMENT OF HERBERT J. FRIEDMAN, ESQ., ON BEHALF OF RESPONDENT

Mr. Friedman: Mr. Chief Justice and may it please the Court:

I'd like to make it clear what this lawsuit is about and what it's not about.

It's about a very narrow question that was presented by the Petitioners, drafted by their counsel, and accepted for review by this Court.

The question presented is this: whether the Nebraska legislature's compensation and retention of a single individual as chaplain for an extended period of time renders its legislative prayer in violation of the establishment clause?

Unidentified Justice: Mr. Friedman, would you still be here, however, if the compensation weren't in the case?

Mr. Friedman: Yes, Your Honor.

Unidentified Justice: I thought so.

So the compensation is irrelevant, then, to this issue that's presented.

Mr. Friedman: No, Your Honor, I think the compensation is part of the issue.

Unidentified Justice: Well, your response to Justice Blackmun?

Mr. Friedman: I'd still be here, but certainly the compensation is part of this issue.

They're using public funds for a religious service.

Unidentified Justice: I take it you would also be here even if they changed chaplains every session?

Mr. Friedman: I think so.

Unidentified Justice: You'd be here, but your case wouldn't be as good?

[Laughter]

Mr. Friedman: I wish I'd said that, Your Honor.

Unidentified Justice: What if, Mr. Friedman, as is often the case, you had a clergyman who was a member of the legislature and as an economy measure they drafted him to give the invocation every morning?

Mr. Friedman: Same clergyman every morning?

Unidentified Justice: A member of the legislature, yes.

Mr. Friedman: I understand that.

It poses a problem, but it's not the issue before the Court.

Unidentified Justice: Well, we ask hypothetical questions very frequently.

You'll get many of them today, I'm sure.

What would you think about that?

Mr. Friedman: We would disapprove of it.

Unidentified Justice: Well, disapprove.

Would you say it's unconstitutional?

Mr. Friedman: We'd say it would be unconstitutional if there was prayer in the legislature.

Unidentified Justice: All right.

Now, a non-clergyman member of the legislature, a Nebraska farmer, cattleman, lawyer, gets up and has an invocation.

Mr. Friedman: The same religion every day?

If it's the same religion every day, we think it's unconstitutional.

Unidentified Justice: All right, let's change it, then.

You have a lot of members of the legislature.

They rotate it alphabetically.

Anderson starts off, Babcock next, and Cronk after that.

Mr. Friedman: Certainly less unconstitutional--

Unidentified Justice: Why?

[Laughter]

Mr. Friedman: --but in our view still unconstitutional.

Unidentified Justice: Why?

Mr. Friedman: Because it still mixes religion with government.

Unidentified Justice: You said less.

Why is it less?

Mr. Friedman: Because it makes it less obvious that one religion is singled out as being the official religion.

Unidentified Justice: Well now, the Congress of the United States, or the Senate, I believe, for about... until recently had, by coincidence, a Presbyterian chaplain for about eight or ten years.

You would have thought that was unconstitutional?

Mr. Friedman: I would think so, Your Honor.

Unidentified Justice: How about our invocation that the Marshal announced this morning when he concluded calling the Court and said at the end,

"God save the United States and this honorable Court? "

Mr. Friedman: I don't think this lawsuit is asking this Court to take a judicial hammer and chisel and do away with all of the terms of religion, including the opening ceremony by Marshal Wong.

That's not what we're trying to do.

I think Marshal Wong's ceremonial opening has probably lost any religious significance it may have had, and Marshal Wong is not a chaplain, he's not a clergyman.

Unidentified Justice: Well then, we go back to the members of the legislature.

If that's your view, then members of the legislature could get up and individually give opening prayers every morning.

Mr. Friedman: We'd prefer that they didn't.

We think that--

Unidentified Justice: We're not here on preferences, Mr. Friedman.

We're here to discuss a constitutional issue.

You have claimed that the conduct is unconstitutional and for my part I just want to see how far you'll carry that.

Mr. Friedman: --Your Honor, it seems to Senator Chambers that any time you have a prayer in the legislature it's probably unconstitutional.

That is mixing religion with government.

Senator Chambers' view is very simple.

He's elected to represent his constituents and he is exposed to a religious prayer each morning that's against his religious values and he doesn't think he should have to be exposed to that.

Unidentified Justice: Then it would follow, I suppose, that the Constitutional Convention engaged in an unconstitutional practice by having a prayer to open each session in Philadelphia.

Mr. Friedman: They were certainly inconsistent, Your Honor, and there's no question that that matter was never raised at that particular time.

I think there are some unique distinctions as to the historical argument.

This matter has really never been addressed by this Court.

It would appear that that was unconstitutional then, too.

Unidentified Justice: You mean even before the First Amendment was adopted?

It wasn't retroactive.

[Laughter]

Mr. Friedman: No, Your Honor.

This case does not deal with--

Unidentified Justice: Well, wasn't there opposition to the prayer in the First Congress?

Mr. Friedman: --Yes, there was, Your Honor.

Unidentified Justice: Well, so it was brought to it... it was put on the table, but that was just by a minority.

Mr. Friedman: It was debated.

Unidentified Justice: Yes, and the people who raised it didn't prevail.

Mr. Friedman: At that time they didn't.

Unidentified Justice: Yes.

Then the... do you think that Congress would have, if it thought the First Amendment barred that, would have continued having prayer?

Mr. Friedman: Well, I don't know that--

Unidentified Justice: Well, isn't that a pretty decent inquiry, though?

Mr. Friedman: --As to what the First Congress--

Unidentified Justice: Yes.

Mr. Friedman: --Your Honor--

Unidentified Justice: Well, I just wonder, isn't it a relevant inquiry as to what the framers intended?

Mr. Friedman: --It's an interesting historical inquiry, but I think it's more important--

Unidentified Justice: None of it... it has no legal significance?

Mr. Friedman: --I don't believe it has the legal... I don't believe it has binding legal significance, Justice White.

I think that our nation has changed significantly in the past two decades... past two centuries, I should say.

And what the framers did then was not what the Nebraska legislature is doing now.

They had a completely different approach to the chaplaincy.

In the first place, they rotated chaplains.

The chaplains of the House and the Senate were of different denominations, and they weren't even officers.

Unidentified Justice: They paid them, though.

Mr. Friedman: They did pay them.

Three days before they passed the First Amendment they voted--

Unidentified Justice: To pay them.

Mr. Friedman: --To pay them.

Unidentified Justice: Yes.

Mr. Friedman: And it's an inconsistent... perhaps one of those inconsistent things that's come down through two centuries, and we have never brought it to this Court before.

The Court has never had an opportunity to rule on it.

Unidentified Justice: That's... you're just assuming it's inconsistent.

It may not be at all.

That's what the lawsuit's about.

Mr. Friedman: I suspect that's what the lawsuit's about, Justice White.

I think the elements of the Nebraska legislative prayer practice must be gone into in some detail.

The chaplain, first of all, is an officer of the legislature.

He is an official.

He may not have a desk.

I don't know that he has a desk.

But he does have a title.

He's an officer.

His only function is to deliver prayer.

He has a uniquely religious function.

It's part of the legislative day and you open up the legislative day with that prayer.

The chaplain is compensated.

He receives a salary each month.

His prayers are published.

And perhaps the most problem here is that the chaplain has inevitably been a Christian.

There is a place in the record, to answer Justice Marshall's question, by cross-examination on Senator Lewis, who was Chairman of the Executive Committee.

And the question was:

"Would you agree that really the only clergy in the history of the legislature-- "

Unidentified Justice: Where are you reading from, Mr. Friedman?

Could you tell us?

Mr. Friedman: --Yes.

Page 69 of the Joint Appendix, Justice Rehnquist.

"Would you agree that really the only clergy in the history of the legislature has always been a Christian clergyman? "

Answer:

"To my knowledge, that's correct. "

That's an admission by the Chairman of the Executive Committee of the legislature.

Quite frankly--

Unidentified Justice: Well, doesn't that just mean "as far as I know"?

Mr. Friedman: --That's true, Your Honor.

Unidentified Justice: And how long has he been in the legislature, seven years?

Mr. Friedman: Seven or ten years, something like that.

Unidentified Justice: Mr. Friedman, is there any evidence, apart from the symbolic evidence that you just referred to, that the tenure of Reverend Palmer has had the purpose or the effect of favoring one particular religious viewpoint?

Mr. Friedman: I think the fact, Justice O'Connor, is that it's always been a Christian and it's always been a mainstream Protestant Christian.

Same way with the Congress of the United States.

It's always been a mainstream Protestant Christian.

Unidentified Justice: Well, what I was asking was, is there anything other than that rather symbolic evidence to demonstrate that a particular religious viewpoint was being advocated?

Mr. Friedman: Other than the fact that the symbolic inference here is that one religion stands out, there isn't.

This case deals with symbolism.

I think that's the crux of this lawsuit in many respects.

Unidentified Justice: Could you also address exactly what effects the practice in Nebraska has had on Senator Chambers with some precision?

Mr. Friedman: The record is clear on that, Your Honor.

Senator Chambers testified to that.

Unidentified Justice: Is that what you call your members of your unicameral legislature, "senator", all of them?

Mr. Friedman: Yes, Justice Blackmun.

I'm trying to refer the Court to the record.

On page 44 of the transcript, Senator Chambers testified:

"Well, by the simple fact that the legislature, the chaplain is, and I believe always has been, a Christian, there is some sort of, it seems to me, some sort of general tendency to approve of a particular perspective or point of view in religion, and perhaps to disapprove of others. "

"The religious belief of the chaplain is probably representative of the religious belief of the legislature. "

And then he goes on to testify that that is contrary to his own religious beliefs and has caused some friction between Senator Chambers and the other senators when he has to get up and he leaves.

Unidentified Justice: Didn't the chaplain make some adaptation to Senator Chambers' feelings, though, after he learned of them?

Mr. Friedman: He did not.

Unidentified Justice: I thought that he omitted the reference to Christ.

Mr. Friedman: That was after Senator Fellman, a Jewish Senator, came up to him and commented.

Unidentified Justice: Well, then he, the chaplain, did make some adjustment after receiving a comment from another Senator who didn't like the Christian aspect of the prayer.

Mr. Friedman: He devoided himself of the uniquely Christian aspect.

But of course, Senator Chambers doesn't believe in God at all, so the prayers themselves were offensive to him.

They were contrary to his spiritual beliefs, or disbeliefs as the case may be.

Unidentified Justice: Well, he simply not only didn't believe in God, but prayer as such bothered him, I take it?

Mr. Friedman: Prayer in the legislature bothered him.

I think it should be made clear right now that this is not an anti-religious lawsuit and Senator Chambers is not questioning the right of people to pray, only to pray on the floor of the legislature.

Unidentified Justice: It wouldn't do him much good to question the right of people to pray, would it, with the First Amendment and the religion clauses?

Mr. Friedman: Of course not.

Unidentified Justice: And no one requires him to pray.

Mr. Friedman: Oh, I think that's quite true, Justice Rehnquist.

He doesn't have to be there, but I don't think that's the question.

Even in the school prayer cases, the children didn't have to be there, but nonetheless they were there and there was certain peer pressure.

And in this case there's even a certain amount of peer pressure within the members of the legislature.

The fact is that the legislative rule, although it's not obeyed to the letter, says he must be there.

He must be there for the opening prayer.

And that he finds constitutionally offensive.

Unidentified Justice: What if before the legislature met they announced throughout the state that every clergyman in the state would be invited to... or every clergyman in Lincoln, Nebraska, to eliminate the travel problem, would be invited to come and give one day in rotation?

And then they would pull them out of a hat in order.

You still think that raised a constitutional question?

Mr. Friedman: We think it would, Your Honor.

But again, it's not--

Unidentified Justice: Well, then the Presbyterian factor is irrelevant to your argument, isn't it?

Mr. Friedman: --The fact that Dr. Palmer is a Presbyterian?

Unidentified Justice: Yes.

Mr. Friedman: The fact that Dr. Palmer is a member of a mainline Protestant faith is not irrelevant.

Unidentified Justice: But you say the result would be the same if you had all the clergymen in Lincoln, and I suppose there must be 50 or 60 of them, maybe more.

Mr. Friedman: More than that.

Certainly--

Unidentified Justice: Mr. Friedman, you've used the term "mainline Protestant faith" a couple of times.

What do you include within that definition?

Mr. Friedman: --Mr. Justice Rehnquist, I think that basically deals with the Protestant sects who have the most members.

I would include in that basically the Lutheran--

Unidentified Justice: Be careful, now.

You might leave out one.

[Laughter]

Mr. Friedman: --I'm treading on thin ice, Mr. Justice Marshall.

Unidentified Justice: Is that based on a church membership approach?

Mr. Friedman: Basically.

Here I think if you look at the Congressional history you can find that in the Senate, for example, of the 62 chaplains that they have had since the inception of the Senate, about a third of them have been Presbyterian, a third Episcopalian, and a third Methodists, and a half a dozen other assorted religions.

The same thing goes with the House.

They've been basically those three or four denominations that we've talked about.

There have never been representatives in the Congress of the United States of the smaller religious sects, such as Seventh Day Adventists, which is a strong sect in Lincoln.

There has never been any kind of... there has never been any type of representation of the smaller groups.

There's never been a Jewish individual, there's never been a Muslim.

And I suppose the problem here is really one of symbolism.

That may be the major problem that we have here.

Aside from the compensation issue, I think the symbolism issue is very important.

Symbolically, one individual who represents one religious point of view is inevitably an officer in that legislature.

Unidentified Justice: But you've said several times that even if you had chaplains picked at random one day at a time, you'd have the same objection.

Mr. Friedman: I think that's true, Your Honor.

We must... I think I must stick with the facts of the case and the issue presented and accepted by this Court for review.

But I think it's still a problem, even if you had a mix, even if you had somebody each day, even if they were not paid.

But that's not the issue that really is before the Court and that's not the issue that Senator Chambers is litigating at this juncture.

But if you're asking what Senator Chambers' opinion is or what my personal opinion is, I think it would still be unconstitutional.

I don't believe that you should have any prayer in a legislative setting.

Unidentified Justice: You seemed to make a difference earlier in your argument between legislatures and courts.

Do you think an extended prayer, as distinguishes from the very brief invocation, would be unconstitutional in a court?

Mr. Friedman: I would think so, Mr. Chief Justice.

Unidentified Justice: Then how about this very short version that the Marshal uses to summon the Court?

Mr. Friedman: I suppose that's the... that's the one question I suppose that I knew was going to be asked, and the one I have been dreading answering, I suspect.

I don't suppose anybody looks forward to telling this Court that perhaps the opening ceremony may be unconstitutional, and I'm certainly--

[Laughter]

Unidentified Justice: Well, you don't have to go that far, do you, to make... to win this case?

I mean, certainly there could be degrees of secular kind of absorption of something.

Mr. Friedman: Mr. Justice Rehnquist, we believe that the opening ceremony of this Court, as well as the name of God on public buildings and God on the currency, have lost all religious significance.

Senator Chambers makes no issue about that.

They have been reduced to rote and they're not religious at all.

But that's not the case with the chaplain's prayers in Nebraska.

Those are definitely religious prayers.

They're constructed differently each day.

They invoke the name of God.

Most of them invoke the name of Jesus.

They were definitely religious prayers and you can't get around that.

You can't compare--

Unidentified Justice: Mr. Friedman, do military units still have chaplains?

Mr. Friedman: --Yes, they do, Justice Powell, and we don't quarrel with that.

Unidentified Justice: Why?

Mr. Friedman: We feel that people who are in the military service are taken away from their normal place, they are oftentimes overseas, and to deny them some sort of religious inspiration would probably be a violation of the other part of the clause, the free exercise clause.

Unidentified Justice: Don't you think legislators are called away from their home counties and are in need of some guidance and inspiration as well?

Mr. Friedman: That may be true, Justice O'Connor, but I don't think that that's the same, what we're talking about.

And the same with prison chaplains.

Prison chaplains of course are provided.

But that's not the case here.

I think--

Unidentified Justice: If you have a military unit stationed at some foreign post, remote generally from other people, are you suggesting the chaplain has no opportunity to influence them?

Mr. Friedman: --I'm sorry, Justice Powell, I didn't understand the question.

Unidentified Justice: I said, military units are stationed all over the world and they're often quite isolated.

You are suggesting that it's not appropriate for a chaplain to have an opportunity, by example or otherwise, to influence other people.

Do you think the chaplain has no influence whatever in a military unit?

I don't know.

I'm asking your opinion.

Mr. Friedman: I think they do have some influence, and I guess the answer is I don't know, either.

Unidentified Justice: Well, in any event, Mr. Friedman, I gather what you're suggesting is that in the case of the military chaplain or the prison chaplain there's a tension between the free exercise and the establishment clauses, and the free exercise clause in this instance, and the interests, override the establishment complications.

Mr. Friedman: That's correct, Justice Brennan.

That's what I'm trying to say.

Unidentified Justice: There's a tension in every application of the religion clauses, a tension between the two branches of the religion clauses.

And all of our cases have indicated that, have they not?

Mr. Friedman: That's correct, Chief Justice.

But I think this case is really a very strong case.

It probably goes to the very outer limits.

The Nebraska chaplaincy is a paid religious official doing a religious service on the floor of the legislature, and those other cases don't go that far.

Even in establishment clauses cases that ruled against the plaintiff, they never had anything that came close to the factual pattern in this case.

Unidentified Justice: But Mr. Friedman, that comes back, of course, to the practice of Congress and the practice in Congress at the formation of this nation and at the time of the adoption of the First Amendment.

Mr. Friedman: Justice O'Connor, at the time of the First Congress I believe most of the members sent their children to segregated schools.

At the time of the passing of the Fourteenth Amendment in 1868, they all sent their children to segregated schools.

But times have changed.

As Chief Justice Warren said, I believe it was... in one case--

Unidentified Justice: Might be named Brown, Brown versus the Board of Education.

[Laughter]

Mr. Friedman: --I think you had something to do with that case.

We can't turn the clock back to 1868.

We simply must recognize the fact that our civilization has changed.

And our civilization has changed, Justice O'Connor.

It's changed completely.

Two centuries ago our forefathers knew religious differences primarily among the differences of Protestant sects.

Preparing for this argument today, I went through the Washington telephone book and I noticed the difference of the various religious points of view right here in the nation's capital.

We are a pluralistic society.

We weren't a pluralistic society two centuries ago.

The Congress of the United States represents all of the people.

It represents the Muslims and the Hindus and the Bahais and the Jews.

And unfortunately, the Congress of the United States has not kept time.

Unidentified Justice: Well, certainly Congress in 1789 had... represented and realized it represented Catholic constituencies, certainly some Jews, some deists.

Weren't both Jefferson and Madison deists?

Mr. Friedman: That's correct, Justice Rehnquist.

Unidentified Justice: So to say it's pluralistic now, it was pluralistic then, too.

Mr. Friedman: It was not nearly as pluralistic.

Unidentified Justice: Well, but does that change in degree really mean that we can't accept the meaning that was intended by the people who drafted the amendment as applicable today?

Mr. Friedman: I can't believe that the framers of the Constitution today would accept the practice in Nebraska.

They may have accepted it two centuries ago, but when they looked at the change of our society, the change of our culture today, I'm sure they would not approve of this practice.

In fact, James Madison, who was the drafter of the establishment clause, later in life changed his mind and said that it was clearly unconstitutional from his point of view.

Unidentified Justice: Well, should we take Madison at the time he drafted the amendment or as he recanted many years later?

Mr. Friedman: I think what we have to do is take--

Unidentified Justice: What he said is that he had made a mistake.

Mr. Friedman: --That's correct.

We think he made a mistake, too, when he voted--

Unidentified Justice: That's like saying, well, I know the First Amendment means so-and-so but I wish it meant it something else.

Mr. Friedman: --Justice White, this matter really has never had the opportunity to be presented to this Court.

Back in 1922--

Unidentified Justice: Well, you have the opportunity now.

Mr. Friedman: --That's what we're trying to do, Justice White.

And I think one of the problems is that there was no procedural avenue to get the matter to this Court's attention two centuries ago.

The procedural avenue is open now through virtue of the Civil Rights Act, which is the suit... which is the statute under which this case was filed.

And we ask the Court to take a strong look at this, because symbolically this is extremely important.

I think the Nebraska practice hits square on with the neutrality theme that this Court has always maintained in most of the establishment clause cases, going through Everson and McGowan, Abbington, Walz and Epperson.

All of the establishment clause cases, irrespective of whether they held for the plaintiff or for the defendant, the one rule that this Court has always had is that when it comes to government, when it comes to religion, government must remain strictly neutral, neither endorsing or appearing to endorse one religion over another or religion in favor of non-religion.

And it seems to me that the record in this case supports the conclusion that one religion is in fact better than others.

In the record, for example, there is the testimony of Dr. Palmer, who said... would you agree that by having a uniquely Christian chaplain in the legislature it adds an air of officialdom to the Christian faith?

And he says, it could be perceived as such.

But the other witnesses also agreed to that.

Reverend Stevens, who is a Unitarian minister, testified as an expert on behalf of the Plaintiff, and he said it certainly adds an air of officialdom to one religion.

And of course, Senator Chambers said the same thing.

And that probably is one of the key problems that we have here.

The whole concept of having one religion that stands out in a very pluralistic society seems to cause some problems.

Unidentified Justice: Mr. Friedman, you have to support the position, don't you, that the primary effect of what has been done in the legislature is to promote the establishment of religion?

Do you not?

Mr. Friedman: That's correct, Justice Powell.

Unidentified Justice: What evidence is there of that?

Mr. Friedman: Circumstantial evidence and symbolic evidence only.

I can't stand--

Unidentified Justice: Well, what is the circumstantial evidence?

Have the number of mainline Protestant churches increased since 1955 in Nebraska?

Mr. Friedman: --No.

Unidentified Justice: Have the number of parishioners in Protestant churches?

Mr. Friedman: Absolutely not.

Unidentified Justice: Well, in what way has any establishment of religion been enhanced or furthered?

Establishment, now.

Mr. Friedman: I understand what you're saying, Justice Powell.

And the only thing I can tell the Court is that this practice of having one uniquely religious figure who belongs to one religion is just like having a small statute or a small pennant on the flag with a religious symbol on it.

It may be small, but it's there and you can see it and everybody knows that it's there.

And that's the problem here.

Everybody knows that the officer of that court or the officer of the legislature is a Protestant Christian and always has been, and I submit always will be.

Unidentified Justice: And that is an establishment, you say?

Mr. Friedman: I perceive it as an establishment problem.

Unidentified Justice: Like the... well, you have to say that that is the establishment, like the symbol on the flag.

Mr. Friedman: That's correct.

Unidentified Justice: That would be the establishment, wouldn't it?

Mr. Friedman: I think 40 years ago in another establishment--

Unidentified Justice: You must take that position or else you'll have to then prove that that symbol on the flag or the symbol before the legislature had some real consequences, which you don't care to undertake to prove.

Mr. Friedman: --I can't prove that.

Unidentified Justice: May I ask this.

Was that the type of establishment that the framers had in mind when they included the establishment clause in the Bill of Rights?

They were thinking about what had happened, indeed, to many of them and to their ancestors in Western Europe.

Mr. Friedman: That's correct, Justice Powell.

I think--

Unidentified Justice: There you had a true establishment, that the church and state were essentially the same.

Mr. Friedman: --I think that a legal historian could probably make a good argument that one of the reasons they called it "establishment" was that many of the states had their own established churches at that time and they didn't want the Federal Government to get involved in it.

It wasn't until 1940 that the establishment clause was held applicable to the states.

Unidentified Justice: Mr. Friedman, before this case was filed, in your own estimation how many people outside the legislature knew about the chaplain?

Mr. Friedman: Oh, I think the whole state did.

Unidentified Justice: The whole state?

Mr. Friedman: He was an official--

Unidentified Justice: You mean the same state that don't know their own legislators would know that there was a chaplain there?

Mr. Friedman: --Oh, I think they knew there was a chaplain.

I don't think they paid much attention to him, Justice Powell... Justice Marshall.

Unidentified Justice: Now, this has been going on for more than 200 years, right back to the Confederation.

Would you say that we are closer to having an established church, such as England and Sweden, for example, today than we were 200 years ago?

Mr. Friedman: I can't say that, Mr. Chief Justice.

Unidentified Justice: Then where is the establishment of a religion?

Mr. Friedman: Symbolically, one religion appears to dominate through government.

A number of years ago Mr. Orwell wrote a very poignant satire called "Animal Farm" and he penned the words:

"All animals are equals, but some are more equal than others. "

And I suppose if one would go to the Nebraska legislature every legislative day during its session or go to Congress every legislative day and hear the opening ceremony, one would walk away with the distinct impression that all religions may be equal in this country, but one is more equal than others.

We believe that the Eighth Circuit should be affirmed.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. Cronk?

REBUTTAL ARGUMENT OF SHANLER D. CRONK, ESQ. ON BEHALF OF PETITIONERS

Mr. Cronk: Just briefly, Mr. Chief Justice.

If there's one thing that the Court should have pounded into the heads of anybody attempting to discern the proper establishment clause analysis, it is that these are very difficult cases and they depend essentially on facts and circumstances.

And if there's one thing that is conspicuous about the symbolic argument that is now advanced by the Petitioners, and that seems to be essentially the core of their position, it's that there is not the slightest shred of evidence to support it in the record.

And there's a reason for that.

This case started out essentially championing the proposition that prayers per se violate the Constitution.

The tenure of a particular chaplain, the identity of Chaplain Palmer by denomination, played no part in the trial of this case.

That's the reason that the record is absolutely devoid of any relevance on this particular question.

The tenure, even the compensation, were not even listed in the pretrial order as controverted issues.

If there's any merit at all in the symbolic argument, this is not the record that can support it.

This case stands in stark contrast to the--

Unidentified Justice: Mr. Cronk, do you take the position that you never could prove an establishment clause violation without proving that the membership of the favored church had increased over the period that the challenged practice was in effect?

Mr. Cronk: --No, I wouldn't take that blanket position, Your Honor.

I think clearly the Court--

Unidentified Justice: In other words, say you had a... that Nebraska passed a law saying that for the next 100 years we want a Presbyterian minister.

Nobody knows whether that will ever make any more people Presbyterians or not.

Wouldn't that be plainly unconstitutional?

Mr. Cronk: --I think inquiring as to the impact, attempting to determine some evidence as to what's going on out there, clearly would be in order.

That clearly didn't happen here, because this was not the essence of the case.

Unidentified Justice: You think in the hypothetical I gave you you'd have to have a Gallup Poll kind of inquiry to decide whether it's unconstitutional or not?

Mr. Cronk: No, Your Honor, I think that there are--

Unidentified Justice: There are some cases... I'm not suggesting this is one, but there are some cases where you can just look at the practice and say it favors one religion over others, can't you?

Mr. Cronk: --Well, I would have to know a little bit about--

Unidentified Justice: Maybe this isn't such a case.

I didn't mean that.

But I don't think you're really arguing you have to go out and prove what the membership of the churches is in order to identify some practices as violating the establishment clause.

Mr. Cronk: --Absolutely not.

That some practices might manifest some identification with a particular religion or a particular religious view is clear.

The question is, in the totality of the circumstances does that really advance religion in the manner that the Court has attempted to explain for us as is contemplated by the establishment clause.

The reason that we don't have a leg up in answering that question here is because this case, this record, was never tailored to address this question.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.