Marsh v. Chambers

Warren E. Burger:

We will hear arguments next in Marsh v. Chambers.

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

Shanler D. 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.

Warren E. Burger:

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

Shanler D. 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.

Harry A. Blackmun:

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

Shanler D. 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.

Harry A. Blackmun:

So it is seven months, $320.

Shanler D. 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.

Thurgood Marshall:

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

Shanler D. Cronk:

We don't know that, Your Honor.

The only thing we know about--

Thurgood Marshall:

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.