FRANK MARSH, STATE TREASURER, ET AL., PETITIONERS V. ERNEST

   CHAMBERS

   No. 82-23

   In the Supreme Court of the United States

   October Term, 1982

   On Writ of Certiorari to the United States Court of Appeals for the
Eighth Circuit

   Brief for the United States as Amicus Curiae in Support of
Petitioners

            TABLE OF CONTENTS
   Interest of the United States
   Summary of argument
   Argument
      The Nebraska Legislature's appointment and compensation of a
      chaplain to open each day's session of the legislature with a
      prayer does not violate the Establishment Clause of the First
      Amendment
      A. The historical evidence conclusively shows that the
          Establishment Clause of the First Amendment does not
          proscribe the practice of opening a legislature's day with
          prayer by a compensated chaplain
      B. Application of the three-part Lemon V. Kurtzman test
          confirms that the Nebraska chaplaincy does not offend the
          Establishment Clause of the First Amendment
   Conclusion

                          QUESTION PRESENTED

   Whether the Nebraska Legislature's compensation and retention of a
single individual as Chaplain for an extended period of time renders
its legislative prayer practice violative of the Establishment Clause
of the First Amendment to the United States Constitution.

                     INTEREST OF THE UNITED STATES

   This case concerns the constitutionality of the Nebraska Unicameral
Legislature's chaplaincy practice under the Establishment Clause of
the First Amendment.  The United States has a substantial interest in
this matter because the United States Congress has, since the first
session of the Continental Congress in 1774, appointed chaplains to
open each legislative day with an invocation.  Over a half-century
ago, a challenge to the constitutionality of the federal chaplaincy
practice was dismissed for lack of standing.  Elliott V. White, 23
F.2d 997 (D.C. Cir. 1928).  A similar challenge is now pending before
the United States Court of Appeals for the District of Columbia
Circuit for determination by the court en banc of whether the suit
must be dismissed on standing or political question grounds.  Murray
v. Buchanan, No. 81-1301 (Mar. 9, 1982), vacated and scheduled for
rehearing en banc by orders of May 25 and July 16, 1982.

   Although the constitutionality of the chaplaincy practice of the
Senate and House of Representatives may not be justiciable, that issue
has not been finally resolved by this Court.  But see Abington School
District V. Schempp, 374 U.S. 203, 300 (1963) (Brennan, J.,
concurring).  /1/ Accordingly, the United States retains a keen
interest in the Court's ruling in this case because the Nebraska
Legislature's chaplaincy bears many basic similarities to the
congressional chaplaincies.  Moreover, the Nebraska practice is
clearly patterned after the longstanding practice of Congress and the
other states;  thus, the Court's consideration of Nebraska's practice
would be enhanced by a complete exposition of the federal experience.

                          SUMMARY OF ARGUMENT

   The Establishment Clause of the First Amendment is not violated by
the Nebraska Legislature's appointment and compensation of a chaplain
to open each day's legislative session with a prayer.  The
constitutionality of paid legislative chaplaincies is conclusively
demonstrated by the fact that the Members of the First Congress
appointed and compensated chaplains to open their daily sessions at
the same time that they drafted the First Amendment;  historical
analysis thus shows that the Framers did not intend to invalidate
their own chaplaincy, nor those of the states.  But, even if more need
be shown, the constitutional propriety of the Nebraska chaplaincy is
confirmed by application of the now traditional three-part
Establishment Clause test announced by the Court in Lemon v. Kurtzman,
403 U.S. 602, 612-613 (1971).

   1. At the national level, the designation of legislative chaplains
originated with the first session of the Continental Congress in
September 1774 and was carried forward by the First Congress convened
under the Constitution.  Indeed, the very first congressional
compensation act included authority to pay "each chaplain of Congress,
at the rate of five hundred dollars per annum during the session of
Congress." Act of Sept. 22, 1789, ch. XVII, Section 4, 1 Stat. 71.

   Just three days after enactment of the congressional compensation
statute, the Members of the First Congress reached fihal agreement on
the wording and content of the Bill of Rights, including the
Establishment Clause, and referred the proposed amendments to the
states for ratification.  See 1 Journal of the House of
Representatives, 1st Cong., 1st Sess. 26 (1789);  1 Journal of the
Senate, 1st Cong., 1st Sess. 16 (1789).  It is apparent from this
simultaneous consideration by the First Congress of the appointment
and compensation of chaplains, on the one hand, and the framing of the
Establishment Clause, on the other, that the Members of the First
Congress did not consider their own legislative chaplaincy to run
afoul of the Establishment Clause.  It should therefore come as no
surprise that the congressional chaplaincy practice continued without
interruption after the Bill of Rights became part of the Constitution
on December 15, 1791.  That being so, Nebraska's virtually identical
practice is equally permissible under the Establishment Clause, which
is made applicable to the states by incorporation into the Fourteenth
Amendment.  See Cantwell V. Connecticut, 310 U.S. 296, 303 (1940).

   2. In light of the historical evidence of the Framers' intent, it
should not be necessary to analyze the Nebraska chaplaincy further
under the three-part test announced by this Court in Lemon v.
Kurtzman, supra.  The Lemon test is merely a device for discerning the
proper meaning of the Establishment Clause and for applying its
restrictions in a modern-day context.  In this case, where the
challenged practice is one that was actually engaged in by the Framers
themselves, and where the intended meaning and scope of the
Establishment Clause in this context is clear, application of the
Lemon test would seem superfluous.  Nevertheless, a review of the
Nebraska chaplaincy under that test confirms that the legislative
chaplaincy practice is constitutionally sound.

   The district court found, and the trial record reflects, that the
Nebraska chaplain's opening invocation has the "clearly secular
purpose" of "bringing the legislators to order by means of a brief,
solemn and thoughtful act in a traditional manner" (Pet. App. 13).
The trial court also found on the basis of the record that the opening
invocation does not have a primary effect of advancing or inhibiting
religion (Pet. App. 14-15).  Finally, the district court found no
evidence to indicate that Nebraska's legislative chaplaincy has
resulted in an excessive governmental entanglement with religion (Pet.
App. 18).

   The court of appeals' disagreement with the district court was
based solely on its own assumptions, and those assumptions cannot
withstand reasoned analysis.  The court's main objections to the
Nebraska practice "viewed as a whole" (Pet. App. 34) were the
chaplain's lengthy tenure, the resulting fact that only one religious
denomination has been represented in the chaplaincy for many years,
and the fact that the chaplain received compensation for performing
his duties (Pet. App. 36, 38).  None of these features distinguishes
the Nebraska chaplaincy from the traditional federal practice or, for
that matter, from the Massachusetts practice upheld in Colo v.
Treasurer & Receiver General, 392 N.E.2d 1195 (1979).

   In any event, the length of a particular chaplain's service as a
legislative officer and the particular religious denomination to which
he subscribes is wholly irrelevant to his secular purpose of bringing
the legislature to order in a traditional, ceremonial manner that
establishes a proper tone of solemnity for the day's proceedings.  The
record in this case establishes that the Nebraska chaplain's prayers
are nondenominational and that he advocates no particular religious
dogma.  Accordingly, his formal religious affiliation is of no
particular concern.

   Furthermore, once it is shown that the chaplain performs a
predominantly secular function, there can be no legitimate
constitutional objection to paying for his services any more than one
could object to paying any of Nebraska's other legislative officers.
See, e.g., Roemer v. Board of Public Works of Maryland, 426 U.S. 736,
746 & n.13 (1976) (plurality opinion).

   Finally, this Court has observed in a similar Establishment Clause
setting that "an unbroken practice * * * is not something to be
lightly cast aside." Walz v. Tax Commission, 397 U.S. 664, 678 (1970).
 This Nation has employed legislative chaplains for over 200 years
without posing any threat to religious liberty.  In light of this
history, it cannot be plausibly suggested that the legislative
chaplaincy is "but the 'foot in the door' or the 'nose of the camel in
the tent' leading to an established church" (ibid.).

                               ARGUMENT

 THE NEBRASKA LEGISLATURE'S APPOINTMENT AND COMPENSATION OF A CHAPLAIN
TO OPEN EACH DAY'S SESSION OF THE LEGISLATURE WITH A PRAYER DOES NOT
VIOLATE THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT

   Beginning in 1855, even before attaining statehood, Nebraska opened
the daily sessions of its Legislature with a prayer by the chaplain
(Pet. App. 11, 22 n.5).  In 1867, the year Nebraska became a state,
the Legislature provided that the chaplain would be a compensated
officer with the duty of opening each legislative session with a
prayer (id. at 11, 23 n.6).  This practice has remained unchanged to
the present day;  the Rules of the Nebraska Unicameral Legislature
provide that "Prayer by the Chaplain" shall be the first item on the
agenda, to precede even the taking of the "Roll call" (Rule 7A,
Section 1(b)) (Pet. 5).

   The Nebraska Legislature is not alone in establishing this kind of
chaplaincy practice.  Every state of the Union opens its legislative
sessions with a prayer and, like Nebraska, 17 other states utilize a
salaried chaplain for this purpose.  See Colo v. Treasurer & Receiver
General, supra, 392 N.E.2d at 1197.  In addition, as previously
mentioned, each House of the United States Congress appoints and
compensates a chaplain whose duty it is to open each day's session
with a prayer.  See United States Senate Rule IV;  United States House
of Representatives Rule VII.  It is apparent that the Nebraska
chaplaincy practice instituted in 1855 grew out of the traditional
legislative ceremonial practice already long-established in the
existing states as well as in the federal Congress.

   An examination of the history of legislative chaplaincies in the
United States and the experience of the Congress before, during and
after ratification of the First Amendment reveals that the Framers did
not intend to invalidate under the Establishment Clause the kind of
legislative chaplaincy that now exists in Nebraska.  /2/ The
historical evidence of the Framer's intent is so conclusive that no
further inquiry should be necessary in order to determine that the
Nebraska chaplaincy is constitutionally permissible.  Nevertheless, as
we show in Part B of this brief, the Nebraska chaplaincy also passes
constitutional muster under the now familiar three-part test
articulated by this Court in Lemon v. Kurtzman, 403 U.S. 602, 612-613
(1971).

 A. The Historical Evidence Conclusively Shows That the Establishment
Clause of the First Amendment Does Not Proscribe the Practice of
Opening a Legislature's Day with Prayer by a Compensated Chaplain

   This Court's "Establishment Clause precedents have recognized the
special relevance in this area of Justice Holmes' comment that 'a page
of history is worth a volume of logic.'" Committee for Public
Education & Religious Liberty v. Nyquist, 413 U.S. 756, 777 n.33
(1973), quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349
(1921).  See also Walz v. Tax Commission, 397 U.S. 664, 675-676
(1970).  The Court has often undertaken a thorough historical
examination in order to shed light on the meaning and proper
application of the Establishment and Free Exercise Clauses to
particular circumstances, and it has steadfastly "declined to construe
the Religion Clauses with a literalness that would undermine the
ultimate constitutional objective as illuminated by history" (id. at
671;  emphasis added).  See, e.g., McGowan v. Maryland, 366 U.S. 420,
431 (1961) (history of Sunday Closing Laws relevant to Establishment
Clause inquiry);  Everson v. Board of Education, 330 U.S. 1, 8-16
(1947) (history of period when Establishment Clause was fashioned and
adopted is relevant to determination of validity of modern state law
authorizing reimbursement for student transportation to private
schools).

   In the instant case, the appropriateness of historical review is
more compelling, and the results are more instructive and conclusive,
than in any Establishment Clause case previously considered by this
Court.  The very governmental practice challenged here -- the
utilization of a salaried chaplain to open daily legislative sessions
with a prayer -- is one that predated the Constitution, was adopted by
the Founding Fathers from the outset of the First Congress convened
under the Constitution, was continued by the Framers of the First
Amendment while the Establishment Clause itself was being fashioned
and ratified by the states, and has continued substantially unchanged
to the present day.  /3/

   1. The origins of the congressional chaplaincies can be traced to
the American colonies.  See, e.g., Journal of the House of Burgesses
of Virginia 34, 36 (Nov. 20 & 21, 1712);  Votes and Proceedings of the
Lower House of Assembly of the Province of Maryland 4 (Dec. 12, 1754).
 In Virginia, for example, the first item of business at the Virginia
Colony Convention of Delegates was a resolution "(t)hat the Reverend
Thomas Price be appointed chaplain to this Convention, and that he be
desired to read prayers every morning at 10 o'clock." Proceedings of
the Virginia Convention of Delegates, 1775-1776, at 59 (Dec. 5, 1775).
 At the conclusion of the session, the Convention provided for
allowances "to the several officers of this Convention," including the
chaplain (id. at 102 (Jan. 20, 1776)).

   Virginia continued this chaplaincy practice when its legislature
convened for the first time under the state constitution on October 7,
1776.  The House of Delegates ordered that "the several officers of
the late Convention be continued officers of this House" and further
prescribed that "the Chaplain attend to read prayers every morning at
seven o'clock * * * ." Journal of the House of Delegates of Virginia 1
(Oct. 7, 1776).  Other state legislatures adopted similar chaplaincy
practices.  /4/

   2. At the national level, the designation of legislative chaplains
can be traced to the first session of the Continental Congress in
September 1774, where the delegates resolved on the second day of
proceedings to open the next day's meeting with a prayer by an invited
Episcopalian clergyman -- the Reverend Jacob Duche.  1 Journals of the
Continental Congress 26 (1774) (hereinafter cited as "Journals").  /5/
Accordingly, the first opening prayer was recited on September 7, 1774
(id at 27).  Reverend Duche was subsequently invited back to deliver
an opening prayer on May 11, 1775, the second day of the second
session of the Continental Congress.  2 Journals 12, 13 (1775).  In
July 1776, Reverend Duche was "appointed chaplain to Congress" and
charged with opening each day's proceedings on a regular basis.  5
Journals 530 (1776).  Upon his resignation on October 17, 1776, the
Continental Congress voted a $150 stipend for his services.  6
Journals 886-887 (1776).

   Within a short time, on December 23, 1776, the Continental Congress
elected two new chaplains -- the Reverends Patrick Allison and William
White.  6 Journals 1034 (1776).  Eight years later, the Continental
Congress decided that elections for these officers should be held
annually.  27 Journals 683 (1784).

   3. The practice of appointing chaplains to serve during legislative
sessions continued from the very outset of the First Congress convened
under the Constitution.  /6/ The First Congress met in April 1789, and
among its first items of business was the selection of chaplains.  See
1 Journal of the Senate, 1st Cong., 1st Sess. 10 (1789) (hereinafter
"Senate J.");  1 Journal of the House of Representatives, 1st Cong.,
1st Sess. 11-12 (1789) (hereinafter "House J.").  The House and Senate
soon agreed that "two Chaplains of different dominations be appointed
to Congress," one to be elected by each House and interchanged weekly.
 1 Senate J. 12;  1 House J. 16.  The Senate elected the first
chaplain on April 25, 1789, and the House elected the second chaplain
on May 1.  1 Senate J. 16;  1 House J. 26.

   A few months later, the first statutory authority for compensation
of members and officers of the House and Senate was enacted.  Act of
Sept. 22, 1789, ch. XVII, 1 Stat. 70.  Included in the provisions for
compensation of officers was authority to pay "each chaplain of
Congress, at the rate of five hundred dollars per annum during the
session of Congress" (Section 4, 1 Stat. 71).

   During this same period of time, Members of Congress had been
conferring on a draft of the Bill of Rights, including provisions of
the First Amendment.  James Madison, whose leading role in the
drafting and adopting of the First Amendment has been widely
acknowledged, /7/ introduced the initial draft of the Bill of Rights
in the House on June 8, 1789.  See II B. Schwartz, The Bill of Rights:
 A Documentary History 1026 (1971).  With respect to religious
liberties, this draft provided that "(t)he civil rights of none shall
be abridged on account of religious belief or worship, nor shall any
national religion be established * * *" (ibid).  During the course of
debate, this language was modified to its current form in the Free
Exercise and Establishment Clauses.  See Everson v. Board of
Education, supra, 330 U.S. at 39 n.27 (Rutledge, J., dissenting).
Final agreement on the wording and content of the Bill of Rights was
reached by both Houses of Congress on September 25, 1789 -- just three
days after enactment of the legislation providing compensation for the
congressional chaplains.  1 House J. 121;  1 Senate J. 88.  The first
proposed amendments to the Constitution were then referred to the
several states for ratification.

   It is apparent from this simultaneous consideration by the First
Congress of the appointment and compensation of chaplains, on the one
hand, and the framing of the Establishment Clause, on the other, that
the Members of the First Congress neither perceived nor intended any
friction between legislative chaplaincies and the First Amendment.
Indeed, James Madison himself was a member of the House Committee that
proposed appointment of a chaplain.  See 1 House J. 12.  And he voted
in favor of the bill to compensate the officers of the House and
Senate, including the two chaplains (id. at 108-109).  /8/

   The Bill of Rights was ratified on December 15, 1791, when the
Virginia Senate approved it.  See II B. Schwartz, supra, at 1202.  In
the first session of Congress after the ratification of the First
Amendment (the Second Session of the Second Congress), the House and
Senate continued their practice of electing chaplains.  See 1 Journal
of the House of Representatives, 2d Cong., 2d Sess. 610 (1792);  1
Journal of the Senate, 2d Cong., 2d Sess. 452 (1792).  And when the
Fourth Congress authorized compensation for officers of the House and
Senate, it again provided for compensation to the chaplains.  Act of
Mar. 10, 1796, ch. IV, Section 3, 1 Stat. 449.

   4. This chaplaincy practice in the United States Congress has
remained essentially unchanged throughout its history of almost two
centuries.  /9/ In the middle of the last century, there was
considerable discussion within the Congress itself over the
constitutionality and desirability of maintaining federal chaplaincies
in the House and Senate as well as in the military.  See A. Stokes &
L. Pfeffer, supra, at 479-480.  Various memorials and petitions by
citizens were referred to the House and Senate Committees on the
Judiciary for consideration.  The committee deliberations resulted in
the issuance of three reports -- in 1850, 1853 and 1854 -- tracing the
history of the federal chaplaincies in this country and concluding
that they were sound both as a matter of constitutional jurisprudence
and public policy.  See H.R. Rep. No. 171, 31st Cong., 1st Sess.
(1850);  S. Rep. No. 376, 32d Cong., 2d sess. (1853);  H.R. Rep. No.
124, 33d Cong., 1st Sess. (1854).

   Of particular relevance is the following passage from the 1853
Senate Report (S. Rep. No. 376, supra, at 4):

      (F)rom the beginning, our government has had chaplains in its
      employment.  If this had been a violation of the constitution --
      an establishment of religion -- why was not its character seen
      by the great and good men who were coeval with the government --
      were in Congress and in the Presidency when this constitutional
      amendment was adopted?  They were wise to discover the true
      character of the measure;  they, if any one did, understood the
      true purport of the amendment, and were bound, by their duty and
      their oaths, to resist the introduction or continuance of
      chaplains, if the views of the petitioners were correct.  But
      they did no such thing;  and therefore we have the strongest
      reason to suppose the notion of the petitioners to be unfounded.
       Unfounded it no doubt is.

   5. When viewed and understood in light of this history, the
practice of appointing and compensating a chaplain to open each day's
legislative session with a prayer must be sustained.  This Court has
previously observed that a construction of the Constitution made by
the First Congress is of special and compelling significance:  "It was
a Congress whose constitutional decisions have always been regarded,
as they should be regarded, as of the greatest weight in the
interpretation of that fundamental instrument." Myers v. United
States, 272 U.S. 52, 174-175 (1926).  See also United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 327-329 (1936).  Indeed,
such a construction of the Constitution by the Founding Fathers and
Framers has been accorded conclusive effect (Myers v. United States,
supra, 272 U.S. at 175):

      This Court has repeatedly laid down the principle that a
      contemporaneous legislative exposition of the Constitution when
      the founders of our Government and framers of our Constitution
      were actively participating in public affairs, acquiesced in for
      a long term of years, fixes the construction to be given its
      provisions.

   There is no reason to depart from this settled principle in this
case.  The Framers of the Establishment Clause themselves perceived no
constitutional objection to legislative chaplaincies.  Half a century
later, committees of the Thirty-First, Thirty-Second, and Thirty-Third
Congresses specifically examined this question and reaffirmed the
judgment of the Framers.  /10/ Moreover, as this Court has observed in
an Establishment Clause context, using the words of Justice Holmes:
"'If a thing has been practised for two hundred years by common
consent, it will need a strong case for the Fourteenth Amendment to
affect it.'" Walz v. Tax Commission, supra, 397 U.S. at 678, quoting
Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).

   Although it is the Nebraska Legislature's chaplaincy -- and not
those of the United States Congress -- that is challenged in this
case, the foregoing principles are equally controlling.  The
Establishment Clause applies with full force to the several states by
incorporation into the Due Process Clause of the Fourteenth Amendment.
 See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).  It is hardly
plausible that the Establishment Clause could be construed to permit
the federal congressional chaplaincies but, at the same time, impose a
more stringent standard on the state legislatures -- like Nebraska --
that have similar chaplaincy practices.  Any such construction would
be ironic, indeed, because the First Amendment itself is directed
solely to the Congress and was not intended to interfere with the
various established state religions existing at the time of
ratification.  See McGowan v. Maryland, 366 U.S. 420, 440-441 (1961).
If, as demonstrated above, the Framers did not intend the
Establishment Clause to proscribe the congressional chaplaincies, then
the Clause a fortiori does not proscribe similar chaplaincies in the
state legislatures.

   6. The court of appeals found the Nebraska chaplaincy to be
constitutionally objectionable because "(f)or sixteen years, the
Nebraska legislature has selected and paid one minister, representing
one denomination, to open each legislative session with prayer" (Pet.
App. 36).  /11/ These features singled out by the Eighth Circuit for
special opprobium -- lengthy tenure, compensation, and single
denomination /12/ -- do not meaningfully distinguish the Nebraska
practice from the kind of legislative chaplaincy approved by the
Framers and early Congresses.

   As indicated above (see pages 11-12, supra), the congressional
chaplains have been paid as officers of the House and Senate since the
very first congressional compensation act of 1789.  Moreover, the
length of service of the congressional chaplains has never been a
matter of particular concern.  One chaplain of the House, for example,
served for 26 years, from 1895 to 1921;  and he was succeeded by
another chaplain who held that office for 29 years, until 1950.  See
History of the United States House of Representatives, H.R. Doc. No.
250, 89th Cong., 1st Sess. 212 (1965).

   As for denominational variety, it is true that, during the first
half-century of the congressional chaplaincy practice, Congress
explicitly provided that each House would appoint a chaplain of a
different denomination.  But the denominations have all been
Protestant, with the sole exception of the Catholic Reverend Pise, who
served the Senate for a single year in 1832.  See A. Stokes & L.
Pfeffer, supra, at 478-479.  It appears that no particular attention
has been paid to this matter within each House.  Thus, for example,
the first eight chaplains appointed by the senate -- serving over a
period of 18 years, from 1789 to 1807 -- were all Episcopalians
(Chaplains of the United States Senate, April 25, 1789 to Date
(December 8, 1982), on file in the Office of the United States Senate
Historian).  Similarly, the first three chaplains appointed the House
of Representatives -- serving over a period of 11 years, from 1789 to
1800 -- were all Presbyterians (History of the United States House of
Representatives, H.R. Doc. No. 250, 89th Cong., 1st Sess. 212 (1965)).

   The Eighth Circuit's real objection in this case was not to the
fact that only one person has served as chaplain in Nebraska for some
16 years, but that only one denomination has been represented during
that time.  Presumably, it would have made no difference to the court
of appeals if Nebraska had appointed eight different chaplains of a
single denomination over this same 16-year period.  Yet, that is
precisely what the United States Senate in the first and succeeding
Congresses did in the first 18 years of federal government under the
Constitution.

   Moreover, as recognized by the Supreme Judicial Court of
Massachusetts in a case nearly identical to the present case, the
question of denominational tenure is more properly viewed as an equal
protection challenge then a First Amendment issue.  The Massachusetts
court rejected such a challenge, explaining that "(t)he mere fact that
two persons of a particular faith have been appointed to these
positions (legislative chaplains) over the past twenty years does not
demonstrate that any other person has ever been denied appointment (a
necessary element of any equal protection claim), or that such
decisions were based on religious discrimination." Colo v. Treasurer &
Receiver General, 392 N.E.2d 1195, 1199 (1979).

   Congress itself has placed great emphasis on the fact that Members
are free to select chaplains from any denomination whatsoever, and has
concluded that this freedom of choice negates any possibility of an
"establishment of religion." As explained by the Senate Committee on
the Judiciary in the 1853 report mentioned above (S. Rep. No. 376,
supra, at 2-3;  emphasis added):

      At every session two chaplains are elected * * *.  Now, in this,
      no religion, no form of faith, no denomination of religious
      professors, is established, in preference to any other, or has
      any peculiar privileges conferred upon it.  The range of
      selection is absolutely free in each house amongst all existing
      professions of religious faith.  * * * The Chaplain is an
      officer of the house which chooses him, and nothing more.  He
      owes his place not to his belonging to a particular religious
      society, or holding a particular faith, but to the voluntary
      choice of the members of the house, and stands, in this respect,
      upon the same footing with any other officer so elected.

               * * * * *

      True, selections, in point of fact, are always made from some
      one of the denominations into which Christians are distributed;
      but that is not in consequence of any legal right or privilege,
      but by the voluntary choice of those who have the power of
      appointment.

   The same is true with respect to the Nebraska Legislature, which
appoints the chaplain, along with other legislative officers, in
accordance with the vote of its members (Tr. 115-121).  /13/

   Thus, the Nebraska chaplaincy does not deviate in any
constitutionally significant way from the kind of legislative
chaplaincy envisioned and practiced by the Framers themselves.
Accordingly, the Nebraska chaplaincy does not constitute a law or
practice "respecting an establishment of religion" within the meaning
of the Establishment Clause of the First Amendment.

 B. Application of the Three-Part Lemon v. Kurtzman Test Confirms that
the Nebraska Chaplaincy Does Not Offend the Establishment Clause of
the First Amendment

   In Zorach v. Clauson, 343 U.S. 306, 312 (1952), this Court observed
that "(t)he First Amendment * * * does not say that in every and all
respects there shall be a separation of Church and State." If the rule
were otherwise, a number of anomalies would result (id. at 312-313;
emphasis added):

      (T)he state and religion would be aliens to each other --
      hostile, suspicious, and even unfriendly.  Churches could not be
      required to pay even property taxes.  Municipalities would not
      be permitted to render police or fire protection to religious
      groups.  Policemen who helped parishioners into their places of
      worship would violate the Constitution.  Prayers in our
      legislative halls;  the appeals to the Almighty in the messages
      of the Chief Executive;  the proclamation making Thanksgiving
      Day a holiday;  "so help me God" in our courtroom oaths -- these
      and all other references to the Almighty that run through our
      laws, our public rituals, our ceremonies would be flouting the
      First Amendment.  A fastidious atheist or agnostic could even
      object to the supplication with which the Court opens each
      session:  "God save the United States and this Honorable Court."
      /14/

   It is no wonder that there are numerous recognitions of God in
public life, for "this Nation's history has not been one of entirely
sanitized separation between Church and State," and "(i)t has never
been thought either possible or desirable to enforce a regime of total
separation." Committee for Public Education & Religious Liberty V.
Nyquist, 413 U.S. 756, 760 (1973).  Thus "the line of separation, far
from being a 'wall,' is a blurred, indistinct, and variable barrier
depending on all the circumstances of a particular relationship."
Lemon v. Kurtzman, supra, 403 U.S. at 614.  At most, the "concept of a
'wall' of separation is a useful signpost." Larkin v. Grendel's Den,
Inc., No. 81-878 (Dec. 13, 1982), slip op. 7.

   Under these circumstances, the Court has understandably found it
impossible to provide "'bright line' guidance" for readily discerning
those situations in which the Establishment Clause has been
transgressed by some government involvement with matters of religion.
Committee for Public Education & Religious Liberty v. Nyquist, supra,
413 U.S. at 761 n.5.  Nevertheless, "there has been general agreement
upon the applicable principles and upon the framework of analysis"
(ibid.).  That general framework has been articulated in the form of a
three-pronged test, which requires that a challenged governmental
statute or action (1) "must have a secular legislative purpose";  (2)
must have a "principal or primary effect * * * that neither advances
nor inhibits religion";  and (3) "must not foster 'an excessive
government entanglement with religion.'" Lemon v. Kurtzman, supra, 403
U.S. at 612-613.  The Court has found it "well to emphasize, however
that the tests must not be viewed as setting the precise limits to the
necessary constitutional inquiry, but serve only as guidelines with
which to identify instances in which the objectives of the
Establishment Clause have been impaired." Meek v. Pittenger, 421 U.S.
349, 358-359 (1975).

   The wisdom of the Court's admonition concerning the limitations of
the three-pronged Lemon test is borne out by this case, which seems
ill-suited to such an analysis.  The test, after all, is merely a
device by which the Court seeks to divine the intended meaning and
scope of the Establishment Clause.  Here, that frequently useful
device is simply not needed, because the intended meaning and scope of
the Establishment Clause, insofar as the question presented by this
case is concerned, emerges quite clearly from the history surrounding
its development.  This case does not involve the more typical
situation in which a modern-day state law must be tested against the
evils that the Establishment Clause was designed to eradicate.  See,
e.g., Lemon V. Kurtzman, supra.  Rather, this case involves a unique
situation in which the challenged state practice is one that was
engaged in by the Framers themselves -- before, during and after the
fashioning and ratification of the First Amendment.

   In these circumstances, analysis of the legislative chaplaincy
practice under the Lemon test seems pointless.  /15/ The historical
analysis above should alone suffice to demonstrate that the Nebraska
chaplaincy does not run afoul of the constitutional command against
"an establishment of religion." Nevertheless, a review of the
legislative chaplaincy under the three-part Lemon test confirms that
the Nebraska practice challenged in this case is constitutionally
permissible.

   1. Secular Legislative Purpose.  The district court, based on the
testimony and evidence presented at trial, found that the Nebraska
chaplain's opening invocation does indeed serve a secular legislative
purpose:  "bringing the legislators to order by means of a brief,
solemn and thoughtful act in a traditional manner" (Pet. App. 13).
See Tr. 96, 111-113, 121-123.  While acknowledging that the chaplain's
opening prayers may well have "a religious purpose for the chaplain
and those who choose to listen for spiritual reasons," the trial court
emphasized that "(t)he prayers also have a secular purpose, and it is
genuine enough and strong enough to meet the constitutional
measurement" (Pet. App. 14).

   A similar view of opening prayers at legislative sessions was
endorsed by the Supreme Judicial Court of Massachusetts in Colo v.
Treasurer & Receiver General, supra.  The court analyzed the
Massachusetts legislature's chaplaincy practice under the
three-pronged Lemon test and held with respect to the first prong now
under discussion that "(t)he secular purposes of opening invocations
are the maintenance of long tradition and the continuation of a ritual
which prompts legislators to reflect on the gravity and solemnity of
their responsibilities and of the acts they are about to perform" (392
N.E.2d at 1200).

   The Eighth Circuit, too, expressed a similar sentiment with regard
to the invocation at county board meetings challenged in Bogen v.
Doty, 598 F.2d 1110 (1979).  There, the court of appeals acknowledged
the "clearly secular purpose" of "establishing a solemn atmosphere and
serious tone for the board meetings" (id. at 1113).  The court further
observed that "(t)here is certainly nothing sinister in that purpose,"
and it could not "say that a prayer will not advance that goal" (id.
at 1113-1114).

   In this case, however, the Eighth Circuit rejected the legitimacy
of such a secular legislative purpose, concluding that the purpose of
the Nebraska practice "must be to advance and give preference to one
religious view over others" (Pet. App. 36).  The court offered nothing
but conjecture to justify its conclusion, asserting that "(t)here is
little other reason for singling out one minister of one denomination
for such an extended period of time * * *" (ibid.).  It is clear,
however, that the court of appeals' unsupported assumption cannot
withstand reasoned analysis.

   The retention of a single minister for a long period of time has no
bearing on the legitimacy of the secular legislative purpose of
opening each legislative session with a prayer.  As explained in the
testimony of State Senator Frank Lewis, Chairman of the Executive
Board of the Legislative Council of the Nebraska Unicameral (Tr. 123;
emphasis added):

         Dr. Palmer (the Chaplain) has had the job.  He's done it in a
      very satisfactory way.  Dr. Palmer is a personal friend, I
      think, of most of us.  I certainly include him as one of my
      personal friends.  You know, I don't see the necessity for
      changing.  And particularly the necessity would only come if
      anybody thought that there was an attempt to inject some kind of
      a religious dogma into that area, which I have not seen.

   The key point, as recognized by Senator Lewis and by the district
court, is that the chaplain's secular function in opening the day's
proceedings with an invocation has nothing to do with any particular
"religious dogma." The chaplain does not appear as the representative
of any particular church (Tr. 83).  The chaplain has testified that he
"never, never should, never would, never will, never have infused
(his) particular religious convictions into the minds of the Senators"
(Dep. 14).  /16/ His prayers are strictly nondenominational in
character and content (Dep. 5, 7, 17-18, 35).

   Thus, the fact that a single minister of a single denomination has
served as the legislature's chaplain for many years is simply not
relevant to the performance of his secular purpose in bringing the
session to order and establishing the proper tone and atmosphere for
the day's proceedings.  Indeed, the legislature's apparent lack of
concern over the particular denomination of its chaplain actually
serves to reinforce -- not to detract from -- the chaplain's secular
legislative purpose.  /17/

   2. Principal or Primary Effect.  The district court also found "as
a matter of fact" that "(t)he primary effect of the prayers * * * is
neither to advance nor to inhibit religion.  * * * The having of
prayers in the legislature of Nebraska does not have a direct and
immediate effect of advancing or inhibiting religion" (Pet. App. 14).
Rather, "the effect of the practice of an invocation * * * is in fact
primarily secular" (ibid.).  Whether relying "upon the opinions of the
witnesses in this case as to the actual effect, or, on the other hand,
upon evidence of the nature of the practice and my view of the
probable consequences rationally to flow from that nature," the trial
court's finding remains the same -- the Nebraska chaplain's opening
invocation does not have the primary effect of advancing or inhibiting
religion (Pet. App. 15).

   The district court found this case readily distinguishable from the
"school prayer" cases, which involved impressionable young students
whose attendance at public school was compulsory (Pet. App. 16-17).
See Abington School District v. Schempp, supra;  Engel v. Vitale,
supra.  As explained in Colo v. Treasurer & Receiver General, supra,
392 N.E.2d at 1200:

      By contrast, mature legislators may reasonably be assumed to
      have fully formed their own religious beliefs or nonbeliefs.
      The provision of a ceremonial moment of meditation at the
      opening of the legislative session is unlikely to advance
      religious belief either among the legislators or their
      constituency, even if it does give recognition to the
      traditional place that prayer has occupied in such a ritual for
      two centuries.

   The observation of Justice Brennan in his concurring opinion in
Abington (374 U.S. at 299-300) is also instructive in this regard:
"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." On the facts of this case,
the trial court found that respondent Chambers "has had only minor
inconvenience in absenting himself and has suffered no significant
obloquy as a result of his nonattendance" (Pet. App. 17).  /18/

   The Eighth Circuit, in Bogen v. Doty, supra, 598 F.2d at 1114, held
that the primary effect of the opening prayer at the county board
meeting was merely "the accomplishment of the board's purpose of
establishing order and a solemn tone for the meeting." The court of
appeals then stated the proposition more broadly, as a general rule:
"we suggest that establishing solemnity is the primary effect of all
invocations at gatherings of persons with differing views on religion"
(ibid.).  In this case, however, the appellate court abandoned that
general rule, ignored the factual findings of the trial court, and
concluded without any factual support that the Nebraska chaplaincy
practice has a primary effect of advancing religion and giving
"preference to one religious view" (Pet. App. 36-37).

   Our analysis of the court of appeals' error regarding the secular
legislative purpose of the opening prayer is equally applicable here
with regard to the primary effect of that prayer.  Again, the court's
unsupported assumption cannot survive logical scrutiny.

   As discussed above, the opening prayers are strictly
nondenominational (Dep. 5, 7, 17-18, 35);  they typically last only
one or two minutes and do not teach "religious dogma" (Tr. 11, 102,
123).  The chaplain does not appear as a representative of any
particular church (Tr. 83), and he does not instill his own
"particular religious convictions into the minds of the Senators"
(Dep. 14).  Moreover, the chaplain's compensation is paid directly to
him and not to any church (Dep. 4;  Tr. 82), and he uses it as he
would any other money that he might receive (Tr. 82).  No legislator
has ever even joined the chaplain's church as a result of his morning
invocations (Dep. 49).

   In sum, the opening prayers may well acknowledge religion, but they
do not advance religion (Tr. 105-106).  Rather, their primary effect
is simply to accomplish the secular purpose of bringing the
legislature to order in a ceremonial and traditional manner that
fosters a suitably solemn atmosphere for the conduct of important
legislative business (Tr. 96, 111-113, 121-123).  It is of no
constitutional consequence that the opening prayers might be perceived
by some observers to aid religion in a general way (see Tr. 20, 107),
for "an indirect and incidental effect beneficial to religious
institutions has never been thought a sufficient defect to warrant the
invalidation of a state law." Committee for Public Education &
Religious Liberty v. Nyquist, supra, 413 U.S. at 775.  See also, e.g.,
McGowan v. Maryland, supra (Sunday Closing Laws sustained even though
they foster respect for religiuos observances and facilitate
attendance at church);  Walz v. Tax Commissioner, supra (church
property tax exemptions sustained notwithstanding obvious financial
benefit to religious organizations);  Everson v. Board of Education,
supra (reimbursement for children's bus fares sustained despite
indirect aid to church schools).  /19/

   3. Excessive Entanglement.  With respect to the third prong of the
Lemon test, the district court held that "the saying of the prayers
alone entangles the state in religious affairs only nominally.  The
entanglement is not excessive" (Pet. App. 18).  The trial record
reflects that the chaplain's invocations are brief (Tr. 11, 102) and
that the Legislature exercises no control or influence whatsoever over
their content (Tr. 65-69;  Dep. 4).  Furthermore, the process for
appointing a chaplain is the same as for other legislative officers
and is usually a matter of no particular concern (Tr. 115-117,
120-121).  Only once, so far as the record reflects, was there any
dispute or debate over the selection of a chaplain, and some of that
debate was generated by the objections of respondent Chambers himself
(Tr. 29-30, 83-85, 117-120).  /20/ In any event, the matter was
quickly resolved by vote on the Senate floor;  Senator Chambers'
objections were rejected and Chaplain Palmer was retained (Tr. 120).

   Thus, the observations of the Supreme Judicial Court of
Massachusetts in Colo are equally applicable here (392 N.E.2d at
1200-1201, quoting Lemon v. Kurtzman, supra, 403 U.S. at 622):

         There is no evidence that a great degree of government
      entanglement with religion is occasioned by the employment of
      legislative chaplains.  The prayers offered are brief, the
      content unsupervised by the State, and attendance completely
      voluntary.  There is no evidence that the State has become
      embroiled in any difficult decisions about which religions are
      to be represented or what sorts of invocations are to be
      offered.  /21/ As far as the record reveals, there is not the
      slightest hint that the practice of employing legislative
      chaplains has ever created any of the political divisiveness
      which "was one of the principal evils against which the First
      Amendment was intended to protect."

   Nevertheless, the Eighth Circuit again summarily rejected the
district court's conclusion and announced that the Nebraska chaplaincy
practice "engenders serious political division along religious lines.
The result is the type of excessive entanglement which must be avoided
under the First Amendment (Pet. App. 37).  The main reason for the
court of appeals' conclusion on excessive entanglement appears to be
the use of "state monies to compensate the same minister for sixteen
years" (ibid.).  We have already answered the appellate court's
mistaken views on lengthy tenure and denominational variety (see pages
16-18, 24-25, supra), and we will now address the question of
compensation.  /22/

   There is no inherent constitutional prohibition against government
payments to religious figures or institutions.  As explained by
Justice Blackmun in his plurality opinion announcing the judgment of
the Court in Roemer v. Board of Public Works, 426 U.S. 736, 746
(1976):

      It long has been established, for example, that the State may
      send a cleric, indeed even a clerical order, to perform a wholly
      secular task.  In Bradfield v. Roberts, 175 U.S. 291 (1899), the
      Court upheld the extension of public aid to a corporation which,
      although composed entirely of members of a Roman Catholic
      sisterhood acting "under the auspices of said church," id., at
      297, was limited by its corporate charter to the secular purpose
      of operating a charitable hospital.

   Thus, in Justice Blackmun's words, "Bradfield despels any notion
that a religious person can never be in the State's pay for a secular
purpose" (426 U.S. at 746;  footnote omitted) (plurality opinion).
Here, the State of Nebraska is merely paying a salary to one of its
public officers -- the Chaplain of the Nebraska Legislature.  Once it
is determined -- as the district court found and as we have shown --
that the chaplain's pay is for the performance of a predominantly
secular function, there can be no constitutional objection to that
payment any more than one could object to similar payments to the
legislature's clerk or sergeant-at-arms.

   Moreover, even if a reasonable objection could be raised to a paid
legislative chaplaincy if it were a novel concept, the fact is that
paid chaplaincies have been in the legislatures of this country from
the very beginning -- and in the Nebraska Legislature since statehood
was achieved in 1867 (Pet. App. 11).  It is certainly true, as this
Court stated in Walz v. Tax Commission, supra, 397 U.S. at 678, 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." But, by the same
token, "an unbroken practice" of paid legislative chaplaincies "is not
something to be lightly cast aside" (ibid.).

   In Walz, the Court found that the 200-year history of church
property tax exemptions showed that such exemptions were not regarded
as violative of the Constitution and that no threat to religious
liberty had been posed.  The Court's observations in Walz are equally
applicable here.  The two-century history of paid legislative
chaplaincies in this country has not "given the remotest sign of
leading to an established church or religion" (397 U.S. at 678).  Nor
is it plausible to suggest that paid legislative chaplaincies are "but
the 'foot in the door' or the 'nose of the camel in the tent' leading
to an established church" (ibid.).  If paid legislative chaplaincies
"can be seen as this first step toward 'establishment' of religion, *
* * the second step has been long in coming.  Any move that
realistically 'establishes' a church or tends to do so can be dealt
with 'while this Court sits'" (ibid.).

   Thus, the Nebraska Legislature's chaplaincy practice does not
involve any excessive government entanglement with religion.  The
Establishment Clause simply does not require "complete obliteration of
all vestiges of religious tradition from our public life." Colo v.
Treasurer & Receiver General, supra, 392 N.E.2d at 1201.  Rather, the
courts, in grappling with the difficult and sensitive constitutional
questions in this area, must demonstrate "the ability and willingness
to distinguish between real threat and mere shadow." Abington School
District v. Schempp, supra, 374 U.S. at 308 (Goldberg, J.,
concurring).  This Nation's experience with paid legislative
chaplaincies over the past 200 years confirms that the practice
certainly poses no "real threat" to religious liberty and is, at most,
a "mere shadow" of a threat in the eyes of few beholders -- a shadow
that entirely fades away in the light of history.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   KATHRYN A. OBERLY

      Assistant to the Solicitor General

   LEONARD SCHAITMAN

   MICHAEL JAY SINGER

      Attorneys

   DECEMBER 1982

   /1/ With regard to the question of standing to challenge a
legislative chaplaincy, we note that the courts below held that
respondent Chambers had standing to challenge the Nebraska practice
not merely as a state taxpayer but as a member of the State
Legislature who personally confronts the morning invocation on a daily
basis (Pet. App. 22 n.3, 23-24 n.14, 28-29).  This circumstance
distinguishes the standing issue in this case, which petitioners do
not press in this Court, from the federal taxpayer standing issue
involved in Murray v. Buchanan, supra.

   /2/ The First Amendment provides in pertinent part that "Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof * * *." Those provisions have
been made applicable to the states by incorporation into the Due
Process Clause of the Fourteenth Amendment.  See, e.g., Cantwell v.
Connecticut, 310 U.S. 296, 303 (1940).

   /3/ Thus, the lesson of history in this case is even clearer than
in Walz, where the Court carefully considered and placed substantial
emphasis on the lengthy history of tax exemptions for places of
worship.  See 397 U.S. at 676-680.  The earliest federal taxing
statute cited in Walz that could be regarded as incorporating a tax
exemption for church property was enacted by Congress in 1798 -- seven
years after the ratification of the First Amendment.  See 397 U.S. at
677 n.5.  In contrast, the United States Congress' practice of
appointing and compensating its legislative chaplains for the purpose
of delivering opening prayers began in the First Congress, continued
during the framing of the First Amendment, and remained intact after
the First Amendment's adoption in 1791.  See A. Stokes & L. Pfeffer,
Church and State in the United States 83-84, 478-482 (Harper & Rowe
rev. 1st ed. 1964).

   /4/ See Journal of the Proceedings of the General Assembly of the
State of Vermont 7, 63 (Feb. 23 & Mar. 9, 1784);  Journal of the House
of Representatives of the Commonwealth of Massachusetts 350 (Mar. 14,
1785);  Journals of the Proceedings of the Senate and House of
Representatives of the State of New Hampshire 66, 100 (Feb. 19 & 23,
1785).

   /5/ By letter of September 16, 1774, John Adams described this
event to Abigail Adams in the following manner:

         When the Congress first met, Mr. Cushing made a Motion, that
      it should be opened with Prayer.  It was opposed by Mr. Jay of
      N. York and Mr. Rutledge of South Carolina, because we were so
      divided in religious Sentiments, some Episcopalians, some
      Quakers, some anabaptists, some Presbyterians, and some
      Congregationalists, so that We could not join in the same Act of
      Worship.  Mr. S. Adams arose and said 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.

   Letter from John Adams to Abigail Adams (Sept. 16, 1774) reprinted
in P. Smith, 1 Letters of Delegates to Congress, 1774-1789, at 74
(1976).  See also H.R. Rep. No. 124, 33d Cong., 1st Sess. 2 (1854)
(Mr. Webster's account).

   /6/ At the Federal Constitutional Convention, Benjamin Franklin had
proposed that each day's session be opened with prayer.  His motion
was made on June 28, 1787, more than a month after the convention
began, and no action was taken on it.  See 5 J. Elliot, Debates on the
Adoption of the Federal Constitution 253-255 (2d ed. 1836) (1st ed.
1830).  Among other things, the delegates were concerned about lack of
funds for a chaplain's pay and the fact that institution of a prayer
practice at that late date might highlight the absence of prayers at
the prior sessions.  Ibid.; see also, A. Stokes & L. Pfeffer, supra,
at 84.  It should also be noted that at least six ratifying
conventions (Massachusetts, Connecticut, New Jersey, New York, Rhode
Island, and Virginia) elected chaplains as officers or had visiting
ministers deliver opening prayers.  See Debates, Resolutions and Other
Proceedings of the Convention of the Commonwealth of Massachusetts 24
(Jan. 9, 1788);  2 J. Elliot, supra, at 2;  Litchfield Monitor (Conn.)
5 (Jan. 14, 1788);  Pennsylvania Packet (Dec. 15, 1787);  New Jersey
Minutes of the Convention 7 (Dec. 13, 1787);  Journal of the
Convention of New York 7 (June 17, 1788);  W. Staples, Rhode Island in
the Continental Congress, 1765-1790, at 668, 670, 674 (1971);  Debates
and Other Proceedings of the Convention of Virginia 13 (June 2, 1788);
 3 J. Elliot, supra, at 1.  The Virginia Convention compensated its
appointed chaplain for his services.  Debates and Other Proceedings of
the Convention of Virginia, supra, at 470;  3 J. Elliot, supra, at
657.

   /7/ See, e.g., Everson v. Board of Education, supra, 330 U.S. at
13;  id. at 28, 31-43 (Rutledge, J., dissenting).

   /8/ Madison apparently changed his mind on the chaplaincy question
in later years.  In his letter of July 10, 1822, to Edward Livingston,
Madison indicated that he did not approve of the practice.  See 9
Writings of James Madison 100 (G. Hunt ed. 1910).  And in his
"Detached Memoranda," Madison elaborated further on his objections.
See L. Pfeffer, Church State and Freedon 248-249 (Beacon Press rev.
ed. 1967), quoting E. Fleet, Madison's "Detached Memoranda," III
William and Mary Quarterly 558-559 (1946).  These objections, however,
came more than three decades after the First Congress appointed its
chaplains in 1789 and the states ratified the First Amendment in 1791.
 They do not reflect Madison's beliefs while serving in the First
Congress.

   /9/ Two matters warrant mention in this regard.  First, for a brief
time during the 1850's, both Houses of Congress temporarily abandoned
the practice of electing regular chaplains and instead invited local
clergymen to officiate on a rotating basis.  See Cong. Globe, 35th
Cong., 1st Sess. 14, 28 (1857).  Dissatisfaction with this procedure,
however, soon led to a return to the annual appointment of chaplains
as officers of each House.  See Cong. Globe, 36th Cong., 1st Sess.
97-98, 162 (1859);  id. at 1016 (1860).

   Second, although the Senate and House have always selected their
own chaplains, the original agreement between the Houses contemplated
that each House's chaplain would be of a different denomination and
would be exchanged on a weekly basis with the other House.  See 1
Senate J. 12;  1 House J. 16.  This practice was abandoned in 1856,
when the House elected a chaplain without making any provision for
weekly rotation.  See Cong. Globe, 34th Cong., 1st Sess. 486 (1856).
Since that time, each House of Congress has elected its own chaplain
without reference to the other House.  As it happens, however, the two
Houses have continued to elect chaplains of different denominations.
Compare Chaplains of the United States Senate, April 25, 1789 to Date
(December 8, 1982), on file in the Office of the United States Senate
Historian, with History of the United States House of Representatives,
H.R. Doc. No. 250, 89th Cong., 1st Sess. 212 (1965).  (We have lodged
a copy of these documents with the Clerk of this Court.)

   /10/ See Rostker v. Goldberg, 453 U.S. 57, 64 (1981) ("The
customary deference accorded the judgments of Congress is certainly
appropriate when, as here, Congress specifically considered the
question of the Act's constitutionality.")

   /11/ The court of appeals also objected to the state legislature's
publication of prayer books (Pet. App. 36, 38), which occurred only in
the years 1975, 1978 and 1979 (Pet. App. 8).  As pointed out by
petitioners, however, the district court's injunction against the
prayer book practice was not appealed and was therefore not before the
court of appeals (Pet. 22-23).  See note 22, infra.  In any event, we
note that Congress has also occasionally ordered the publication of
its chaplains' prayers.  See A. Stokes & L. Pfeffer, supra, at 478.

   /12/ We note that the court of appeals' statement that the Nebraska
chaplain has been the "exclusive source" (Pet. App. 38) of the opening
prayers is factually correct.  The Nebraska Legislature, like the
United States Congress, has on occasion invited other ministers of
different denominations and faiths to officiate at the opening prayer
(see Pet. App. 20).

   /13/ "Tr." refers to pages of the transcript of testimony at the
trial held in this case on December 1, 1980.

   /14/ See also, Abington School District v. Schempp, 374 U.S. 203,
213 (1963) (Court speaks approvingly of evidence of recognition of God
in public life, including the fact that "each House of the Congress
provides through its Chaplain an opening prayer");  Engel v. Vitale,
370 U.S. 421, 435 n.21 (1962) (Court speaks approvingly of "patriotic
or ceremonial occasions" where "there are many manifestations in our
public life of belief in God").

   Individual Justices of this Court have expressed similar views in
separate concurring or dissenting opinions.  See Abington School
District v. Schempp, supra, 374 U.S.AT 299-300 (footnote omitted)
(Brennan, J., concurring) ("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");  Engel v. Vitale,
supra, 370 U.S. at 446-450 (Stewart, J., dissenting) (recounts with
approval the many religious traditions remaining in government,
including the congressional chaplaincies);  Illinois ex rel. McCollum
v. Board of Education, 333 U.S. 203, 253-254 (1948) (Reed, J.,
dissenting) (cites examples of permissible federal involvement with
religion, including the daily invocations by the congressional
chaplains).  But see Engel v. Vitale, supra, 370 U.S. at 437-444
(Douglas, J., concurring) (advocates a rule of virtually absolute and
total separation of church and state).  Other federal and state courts
have also dealt with various public recognitions of God and have found
them constitutionally unobjectionable.  See, e.g., Bogen v. Doty, 598
F.2d 1110 (8th Cir. 1979) (opening prayer by local clergymen at county
board meetings);  Aronow v. United States, 432 F.2d 242 (9th Cir.
1970) ("In God We Trust" motto on federal currency);  O'Hair v. Cooke,
Civil Action No. A-77-CA-236 (W.D. Tex. filed Jan. 29, 1980) (opening
invocation by local clergyman at city council meetings), aff'd mem.
638 F.2d 1231 (5th Cir.), cert. denied, 454 U.S. 824 (1981) (petition
also raised issue of Fifth Circuit court crier's reference to Deity at
public court hearing);  Grossberg v. Deusebio, 380 F. Supp. 285 (E.D.
Va. 1974) (invocation at public high school graduation);  Marsa v.
Wernik, 86 N.J. 232, 430 A.2d 888 (1981) (opening invocation at
borough council meetings);  Wiest v. Mt. Lebanon School District, 457
Pa. 166, 320 A.2d 362 (1974) (same);  Lincoln v. Page, 109 N.H. 30,
241 A.2d 799 (1968) (opening invocation by clergyman at town meeting).
 Of particular relevance to this case is the decision by the Supreme
Judicial Court of Massachusetts in Colo v. Treasurer & Receiver
General, 392 N.E.2d 1195 (1979), upholding the constitutionality of
the legislative chaplaincies of the state Senate and House of
Representatives.

   /15/ As the court recently stated when applying the four-part test
to determine whether an implied cause of action has been created by a
particular statute, "there is no need for us to 'trudge through all
four of the factors when the dispositive question of legislative
intent has been resolved.'" Merill Lynch, Pierce, Fenner & Smith, Inc.
v. Curran, No. 80-203 (May 3, 1982), slip op. 34, citing California v.
Sierra Club, 451 U.S. 287, 302 (1981) (Rehnquist, J., concurring in
the judgment).  Similarly, the Court's decision just last Term in
Larson v. Valente, No. 80-1666 (Apr. 21, 1982), indicates that the
Lemon test need not be applied in all Establishment Clause contexts.
Larson involved a Minnesota statute granting preferential treatment to
the well-established churches that receive more than half of their
charitable contributions from their members.  Other, less entrenched
religious organizations were to be subjected to various registration
and reporting requirements.  In striking down the statute, the Court
announced that "application of the Lemon tests is not necessary to
disposition of the case before us" (slip op. 23).  Although the issue
presented by this case, in which legislators merely vote their
personal preference for the Office of Chaplain, in no way resembles
the statutory classification of different religions challenged in
Larson and is therefore not subject to the same kind of Establishment
Clause analysis applied by the Court in that case, Larson is at least
relevant to show that the Court will not slavishly adhere to the
three-part test and will apply a different mode of analysis where
appropriate.  In this case, as indicated above, an historical analysis
not only is more appropriate but is also determinative.  There is no
need here to "trudge through" the three parts of the Lemon test.

   /16/ "Dep." refers to pages of the deposition testimony of the
Reverend Robert E. Palmer, Chaplain of the Nebraska Unicameral, taken
on May 27, 1980, and admitted into evidence at trial as Exhibit No. 5
(Tr. 1).

   /17/ We note that the Massachusetts chaplaincy practice upheld in
Colo v. Treasurer & Receiver General, supra, involved two Roman
Catholic chaplains who had served in the state House and Senate for 24
years and 20 years, respectively.  See 392 N.E.2d at 1196.  It will
also be recalled, as mentioned earlier, that the first eight chaplains
of the United States Senate -- serving over a period of 18 years --
were all Episcopalians, and that several individual congressional
chaplains have served quite lengthy terms -- one as long as 29 years.
See page 16, supra.  The fact that the early practice of the United
States Congress was to appoint a chaplain of a different denomination
in each House and interchange them weekly does not undercut our
analysis here.  It may well be that the Founding Fathers, only
recently out from under the established Church of England, desired to
avoid the appearance of establishing a single denomination in the
Houses of Congress.  But any such concern that might have existed at
that time rapidly dissipated over the years as the secular,
nondenominational purpose of the opening prayer in Congress became the
predominant feature.  There was no longer any reason to dwell on the
particular denomination of the chaplain, and the practice of
interchanging chaplains of different denominations was understandably
abandoned.  In any event, as this Court made clear in McGowan v.
Maryland, 366 U.S. 420, 431-449 (1961), an original religious purpose
does not invalidate governmental action if the modern purpose has
become predominantly secular.  See also, Walz v. Tax Commission,
supra, 397 U.S. at 687 n.8 (Brennan J., concurring).

   /18/ Respondent Chambers' testimony at trial discloses that he
routinely leaves the legislative chamber without incident prior to the
chaplain's invocation (Tr. 4, 11, 32).  It is worth noting, for
purposes of comparison, that it is established precedent in the United
States House of Representatives that the chaplain's opening prayer,
although a part of the House proceedings, is not a matter of business
requiring the presence of a quorum, and attendance "is not
compulsory." 60 Cong. Rec. 2592 (1921).  See 6 C. Cannon, Precedents
of the House of Representatives Section 663 (1936).  The 1853 Senate
Report previously discussed made the same point (S. Rep. No. 376,
supra, at 2):

      There is no compulsion exercised or attempted, upon any member
      or officer of either house, to attend their prayers or religious
      solemnities.  No member gains any advantage over another by
      attending, or incurs any penalty or loses any advantage by
      declining to attend.

   /19/ The irrelevance of the fact that a single denomination has
been represented in the chaplaincy over a long period of time has
already been discussed and need not be repeated.  See pages 16-18,
24-25, supra.  The main point is that the invocations are
nondenominational;  there is thus no reason for the Nebraska
Legislature to show concern for denominational variety in selecting
its chaplain.

   /20/ The only "divisiveness" over the chaplaincy suggested by the
record is that respondent Chambers is opposed to that legislative
office and has raised his objections through general public
announcement (Tr. 6-7, 77), through parliamentary maneuvers (Tr. 7,
119-120), and through this lawsuit (Tr. 4-36).  Apart from Senator
Chambers' objections, the record reflects only that the chaplain
indirectly heard that one senator objected to the explicit Christian
tone of a prayer offered by a guest chaplain (Tr. 77).

   /21/ As we have demonstrated, the chaplain's formal religious
affiliation is irrelevant to fulfillment of his secular duties.  Under
these circumstances, the sort of excessive concern for denominational
variety displayed by the court of appeals is, we suggest, far more
likely to lead to impermissible governmental entanglement with
religion than the current practice of retaining one chaplain, of
whatever denomination, for as long as he properly performs his duties
(see page 24, supra).  Any requirement for periodic denominational
changes, for example, would likely involve the legislature in such
matters as interviewing various candidates about their religious
beliefs or examining the content of their prayers.  No such
difficulties are engendered by the current practice.

   /22/ Although the district court, unlike the court of appeals,
treated the salary question as an entirely separate matter, its
opinion reflects agreement with the Eighth Circuit's view that payment
of compensation to the chaplain is impermissible under the
circumstances of this case (Pet. App. 18-21).  The district court,
however, held that the other elements of the Nebraska chaplaincy
practice are constitutionally permissible under the three-part test,
whereas the Eighth Circuit held that all elements of the practice,
"taken as a whole," are unconstitutional (Pet. App. 37).  We note our
disagreement with the court of appeals' indivisible approach to the
issues presented.  Although the various elements of the chaplaincy
practice are obviously related, it makes no sense to hold that the
entire practice must fail if, for example, the printing of prayer
books is thought to be constitutionally infirm.  In any event, as
previously noted (see note 11, supra), Nebraska did not appeal the
district court's injunction against the printing of prayer books.
Thus, the court of appeals surely erred when it included as part of
the practice "taken as a whole" a feature no longer in issue.