Earl Warren: Mr. Davis you may continue.
Oscar H. Davis: Mr. Chief Justice may it please the Court. In deciding whether petitioner is the type of party member who was deportable under the 1952 provisions of the Immigration Act, I think we and the Court have to bear in mind that this was not a new statute. That it was a combination of the statutes which had began in 1917 and that was a long history of -- of judicial and administrative interpretation of that statute and that this Court itself has passed upon that issue in various cases. Going to this Court's decision in the Harisiades case, that case involved three different people, Harisiades, a Mrs. Coleman and the Mr. Mascitti. The record of relationship to Mrs. Coleman which is summarized by Justice Jackson in his opinion for the Court and which is of course more fully set forth in the -- in the record before the Court indicates that she was a rank and file member with far less if you want to call it activity than the petitioner in this case. When you get to the Galvan case, he had no more activity, no more what you might call awareness of the theoretical underpinnings of the Communist Party than the Petitioner in this case. The fact is, that the statute and its predecessors have not been interpreted judicially and certainly not by Congress nor administratively from 1917 on to require any knowledge of what you might call Communist Party theory, Marxism-Leninism. This deportation statute of course is what I'm talking about. Rather, Congress has been -- has been trying to deport people who were party members in the ordinary sense who were active in the party and the day to day work of the party who were the doers of the party as were whether they were Theoreticians or not. Galvan was not a Theoretician, Mrs. Coleman and Mascitti in the Harisiades cases were not the theoreticians. Mrs. Coleman didn't purported not even to know who Joseph Stalin was. “He is a Russian”, she said. “Is he a Russian?” And the answered to the question, “Do you who Joseph Stalin is?” The important thing as far as Congress has been concerned, as far as this Court is concerned, why is that person, a member of the Communist Party, as distinguished from some other organization. And was he or she a member of the Communist Party in the ordinary sense in which somebody is a member of the party, knowing that it is a party and that of course, we believe is what -- what petitioner did here.
Speaker: How many people have been deported under this statute overall, do you know?
Oscar H. Davis: It's hard for me to know all the figures Mr. Justice Harlan, but between 1920 and 1950 there were 200 we know that. I've only gotten the figures for the last three years for the years 1955 to 1959, the fiscal years, 42 were deported. They are now pending 246 cases administratively and 16 are in the courts, so that 42 were actually deported. The Court had in the Nestor case at the last session case of a man who was actually deported, There were 42 actually deported in the years 1955 to 1959. There are now pending 246 administrative cases and 16 cases in the courts.
Tom C. Clark: You mean a Communist Party membership deprive to determine the extra stay, is that what you're talking about?
Oscar H. Davis: Prior to the time this Act, yes. Yes, that's what I'm -- I'm talking about.
Tom C. Clark: That's what the figures you will give.
Oscar H. Davis: No, to figure -- the 200 figures were not that. The 200 figures include both the 200 from 1920 to 1950 include both present members and past members. That those figures --
Tom C. Clark: How are they divided?
Oscar H. Davis: I don't know that Mr. Justice Brennan.
Tom C. Clark: What was the Thirteenth?
Oscar H. Davis: Pardon me?
Tom C. Clark: What are your figure --
Oscar H. Davis: 42 or -- have -- were actually deported in the fiscal years 1955 to 1959.
Felix Frankfurter: You mean they were the 200 figure contends those who now were found to the communists at the time of the determinations were found to be members as against those who would comply to have had it.
Oscar H. Davis: Not exactly Mr. Justice Frankfurter.
Felix Frankfurter: Then (Inaudible)
Oscar H. Davis: Yes. As you know that until Kessler against Strecker was decided in 1939, the service believed that the statute applied to past people --
Felix Frankfurter: Yes.
Oscar H. Davis: -- past time as party membership. The 200 includes both those who were determined to have been members in the past and those who were determined to be members at the time the deportation proceeding was instituted. That 200 from 1920 to 1950 includes both categories but the later category that I gave afterwards includes only members who were in the past.
Felix Frankfurter: That's what I meant to ask.
Oscar H. Davis: Yes.
William J. Brennan, Jr.: So how many were --
Felix Frankfurter: -- only include those at the time of the deportation decision were found to be members, correct?
Oscar H. Davis: Which figure are you giving Mr. Justice?
Felix Frankfurter: The 240 includes both --
Oscar H. Davis: 200 -- 200 includes both.
Felix Frankfurter: Includes both those who at the time of the deportation determination were found to be members.
Oscar H. Davis: And also --
Felix Frankfurter: And whereas --
Oscar H. Davis: That's right.
Felix Frankfurter: -- those who have some previous one the --
Oscar H. Davis: Yes, and I have no breakdown on it.
Felix Frankfurter: All right.
Tom C. Clark: What (Inaudible)?
Oscar H. Davis: The 42 are people who have been actually deported in the four past fiscal years, 1955 to 1959 for past membership in the Communist Party. That is precisely the same as this petitioner.
Tom C. Clark: Have there been pending --
Oscar H. Davis: Pardon me?
Tom C. Clark: There are cases pending (Inaudible)
Oscar H. Davis: 246 are pending administratively. And 16 are in various courts.
Felix Frankfurter: I take it, we don't have to determine. We don't have to determine whether those deportations enhance the security (Inaudible)
Oscar H. Davis: No. If -- if I would have a chance to reargue the constitutional question I would of course say that that is the function as this Court has said of Congress and not of the Court. But the Court as I said in the Harisiades and the Galvan case as well as the lower courts have indicated that the type the -- the membership of this -- the type of membership which this petitioner had was sufficient for -- for purposes of the act and the lower courts have construed the statute both before the Rowoldt case an after the Rowoldt case. In our brief, we refer to several decisions of the Court of Appeals after the Rowoldt decision. And if the Court will read the opinions of those cases they will see that the type of that activity which those aliens engaged in was no different in substance or in some cases it was little more -- there was some case that was greater in point and some cases are less in point than they -- than this -- this petitioner here.
Earl Warren: What distinction do you make Mr. Davis between the Galvan case and the Rowoldt case on the facts?
Oscar H. Davis: The distinction I made Mr. Chief Justice is that in the Rowoldt case where the Court had only Rowoldt's own statements before them and nothing else; that it was not satisfied that Rowoldt joined the Communist Party has a party, as a political party. It wasn't satisfied that he hasn't joined it -- that he didn't join it solely for -- for -- to gain his own livelihood, as if he were a -- a method of obtaining a necessities of life. Now, that was not true of Galvan and it is not true of this petitioner here. This petitioner was an active party member. He was a -- a member of the executive board of his branch -- of the executive board of his branch, he went to this Plenum in -- in Aberdeen, Washington and on page 12 of the supplemental record, the witness Wilmot testifies went on at the Plenum in summary. And what went on was a discussion of the activities of the Communist Party particularly he say -- he said, “In relation to promoting the party in the lumber industry.” In other words, they were carrying on the activities which the Communist Party was carrying on as a party in that region at that time. To us it makes no difference whether petitioner here was a theoretician or understood Marxism-Leninism. Congress wanted to get those who were the supporters, the doers, the -- the active helpers as well as those who were might call the party theoreticians. In fact, when Congress passed the statute in 1940, which overruled Kessler against Strecker it didn't overrule, it changed the law which had been laid down in Kessler against Strecker. As the Court will remember Kessler and Strecker, the court held that until they said, Mr. Justice Roberts for the Court said, ‘Unless we are given a more specific indication by Congress, we will not hold that a man who has been a member of the Communist Party no matter how far in the past or for how shorter time will be portable under the statute and may held that the statute related only to present the membership in the party.” In 1940, Congress changed that and the -- and the committee reports are explicit. They say in obvious reference to the language of the Kessler against Strecker opinion that a person is deportable for no matter how for membership, for no matter how shorter time or how far in the past so long as it was after the date of entry. No matter how far in the past or how short the time and in the Harisiades case, the Court have reported three aliens one of whom left the party in 1929 and the other two in 1939. I might say that the leaving of the party in 1939 may have some other significance, we don't know because as the Court pointed out on the Harisiades case, the Communist Party at that time gave instructions after Kessler against Strecker had been decided, that all aliens were to leave the party so they would no longer be subject to deportation. And there been a large number of cases involving leaving the party in 1939. I think more cases involved that one year than any year that I'm familiar with and of course, this petitioner left the party according to the record in 1939. As I've indicated, it makes no difference how shorter time under a congressional mandate the man was a member of the party. And of course, as the Court has twice held upon the Harisiades and Galvan and I think quite correctly under the history and stretcher statute, it doesn't require any knowledge by the alien of the unlawful or objectives of the Communist Party that advocates the overthrow the Government by force and violence. Congress has been so insistent upon the deportation of present and past members of the Communist Party that in 1950, it refused to apply the suspension provisions to persons in this category at all. They were not suspendable at all. In 1952, in one of the perhaps few alleviating portions of the McCarran-Walter Act suspension was granted to people in this category. But Congress retained for itself the final say and it required a 10-year period of good conduct before it took a man to even be eligible to deportation. What I mean by that is this; Congress provided with respect to certain types of deportable aliens. That if the Attorney General certified that the man was -- should be -- should have his deportation suspended that went into effect unless one House of Congress affirmatively acted contrary to it. And in some cases, and most to those cases they provided only for a five-year period of good conduct to just doing of the act which require the deportation. But with regard to the so-called ‘subversive aliens“ including past members of the Communist Party, it required a 10 year period of good conduct and provided that there should be no suspension of deportation unless both Houses of Congress affirmatively vote to suspend the deportation otherwise, the statute says, the Attorney General shall deport the alien. So, Congress has been strict. It has been very severe and it has reserved to itself the alleviating, the merciful power.
Felix Frankfurter: Have you -- have you any figures as to the rejections by Congress as to suspension by the Attorney General?
Oscar H. Davis: No, Mr. Justice, but I can get them if -- if --
Felix Frankfurter: Well, I was just curious.
Oscar H. Davis: No, I don't have those. Of course, as was pointed out, the question of suspension is not here --
Felix Frankfurter: I understand --
Oscar H. Davis: -- because it was not raised in its present litigation.
Felix Frankfurter: -- just general interest for the problem.
Earl Warren: You know whether or not there have been any, I -- I have no knowledge on this thing.
Oscar H. Davis: I think there have been some but I -- I really cannot say whether they've been many or not.
Felix Frankfurter: Yes. But isn't too difficult, just as a matter of interest.
Oscar H. Davis: Yes, I --I will try it again. Now --
Felix Frankfurter: Don't take too much time it isn't worth it for me at least.
Oscar H. Davis: Petitioner lacks his own to a suggestion inaccurately stated I think by petitioner's counsel which the Government made in a totally different area in the Smith Act criminal prosecutions relating to criminal prosecution for knowing membership in the Communist Party. That of course is a totally different statute subject to different constitutional restrictions with the totally different background. I would not think that -- that in the light this -- the history of this statute going back as I say, at least till 1920, well documented is the Court has indicated on the Harisiades and in the Galvan cases that there would be any possibility of carrying over into this statute which after all is about the latest modification of a whole series, a position applicable to a new statute never before judicially or not as far as the Membership Clause is concerned, never before judicially construed by this Court and resting on an entirely different constitutional basis. In any case, I would say that I venture the judgment that the standard which the Government gave in the Scale case would be met by this petitioner who was active, who was active in the party discussions and I won't repeat the all the things that I've said, he was an active party member, he was not a merely normal member. He was not an unconscious or an artificial or accidental party member. If I might take --
Earl Warren: Only thing there Mr. Davis that bothers me is that as I understood you in this case there -- there is nothing to indicate what kind of party activities it was he was engaged in? Now, they did have some -- some economic activities to -- to secure employment and so forth and would you make any distinction if he had been able to establish that those were the only party activities that -- that he knew about or participated in?
Oscar H. Davis: If he were a regular member who attended close meetings every week as this man did, and who participated in general discussions of the Communist Party program in the city of Portland, I would not make a distinction that the only -- the only particular activities that he personally participated in might be only of -- of some kind of economic program. On the other hand, if that was all that he did, if he was not a regular member, this man was a regular, weekly attending meeting perhaps even more than weekly, we don't know that because the record isn't explicit, but we do know that he attended party meetings weekly. We do know that he -- he did go to this meeting in Aberdeen and that I -- I would like to qualify the answer I gave to you before lunch, Mr. Chief Justice, to refer to the statement of what went on at the Plenum in Aberdeen because there it does indicate more explicitly what kind of activities they carried on and one of them was relations promoting the party in the lumbering industry. Now, we know that what the Communist Party did then and what probably is doing now is an effort to infiltrate into various activities, economic, industrial activities in order to promote its program. And as the witness said here, this being a lumbering state, most of our activities were directed at that industry in that meeting and though record isn't explicit as to -- to what this man did with respect to that, he was participating in this meeting which was just set before the program and we think that's sufficient.
Earl Warren: Well, bearing on that same -- same thing Mr. Davis, I understood you to say there were -- there were -- you recognized two kinds of membership. One that doesn't carve against the man particularly because probably isn't -- it isn't a knowing membership in all of the activities, and the other is where he is really a member of the party. Now, in this case as I understand it, there are no definite, there is no definite evidence against him that he -- he participated in -- in what were subversive activities and what he did was not defined and on the question of his membership, it apparently wasn't such a very important membership because he was paying dues at the rate of 25 cents a week. That was the criteria for his being in the organization and when he failed to pay his 24 cents a week, they dropped him for non-payment of dues. Now, would that have any bearing on whether he was of one of the other types of membership?
Oscar H. Davis: No, Mr. Chief Justice. The membership this man had in the party was no different perhaps stronger than that of the Galvan case. There was no showing that Galvan have participated in subversive activities. There was no showing that Mrs. Coleman or Michitti in the -- of two or three in the Harisiades case participated in subversive activities.
Earl Warren: If I remember correctly in Galvan, Galvan was the Chairman of the educational committee of the party.
Oscar H. Davis: Of --of a particular little unit. And this -- this man is a -- was a member of the Executive Board of the same type of unit and more than that, he was a top fraction member who attended the -- this Plenum that I've been describing. But there was -- there this, in most of these cases --
Earl Warren: Now, is there -- is there testimony in here that he -- he is positively or was positively a top fraction member?
Oscar H. Davis: Yes.
Earl Warren: Where -- where do we find that?
Oscar H. Davis: 11 and 16 of the supplemental record.
Earl Warren: Supplemental.
Oscar H. Davis: The word -- the word top fraction is actually used on page 16.
Earl Warren: 16?
Oscar H. Davis: 16.
Earl Warren: Let's see. Who -- what witness is that?
Oscar H. Davis: This is Wilmot.
Earl Warren: Wilmot and what did he say?
Potter Stewart: Page 13, the word top fraction is used.
Oscar H. Davis: Yes, you are right Mr. Justice.
Earl Warren: Where -- where did --
Oscar H. Davis: First is on 13. This is still the witness Wilmot about the middle of the page and we're still talking about this --
Felix Frankfurter: At the middle of the page?
Oscar H. Davis: May I make the point clear if you want to know that these are the anointed people, when I show up there, Mr. Mackie, they knew who we were. Then is it your contention of Mr. Mackie wasn't an ordinary communist, but that he was one the big wheels, is that correct? He belonged to what we called “the top fraction”. Question, “He is one of the top fraction in the Communist Party? Answer, “With the exception of what related to the waterfront activity” and it's repeated on page 16.
Hugo L. Black: Any evidence here as to what this part of the top fraction, if he ever made a speech?
Oscar H. Davis: No, there's no evidence that he made a speech.
Hugo L. Black: Did the evidence -- did he ever discuss any terms?
Oscar H. Davis: Yes. There is evidence that he discussed, there is.
Hugo L. Black: Where is it –
Oscar H. Davis: what?
Hugo L. Black: What did he particularly discuss?
Oscar H. Davis: Oh! Except for the -- except for the discussion with relation to Aberdeen that is at the Plenum which is on page 12 there is no specific reference to what he discussed except to test party activities in that area.
Hugo L. Black: Now, would you -- is there any place in here whether you defined what this Plenum is? I understood what you said.
Oscar H. Davis: Yes. It -- it --
Hugo L. Black: Where is it defined? I want to see it.[Laugh] I'm curious about it like some of the other justices.
Oscar H. Davis: On page 8 in the middle. Did you ever -- did you ever attend any meetings communist party outside the city of Portland which Mr. Mackie attended. He attended one in Aberdeen. What kind of a meeting was this? It was they called the Plenum. It was merely the port work that was carried on, plenum are fullness literally, it was the port work that was carried on by people in the northwest and then, there is further discussion on pages 12 and 13 of what this plenum and 14 of what this plenum was about and who attended it.
Felix Frankfurter: Mr. Davis, before you go on, I shouldn't interrupt you, you traced a little while ago the history of the legislation from the beginning at page -- to the interest of labor and (Inaudible) myself in words, did I find that history in In or where would -- is there any confirmation that is the whole --
Oscar H. Davis: Well, it --
Felix Frankfurter: (Inaudible)
Oscar H. Davis: Well, but --
Felix Frankfurter: -- the answer probably is no.
Oscar H. Davis: Well, I think it not. I would say that it is in the Government's briefs in -- in the Harisiades and Galvan, and Rowoldt cases. On the reargument in Rowoldt, we reprinted a compilation of our briefs in Harisiades and Galvan. So, I think that from our point of view, an appropriate history is in this -- in our supplemental brief for the respondent on reargument in the Rowoldt case.
Felix Frankfurter: Thank you very much.
Oscar H. Davis: And it's also contained in -- in large part in -- in that opinion of Mr. Justice Jackson in Harisiades and in your opinion to the Court in the Galvan case.
Felix Frankfurter: And they rely on that?
Oscar H. Davis: Yes, yes. I think -- I think that it's both accurate and authority. On the -- on the issue of -- of constitutionality the Court of course, knows that the issue has been here with respect to this statute twice before, once in Harisiades case which involve the statute which different in only one particular. It was precisely the same as this except that the statute there did not refer names of the Communist Party but only to the -- to an organization advocating to overthrow the Government and that proof had been introduced on that subject, and it was not contested but in all other respects, the past membership, the type of membership and so forth, the -- the case was precisely the same. In the Carlson case Carlson against Landon, decided the same day on March 1952 as the Harisiades case, the Court upheld the statute, this statute, the one naming the Communist Party with relation to present membership in the Communist Party. That case involved present membership and the Court upheld the statute with relation to present membership in the Communist Party. In -- in the Galvan case, in 1954, the Court upheld this statute with relation to past membership in the Communist Party. In the Rowoldt case, the majority of the Court do not reach it, the dissenters reaffirmed the validity of the statute as there applied. In the Bonetti case, though case went off on a -- on a non-constitutional on a statutory ground, there is a statement in the opinion of the Court by Mr. Justice Whittaker that if Bonetti had been a member of the party after entry, he would have been deportable under Galvan against Press decision. Five petitions have been filed since the Rowoldt, five petitions for certiorari have been filed in this Court, raising a constitutional issue since Rowoldt and they have all been denied and that does include the present case. It does include the prior petition on behalf Niukkanen.
Felix Frankfurter: I suppose the temptation was too strong for you not to refer to those five denials. I thought -- I suppose the temptation is too strong not to refer?
Oscar H. Davis: Well --
Felix Frankfurter: Not at the certiorari even though there were five of them.
Oscar H. Davis: Perhaps --
Felix Frankfurter: It goes on to study your facts.
Oscar H. Davis: Yes. The only issue that I really have time to discuss again, I think, the only one that perhaps needs in this discussion is the issue of bill of attainder. I think, it is important to point out to the Court, two cases in which it was claimed that a Congressional Deportation Act was a bill of attainder or free cases. The first one was the Chinese -- the first Chinese Exclusion case which was upheld in 130 U.S. in the Chinese Exclusion case, Chae Chan Pan. The briefs in that case indicate that a strong argument was made that that statute was a bill of attainder. In the Fong Yue Ting case, which involved none exclusion of Chinese but deportation, the brief both of the eminent lawyers Joseph. H. Choate and Maxwell Evarts and Mr. Hubley Ashton both raised the issue of bill of attainder which was rejected by the Court on the ground which it has followed ever since -- ever since the deportation is not punishment and -- and therefore, the bill of attainder does not apply. It was raised in the --
Hugo L. Black: If it were punishment, would it be a bill of attainder?
Oscar H. Davis: If it were punishment, I think not. Because, I think a bill of -- of attainder relates to punishment for past conduct by Congress and I think that this is not punishment for past conduct, but a decision by Congress that this type of person is not someone whom the country wants to -- to maintain.
Hugo L. Black: Well, then it wouldn't be punishment --
Oscar H. Davis: Well --
Hugo L. Black: -- you argue. I ask you, does an alien of this kind have a right to invoke any of the constitutional provision than if they had?
Oscar H. Davis: Well, I think that as far as -- as sending him out of the country is concerned classes which Congress can determine for sending out that he does not have the right to invoke as is has been authoritavely determined the Due Process Clause, the Bill of Attainder Clause, the ex post facto clause.
Hugo L. Black: Outside of that, is an alien barred from claiming the benefits of the Due Process Clause?
Oscar H. Davis: No. An alien in the country is not barred with respect to the procedure in determining his deportability or in respect to his life while he still remains here.
Hugo L. Black: I suppose Congress could not -- under that pass of law which would take away the man's (Inaudible) without a trial even though he's an alien.
Oscar H. Davis: Yes. That is been held in the Wong Wing case one of the early Chinese cases where they --
Hugo L. Black: (Inaudible) liberty?
Oscar H. Davis: Pardon me?
Hugo L. Black: How could they --
Oscar H. Davis: -- that they could not -- they could not -- that is --
Hugo L. Black: Yes. That's right.
Oscar H. Davis: You said they could not and I said --
Hugo L. Black: Yes.
Oscar H. Davis: -- it's been held in Wong Wing. Where --
Hugo L. Black: Suppose the Government would provide that suits for civil damages against aliens that could not be tried by jury, could they do that?
Oscar H. Davis: No. I don't think they do -- could. But --
Hugo L. Black: (Inaudible) the jury trial.
Oscar H. Davis: That's right. But the Court has consistently maintained for 70 years that with respect to the -- to consistently, on many occasions with the respect to the classification of what type of alien shall be sent out of the country and deported that is the matter for Congress. It's been replied to people on racial ground, Chinese. It is been applied to people in offensive other that through sickness people who could --
Hugo L. Black: I think it's -- I'm -- I'm not -- I think that is correct, but that's why you have to get to -- to -- is that they have a right to send an alien off with or without a trial and with or without any proceedings if Congress decides to do so.
Oscar H. Davis: No. Mr. Justice, this Court does not said that they can do it without any procedures, or that they -- all that I'm talking about here is about what's involved (Voice Overlap) --
Hugo L. Black: So, what about the (Voice Overlap) --
Oscar H. Davis: It --
Hugo L. Black: What about (Inaudible)
Oscar H. Davis: That was a -- a special kind of case.
Hugo L. Black: What's said now?
Oscar H. Davis: Yes. But in certain cases they could do. They -- they hadn't said that all aliens can be deported without any procedure. I'm talking only about the one issue, which is the only issue here there was nor procedural issue here. No --
Hugo L. Black: When they raised on it but the bill of attainder.
Oscar H. Davis: No. But there's no issue as to the procedure in the -- in the deportation process. No constitutional issue about the procedure and -- in the deportation process.
Hugo L. Black: And just the bill of attainder is perhaps, it designed as much to protect people in the right, procedural rights of any other part of the country.
Oscar H. Davis: Well, yes, yes. Excepting that Mr. Justice, I -- I meant yet that there is no claim that -- the trial here, the hearing here was on favor. They do raised the issue of bill of attainder. I think, it is been rejected by the Court at the beginning of the great series of cases on deportation legislation. It was reject to -- I think with relation to this particular statute in the Galvan case where it was argued and -- and briefed. And we think that the whole course of history goes against it, because the Court has consistently said, until the -- this very day that deportation is not punishment and the bill of attainder requires much more.
Earl Warren: Mr. Forer.
Joseph Forer: If the Court please, I think, Mr. Davis's version of the facts suffers from giving an unwarranted and wholly sinister interpretation to little pieces of irrelevant evidence that do not -- are not justified in bearing such an interpretation, if I may give one or two illustrations. Mr. Davis mentioned as a great significance the fact that Wilmot testified that -- that this alien, the petitioner knew where he was going. Now, if you look at page 15 of the supplemental record, you'll see the testimony on that and this is on cross examination of Wilmot and the lawyer asked me, “You say, you knew where you were going, do you think either Mackie, that's the petitioner, knew where he was going?” Answer, “I think, Mr. Mackie knew where he was going.” Question, “You just assumed that because you know he was a member of the Communist Party, is that right?” Answer, “He would have been permitted in the meetings.” It's perfectly clear that by Wilmot test anybody who went to Communist Party meeting knew where he was going.
Felix Frankfurter: Not when it was permitted to be present which is different.
Joseph Forer: Or was permitted to be present --
Felix Frankfurter: Well, that's a --
Joseph Forer: -- as a member --
Felix Frankfurter: -- can you go.
Joseph Forer: What?
Felix Frankfurter: I -- I sometimes had been -- as a kid, I was present at political meeting --
Joseph Forer: I'm talking about close meeting. Wilmot's testimony makes perfectly clear that he thinks that anybody who was a member of the Communist Party ipso facto knows where he is going. Now, I don't know what he means by that, but whatever significance it has, it has no more significance than factual testimony that the man was present at meetings of the Communist Party. Now, let's look at where he says about the top fraction? On page 13, question, “Then it is your contention that Mr. Mackie wasn't an ordinary Communist but that he was one of the big wheels, is that correct?” Answer, “He belonged to what we call the top fraction.” But he never says, leaving aside that he doesn't say what he means by the top fraction, he never says on when he faced the opinion that he belonged to the top fraction and the --
Felix Frankfurter: Well, did that cause argument clause?
Joseph Forer: What?
Felix Frankfurter: Was he asked that question in cross examination?
Joseph Forer: No. He wasn't asked that question on cross examination. He never says what he means by top fraction. As far as I can tell, but if your read over his testimony, he thinks that anybody who was a member of the Communist Party was a -- an anointed person and very important. Now, let's go back to page 15 on the question of the paper, and he's asked whether ever had any discussion with Mr. Mackie and the only discussion he remembers, he says, “I remember about the paper and its distribution.” Question was that, “Do you know where your newspaper office? Answer, “Yes.” Question, do you -- question, “Do you remember what was said about what's done in that particular occasion?” Answer, “Well it had to do largely with circulation.” That was a perfect place for people to come and sit and I don't attribute any great sinister significance to that. And I also attribute no particular significance to this plenum and I'm coming to that in a moment which is more than Mackie -- than this witness' testimony that 12 years before, somebody -- it saw this man at a Communist Party meeting. But if you look at page 8, where he mentions the plenum, he's asked, whether or not he ever attended any Communist Party meeting outside of Portland that Mackie attended? And he says, “Yes, one in Aberdeen.” They said, “What kind of meeting was this?” And this is -- this -- I don't, this -- as it seen to me to be terribly sinister important. Answer, “It is what they called a plenum.” It was merely your report of the work that was carried on. A plenum means of fullness literally, it was the report work that was carried on by people in the northwest. And then if you look at page 13, where it goes over it again, not 13 – 12, the only thing they could -- they asked in the purpose of meeting and he repeats in a rather colorful account that he says, everybody would get up and give -- give a glowing account of what they had done, there were more or less fabricating he says, and the only person he can remember, is a man by the name (Inaudible) speeches. There is no evidence that the petitioner made speeches. The evidence amounts to the fact that he went to party meetings if you accept that evidence. Now, let's take a look of the man that knew him, that really knew him and was a member of his -- his unit according to his testimony, what he said about him and you have a very different picture than what Knight said, look at page 29. Question, “Did Mr. Mackie in your presence ever advocate to overthrow of Government by force of violence or the use of the illegal means.” Answer, “No he never did.” Question, “Would you say to your knowledge that Mr. Mackie was one of those people who was more particularly interested or concerned with the problems that faced the country during to the depression such as unemployment and relief?” Answer, “I think very much interested than top of 29.” Question, “Was he what you would call one of the party intellectuals?” Answer, “What do you mean by that?” Question, “Was he very much on theory, political discussion?” Answer, “No.” Question, “He is more interested in bread and butter topics at the day, what to do for unemployment relief?” Answer, “I would say so, yes.” Question, “Was most of the activities (Inaudible) branch toward these specific problems?” Answer, “Yes they were,” Now look at the summary on page 30, in which the attorney asked the witness, if this the correct summary of Knight's testimony? Question, “You saw Mr. Mackie the number of meetings that you claim were close meetings to the Communist Party that he was not functionary of the party, that you yourself thought members the works of the Soviet Union is the educational chairman of that group but that Mr. Mackie did not participate any of the discussions that you held in that connection, that Mr. Mackie did not distribute literature and the Mr. Mackie never served under you -- under your direction in any capacity, and that as near as you know, Mackie never attended any Communist Party conventions, is that correct?” Answer, “Yes, that's right.” And then later on, “Is that correct summary of your testimony as far as I went?” He says, “Yes that's right.” Now, these are people who were testifying 12 years after the events and you're now always little pieces of unexplored odds and ends and I think the principal reason it wasn't explored was because the Rowoldt case had not been decided and people didn't understand that the nature -- of the activity and the significance of the membership was as important as Rowoldt later made clear. But the least the Board of Immigration Appeals could have done is before they had hatched to these little grids and drafts, as soon as they're kind of sinister significance that Mr. Davis gives to it, I think, completely unwarrantedly would be to reopen the record so they -- people could try the issue with some knowledge of what the issue was about at the time they took this testimony from Knight, from Wilmot at the time the petitioner testified. They didn't know what the interpretation is going to be that was given in Rowoldt.
Felix Frankfurter: Well evidently in Rowoldt, they knew what kind of facts to elicit which was the basis for the decision, wasn't it?
Joseph Forer: I -- I'm afraid, I didn't follow you.
Felix Frankfurter: I say in Rowoldt itself --
Joseph Forer: No.
Felix Frankfurter: -- which preceded the Rowoldt decision the facts were elicited on the base of which there was a decision.
Joseph Forer: No. That is -- that is not the -- that is not quite so, because Mr. Justice Frankfurter, in Rowoldt itself --.
Felix Frankfurter: (Voice Overlap) written that opinion.
Joseph Forer: No. I know, Your Honor, in Rowoldt itself, the facts which led you to write that opinion for the Court were not elicited by Rowoldt counsel, they weren't elicited at the deportation hearing. They were elicited at an interview prior to the hearing which the immigration service at which the immigration service questioned Rowoldt, and all they were tying to get form Rowoldt really was matters on which to deport him, they did not have any understanding that member, the word “member” was limited in the sense that the Rowoldt decision itself limited it and it's really a happenstance that evidence came out in Rowoldt.
Felix Frankfurter: I don't care what their legal interpretation was, that's for this Court and other Courts. What I'm saying that the facts were in the Rowoldt record and therefore, the argument that they're not in this record it's to me not very impressive.
Joseph Forer: Except that I say that the burden of proof is --
Felix Frankfurter: Well, that's a different story --
Joseph Forer: Well --
Felix Frankfurter: -- I understand that.
Joseph Forer: -- that the story I'm giving here is that the only facts you have in this record if you read them fairly is that you have a -- and disbelief the petitioner that you have rank and file enacted person who went to meeting --
Felix Frankfurter: And where is this argument?
Joseph Forer: -- paid dues have no political interest other than on the bread and butter matters. Now, I say that's a fair version of the facts and I say that his version to the contrary is not a fair version of the testimony.
Felix Frankfurter: I understand that argument --
Joseph Forer: And I say --
Felix Frankfurter: -- but I do not follow the argument that these alleviating or mitigating or minimizing factors couldn't have been brought by counsel because they didn't know what questions to ask.
Joseph Forer: They could have been brought up but they weren't.
Felix Frankfurter: All right.
Joseph Forer: And they couldn't have been brought out in this case because the witness testified (Voice Overlap) --
Felix Frankfurter: You said because they didn't have Rowoldt.
Joseph Forer: No, they -- they couldn't have brought it out --
Felix Frankfurter: -- understand, didn't you?
Joseph Forer: Yes and let me explain it now. They couldn't have brought it out from the witness because here the witness denied from the petitioner because here the petitioner denied he was a member. They -- if they had known Rowoldt they might have done a better job of cross examining the Governments --
Felix Frankfurter: You mean they --
Joseph Forer: That's all I'm driving at.
Felix Frankfurter: -- you mean that he might then have confessed that he was a Communist, but --
Joseph Forer: No, I don't mean that all. I don't meant
Felix Frankfurter: Is that what you mean?
Joseph Forer: No, I don't mean that at all. I mean that they -- if they had been aware about Rowoldt, they could oriented their cross examination of the Government witnesses in that direction, I don't see anything particularly startling about that.
Felix Frankfurter: I didn't say it was startling. I just didn't follow your argument.
Joseph Forer: Well, I'm -- I'm sorry if I wasn't clear but that's all I meant. Thank you.


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.
Shanler D. 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.
Thurgood Marshall: Well, you have the prayers are in the record, aren't they?
Shanler D. Cronk: On three occasions during chaplain--
Thurgood Marshall: Aren't the prayers in the record?
Shanler D. Cronk: --Certain of them are.
Thurgood Marshall: 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?
Shanler D. 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.
Thurgood Marshall: But you don't admit it, do you? You don't admit it?
Shanler D. Cronk: Don't admit what, Your Honor?
Thurgood Marshall: That they're all Christians, all of the chaplains have been Christians?
Shanler D. Cronk: We simply have no idea, Your Honor.
Thurgood Marshall: You have no idea?
Shanler D. Cronk: Absolutely none.
Thurgood Marshall: I see.
Shanler D. 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.
Sandra Day O'Connor: Mr. Cronk, is there evidence in the record that Chaplain Palmer ever refused to allow any guest chaplain to appear?
Shanler D. 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--
Sandra Day O'Connor: Does the record disclose when the prayers were recited and at what point in the orders of the day that that practice occurred?
Shanler D. 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--
Thurgood Marshall: Mr. Cronk, in this case did the chaplain do anything other than give a prayer?
Shanler D. 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.
Thurgood Marshall: Yes, but I mean that was actually true?
Shanler D. Cronk: This is true.
John Paul Stevens: 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?
Shanler D. 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--
John Paul Stevens: The same reason here, to have a solemn beginning and get everybody in the proper mood to start their deliberations.
Shanler D. 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.
John Paul Stevens: 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?
Shanler D. Cronk: I think that that moves us more toward... the suggestion in your question is that that singles out a particular denomination officially.
John Paul Stevens: 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?
Shanler D. 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.
Byron R. White: How was his appointment... how often was his appointment made, did you say?
Shanler D. Cronk: The sessions, the actual process, is every two years.
Byron R. White: Is it for every... is he reappointed every session?
Shanler D. Cronk: Every two-year session. So at the time of trial it was 14, he would have been in his sixth or seventh reappointment.
Byron R. White: And who designates him?
Shanler D. Cronk: The Executive Board recommends to the full legislature for approval. That approval has essentially been a rubber stamp.
Byron R. White: Is that one of the early... is that one of the first things a new session does, is to--
Shanler D. 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--
Byron R. White: --Does he, does the chaplain, have an office?
Shanler D. Cronk: --No, he does not. He travels--
Byron R. White: He just comes in every morning--
Shanler D. Cronk: --Yes.
Byron R. White: --for a few minutes?
Shanler D. Cronk: Yes.
Byron R. White: So he has no place to hang his hat?
Shanler D. 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--
Byron R. White: 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?
Shanler D. 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.
Thurgood Marshall: Well, what about the Lutheran minister that applied?
Shanler D. Cronk: I have been asking myself the same question, Your Honor.
Thurgood Marshall: Well, I know, but the record said that at least one did apply.
Shanler D. Cronk: The record says nothing about the denominational affiliation of any other chaplain except Reverend Palmer.
Thurgood Marshall: I said applicant, not chaplain.
Shanler D. Cronk: There is an indication that in 1979 the outgoing Executive Board recommended another cleric--
Thurgood Marshall: That's what I thought.
Shanler D. 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.
John Paul Stevens: 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?
Shanler D. Cronk: I wish I knew for certain.
John Paul Stevens: Kind of puzzling.
Shanler D. 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.
Warren E. Burger: Very well. Mr. Friedman.
Herbert J. 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?
Harry A. Blackmun: Mr. Friedman, would you still be here, however, if the compensation weren't in the case?
Herbert J. Friedman: Yes, Your Honor.
Harry A. Blackmun: I thought so. So the compensation is irrelevant, then, to this issue that's presented.
Herbert J. Friedman: No, Your Honor, I think the compensation is part of the issue.
Warren E. Burger: Well, your response to Justice Blackmun?
Herbert J. Friedman: I'd still be here, but certainly the compensation is part of this issue. They're using public funds for a religious service.
Byron R. White: I take it you would also be here even if they changed chaplains every session?
Herbert J. Friedman: I think so.
William H. Rehnquist: You'd be here, but your case wouldn't be as good? [Laughter]
Herbert J. Friedman: I wish I'd said that, Your Honor.
Warren E. Burger: 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?
Herbert J. Friedman: Same clergyman every morning?
Warren E. Burger: A member of the legislature, yes.
Herbert J. Friedman: I understand that. It poses a problem, but it's not the issue before the Court.
Warren E. Burger: Well, we ask hypothetical questions very frequently. You'll get many of them today, I'm sure. What would you think about that?
Herbert J. Friedman: We would disapprove of it.
Warren E. Burger: Well, disapprove. Would you say it's unconstitutional?
Herbert J. Friedman: We'd say it would be unconstitutional if there was prayer in the legislature.
Warren E. Burger: All right. Now, a non-clergyman member of the legislature, a Nebraska farmer, cattleman, lawyer, gets up and has an invocation.
Herbert J. Friedman: The same religion every day? If it's the same religion every day, we think it's unconstitutional.
Warren E. Burger: 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.
Herbert J. Friedman: Certainly less unconstitutional--
Warren E. Burger: Why? [Laughter]
Herbert J. Friedman: --but in our view still unconstitutional.
Warren E. Burger: Why?
Herbert J. Friedman: Because it still mixes religion with government.
Warren E. Burger: You said less. Why is it less?
Herbert J. Friedman: Because it makes it less obvious that one religion is singled out as being the official religion.
Warren E. Burger: 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?
Herbert J. Friedman: I would think so, Your Honor.
Warren E. Burger: 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? "
Herbert J. 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.
Warren E. Burger: 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.
Herbert J. Friedman: We'd prefer that they didn't. We think that--
Warren E. Burger: 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.
Herbert J. 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.
Warren E. Burger: 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.
Herbert J. 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.
John Paul Stevens: You mean even before the First Amendment was adopted? It wasn't retroactive. [Laughter]
Herbert J. Friedman: No, Your Honor. This case does not deal with--
Byron R. White: Well, wasn't there opposition to the prayer in the First Congress?
Herbert J. Friedman: --Yes, there was, Your Honor.
Byron R. White: Well, so it was brought to it... it was put on the table, but that was just by a minority.
Herbert J. Friedman: It was debated.
Byron R. White: Yes, and the people who raised it didn't prevail.
Herbert J. Friedman: At that time they didn't.
Byron R. White: Yes. Then the... do you think that Congress would have, if it thought the First Amendment barred that, would have continued having prayer?
Herbert J. Friedman: Well, I don't know that--
Byron R. White: Well, isn't that a pretty decent inquiry, though?
Herbert J. Friedman: --As to what the First Congress--
Harry A. Blackmun: Yes.
Herbert J. Friedman: --Your Honor--
Byron R. White: Well, I just wonder, isn't it a relevant inquiry as to what the framers intended?
Herbert J. Friedman: --It's an interesting historical inquiry, but I think it's more important--
Byron R. White: None of it... it has no legal significance?
Herbert J. 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.
Byron R. White: They paid them, though.
Herbert J. Friedman: They did pay them. Three days before they passed the First Amendment they voted--
Byron R. White: To pay them.
Herbert J. Friedman: --To pay them.
Byron R. White: Yes.
Herbert J. 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.
Byron R. White: That's... you're just assuming it's inconsistent. It may not be at all. That's what the lawsuit's about.
Herbert J. 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-- "
William H. Rehnquist: Where are you reading from, Mr. Friedman? Could you tell us?
Herbert J. 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--
Byron R. White: Well, doesn't that just mean "as far as I know"?
Herbert J. Friedman: --That's true, Your Honor.
Byron R. White: And how long has he been in the legislature, seven years?
Herbert J. Friedman: Seven or ten years, something like that.
Sandra Day O'Connor: 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?
Herbert J. 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.
Sandra Day O'Connor: 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?
Herbert J. 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.
Sandra Day O'Connor: Could you also address exactly what effects the practice in Nebraska has had on Senator Chambers with some precision?
Herbert J. Friedman: The record is clear on that, Your Honor. Senator Chambers testified to that.
Harry A. Blackmun: Is that what you call your members of your unicameral legislature, "senator", all of them?
Herbert J. 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.
William H. Rehnquist: Didn't the chaplain make some adaptation to Senator Chambers' feelings, though, after he learned of them?
Herbert J. Friedman: He did not.
William H. Rehnquist: I thought that he omitted the reference to Christ.
Herbert J. Friedman: That was after Senator Fellman, a Jewish Senator, came up to him and commented.
William H. Rehnquist: 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.
Herbert J. 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.
William H. Rehnquist: Well, he simply not only didn't believe in God, but prayer as such bothered him, I take it?
Herbert J. 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.
Warren E. Burger: 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?
Herbert J. Friedman: Of course not.
William H. Rehnquist: And no one requires him to pray.
Herbert J. 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.
Warren E. Burger: 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?
Herbert J. Friedman: We think it would, Your Honor. But again, it's not--
Warren E. Burger: Well, then the Presbyterian factor is irrelevant to your argument, isn't it?
Herbert J. Friedman: --The fact that Dr. Palmer is a Presbyterian?
Warren E. Burger: Yes.
Herbert J. Friedman: The fact that Dr. Palmer is a member of a mainline Protestant faith is not irrelevant.
Warren E. Burger: 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.
Herbert J. Friedman: More than that. Certainly--
William H. Rehnquist: Mr. Friedman, you've used the term "mainline Protestant faith" a couple of times. What do you include within that definition?
Herbert J. 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--
Thurgood Marshall: Be careful, now. You might leave out one. [Laughter]
Herbert J. Friedman: --I'm treading on thin ice, Mr. Justice Marshall.
William H. Rehnquist: Is that based on a church membership approach?
Herbert J. 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.
Warren E. Burger: 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.
Herbert J. 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.
Warren E. Burger: 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?
Herbert J. Friedman: I would think so, Mr. Chief Justice.
Warren E. Burger: Then how about this very short version that the Marshal uses to summon the Court?
Herbert J. 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]
William H. Rehnquist: 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.
Herbert J. 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--
Lewis F. Powell, Jr.: Mr. Friedman, do military units still have chaplains?
Herbert J. Friedman: --Yes, they do, Justice Powell, and we don't quarrel with that.
Lewis F. Powell, Jr.: Why?
Herbert J. 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.
Sandra Day O'Connor: Don't you think legislators are called away from their home counties and are in need of some guidance and inspiration as well?
Herbert J. 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--
Lewis F. Powell, Jr.: 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?
Herbert J. Friedman: --I'm sorry, Justice Powell, I didn't understand the question.
Lewis F. Powell, Jr.: 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.
Herbert J. Friedman: I think they do have some influence, and I guess the answer is I don't know, either.
William J. Brennan, Jr.: 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.
Herbert J. Friedman: That's correct, Justice Brennan. That's what I'm trying to say.
Warren E. Burger: 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?
Herbert J. 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.
Sandra Day O'Connor: 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.
Herbert J. 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--
Thurgood Marshall: Might be named Brown, Brown versus the Board of Education. [Laughter]
Herbert J. 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.
William H. Rehnquist: 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?
Herbert J. Friedman: That's correct, Justice Rehnquist.
William H. Rehnquist: So to say it's pluralistic now, it was pluralistic then, too.
Herbert J. Friedman: It was not nearly as pluralistic.
William H. Rehnquist: 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?
Herbert J. 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.
William H. Rehnquist: Well, should we take Madison at the time he drafted the amendment or as he recanted many years later?
Herbert J. Friedman: I think what we have to do is take--
Byron R. White: What he said is that he had made a mistake.
Herbert J. Friedman: --That's correct. We think he made a mistake, too, when he voted--
Byron R. White: That's like saying, well, I know the First Amendment means so-and-so but I wish it meant it something else.
Herbert J. Friedman: --Justice White, this matter really has never had the opportunity to be presented to this Court. Back in 1922--
Byron R. White: Well, you have the opportunity now.
Herbert J. 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.
Lewis F. Powell, Jr.: 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?
Herbert J. Friedman: That's correct, Justice Powell.
Lewis F. Powell, Jr.: What evidence is there of that?
Herbert J. Friedman: Circumstantial evidence and symbolic evidence only. I can't stand--
Lewis F. Powell, Jr.: Well, what is the circumstantial evidence? Have the number of mainline Protestant churches increased since 1955 in Nebraska?
Herbert J. Friedman: --No.
Lewis F. Powell, Jr.: Have the number of parishioners in Protestant churches?
Herbert J. Friedman: Absolutely not.
Lewis F. Powell, Jr.: Well, in what way has any establishment of religion been enhanced or furthered? Establishment, now.
Herbert J. 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.
Byron R. White: And that is an establishment, you say?
Herbert J. Friedman: I perceive it as an establishment problem.
Byron R. White: Like the... well, you have to say that that is the establishment, like the symbol on the flag.
Herbert J. Friedman: That's correct.
Byron R. White: That would be the establishment, wouldn't it?
Herbert J. Friedman: I think 40 years ago in another establishment--
Byron R. White: 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.
Herbert J. Friedman: --I can't prove that.
Lewis F. Powell, Jr.: 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.
Herbert J. Friedman: That's correct, Justice Powell. I think--
Lewis F. Powell, Jr.: There you had a true establishment, that the church and state were essentially the same.
Herbert J. 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.
Thurgood Marshall: Mr. Friedman, before this case was filed, in your own estimation how many people outside the legislature knew about the chaplain?
Herbert J. Friedman: Oh, I think the whole state did.
Thurgood Marshall: The whole state?
Herbert J. Friedman: He was an official--
Thurgood Marshall: You mean the same state that don't know their own legislators would know that there was a chaplain there?
Herbert J. Friedman: --Oh, I think they knew there was a chaplain. I don't think they paid much attention to him, Justice Powell... Justice Marshall.
Warren E. Burger: 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?
Herbert J. Friedman: I can't say that, Mr. Chief Justice.
Warren E. Burger: Then where is the establishment of a religion?
Herbert J. 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.
Warren E. Burger: Do you have anything further, Mr. Cronk?
Shanler D. 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--
John Paul Stevens: 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?
Shanler D. Cronk: --No, I wouldn't take that blanket position, Your Honor. I think clearly the Court--
John Paul Stevens: 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?
Shanler D. 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.
John Paul Stevens: 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?
Shanler D. Cronk: No, Your Honor, I think that there are--
John Paul Stevens: 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?
Shanler D. Cronk: --Well, I would have to know a little bit about--
John Paul Stevens: 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.
Shanler D. 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.
Warren E. Burger: Thank you, gentlemen. The case is submitted.