UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia.
Robinson, Chief Judge, Wright, Tamm, Wilkey, Wald, Mikva, Edwards, Ginsburg, Bork and Scalia, Circuit Judges, and Bazelon and MacKinnon, Senior Circuit Judges. Special concurrence filed by Senior Circuit Judge MacKinnon. Separate statement filed by Circuit Judge Ginsburg in which Senior Circuit Judge Bazelon concurs.
After argument of this appeal before the court sitting en banc, the Supreme Court decided Marsh v. Chambers, 463 U.S. 783, 51 U.S.L.W. 5162, 77 L. Ed. 2d 1019, 103 S. Ct. 3330 (1983). Marsh rejected a first amendment-establishment clause challenge to the Nebraska Legislature's practice of beginning each session with a prayer by a chaplain paid by the state.
On July 18, 1983, the court directed the parties here "to show cause why, in light of . . . Marsh v. Chambers. . ., this appeal should not be dismissed and the district court instructed to vacate its judgment and dismiss the complaint for failure to raise a substantial constitutional question." See Hagans v. Lavine, 415 U.S. 528, 536-38, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106, 77 L. Ed. 1062, 53 S. Ct. 549 (1933). All parties have now responded to that order.
We have reviewed the parties' presentations, and are persuaded that the complaint in this action retains no vitality. The Supreme Court's decision in Marsh v. Chambers is dispositive of appellants' challenge to the public funding of congressional chaplains. The Court answered the question presented in Marsh with unmistakable clarity: The "practice of opening each legislative day with a prayer by a chaplain paid by the State [does not] violatethe Establishment Clause of the First Amendment." Id. at 784, 103 S. Ct. at 3332. In so ruling, the Court relied heavily on the "unambiguous" history of congressional chaplaincies. Id. at 792, 103 S. Ct. at 3336. The practice at issue, the High Court said, has been "unbroken . . . for two centuries in the National Congress," id. at 795, 103 S. Ct. at 3338, and "ha[d] become part of the fabric of our society." Id. at 792, 103 S. Ct. at 3336.
We perceive no tenable basis for a claim that the very congressional practice deliberately traced by the Court in Marsh should be subject to further review. Therefore, we dismiss this appeal, vacate the judgment of the district court, and remand the case with instructions to dismiss the complaint for want of a substantial constitutional question. IN AGREEMENT
MacKINNON, Senior Circuit Judge (concurring specially).
The foregoing en banc opinion, which I join, dismisses the appeal, vacates the judgment of the district court, 505 F. Supp. 144, and remands the case with instructions to dismiss the complaint for want of a substantial federal question. Reliance is placed on the Supreme Court opinion by Chief Justice Burger in Marsh v. Chambers, 463 U.S. 783, 51 U.S.L.W. 5162, 77 L. Ed. 2d 1019, 103 S. Ct. 3330 (1983), which involved the Chaplain of the Nebraska Legislature and was decided after the panel decision in this case. The en banc opinion is somewhat at variance with the panel decision, which remanded this case to the district court. In doing so, the panel had held that it was not necessary to consider the extent to which the political question issue involved some consideration of the Establishment Clause and that "this case occasions no need for a [lengthy historical analysis of the political question issue]." Slip op. at 17 n.23. My views were in disagreement with the majority's refusal to reach the full merits of the political question issue insofar as it necessarily involved some consideration of the Establishment Clause, and as to the need for substantial historical analysis in determining the presence of a political question. Cf. Marsh v. Chambers (supra). Accordingly, I dissented from the decision of the panel and filed an opinion. Since it is the practice of this court to vacate panel opinions when the case is placed en banc, and since this case involved the Chaplains of Congress and some different constitutional considerations than were present in the Nebraska case, I set forth below extracts from my earlier dissent that provide additional support for the court's present decision in this case. These reflect in greater detail the constitutional and unique historical base which supports our decision. Also addressed are additional issues, including the federal separation of powers issue that is present in this case, involving Congress, and which was not an issue in Marsh v. Chambers. Other matters in my dissent to the original panel decision also point to the recognition of God and religion in the Constitution (slip op. at 5-8), which is a further "tolerable acknowledgment of beliefs widely held among the people of this country." 463 U.S. at 792, 103 S. Ct. 3336.
(No. 81-1301, D.C. Cir., March 9, 1982)
MacKINNON, Circuit Judge (dissenting):
Appellants' claims against the payment of legislative chaplains must be dismissed . . . if the issues involved are non-justiciable within the purview of the political question doctrine. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 215, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1974). . . . [This hurdle] is [not] cleared here. Accordingly, in my judgment we should affirm the holding of the District Court. I. The Political Question Doctrine
As the Supreme Court noted in Baker v. Carr, 369 U.S. 186, 217, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962),
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; . . . or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government. . . .
Both of these criteria are met here.
The Constitution textually commits to the Senate and the House of Representatives the exclusive authority to choose their officers and determine their rules of proceedings. It provides that (1) "the House of Representatives shall chuse their Speaker and other officers . . .," U.S. Const. art. I, § 2, cl. 5; (2) "the Senate shall chuse their other officers . . .," id., art. I, § 3, cl. 5; and (3) "each house may determine the Rules of its proceedings," id., art. I, § 5, cl. 2. Pursuant to these provisions, when the First Congress met in 1789 after the adoption of the Constitution, the first order of business in the Senate, after the adoption of the procedural rules, was to establish the Office and elect a Chaplain.1 The House appointed its Chaplain the following week.2 At some later time both Houses assigned to their chaplains the duty of opening daily sessions of the respective houses with an invocation, and enacted a statute prescribing their respective compensation. 2 U.S.C. §§ 61d, 61d-1, 61d-2, 84-2 (1976 & Supp. IV 1980).
Appellants attack the payments to the chaplains as violating the Constitution and assert that the above quoted provisions of Article I of the Constitution do not give Congress the right to spend public funds for such purpose.
That contention assumes a narrow reading of the quoted provisions of Article I that, in my opinion, is not justified. The decision of the Senate and the House to compensate one of their duly elected officers from the legislative appropriation, for performance of his historical duties to Congress, is a judgment made pursuant to and in execution of the powers conferred on the Senate and the House to "chuse their . . . officers" and "to determine the Rules of [their] proceedings." Under the doctrine of implied federal power, see McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), the enactment of a statute authorizing the expenditure of federal monies for compensation of chaplains represents a legitimate exercise of Congress' incidental power to legislate in furtherance of enumerated constitutional ends. Payment of the chaplains, in short, is clearly concomitant to Congress' constitutionally prescribed right to choose those officers in the first instance. It is therefore an act that is itself textually committed to Congress by the Constitution.3 Appellants' claim thus comes within the political question doctrine and for that reason it is beyond the scope of our review.
The majority asserts that Powell v. McCormack, 395 U.S. 486, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969), upholds their contention. In Powell, the House voted to exclude Representative Adam Clayton Powell from its membership. The House relied upon the authority allegedly vested in it by the Constitution, which provides that "each House shall be the Judge of the . . . Qualifications of its own Members." Art. I, sec. 5. Powell contended that he was excluded for failure to comply with eligibility requirements that exceeded those prescribed by the Constitution and his exclusion was therefore beyond the authority conferred by the exclusion clause. The Supreme Court considered the political question defenses offered by the Government in support of its contention that the issue was non-justiciable, as being inextricably connected to a matter textually committed to Congress by the Constitution. Following a lengthy analysis, the Court decided that the constitutional provision prescribing eligibility requirements for members of the House set forth the exclusive requirements and that in expelling Powell for additional reasons the House had exceeded its textual mandate. The political question doctrine was therefore inapplicable.
The majority here maintains that since the provision that each House could judge the qualifications of its members, Art. 1, sec. 5, cl. 1, was held to be subject to judicial examination in Powell in the face of the political question doctrine, so too must be the clauses at issue herein. Maj. op. at 16. This conclusory reasoning bespeaks a fundamental failure to grasp the principles of political question analysis. As is clearly apparent from Powell, it is impossible to determine whether the political question doctrine applies in a given instance without examining the merits of the underlying claim at issue. See Jayson, Annotated Const. of the United States 668 (U.S. Gov. Printing Office 1972) ("[as a result of Powell ], . . . the political question consideration is now one on the merits rather than a decision not to decide").4 In other words, it is not possible to determine whether the compensation of legislative chaplains is protected from judicial review by the "textual commitment" criteria of the political question doctrine without examining the merits of the Government's claim that that compensation is textually committed.5 As is demonstrated above, such examination shows that such compensation is textually committed. Thus, under the standard applied in Powell, judicial scrutiny of the compensation practice is protected by the political question doctrine.6
The correctness of this conclusion clearly appears when the textual commitment is examined from another angle. The ability of the houses of Congress to appoint chaplains, whose sole public duty throughout history has been to give daily invocations, is implicitly authorized by the officer selection and rules proceedings clauses cited above. What the Senate has done in having a chaplain amounts to nothing more than a recognition of God and religion that is similar to their recognition elsewhere in the Constitution. Article II, section 1 recognizes God and religion by providing that the President of the United States may assure the nation that he will carry out his great duty and obligation to uphold the Constitution of the United States by taking an " oath " to do so. An "Oath" is a "formal calling upon God or a god to witness to the truth of what one says or to witness that one sincerely intends to do what one says." Webster's New Collegiate Dictionary 790 (1976).7 Thus, the Constitution explicitly recognizes God and religion by a textual commitment whereby the President is given the option of invoking God in his binding undertaking to carry on his most solemn governmental duty, i.e., to support the Constitution. That the President's undertakings may also be by "affirmation" implements the "free exercise of religion" also guaranteed by the First Amendment.
Nor is this the only constitutional provision recognizing God and religion. The Constitution also provides:
The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution, but no religious test shall ever be required as a qualification to any office or public trust under the United States . . . .
U.S. Const. art. VI (emphasis added). The recognition of God and religion in this provision is of tremendous magnitude, extending as it does to every major governmental office in the nation -- state and federal.8
In addition Article I, section 3 of the Constitution provides that the Senate shall have the sole power to try all impeachments and "when sitting for that purpose, they shall be on oath or affirmation."
The Constitution thus by very specific textual references recognizes the existence of God, and hence religion, by requiring that all state and federal officers of the United States may be bound by "oath" to support the Constitution. Observation through the years supports a conclusion that 99% of those who assume such responsibilities do so by taking an oath and not by affirmation. Religion to this extent is thus textually woven into the very core of all government in the United States at the highest levels, i.e., the major governmental officials. And this requirement has been applied to every major governmental official in the United States for the past 193 years.
The taking of an oath, and the recognition of religion that it manifests, can hardly be construed as " establishing religion." Similarly, the offering of an invocation prior to sessions in Congress does not amount to the establishment of religion worthy of First Amendment attack. Though no Supreme Court case has passed definitively on this latter point, there have been at least four cases in which Justices have strongly implied a concurrence in such a conclusion (and no cases implying otherwise). In Abington School District v. Schempp, 374 U.S. 203, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1962), Justice Brennan wrote in his concurrence:
The saying of invocational prayers in legislative chambers, state or federal, and the appointment of legislative chaplains, might well represent no involvements of the kind prohibited by the Establishment Clause. Legislators, federal and state, are mature adults who may presumably absent themselves from such ...