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March 11, 1986

DR. PAUL KURTZ, Plaintiff,

The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, United States District Judge


 In this action, plaintiff challenges certain practices of the Chaplain of the United States House of Representatives and the Chaplain of the United States Senate. Plaintiff is a professor of philosophy and a secular humanist. Defendants are the Secretary of the Treasury, the Treasurer of the United States, the Chaplain of the House and the Chaplain of the Senate.

 Plaintiff's complaint contains two counts. Count I challenges the administration of an informal program whereby both the House and Senate Chaplains allow guest chaplains to give the morning prayer (guest chaplain program). Plaintiff alleges that he wrote to both Chaplains requesting the opportunity to appear as a guest speaker and to deliver the opening remarks at a daily session of the House or Senate. In his application letters, plaintiff made clear that his remarks would not invoke a diety. Both Chaplains rejected plaintiff's request, stating as one of their reasons that plaintiff would not offer a prayer during his opening. Plaintiff alleges that the guest chaplain program discriminatorily excludes nontheists in violation of the Free Speech, Free Exercise, and Establishment Clauses of the First Amendment, and the Due Process Clause of the Fifth Amendment, of the United States Constitution. Plaintiff seeks to enjoin the allegedly discriminatory practice and seeks a declaration that the practice is unconstitutional. In the alternative, plaintiff seeks termination of federal funding of the House and Senate chaplaincies.

 Count II alleges that the Senate Chaplain "has routinely used his opening remarks as a vehicle for disparaging the beliefs of non-theists . . ." Complaint at para. 44 (filed Sept. 19, 1984). Plaintiff alleges that the Senate Chaplain's remarks violate the Establishment Clause of the First Amendment. Plaintiff seeks a permanent injunction to restrain all present and future chaplains from making disparaging remarks concerning the beliefs of non-theists, and a declaration that the making of such remarks by a chaplain is unconstitutional. In the alternative, plaintiff seeks the termination of federal funding of the chaplaincies.

 This action is now before the Court on defendants' motions to dismiss or for summary judgment, *fn1" and plaintiff's motion for summary judgment on Count II. Motion of Defendants Regan and Ortiz to Dismiss or in the Alternative for Summary Judgment (filed Dec. 19, 1984); Motion of Defendant Senate Chaplain to Dismiss or for Summary Judgment (Senate Chaplain's Mem.) (filed Dec. 19, 1984); Defendant Chaplain Ford's Motion to Dismiss (House Chaplain's Mem.) (filed Dec. 21, 1984); Plaintiff's Motion for Partial Summary Judgment (Plaintiff's Mem.) (filed Feb. 4, 1985).



 The Supreme Court's decision in Marsh v. Chambers, 463 U.S. 783, 77 L. Ed. 2d 1019, 103 S. Ct. 3330 (1983), provides the guidelines for resolution of Counts I and II. In Marsh, a state legislator and taxpayer brought an action challenging the practice of the Nebraska legislature of opening each session with a prayer by a chaplain paid with public funds. The Supreme Court, per Chief Justice Burger, found that "the opening of sessions of legislative and other deliberative public bodies with prayer is deeply imbedded in the history and tradition of this country." 463 U.S. at 786. The Court continued:

Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns. In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress -- their actions reveal their intent.
. . .
. . . It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable.

 Id. at 790. The Court concluded:

This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged.
. . . .
In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among people of this country. As Justice Douglas observed, "we are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306 [96 L. Ed. 954, 72 S. Ct. 679] (1952).

 Id. at 791-92.

 After finding the practice of opening legislative sessions with a prayer invoking Divine guidance to be constitutional, the Court then examined whether any particular features of the Nebraska practice violated the Establishment Clause. The particular features examined were:

first, that a clergyman of only one denomination -- Presbyterian -- has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo-Christian tradition.

 Id. at 793 (footnotes omitted).

 The Court found that the chaplain's long tenure did not in effect give impermissible preference to his religious views, noting the practice in Nebraska of inviting guest chaplains. The Court found remuneration of the chaplain by public funds to be "grounded in historic practice initiated . . . by the same Congress that drafted the Establishment Clause of the First Amendment," id. at 794, and thus constitutionally acceptable. As to the fact that the prayers given were in the Judeo-Christian tradition, the Court held that

the content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.

 Id. at 794-95.

 Justice Brennan, joined by Justice Marshall, dissented from the Court's opinion. Justice Brennan argued that "legislative prayer [viewed] through the unsentimental eye of our settled doctrine," id. at 796 (Brennan, J., dissenting), clearly violates the three-pronged test of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971): its purpose is religious, not secular; its primary effect advances a particular religion, and religion in general; and it fosters excessive entanglement of government with religion. As to the application of Establishment Clause doctrine, Justice Brennan concluded:

I have no doubt that, if any group of law students were asked to apply the principles of Lemon to the question of legislative prayer, they would nearly unanimously find the practice to be unconstitutional.

 Id. 463 U.S. at 800-01 (footnote omitted). Justice Brennan also examined the historical purpose of the Establishment Clause and found "the regularized practice of conducting official prayers, on behalf of the entire legislature, as part of the order of business constituting the formal opening of every single session of the legislative term," id. at 813, to violate that purpose. Finally, Justice Brennan questioned the Court's reliance "on a narrow piece of history," id. at 817, and found the Establishment Clause violation resulting from the practice of legislative prayer far from de minimus.

 Justice Stevens also dissented from the Court's opinion, noting:

The Court declines to "embark on a sensitive evaluation or to parse the content of a particular prayer." . . . Perhaps it does so because it would be unable to explain away the clearly sectarian content of some of the prayers given by Nebraska's chaplain. Or perhaps the Court is unwilling to acknowledge that the tenure of the chaplain must inevitably be conditioned on the acceptability of that content to the silent majority.

 Id. at 823-24 (Stevens, J., dissenting) ...

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