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Legislative chaplaincies and First Amendment’s ban on an “establishment” of religion

Some context and insights from Lemon v. Kurtzman (1971) and Marsh v. Chambers (1983).

Jesuit Father Patrick J. Conroy, pictured in a May 8, 2017 photo, has been the chaplain of the U.S. House of Representatives since 2011. (CNS photo/Rhina Guidos)

Barring further developments (and let’s hope that there aren’t any), the kerfuffle over the Catholic chaplain of the House of Representatives seems to be over. Speaker of the House Paul Ryan asked for the resignation of Father Patrick Conroy, S.J., Father Conroy resigned, then withdrew his resignation, and Ryan withdrew his request. May everyone involved in this flap now live happily ever after. Personally, I’m glad to leave it at that.

But the incident did serve one useful purpose by inviting attention to the constitutional footing of legislative chaplaincies, considered in light of the First Amendment’s ban on an “establishment” of religion. And that’s something well worth looking at for what it can tell us about the disputes over church-state relations that continue to plague the nation.

Go back, then, to 1983 and a Supreme Court decision in a case called Marsh v. Chambers.

The case arose when a Nebraska state senator named Ernie Chambers brought suit in federal court against the practice of opening sessions of the state legislature with a prayer by a chaplain paid by the state. Chambers found this a violation of the First Amendment’s no-establishment clause. The district court upheld the prayer but not the payment to the chaplain. The U.S. 8th Circuit Court of Appeals ruled against both things. The case then went to the Supreme Court.

At that time the Supreme Court labored to shape its thinking in church-state matters according to a 1971 ruling in a case called Lemon v. Kurtzman. The Lemon decision identified three criteria that church-state interactions were required to meet: secular legislative purpose, primary effect that neither promoted nor inhibited religion, and no “excessive entanglement” by government with religion. Not surprisingly, attempts to apply this complex test threatened to produce the entanglement the test was supposed to rule out.

In weighing Ernie Marsh’s complaint, the Supreme Court by a vote of 6-3 overturned the lower court and gave the Nebraska arrangement—and by implication similar arrangements involving state-paid chaplaincies elsewhere—a clean bill of health.

This didn’t please Justice William Brennan, who wrote in dissent that the majority made “no pretense of subjecting Nebraska’s practice” of legislative prayer to the three-part Lemon test. But, he added tartly, “if the court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.”

The majority opinion in Marsh was written by Chief Justice Warren Burger, who, strange to say, also wrote the opinion in Lemon. Noting that legislative chaplaincies had been common since the nation’s earliest days, he said: “In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice…has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not…an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.”

Note that in framing their opposition to legislative chaplaincies, the liberal dissenters in Marsh were playing the role usually played by conservatives and taking a narrowly literalist view of the First Amendment. The conservatives for their part argued for a practical approach to the question that relied on history and custom instead of rigid textualism as their standard of evaluation.

Always assuming a decent respect for the limits imposed by constitutional principle and good sense, that still seems about right.


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About Russell Shaw 193 Articles
Russell Shaw was secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference from 1969 to 1987. He is the author of 20 books, including Nothing to Hide and the highly acclaimed American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America.

7 Comments

  1. The liberal justices were not taking a narrow literalist view of the First Amendment. They were replacing the literal intent of the Amendment with their own “settled doctrine”, a doctrine very much at variance with the intent of the framers and ratifiers of the Constitution. One gets the impression that they knew this, and just didn’t care.

  2. Great article. Though I disagree with the author’s assessment of Paul Ryan who justifiably asked for the resignation of Father Patrick Conroy SJ. Fr Conroy misrepresented Catholicism on homosexuality. As a former chaplain serving under the Military Archdiocese I’ve been ‘tangled’ in a few like disputes. I appreciate your quoting Justice Burger’s argument. Actually the so called practical argument based on history and tradition is Constitutional insofar as the Common Law of England now known simply as the Common Law adapted by most states following Independence is considered by legal scholars a major source for the Constitution. The Common Law was imposed on the Colonies in the Royal Charted intended to curtail theocracy in New England. Common Law includes tradition. The British Army had chaplains as far back as the infamous Oliver Cromwell [at least for Irishmen since Cromwell detested the Irish as “primitive, savage, and superstitious” and devastated Catholic Ireland]. Cromwell determined that in the New Model Army of 1645 the status of chaplains was regularised and most regiments had their own chaplain [the Articles of War of 1662]. Chaplains were assigned by Washington for the Continental Army including Catholic chaplains.

  3. I cannot fathom how any Catholic priest could conceivably “minister” to the pro-abortion “Catholics” in the Congress. Any “ministering” to such people would have to be a farce and a mockery, affirming them in their grotesque, criminal version of Surreal Catholicism.

    By all accounts, Fr. Conroy is one of those all-too-common Irishmen who was baptized Democrat. A party hack. A “seamless garment” fan–at best. His full-throated support for gay marriage is solidly documented.

    It is shameful that so many Catholic writers have been commenting on this story as if it involved a Catholic.

  4. The First Amendment to the Constitution reads that “Congress shall make no law respecting an establishment of religion…”, but it says nothing explicitly of the Executive Branch nor the Judiciary. It never occurred to anyone in earlier and saner times that it would be necessary to constrain the the Executive and an activist Judiciary who in recent decades have taken it upon themselves to make laws that in effect establish a national civil religion of Secular Humanism, e.g., rulings against the states on such matters as legalized abortion, and now mandatory acceptance and even involvement in same-sex “marriages.” In ancient times the litmus test was a pinch of ash tossed by Christians at the feet of an emperor facsimile; today its a pinch of frosting on a wedding cake celebrating a parody (not parity) of marriage, to be extracted from absolutely every bakery to be found from sea to shining sea.

    Nor did it occur to those voting on the Amendments to the Constitution that candidate justices would routinely swear to uphold the Constitution while at the same time refusing to affirm support for the underlying and inseparable Declaration of Independence with its reference to inborn and universal natural law (“nature and nature’s God”). We are doubly betrayed. Even the earlier and legitimate “civil rights” movement, especially Martin Luther King, still appealed to both religion and natural law.

  5. Did Ryan, a Catholic, ever give a reason for starting this fiasco? I want to say that Ryan is a punk, but I’ll refrain. Somewhat like the NRA our government is fear struck that we will become a Theocracy. When John Kennedy was running for President he was asked if he would be beholding to the Pope? Kennedy said no. My Irish Catholic Republican mother immediately hung Kennedy’s picture next to the Pope. I believe that she only voted Democrat once… something about Republican Priests.

    The NRA should cool it with the second Amendment and our government should also cool it with the first Amendment and religion.

  6. I always like Mr. Shaw’s point of view, however I do not think we know the whole story on this Chaplain and what he is promoting behind the scenes. It was a group of priests who talked the Kennedy family into becoming pro abortion and babies around the world are still paying the price on that one! Are similar things going on with this priest in areas of marriage, and abortion? There are red flags going up, and with who is coming to his defense, I am even more concerned. I think we have a right to know the truth of what is going on, since it influences our legislation.

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