The Constitutional Principle: Separation of Church and State
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Discrepancies

Justice Burger makes some interesting claims then draws conclusions about what the Establishment clause might mean or how it should be interpreted. An examination of the historical record poses questions about the accuracy of the information on which Justice Burger based his conclusions.
Researched and edited by Jim Allison


 

Opinion written by Chief Justice Burger
[Marsh v. Chambers, 463 U. S. (1983)]

"On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights,.."

"Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment."

"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."

The Record

According to the Annals of Congress, the historical record in this matter is as follows:

Analysis

"On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights,.."

Discrepancy Number 1

The historical record shows that the chaplains were appointed in late April and early May and that by the end of the first week in May were working in both houses of Congress.

Discrepancy Number 2

The only historical event which comes at all close to fitting the above comment would be the President signing the bill entitled, "An Act for allowing Compensation to the Members of the Senate and House or Representatives of the United States, and to the Officers of both Houses," into law.

However, the comment does not refer to the President. It refers to Congress.

The first session of the First federal Congress passed 26 bills into law, plus passed the twelve amendments to the Constitution. Only ten of those bills were signed by President Washington, prior to September 1, 1789. Throughout the month of September, 1789, President Washington had sixteen bills presented to him for his signing. He signed one on the September 1, one on the 2, one on the 11, one on the 15, another on the 16.

At that point in time things picked up speed as two bills were signed on the 22nd (including the compensation bill under discussion), one on the 23rd, two on the 24th, the final six on the 29th.

I don't really think that the historical record places any real importance on the date the Compensation bill was signed. It was just one of several bills that were placed on the President's desk during that final week of the first session of the First Federal Congress.

We have looked at the historical record regarding the election, appointment and commencement dates of the Chaplains for the first Congress under the Constitution.

Discrepancy Number 3

While only a small point, the final wording was reached by Congress on what was to become known as the Bill of Rights on September 24, 1789.

Now let's look at the historical record regarding the compensation bill that would eventually include the salary for those chaplains.

LIST OF OFFICES AND SALARIES

AUGUST 4, 1789

To each member of the Senate and House, Six Dollars, per day.
Speaker of the House, Twelve Dollars per day.
To the Secretary of the Senate, and Clerk of the House each,
     Fifteen Hundred Dollars, a year, and two Dollars a day, each
     during the session of the legislature: One principle Clerk to
     each, at Three Dollars a day during the session--One
     engrossing clerk to each, at two Dollars a day during the
     session.
Serjeant at Arms, Three Dollars a day during the session.
Door Keeper to the House and Senate, each, Seven Hundred
     and Thirty Dollars a year.
Assistant Door-Keepers, during the session, One Dollar and
     Fifty Cents a day each.

[AN ACT FOR ALLOWING COMPENSATION TO THE MEMBERS OF THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES, AND TO THE OFFICERS OF BOTH HOUSES]

[1] BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA, IN CONGRESS ASSEMBLED That at every session of the Congress United States, or whenever the Senate shall assemble for the purpose of exercising any of the powers and duties in them vested by the Constitution, every member of each branch shall be entitled to receive at the rate of six dollars, and the Speaker of the House of Representatives, twelve Dollars for every day he shall attend, and shall also be allowed at the commencement of every session, six dollars for every twenty-five miles of the estimated distance by the most usual rout by land from his place of residence to the seat of Congress, and the same allowance at the end of every session: And in every case in which the Senate may be convened, in the recess of Congress, each member thereof attending, shall be entitled to the same allowance; PROVIDED, that no Senator shall be entitled to more than one such allowance for any one session of the Senate, nor more than at the rate of six dollars per day from the end of any one session to the commencement of a succeeding session: and in case any member shall, on his journey to or from the session, of that branch of which he is a Member, be detained by sickness, or be unable to attend after his arrival, he shall be entitled to the like daily compensation.

[2] AND BE IT FURTHER ENACTED, That there shall be allowed to each Chaplain of Congress, at the rate of five hundred dollars per annum, during the session of Congress -- To the Secretary of the Senate and Clerk of the House of Representatives, at the rate of fifteen hundred dollars per annum each, to commence from the time of their respective appointments; and also a further allowance of two dollars per day to each, during the session of that branch for which he officiates; and the said Secretary and Clerk shall each he allowed (when the President of the Senate, or Speaker shall deem it necessary) to employ one principal Clerk, who shall be paid at the rate of three dollars per day, and an engrossing clerk who shall be paid at the rate of two dollars per day, during the session, with the like compensation to such Clerk, while he shall be necessarily employed in the recess.

[3] AND BE IT FURTHER ENACTED, That the following compensation shall be allowed to the officers herein after mentioned, viz. To the Serjeant at Arms during the sessions, and while employed on the business of the House, four dollars per day, the allowance of the present Serjeant at Arms, to commence from the time of his appointment: To the Door-keeper of the Senate and House of Representatives, for their services in those offices, three dollars per day during the session of the House to which he may belong, far his own services, and for the hire of necessary laborers; the allowance to the present Door-keeper of tile Senate, to commence from the day appointed for the meeting of Congress and the allowance to the Door-keeper of the House of Representatives to commence from his appointment; and to the Assistant Door-keeper to each House two dollars per day during the sessions.

[4] AND BE IT FURTHER ENACTED, That the said compensation, which shall be due to the members and officers of the Senate, shall be certified by the President, and that which shall be due to the members and officers of the House of Representatives, shall he certified by the Speaker, and the same shall be passed as public accounts, and paid our of the Public Treasury.

It is important to note that there was bickering between the members of the House, and then between the two Houses of Congress throughout most of August and the early part of September over the amounts each groups should receive in salary. From Senators all the way down to assistant doorkeepers and common laborers. So it wasn't just Chaplains, but it is important to note that chaplains were mentioned only a couple of times throughout this entire process. They were not originally included at all, and then little notice was taken of them. The Senate did mention them in two of its three amendments [to lower the salary from $500.00 to $400.00 and to strike out the wording "During the session of Congress." The House refused to go along with both those two amendments and the Senate did eventually recede from both.]

With more compromising between the House and the Senate the bill was finally agreed to and passed on September 12, 1789.

Its final form read as follows:

SALARIES--LEGISLATIVE ACT [HR-19]

September, 22, 1789

AN ACT FOR ALLOWING COMPENSATION TO THE MEMBERS OF THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES, AND TO THE OFFICERS OF BOTH HOUSES

[1] BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, That at every Session of Congress, and at every meeting of the Senate in the recess of Congress prior to the fourth day March in the Year One thousand seven hundred and ninety five, each Senator shall be entitled to receive six dollars for every day he shall attend the Senate, and shall also be allowed at the commencement and end of every such Session and meeting, six dollars for every Twenty Miles of the estimated distance by the most usual road from his place of residence to the Seat of Congress, and in case any Member of the Senate shall be detained by sickness on his Journey to or from any such Session or meeting, or after his arrival shall be unable to attend the Senate, he shall be entitled to the same daily allowance; PROVIDED ALWAYS, that no Senator shall be allowed a sum exceeding the rate of six dollars a day from the end of one such Session or meeting to the time of his taking a Seat in another.

[2) AND BE IT FURTHER ENACTED, that at every Session of Congress, and at every meeting of the Senate in the recess of Congress, after the aforesaid fourth day of March in the year One thousand seven hundred and ninety five, each Senator shall be entitled to receive seven dollars for every day he shall attend the Senate, and shall also be allowed at the commencement and end of every such Session and meeting, seven dollars for every twenty miles of the estimated distance by the most usual road from his place of residence to the Seat of Congress, and in case any Member of the Senate shall be detained by sickness on his journey to or from any such Session or Meeting, or after his arrival shall be unable to attend the Senate, he shall be entitled to the same allowance of seven dollars a day; PROVIDED ALWAYS, that no Senator shall be allowed a sum exceeding the rate of seven dollars a day, from the end of one such Session or meeting to the time of his taking a Seat in another.

[3] AND BE IT FURTHER ENACTED that at every Session of Congress each Representative shall be entitled to receive six Dollars for every day he shall attend the House of Representatives, and shall also be allowed at the commencement and end of every session, six dollars for every twenty miles of the estimated distance, by the most usual road from his place of residence to the seat of Congress; and in case any Representative shall be detained by sickness on his journey to, or from the Session of Congress, or after his arrival shall be unable to attend the House of Representatives, he shall be entitled to the daily allowance aforesaid; and the Speaker of the House of Representatives to defray the incidental expences of his Office, shall be entitled to receive in addition to his compensation its a Representative, six Dollars for every day he shall attend the House. PROVIDED ALWAYS, that no Representative shall be allowed a sum exceeding the rate of six dollars a day from the end or one such Session or meeting, to the time of his taking a seat in another.

[4] AND BE IT FURTHER ENACTED that there shall be allowed to each Chaplain of Congress, at the rate of five hundred dollars per annum during the Session of Congress; to the Secretary of the Senate, and Clerk of the House of Representatives fifteen hundred dollars per annum each, to commence from the time of their respective appointments, and also further allowance of two dollars per day to each, during the Session of that branch for which he officiates: And the said Secretary and Clerk shall each be allowed, (when the President of the Senate or Speaker shall deem it necessary) to employ one principal Clerk, who shall be paid three dollars per day; and an engrossing Clerk who shall be paid two dollars per day during the Session, with the like compensation to such Clerk while he shall be necessarily employed in the recess.

[5] AND BE IT FURTHER ENACTED that the following compensation shall be allowed to the officers hereinafter mentioned, vizt. to the Serjeant at Arms during the Sessions, and while employed in the business of the House four dollars per day; the allowance of the present Serjeant at Arms to commence from the time of his appointment; to the door keeper of the Senate and House of Representatives; for their services In those Offices, three dollars per day, during the Session of the House to which he may belong, for his own services, and for the hire of necessary labourers; the allowance to the present door keeper of the Senate, to, commence from the day appointed for the meeting of Congress, and the allowance to the door keeper of the House of Representatives, to commence from this appointment: And to the Assistant door keeper to each House. two, dollars per day during the sessions.

[6] AND BE IT FURTHER ENACTED, that the Said compensation which shall be due to the members and Officers of the Senate, shall be certified by the President and that which shall be due to the Members and Officers of the House of Representatives, shall he certified by the Speaker, and the same shall be passed as Public Accounts, and paid out of' the public Treasury.

[7] AND BE IT FURTHER ENACTED, that this act Shall continue in force, until the fourth day of March, in the year One thousand seven hundred and ninety six, and no longer.

Do the historical facts support the claims and conclusions stated by Chief Justice Burger in Marsh v Chambers? In my opinion, no. He is stating, with his conclusion, that Congress sent a message concerning the intent and meaning of the Establishment clause when, he says:

"On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights,.."

"Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment."

"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."

Discrepancy Number 4

A method to elect chaplains was determined. Elections were held with the winners in each House then being appointed to the positions. The Chaplains who had been appointed to the position in each House of Congress were working their positions by the end of the first week of May, 1789. All the above had been done with the approval of Congress. After all, it was Congress who had created the positions, and the steps to be taken to fill those positions. All the above had been accomplished before there was a any official mention, by James Madison, of any intention to introduce amendments to the Constitution, let alone any discussion of any of the wording of any potential amendments. In other words, there was no amendment regarding religion in existence at the time that chaplains were appointed to Congress and they actually began carrying out the duties of those positions.

All the above was accomplished long before September 25th, or on any agreements on the final draft of said amendments. Madison officially introduced the subject of amendments, including listing the amendments he was proposing on June 8, 1789

The bulk of the discussion on what are now the religious clauses of the Bill of Rights took place on August 15, 1789 in the House with additional minor references on August 20, 1789 and in September in a joint Senate-House committee.

Discrepancy Number 5

Another small point, but the 1st amendment that was passed by Congress in 1789 was not the same amendment that is presently known as the First Amendment. The First Amendment of 1789 concerned representation [and was never ratified by the states]. The amendment that pertained to religion, etc at that time was the 3rd amendment.

Discrepancy Number 6

The Congress passed the bill that included payment for chaplains September 12. Said bill was signed by the Speaker of the House and Vice-President of the United States on September 14, 1789.

Discrepancy Number 7

Does the fact that Congress passed a bill authorizing compensation for the members of Congress (Senators, Representatives, the officers and staff needed to enable Congress to function) and tucked away in that bill was one sentence, almost as an after thought, authorizing $500.00 per year salary for a chaplain to each house, somehow define the intent or meaning of the Establishment clause? Especially important there is to bear in mind that these chaplains were already working the job, had been working the job since late April, early May. Before any official mention of amendments. Therefore, at the very least, Congress was obligated to pay them for services already performed.

By the way, these first chaplains to Congress did not receive the full $500.00. Their salaries were pro rated back to the day each was officially appointed to his respective job. Therefore, the chaplain to the Senate eventually was paid from April 15, the time of his appointment, to September 22, at the rate of 500 dollars per annum, - $221.00. The chaplain to the House of Representatives, from May 1, the time of his appointment, to September 22, at 500 dollars per annum - $197.21.

It has to be said, Chief Justice Burger was using incorrect facts to form his own conclusions, conclusions that the historical record does not truly support.

The appointment of Chaplains by the first session of the First Federal Congress did not in any way, shape or form make a statement on the meaning or intent of the Establishment and Free Exercise clauses of what was to become known as the Bill of Rights.
 

Part II

In a real sense, all this is irrelevant. If, as Madison argued, the practice of appointing congressional chaplains violates the Constitution, the fact that Madison himself was a transgressor is hardly conclusive. In the Walz case, Burger was not content with noting that tax exemption for churches was a common practice when the Constitution and the First Amendment were adopted; he tested the practice by the purpose, effect, and entanglement standard and found that it passed that test 74 In Marsh v. Chambers (1983)75 Burger did not subject legislative chaplaincies to the same test 76

In that case, a rather courageous member of the Nebraska legislature brought suit challenging the constitutionality of a longstanding practice of starting each day the legislature met with a prayer recited by a salaried chaplain. At the time the suit was brought, the chaplain had occupied the office for sixteen years, and during most of this period, his prayers were Christological. This had come to an end in 1980, as indicated by footnote 14 of the majority opinion: "(Chaplain) Palmer characterizes his prayers as 'non-sectarian,' 'Judeo Christian,' and with 'elements of the American civil religion.' App. 75 and 87. (Deposition of Robert E. Palmer). Although some of his earlier prayers were often explicitly Christian, Palmer removed all references to Christ after a 1980 complaint from a Jewish legislator." 77

In the Marsh case, the district court held, and it was this holding that was appealed, that the state's appropriation of funds used to pay the chaplain's salary was unconstitutional, but that the practice itself was not. 78 (In this respect, it was echoing Madison's position.) The court of appeals (echoing Jefferson's) went further and ruled that the practice was unconstitutional in its entirety and that it did of matter whether or not the chaplain received salary for his services. 79 The Supreme Court decided that both lower courts were wrong and held that the practice itself was valid and so, too, Was the chaplain's receipt of monetary compensation for his services. 80 The Court, in an opinion by Burger, held immaterial the fact that the chaplain had served for sixteen years; he noted that for the twenty years between 1949 and 1969, one chaplain had served in the United States Senate. 81

In reaching their decisions, both lower courts had relied on the purpose, effect, and entanglement test, but, beyond mentioning this fact, the Supreme Court paid no further attention to it. Burger relied exclusively on history. Perhaps he did so because, as Brennan suggested in his dissenting opinion, the Nebraska law could not escape invalidation under any of the facets in the three-pronged test of constitutionality, especially the one relating to Burger's own contribution in Walz v. Tax Commission. 82

In his recitation of history, Burger could hardly pretend that the "Detached Memoranda" never existed. He disposed of it in a short footnote. 83 To Brennan, the "Detached Memoranda" was more significant and relevant to the issue before the Court in the Marsh case than Burger considered it to be. In his dissenting opinion, he quoted, not as a footnote but in its body, the two paragraphs quoted above, answering in the negative the question whether the appointment of congressional chaplains is consistent with the Constitution. 84 Brennan also suggested that "Madison's later views [in the "Detached Memoranda"] may not have represented so much a change of mind as a change of role, from a member of Congress engaged in the hurley-burley of legislate activity to the detached observer engaged in unrepressed reflection. 85 The difficulty with this rationalization is that, what Madison voted for in the First Congress cannot be easily reconciled with what he had written five years earlier in the "Memorial and Remonstrance."

74 Under this test, a court must decide if (1) there is a secular legislative purpose, (2) a primary effect of the challenged practice either advances or inhibits religion, and (3) it avoids excessive government entanglement with religion.

75 463 U. S. 783.

76 The constitutionality of legislative chaplaincies was considered in the Massachusetts case of Colo v. Treasurer (392 N.E. 2d 1195 [1979]). The state's highest court, in upholding the constitutionality of the practice, did cite and quote from Madison's "Detached Memoranda," but decided the case under the purpose-effect-entanglement test and found that it passed that test. In Elliot v. White (23 F. 2d 997 [19281), a federal court suit challenging payment of salaries to congressional and army chaplains was dismissed on the grounds that taxpayers do not have standing to bring such a suit.

77 463 U.S., at 793, footnote 14.

78 504 F. Supp. 585 (1980).

79 675 F. 2d 288 (1981).

80 Marsh v. Chambers, 463 U. S. 783 (1983).

81 Ibid., at 794, footnote 17.

82 Ibid., at 796.

83 Ibid., at 791, footnote 12.

84 Ibid., at 807-808.

85 Ibid., at 815.

Source of Information:

Pfeffer, Leo, "Madison's 'Detached Memoranda': Then and Now." The Virginia Statue for Religious Freedom, Its Evolution and Consequences in American History, Edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp 286, 87, 298-99.