By Noah Feldman
Now that we are finished with the spectacle of the U.S. House chaplain being forced out, then withdrawing his resignation and returning to his post, it’s a good time to ask a question that may have been bothering you all along: Why, exactly, does Congress, bound by the establishment clause of the Constitution, have a paid chaplain to deliver prayers and minister to its members?
If this arrangement were being set up today, it would almost certainly be held unconstitutional under contemporary judicial interpretation of the First Amendment. Since a key decision made in 1989, the U.S. Supreme Court has addressed most concerns about the government endorsement of religion by asking whether a given action sends a message to some believers that they are favored members of the political community and to others that they are disfavored.
The House chaplaincy rather obviously seems to violate this standard. The government is paying directly for a chaplain who comes from a single denomination — and has always been a Christian. If that doesn’t send a message of endorsement, I’m not sure what does.
But when it comes to the establishment clause, tradition matters. The fact that the House chaplaincy couldn’t be created now doesn’t mean it is unconstitutional. Therein lies a tale about religion, politics and the nature of a functioning Constitution.
The real reason we still have a House chaplain is that we’ve always had one. The Continental Congress overcame some internal dissension to pick a chaplain. And the first Congress established under the Constitution continued the tradition.
James Madison, drafter of the First Amendment, father of the Constitution and a lifelong advocate for religious liberty, served on the committee that approved the appointment. In later years, he would say that he had never really agreed to the chaplaincy. After retiring from the presidency, he even wrote an undated document arguing that the chaplaincy was unconstitutional and inconsistent with religious freedom.
But the truth is that, when he had the chance, Madison didn’t want to expend political capital in what would probably have been a losing fight against the chaplaincy. Had he argued unsuccessfully at the time that the chaplaincy violated the First Amendment, he might have created a precedent for Congress openly flouting the amendment. So he kept his mouth shut until years later.
The Supreme Court took a similar attitude when the issue came before it in 1983. The case, called Marsh v. Chambers, was a challenge to the chaplain appointed by the Nebraska state Legislature. The lower federal courts unanimously struck down the chaplaincy as unconstitutional under then-prevailing establishment clause doctrine.
In a 6-3 decision, Chief Justice Warren Burger, a moderate conservative, reversed the lower courts and said the Nebraska chaplaincy was fine. His reason? It had always been thus. “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country,” Burger wrote.
In dissent, Justice William Brennan pointed out that the court had made “no pretense of subjecting Nebraska’s practice of legislative prayer to any of the formal ‘tests’ that have traditionally structured our inquiry under the Establishment Clause.” As far as he was concerned, Burger was simply “carving out an exception to the Establishment Clause, rather than reshaping Establishment Clause doctrine to accommodate legislative prayer.”
That was almost true — but not quite. It’s fair to say that Marsh v. Chamber is an outlier in the establishment clause doctrine, albeit one that the court has reaffirmed as recently as 2014.
Yet tradition turns out to matter in other establishment clause cases as well. In one famous pair of cases, decided in 2005, the justices on the same day upheld a Ten Commandments statue on the grounds of the Texas State Capitol (by a 5-4 vote) and struck down a Ten Commandments display in a Kentucky courthouse (also by a 5-4 vote).
Justice Stephen Breyer was the swing voter. He explained that the “determinative” question for him in the Texas case was the fact that the monument had been there for 40 years without anyone objecting. In essence, Breyer was saying, the establishment clause should be read to allow traditional civic religion to remain in place.
Critics can claim, with some reason, that a tradition exception to the establishment clause makes no sense, and that the chaplaincy should today be abolished.
But a Constitution is more than just a set of timeless moral principles. It also has to function as a blueprint for a healthy society. Breyer’s pragmatism about the Ten Commandments reflected his judgment that getting rid of long-established religious practices can cause unrest and unsettle social peace. That in turn can inflame passions — and give religion a more important role in politics than is afforded by the symbolism.
Speaker Paul Ryan’s failed attempt to get rid of Catholic House chaplain Patrick Conroy is a case in point. Had Ryan respected tradition and let the chaplain stay in office, there would have been no public speculation about whether he was being removed to placate evangelicals who wanted a Protestant sympathetic to their point of view.
The lesson is that, even constitutionally, it can sometimes be best to let sleeping dogs lie. When fundamental rights are in question, the court should brook no compromise in protecting them. But where a provision, like the establishment clause, has evolved in the direction of promoting social inclusion, we should remember that the worthy goal should not be obscured by an insistence on absolutism or perfect logical coherence.
With any luck, it will be many decades before we hear any news about the House chaplaincy again.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg Opinion editorial board or Bloomberg LP and its owners.