*1 MURRAY, al., Appellants, et Jon Garth BUCHANAN,
Angela Treasurer of Marie States, al.
the United et
No. 81-1301. Appeals, Court of
United States
District of Columbia Circuit. D.C., Lindsay, Washington, Ronald A. En Banc Oct. 1982. Argued Myra Selby, Indianapolis, with whom C. Decided Oct. brief, Ind., for appellants. was Jay Singer, Atty., Dept. Michael of Jus tice, D.C., Washington, with whom Stanley Harris, Schaitman, Atty., S. Leonard Justice, D.C., Atty., Dept. Washington, brief, Buchanan, were for appellees, Lamberth, Royce et al. C. Kenneth M. Lawrence, Craig Raisler and R. Asst. U.S. D.C., also entered Attys., Washington, ap Buchanan, pearances for et al. Brand, Counsel, M. Stanley General D.C., with Washington, whom Steven R. Ross, Counsel, D.C., Washington, Asst. Representatives, United House of States brief, appellees was on the for O’Neill and Ford. Counsel, Davidson, Legal
Michael Senate D.C., M. Washington, with whom Elizabeth Culbreth, Counsel, Deputy Legal Senate D.C., for and Daniel J. Washington, Senate E. Paul D. Kamenar and Nicholas Popeo, Helms, Calio, D.C., Washington, for Senator al., brief, joint appellees. et were on the Spitzer Sy- Arthur B. and Elizabeth monds, D.C., brief, Washington, were on the curiae the case be re- urging for amicus proceed- for further versed and remanded ings. REHEARING EN BANC
ON ROBINSON, Judge, Before Chief TAMM, WILKEY, WALD, WRIGHT, GINSBURG, MIKVA, EDWARDS, BORK SCALIA, and BAZEL- Judges, Circuit MacKINNON, Circuit ON and Senior Judges. PER CURIAM.
Opinion *2 690 perceive no tenable basis for a claim filed Cir- We
Special concurrence Senior very congressional practice that the deliber- MacKINNON. Judge cuit should traced the Court in Marsh ately Judge filed Separate statement Circuit Therefore, subject to further review. be Judge in which Circuit GINSBURG Senior appeal, judgment this vacate the we dismiss BAZELON concurs. court, and remand the case of the district PER CURIAM: complaint to dismiss the with instructions of a substantial constitutional for want before the argument appeal After of this banc, question. sitting Supreme court en Court Chambers, — U.S. —, decided Marsh v. (1983). 103 S.Ct. (con- MacKINNON, Judge Senior Circuit Marsh a first amendment-estab rejected curring specially). challenge
lishment clause to the Nebraska en bane which I foregoing opinion, The Legislature’s beginning each ses practice judg- join, appeal, dismisses the vacates prayer by chaplain paid by sion with a court, F.Supp. 505 ment of the district state. and remands the case with instructions to 18, 1983, On the court directed the July a sub- complaint dismiss for want of parties why, light here “to show cause question. stantial federal Reliance ..., appeal Marsh v. Chambers this opinion by placed Court should not be dismissed and the district Chambers, Burger Chief Justice Marsh v. court judgment instructed to vacate its U.S. —, 77 L.Ed.2d — dismiss complaint for failure to raise a Chaplain 1019 which involved substantial constitutional question.” See the Nebraska was decided Legislature and Lavine, 528, 536-38, Hagans v. 94 panel after the decision in this case. The 1372, 1378-80, (1974); S.Ct. L.Ed.2d 577 opinion en is somewhat at variance banc Morrin, Levering Garrigues & Co. decision, panel with the which remanded 103, 105-06, L.Ed. so, doing this case to the district court. In (1933). parties respond- All have now necessary had that it was not panel held ed to that order. the political to consider the extent to which We parties’ presenta- have reviewed the issue involved some consideration tions, are persuaded complaint that the of the Establishment Clause and that “[t]his vitality. [lengthy this action retains no case occasions no need for a histor- Su- preme analysis political question Court’s decision in Marsh v. Cham- ical issue].” bers dispositive appellants’ challenge Slip op. My at 17 n. 23. views were in public funding to the of congressional chap- disagreement majority’s with the refusal to lains. political ques- The Court answered the reach the full merits of the presented in Marsh with necessarily unmistakable clari- tion issue insofar as it involved ty: “practice each some consideration the Establishment opening legisla- of. Clause, tive day prayer by with a substantial chaplain paid by need for analysis determining pres- State the Establish- historical [does not] ] violatef political question. ment Clause of the First Amendment.” Id. ence of a Marsh v. Cf. U.S. at —, Chambers, supra. Accordingly, at I dissented — so filed an ruling, heavily panel Court relied on the “un decision ambiguous” history congressional opinion. practice cha is the of this Since at—-—, to vacate when the plaincies. panel opinions Id. 103 S.Ct. at court banc, issue, placed en and since this case practice High 3332-36. case is said, Chaplains Court has been “unbroken ... for two involved considerations Congress,” centuries in the National id. at some different constitutional case, —, I in the Nebraska present S.Ct. at become than were “ha[d] extracts from earlier part society.” of the fabric of our Id. at set forth below —, support for provide additional S.Ct. at 3335. dissent decision in this case. lack of the present respect the court’s due coordinate branch- of government es .... greater These reflect in detail the constitu unique sup tional and historical base which Both of these criteria are met here. ports our decision. Also addressed are addi A. Textual Commitment issues, including separa tional the federal The Constitution textually commits to the powers tion of issue that present Senate and the House of Representatives *3 case, involving Congress, and which was not the exclusive authority choose their offi an issue in Marsh v. Chambers. Other mat cers and determine their rules proceed ters in dissent to the original panel ings. provides (1) It House of “[t]he point recognition decision also of God Representatives shall Speaker chuse their (slip op. Constitution Const, ...,” and other I, officers art. 5-8), which is a further “tolerable acknowl 5; (2) cl. Senate shall chuse their § “[t]he edgment of beliefs held widely among the ...,” id., I, 5; other officers art. cl. § people country.” at —, of this 103 S.Ct. (3) house determine the “[e]ach at 3336. id., I, Rules of its proceedings,” art. cl. §
2. Pursuant
provisions,
these
when the
First Congress met
in 1789 after
Opinion
Murray
Dissent
to Panel
adoption
Constitution,
of the
the first order
v. Buchanan
Senate,
of business in the
after the adoption
rules,
procedural
of the
was to establish the
(No. 81-1301, D.C.Cir.,
9, 1982)
March
Office and elect a Chaplain.1 The House
MacKINNON,
Judge
(dissenting):
Circuit
appointed
Chaplain
following
its
week.2
]
At some later time
assigned
both Houses
[*
their chaplains the
duty
opening daily
Appellants’ claims against
payment
respective
sessions of the
houses with an
of legislative chaplains must be dismissed
invocation, and enacted a
pre
statute
if the issues involved are
justiciable
non
scribing
respective
compensation. 2
within
purview
of the political question
61d, 61d-1, 61d-2,
(1976
84-2
U.S.C.
&
§§
Schlesinger
doctrine.
v. Reservists Com-
1980).
Supp. IV
War,
208, 215,
Stop
mittee to
418 U.S.
Appellants attack the payments to the
2925, 2929,
(1974)
chaplains as
violating
Constitution and
....
cleared here.
[This hurdle]
[not]
assert
the above quoted provisions of
Accordingly, my judgment
we should af-
Article I of the
give
Constitution do not
firm the holding of the District Court.
Congress the right
spend public
funds for
Question
I. The Political
Doctrine
purpose.
such
Supreme
As the
Court
noted
Baker v.
That contention assumes a narrow read-
Carr,
186, 217,
691, 710,
ing
quoted provisions of Article I
(1962),
L.Ed.2d 663
that,
my opinion,
justified.
is not
Prominent on the surface of
case
decision of the
and the
Senate
House to
held
political
to involve a
question is
compensate
duly
one of their
elected offi-
found a textually demonstrable constitu-
legislative appropriation,
cers
for
tional commitment of the issue to a coor- performance of his historical duties to Con-
political
dinate
department;
... or the
gress,
judgment
pursuant
is a
made
to and
impossibility
undertaking
court’s
in-
powers
in execution of the
conferred
dependent
expressing
resolution without
Senate and the House to “chuse their ...
following
Linn, appointed Chaplain
extracts exclude the discussion
2. Reverend William
[*
standing
upheld.]
House,
Congress
part
May
which the
Court
Congress
1 Annals of
233.
Right
Provost,
1.
Reverend Samuel
elected
Senate,
25, 1789,
Chaplain
April
1 An-
Congress
nals of
being
and “to determine the Rules of
connected to a
inextricably
officers”
matter
Under the doctrine of
committed to
proceedings.”
textually
[their]
implied
power,
Following
federal
see
a lengthy analysis,
McCulloch
Constitution.
(4 Wheat.) 316, 4
Maryland, 17
L.Ed.
the Court decided that
the constitutional
the enactment of a statute au
provision prescribing eligibility require-
thorizing
expenditure
of federal monies ments for members of the House set forth
compensation
chaplains represents
requirements
exclusive
and that
in ex-
legitimate
Congress’
pelling
exercise
incidental
Powell for additional reasons the
mandate,
power
legislate
in furtherance of enu House had exceeded its textual
merated constitutional ends.
of The
Payment
political question doctrine was there-
short,
chaplains,
clearly
inapplicable.
concomi
fore
tant to
constitutionally prescribed
here maintains that since
right
to choose those officers in the first
provision
judge
each House could
instance.
It is therefore an act that is itself
members,
qualifications
of its
Art.
*4
textually committed to Congress by the
5)
1;
subject
sec.
cl
was held to be
Constitution.3 Appellants
claim thus
judicial examination in Powell in the face
comes
political
within the
doctrine
question
poijticai
doctrine,
of the
question
so too
and for that reason it is
beyond
scope
mUst be the clauses at
Maj.
issue herein.
our review.
qg
op.
conclusory reasoning
ab
This
be
majority
asserts
that Powell v.
speaks
grasp
fundamental
failure to
McCormack,
486,
1944,
principles
political question
As
analysis.
(1969), upholds
Powell,
L.Ed.2d 491
clearly apparent
conten-
is
from
it
impos
is
Powell,
tion.
the House
voted
exclude
sible to determine whether
political
Representative
Clayton
Adam
Powell
question doctrine
in a
applies
given
instance
its membership. The House
upon
relied
examining
without
the merits of the under
authority allegedly
by
vested in it
claim
lying
Jayson,
Con-
at issue. See
Annotated
stitution,
provides
which
that
(U.S.
House C onst. of the United States 668
“[e]ach
shall be the Judge
Qualifications
of the ...
Printing
1972)
Gov.
(“[[a]s
Office
a result of
I,
of its own
Powell],
Members.” Art.
sec. 5. Pow-
political
question consider
ed contended that he was excluded for
ation is now one on the
fail-
merits rather than a
ure to
with
comply
eligibility requirements
decide”).4
words,
decision not to
In other
it
that
prescribed
exceeded those
by
possible
the Con-
is not
to determine whether
stitution and his exclusion was therefore
compensation
legislative chaplains
is pro
beyond the authority
conferred
the ex-
judicial
tected from
review
“textual
elusion
clause. The
con-
Court
commitment” criteria
political ques
of the
sidered the political question defenses of-
tion doctrine without
examining
merits
comp
fered
the Government
support
of its
of the Government’s claim that
contention
nonjusticiable,
that the issue was
is textually committed.5 As is
ensation
analysis
3. For an
political ques-
identical
undertaken
Con-
must be considered before the
gress
may
on the textual commitment of
tion doctrine
be addressed.
forces,
Having supported
type
to the armed
see note 11 infra.
the “merits first”
however,
analysis,
majority
go
fails
viz.,
step,
next
majority
to consider
the merits to the
complete
4. The
seems at first to
inbe
Indeed,
notes,
required.
extent
it
... do
agreement
conclusion,
states,
“[w]e
with this
as it
no vie™ as
general
This court has observed that the
rule
¡and,intinla4e
thf
challenged expenditures
wheth®r *e
violate
judiciary
that “there is no warrant
for the
Maj. op.
establishment
clause ....
procedures
interfere in
internal
of Con
wholly
^ai ure constitutes error that
gress” applies
rights
“where constitutional
\
maJonty
question analy
deflates the
s P°lltical
FTC,
Corp.
are not violated.” Exxon
sis.
582,
(D.C.Cir.1978),
denied,
F.2d
cert.
dissenting opin-
L.Ed.2d 1044
5. The
asserts:
“[t]he
(1979).
underly-
on ‘the
ion concentrates
merits
Maj. op.
indicates,
issue,’
quote
theory
ing
at 14 n. 21. As this
claim at
novel
that to
alleged
question
‘political’
the merits of an
constitutional
whether a
is
court
violation
decide
above,
demonstrated
such
examination What the Senate has done in having a chap-
nothing
lain amounts to
more than a
recog-
is textually
compensation
shows that such
nition and religion
God
is similar to
Thus,
ap-
committed.
under
the standard
their recognition elsewhere in the Constitu-
Powell, judicial
plied
scrutiny of the com-
II,
tion. Article
section 1 recognizes God
pensation
practice
protected by
politi-
religion by
providing
the President
cal
doctrine.6
United States
assure the nation
The correctness of this
clearly
conclusion
that he
carry
great
will
out his
duty and
appears when the textual
commitment
obligation
uphold the Constitution of the
”
examined from another
angle.
ability United
an “oath to do so.
by taking
States
of the houses of
to appoint chap- An
is a
calling
“Oath”
“formal
upon God or
lains,
sole public duty throughout
whose
a god to witness to the truth of what invocations,
has been to
history
give daily
says or to witness
sincerely
that one
intends
authorized
implicitly
officer selection
to do
Webster’s New Col-
says.”
what one
and rules proceedings clauses cited
legiate
Dictionary
above.
(1976).7 Thus,
Court,
preme
speaking through
Harlan,
must first consider the case ‘on the merits’.
Justice
theory
correct,
applied
dissent is
then indeed
this wisdom in Commissioner v. Gor-
doctrine,
political question
there is no
don,
there is
95 n.
1524 n.
only
obfuscating
pinned
label
to a decision
(1967) (“[s]ince
the record
Maj. op.
on the merits.”
at 12 n. 17. This
disputed
respect
leaves no
issue of fact with
point
misstates the
made here.
It is not that
be
[the]
decided herein on
[to
political question
invocation of the
may only
doctrine
merits],
proper
we find it
decide
here
complete
allow a
examination of the
fact.”) (emphasis
without reference to a trier of
Rather,
merits of the case as a whole.
it is that
*5
added). King v. Commissioner of Internal Rev-
political question
ap-
doctrine cannot be
enue,
245,
(6th Cir.1972),
458 F.2d
249
also
plied until there is a full examination of the
dealt with an alternative issue that was not
compensation
Government’s claim that
by
Judge
reached
the trier of facts and
Peck’s
legislative chaplains
textually
committed.
opinion
unnecessary
held “a remand is
if all the
proceed
resolving
underlying
To
without
this
documentary
appellate
evidence is
and the
impossible
gauge
applica-
claim makes it
to
pass upon
court can
the facts as well as the
political question
any
tion of the
doctrine in
court,
upon
trial
or if all the facts relied
to
sensible fashion whatsoever.
support
judgment
are in the record and are
”
undisputed ....
See also Texas Co. v. R.
6. The
asserts that
the above discus-
Co.,
526,
(1st Cir.1957)
O’Brien
242 F.2d
529
sion of the merits of the textual commitment
(“if
subsidiary
admitted,
all
facts ...
stand
premature
ground
claim is
that “if ...
sending
there can be no need of
the case
political,
...
[the]
the merits
back”);
Co.,
Knitting
v. Utica
McComb
164
initially by
should be addressed
a court of first
670,
(2d Cir.1947) (“as
F.2d
instance,
...
the evi-
Maj. op.
not a court of review.”
at 13
entirely documentary,
dence is
no issue of wit-
n. 17.
arises;
credibility
therefore,
pass
ness
we can
However,
majority states, appellants
as the
judge [citing
on the facts as well as the trial
complaining
“expending
are
receiving
by
finding
and need not remand for a
cases]
[designated]
funds under
statutes that autho-
him”);
Meyn,
Aetna Life Ins.
Co.
134 F.2d
payment
expenses
rize
of salaries and certain
246,
(8th Cir.1943) (where “controlling
for the
Representatives”
of the Senate and House of
dispute”
“questions
facts are not in
“appellants
of law”
and that
...
[are]
dispositive,
taxpayers,”
Appeals
challenged
were
liberty
“that
Court of
was “at
statutes are
by Congress
to
spending power
an exercise
decide the case on its
merits” even
I,
”,
though
findings
under article
trial
section 8 ...
court had not made
and that
the
ap-
expenditure
fact).
“total
under these statutes is
proximately $80,000 annually” are all “undis-
meaning
applied
puted"
7. This
of an
Maj. op.
oath has been
facts.
at 2-3.
Thus,
See,
repeatedly.
e.g., Lackey
necessary
the facts
v. Mesa Petrole-
a determination
um,
65,
political
(App.
emerge
90 N.M.
559 P.2d
issue
from the
Constitution,
1976) (an
appeal
person
God);
Supreme
the decisions of the
In
re
Rice,
“undisputed”
Ill.App.2d
(1962) (a
plead-
Court and the
ings.
facts in
N.E.2d 742
credibility
appeal
God);
Heath,
There are no
issues and on
solemn
333,
In re
40 Kan.
capable
such
(1888) (a
record this court is as
as a trial
19 P.
declaration or
deciding
court
promise
calling
a constitutional
issue. There
made
on God to witness
necessity
yo-yo
Jones,
is no
said);
to treat
the case like a
what is
State v.
28 Idaho
and not
(1916) (solemn appeal
decide the issue that is
before us when
P. 378
Being).
to the
“undisputed.”
essential facts are
The Su-
officers,
judicial
both of the
explicitly recognizes God and
United
Constitution
religion by
whereby
a textual commitment
states,
and of the several
shall be
States
of invok-
given
option
the President
affirmation,
support
oath or
bound
ing
binding undertaking
carry
in his
God
Constitution,
religious
but no
test
i.e.,
duty,
governmental
on his most solemn
required
qualification
shall ever be
as a
That the Pres-
support
Constitution.
public
office or
trust under the Unit-
undertakings may
ident’s
also be
“affir-
ed States
mation”
the “free exercise of
implements
Const,
added).
(emphasis
art. VI
religion”
guaranteed
also
the First
in this
recognition
religion
pro-
God
Amendment.
magnitude,
vision is
tremendous
extend-
only
provi-
Nor is this
constitutional
major
ing
every
governmental
does to
recognizing
religion.
sion
God and
in the
office
nation —state and federal.8
provides:
Constitution also
I,
In addition Article
section 3 of the
representatives
The senators and
before
mentioned,
provides
Constitution
shall
and the members of the sev-
Senate
legislatures,
try
impeachments
eral state
and all executive
have the sole
all
power
addition,
addresses,
crisis,
inaugural
present
8.
in their
all of
have forced themselves too
presidents
publicly recog-
strongly
my
suppressed.
our nation’s
mind to be
You
religion.
George
join
thinking
example,
I
nized God and
Washington,
For
will
with me trust
that there
independ-
who led the colonists to
the influence of which
are none under
ence, presided throughout
proceedings
the constitutional
a new and free Government
president
auspiciously
convention and was elected the first
can more
commence.
Constitution, paid
Fitzpatrick, Writings Washington
of the new nation under the
J.
93,
292-
homage
place
Printing Office,
of God and
U.S. Gov’t
Bicentennial
Inaugural
lifeblood of the nation in his First
Commission.
April
George Washington
Address on
1789:
also laid the cornerstone
Ceremony
Capitol
in a Masonic
in which
particularly improper
would be
to omit in
[I]t
congregation joined
Act,
“the whole
supplica-
awfull[*]
this first official
fervent
prayer.” The
Mirror and Alexan-
Columbian
Almighty Being
tions to that
who rules over
Gazette,
September
*“Awfully
dria
Universe,
presides
who
in the Councils of
”
feeling
Nations,
.. . archaic: with a
of awe . ... Web-
providential
and whose
aids can
Dictionary
Third
International
supply every
defect,
ster’s
(1961).
New
human
that his benedic-
hap-
tion
piness
consecrate to the
liberties
*6
principal sponsor
Rights,
The
of
Bill
States,
of
People
of the United
Jefferson,
guidance
Thomas
also invoked divine
by
Government
instituted
themselves
4,
inaugural
in
on March
his
address.
purposes:
may
these essential
every
enable
need, too,
Being
I shall
favor of
employed
instrument
in its administra-
are,
fathers,
in whose hands we
who led our
success,
tion to execute with
the functions
old,
Israel of
from their
native land and
charge.
tendering
allotted to
his
this hom-
planted
country flowing
them in a
with all
age
every public
to the Great Author of
life;
private good,
the necessaries and comforts of
who has
myself
express-
I assure
that it
infancy
providence
your
my own;
covered our
with His
es
sentiments not less than
riper years
power,
large,
our
with His wisdom and
nor those of
fellow-citizens at
less
goodness
you
join
I
People
and to whose
supplications
ask
than either. No
can be bound to
enlight-
acknowledge
hand,
with me that He will so
and adore the invisible
servants,
your
guide
which
the minds
conducts the Affairs of men more than
en
councils,
of
their
People
Every
prosper
step,
the
by
of the United
their measures that
States.
they
your good,
they
which
do shall
have advanced to the charac-
whatsoever
result
independent nation,
you
peace, friendship,
ter of an
seems
and shall secure to
by
distinguished
provi-
approbation
been
some token of
of all nations.
421,
agency.
Vitale,
3,
important
Engel
dential
And in the
revolu-
v.
370 U.S.
n.
82 S.Ct.
3,
just accomplished
system
(1961) (Stewart,
tion
in the
of their
1275 n.
8 L.Ed.2d
Government,
J.,
tranquil
dissenting).
United
delibera-
voluntary
many
examples
tions and
consent of so
dis-
For additional
of the invocation of
.
communities,
Presidents,
religion by
tinct
resulted,
from which the event has
see the extracts
God
Adams,
compared
inaugural
cannot be
with
means
from the
addresses of John
Madison,
Lincoln,
Abraham
which most Governments have been es-
James
Grover
Cleveland,
Wilson,
tablished,
pious grati-
Franklin Delano
some return of
Woodrow
without
Roosevelt,
Eisenhower,
Dwight
along
anticipation
tude
a humble
of
and John Ken-
with
Vitale,
blessings
past
pre-
nedy,
supra,
[† J., dissenting).] Chambers, (1983) (Brennan, in Marsh v. dissenting opinion L.Ed.2d 1019 his Court, I do not believe Congress, that this or the that the whose first act in organ- Congress, or the President has izing included providing chaplain for a actions practices I have mentioned one, electing was the same established an “official religion” viola- passed the First Amendment. 1 Journal of tion of the Constitution. the Senate 1 Journal of the House of Representatives 26. It can thus hardly be 446-50, 370 U.S. at at 1275-77 presumed that J., Congress considered that the (Stewart, dissenting) (emphasis added). Finally, Justice Reed Establishment Clause it noted in McCollum v. included Education, Board of First prohibit Congress Amendment would 92 L.Ed. concerning having chaplains, from since the election of Establishment Clause: a chaplain had been their first order of organization.9 business after practices govern- the federal ment offer many examples of this kind of Nor was this the only indication that “aid” the state religion. The Con- . Congress viewed the appointment and com-
gress of the United States has a chaplain
pensation
legislative
chaplains
be con-
for each House who daily invokes divine
stitutional.
In the mid-nineteenth century,
blessings
guidance
proceed-
for the
Congress undertook an extensive considera-
ings. The armed forces have commis-
tion of
constitutionality
prac-
of those
sioned chaplains
early
days. They
tices and found them absolutely consistent
conduct the public services in accordance
with the provisions of the Establishment
with
liturgical
requirements of their
passage
In a
leaving no room for
Clause..
faiths,
respective
afloat,
ashore and
em-
misinterpretation on
point,
the Senate
ploying for the purpose property belong-
noted, for example:
ing to the United States and dedicated to
passed,
pass,
has
or should
the services of religion. Under the Ser-
which,
construed,
law
any
fairly
Readjustment
vicemen’s
has in
Act of
eli-
gible
introduced,
any degree
veterans
training
attempt
receive
at
or should
government expense
introduce,
ministry
for the
church,
favor of any
or
denominational schools. The schools of
association,
ecclesiastical
system
or
of re-
the District of Columbia
opening
faith,
ligious
all or
one of these ob-
exercises which “include a reading from
noxious particulars
at
—endowment
the Bible
comment,
without note or
public expense, peculiar
privileges
its
prayer.”
Lord’s
members, or disadvantages
penalties
or
...
history
past
practices is de-
upon
[T]he
those
reject
who should
its doctrines
terminative of the meaning of
Estab-
[the
belong
other communions —such law
clause ....
lishment]
would be a “law respecting an establish-
and,
religion,”
therefore,
ment of
in viola-
253-56,
That opening legislative religion, faith, no no form of sessions with in- no denomi- vocations does not religious violate the nation of professors, Establish- is estab- ment Clause is also lished, borne out the by other, fact in preference any to or has matter, very 9. For the a view of later Senate on this see note 10 infra. Cong., conferred it. No.
any peculiar privileges upon S.Rep. (1853).10 32d 2d Sess. See also No. H.R.Rep. Cong., 31st 1st free absolutely The of is range selection (1850); H.R.Rep. Sess. and No. 33d all amongst existing profes- in each house (1854). 1st Cong., Sess. religious There com- sions of faith. is no congressional findings on these con- pulsion attempted, upon any exercised or questions given great stitutional should be house, member or officer either to of by this “The weight customary court. def- prayers religious attend their or solemni- judgments Congress erence accorded the of gains advantage ties. No member any certainly when, here, appropriate Con- by attending, over another or incurs any gress specifically considered the of penalty advantages or loses de- any Rostker v. constitutionality.” the Act’s clining to attend. is an chaplain Goldberg, him, officer the of house which chooses 478 (1981). L.Ed.2d nothing place and more. He owes his not indication that Further the invocations belonging particular religious his to a given beginning legislative the of each faith, holding or but society, particular session are not in violation of the Establish- of the voluntary the choice members of Clause long ment exists the standing house, stands, respect, the and in this practices chaplains of having compensated upon footing same with other any the in the armed prisons. forces To seen, officer is not so elected. It there- date, no case has invalidated either of these fore, how the of chaplains institution types later of chaplaincies Establishment justly reproach obnoxious to invad- the of grounds. Indeed, Clause the appointment ing religious liberty in the widest sense of compensation of at the prison least term. have been chaplains upheld in the face of any just expression religious 10. The Senate also laid doubts to as to rest of devotion thought gleaned nation, what legislators it could be from the fact public of the even their adopted the First legislators; they character as did not intend paid legislative chaplains. Amendment had send our armies and navies forth to do petitioners The whole view of the seems country any battle for their without national upon conceptions founded mistaken recognition of that God on whom success or meaning of the evi- Constitution. This is depends; they failure did intend not said, dence—if not from we what public spread over all the authorities and the that, beginning, this from the consideration — public whole action of the nation the dead government our has had em- in its revolting spectacle apathy. of atheistical ployment. of this had been a violation so had of Not the battles the revolution been religion— Constitution —an establishment of fought, and the deliberations of revolu- why great was its seen character tionary Congress conducted. On the con- good and government men who coeval were with trary, all had been done with a continual and in the —were appeal world, Ruler of the Presidency when this constitutional amend- upon protection and an habitual reliance His adopted? They ment was were wise to dis- righteous they cause which commend- measure; cover the true they, character to His ed care. did, if understood the true done, What has been thus with modifica- amendment, bound, purport and were tions, indeed, to suit external circumstances duty oaths, and their to resist the particular exigencies, but in substance chaplains, or introduction continuance if always beginning the same from the of our petitioners views were correct. nation; approval existence as a what met they thing; But did no such we therefore great Washington, our of all the men strongest suppose have the reason to him; have succeeded who what commands petitioners notion be unfounded. general people; commendation Unfounded no doubt is. Our were fathers lovely, what respectable at once so venerable and so so liberty, utterly opposed true lovers of any not, respected ought upon rights of constraint conscience. — committee, opinion intended, amendment, now to be discon- They prohib- tinued. religion” it “an establishment of such as the committee, therefore, pray English presented, to be dis- anything church like it. charged jealousy they from the further consideration of the But had fear or no itself, they petitions. did nor wish see us an irreli- gious they people; prohibit did not intend to Id. *9 698 See, e.g.,
First
attack.11
Ab-
the
of the respective
Amendment
members
houses of
District
ington
Schempp, supra,
School
v.
if
Congress. Only
practices
these two
are
(Brennan,
83
U.S. at
S.Ct. at 1612
in violation of another
part
Constitu-
J.,
Silber,
Theriault v.
547 F.2d
concurring);
this
tion could
internal matter be evaluated
(5th Cir.1977);
Protestants and Other
viz.,
a
outside of
party
Congress,
by the
Separation
Americans
Church
United
of
demonstrated,
courts. As has been
the ap-
O’Brien,
and
F.Supp.
State v.
pointment
compensation
at issue do not
(D.D.C.1967).
also
v.
Florey
See
Sioux
other
any
provision
contravene
the Con-
49-5,
Falls
619 F.2d
supra,
School District
Accordingly,
power
stitution.
the
of Con-
J., dissenting).
(McMillian,
1329 n. 6
beyond
gress here
“absolute and
the chal-
any other
tribunal.”
lenge
body
of
or
Unit-
textual-
It is thus
conclusion that the
Ballin,
1, 5,
v.
ed
States
right
to
im-
ly
recognize
committed
(1892);
L.Ed. 321
McGrain v.
plicit
Congress
in the authorization to
135, 181-82,
Daugherty, 273
choose its officers and to formulate the
319, 331,
(1927).
political question doctrine.
Conclusion B. Lack Respect Due a Coordinate has either misconstrued or Branch political misapplied [doc- applied as As this case. demon- trine] The implementation of constitutional au- above, appellants’ strated claim should be thorization to houses of .... It been suggested: dismissed has also appoint compensate respective chaplains is clearly matter of internal If there be a prayer God who hears —as submit, to be solely by administration dealt with we believe there is—we navy, specifically truly While the courts exam- and we deem the as constitutionality necessity appointment ined matter other. compensation H.R.Rep. Cong., (1854). No. 1st in the armed 33d Sess. forces, Congress itself has the issue considered aptly 12. As the District noted this Court so entirety and found no Establishment in its point, Employing Clause violation of kind. here, circumstances conclusion [I]n “implied power” analysis federal such as that inescapable “impossi- seems be it would my argument used above in textual Court, consistently ble” for with the re- legislative chaplains commitment of to Con- spect which courts owe to coordinate branch- gress, Representatives House noted: other, government and to to under- es each presume grant proper all We will that it “independent ques- take an resolution” appoint physicians surgeons Congress’ power compensate tion of its army navy. power appoint chap- complaint particu- Chaplains, on this of these same, just lains is because are neither taxpayers. lar named, expressly appointed but are under Morton, Murray (D.D. F.Supp. general authority organize army C.1981). *10 clause occurs body was that establishment violation when
there never a deliberative chaplain fervent a state a eminently prayers legislature engages needed the and so public pay chaplain’s of the uses to for the righteous men as the funds was High acknowledged There never another The Court United States. services. that had so assembly representative standing ques- state raise the taxpayer so different interests to many widely tion,1 and justiciability no other and found bar- harmonize, and many and to so protect rier. One member passions local subdue. contrast, court, the By district the charged rights the of the feels defend panel assigned the initially coast; Atlantic, another of the Pacific case, appeal the in this reached never the urges the claims of constituents on one (1) merits. The district court held com- torrid, another on the the borders taxpayers, sued as plainants, who federal zone; while hun- frigid borders standing public lacked fund- of local var- dreds have defence ing congressional chaplaincies; (2) across stretching ied interests an entire spending chaplaincies federal for personal If selfishness or am- continent. “political presented question” which alone, bition, if party or sectional views should not be addressed at all federal rule, legislation all will attempts bear judges. three-judge appeal The panel fruitless, only or bitter fruit. be bear 2-1; expressing opinion reversed no above, profitable from that wisdom merits,2 controversy justi- held simply it direct, given prayers be in answer it ciable and returned to the district court pious, then need those for consideration and resolution on mer- devotions, surely need to have they per its in first instance.3 The en banc personal importance daily views of disposition curiam vacates both district they reflection are chastened original appellate panel’s court’s and the government Supreme under decisions, thus the two open leaves Power, one locality that rules not for (standing justiciability divisive issues time, governs but a world general one political question) initially confronted laws, subjecting motives and all acts case. all scrutiny, an omniscient holds just agents to their awards irresist- High Court has now indi- nation’s power. ible unambiguously cated how the merits resolved, obviating any must be controversy Sess., Cong., No. 1st 6-7 R.Rep. H. 33d court postscript need for a from the district (1854). These same considerations exist to- constitutionality of Con- or this court on the form. day greatly magnified gress’ practice. historic reasons I For all of above therefore MacKinnon, dissent. respectfully from Judge who dissented decision, panel nevertheless three-judge GINSBURG, Judge, Circuit separate dissenting opinion, his reprints the bulk of Judge Circuit statement which Senior declare, Supreme which as the purports BAZELON concurs: not, did the case is non- surely Court it justiciable. Judge But from plain Chambers, — U.S. —, Marsh he presentation easily MacKinnon’s as the L.Ed.2d Far cleared all threshold hurdles. per opinion join explains, dispos curiam I merits, as avoiding panel majority controversy. itive of this did, he presented ruled on the merits that no decided squarely Court panel majority said that the at 3338 n. 4. in conclusion 1. At — n. clause issue first amendment establishment presented panel majority 2. The wrote: courts, proper merits, is a resolution We ... do not reach the intimate to the district and this case is remanded question whether no view on the the chal- undertake such a resolu- court so that lenged expenditures violate establishment tion. clause. then, labeled it curiously, “political,” there-
fore subject adjudica- to federal court
tion. The reader is left to wonder how a
judge say, indulging can after in an unre-
strained discussion and resolution of an is- merits,
sue on its that the he has
just is, resolution, resolved despite that
“nonjusticiable.” MacKinnon,
Perhaps Judge by reviewing
the challenged government' action and
squarely deciding that it is within the au-
thority Congress, recognized, has tacitly, genuine there no political question Henkin,
doctrine and no need for one. See Question”
Is There a “Political Doctrine?,
85 Yale (1976) (in L.J. 597 no case did the
Supreme Court have to use phrase “po- question”
litical because in fact the Court
did review the action at issue and deter-
mined that it was within the constitutional
authority of the President or Congress).4 case, is the Judge MacKinnon should
say so forthrightly and remove the obfus-
cating “political question” label from his
opinion along with the pretense that he
found the controversy inappropriate
court adjudication. GLOSTER, Petitioner,
Ruth O.
GENERAL SERVICES
ADMINISTRATION,
Respondent.
No. 82-1774.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 1983.
Decided Oct. Carter, 4. But cf. Goldwater v. “po- the Federal Government characterized as 1005-06, 533, 538-39, litical” not be addressed federal courts (1979) J., (Rehnquist, all; concurring judg- regardless challenger, questions ment) (A separation powers nonjusticiable.). within so labeled are