Public School Chaplains: A Constitutional Solution

by Herbert W. Titus

First:   Banning Religion from Public School: Three Fallacies
Third:   Public School Chaplains: Constitutional Solution


In 1988, in the case of Marsh v. Chambers,83 the United States Supreme Court refused to apply the three-part establishment clause test in a case testing the constitutionality of state legislative chaplains. Had the Court applied the Lemon rule, the historic practice of American legislative bodies, both national and state, would have flunked all three parts of the test. As Justice Brennan pointed out in dissent:

That the “purpose” of legislative prayer is pre-eminently religious rather than secular seems to me to be self-evident. “To invoke Divine guidance on a public body entrusted with making the laws” is nothing but a religious act ….
The “primary effect” of legislative prayer is also clearly religious…. [I]nvocations in Nebraska’s legislative halls explicitly link religious belief and observance to the power and prestige of the State ….
Finally, … the practice of legislative prayer leads to excessive “entanglement” between the State and religion…. First, . . . [i]n the case of legislative prayer, the process of choosing a “suitable” chaplain … and insuring that the chaplain limits himself or herself to “suitable” prayers, involves precisely the sort of supervision that agencies of government should if at possible avoid.
Second, excessive “entanglement” might arise out of “the divisive political potential” of the state statute or program …. The controversy between Senator Chambers and his colleagues … has split the Nebraska Legislature precisely on issues of religion and religious conformity.84

Because Chief Justice Warren Burger’s majority opm10n rested primarily upon the fact that legislative chaplaincies had continuously existed from the beginning of the American Republic, Brennan dismissed Marsh as an isolated exception to the Court’s establishment clause jurisprudence. But Marsk has proved more vital and versatile a precedent than Brennan had hoped. It has been successfully invoked by defenders of the chaplaincy system in the military and by defenders of prayer at public school graduation exercises.85 While Marsh may be a case precedent in search of a constitutional principle, it is now more firmly established than many establishment clause rulings of the past thirty years because a majority of the Justices of the current Supreme Court have expressed dissatisfaction with the Lemon three-part test.86

A.     In the Legislatures of America

Undaunted by Brennan’s challenge to halt a nearly two-hundred-year-old practice of appointing chaplains to legislative bodies, Chief Justice Warren E. Burger, writing for a majority of six, succinctly stated the legacy of prayer currently practiced in the legislatures and courtrooms of America:

The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, “God save the United States and this Honorable Court.” The same invocation occurs at all sessions of this Court.87

Rejecting the claim that the legislative practice of hiring a chaplain and paying his salary out of tax funds violated the first amendment’s prohibition of the establishment of religion, the Chief Justice responded further with an even more specific lesson from history:

[T]he Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain… . [T]he First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer… . On April 25, 1789, the Senate elected its first chaplain: the House followed suit on May 1, 1789. A statute providing for the payment of these chaplains was enacted into law on September 22, 1789.88

The significance of these acts and these dates was not lost upon the Court:

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, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. It has also been followed consistently in most of the states….89

In reliance on these uncontested historical facts, the Chief Justice later concluded that “[t]o invoke Divine guidance on a public body entrusted with making the laws is not … an establishment’ of religion or a step toward establishment.”90

This ruling upholding the constitutionality of the employment of chaplains to open legislative sessions in prayer came despite the fact that the chaplaincy practice at issue in the case had these three salient features: (1) for sixteen consecutive years the chaplain was a Presbyterian clergyman; (2) the chaplain was paid at public expense; and (3) the prayers offered were in the Judeo-Christian tradition.91

With regard to the obvious denominational preference reflected in the employment of a Presbyterian for sixteen unbroken years, the Court stated:

We cannot … perceive any suggestion that choosing a clergyman of one denomination advances the beliefs of a particular church… . Absent proof that the chaplain’s reappointment stemmed from an impermissible motive, we conclude that his long tenure does not in itself conflict with the Establishment Clause.92

As for paying the chaplain with funds from the state treasury, the Court sustained that practice by relying solely upon the historic record: “[R]emuneration is grounded in historic practice initiated … by the same Congress that drafted the Establishment Clause of the First Amendment.”93

As to the content of the prayers offered by legislative chaplains, the Court refused even to address it:

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.94

Equally significant to its decision upholding “officially sponsored legislative prayer” through a chaplain paid for out of tax revenues was the Court’s refusal to subject this practice to its traditional three-part establishment clause test. Relying on that test, the Court had consistently struck down prayer in the public schools. Dissenting from the majority’s view in the legislative chaplaincy case, Justice Brennan applied the school prayer precedents and their doctrinal underpinnings to draw this conclusion: “In sum, I have no doubt that, if any group of law students were asked to apply the principles of (the three-part test] to the question of legislative prayer, they would nearly unanimously find the practice unconstitutional.”95

So the legislative prayer ease not only established a precedent upholding the tradition of using tax funds to employ clergymen as legislative chaplains, it called into question the legitimacy of applying the establishment clause three-part test to the issue of prayer when conducted by an ordained minister employed by the state as a chaplain.

B.     In the Military

In 1985 the U.S. Court of Appeals for the Second Circuit had occasion to address whether the establishment clause prohibited the system of military chaplaincies. As in the legislative chaplaincy case, the court acknowledged the long history of that institution, from “Revolutionary days” to the present time:

Upon the adoption of the Constitution and before the December 1791 ratification of the First Amendment Congress authorized the appointment of a commissioned Army chaplain. Since then, as the Army has increased in size the military chaplaincy has been extended and Congress has increased the number of Army chaplains.96

Military chaplains “are appointed as commissioned officers with rank and uniform but without command.”97 Before appointed they must be endorsed by an “ecclesiastical endorsing agency recognized by the Armed Forces Chaplains Board.”98 In addition, they must meet minimum standards set by the Department of Defense “to insure the applicant’s ability to communicate with soldiers of all ranks and to administer religious programs.”99 Finally, the applicant must fit the denominational needs as determined by the office of the Chief of Chaplains, which “establishes quotas based on the denominational distribution of the population of the United States as a whole.”100

Military chaplains, unlike their legislative counterparts, have a much greater task than leading the troops in prayer. They must “engage in activities designed to meet the religious needs of a pluralistic military community, including military personnel and their dependents.”101 Especially important needs are the problems that arise from being stationed in foreign countries and from being called into military combat. The military chaplain is a key counselor and spiritual advisor to the soldier who must face combat or separation from loved ones. While such chaplains are not authorized “to proselytize soldiers or their families” their “principal duties are to conduct religious services (including periodic worship, baptisms, marriages, funerals and the like), to furnish religious education … , and to counsel soldiers with respect to a wide variety of personal problems.”102

In addition, chaplains oftentimes mediate between soldiers and their commanding officers dealing with such matters as racial unrest and drug or alcohol abuse. The great majority of the chaplaincy’s services are funded by tax revenues, supplemented by voluntary contributions for special denominational needs.

After careful review of the military chaplaincy, as summarized above, the court of appeals openly acknowledged that “it would fail to meet” the conditions of the three-part Lemon test.103 Nevertheless, it refused to apply that test to the ease. Its refusal was based not only upon the long history of the military chaplaincy, but upon the special constitutional authority of Congress to provide for the common defense through a well-trained and disciplined military and upon the recognized need to provide opportunities to exercise freely one’s religious faith while engaged in the defense of one’s country.

On the former point the court noted that even those who attacked the military chaplaincy as unconstitutional conceded that “some chaplaincy is essential.”104 They argued that a civilian chaplaincy funded by private sources could meet the military and free exercise needs. The court disagreed. Not only did the court find a wholly voluntary civilian chaplaincy “financially infeasib[le],”105 the court determined the incorporation of a chaplaincy program into the military establishment was absolutely essential in order for there to be an effective program to meet the needs of the soldiers and their dependents:

The purpose and effect of the program is to make religion, religious education, counseling and religious facilities available to military personnel and their families under circumstances where the practice of religion would otherwise be denied as a practical matter to all or a substantial number. As a result, the morale of our soldiers, their willingness to serve, and the efficiency of the Army as an instrument for our national defense rests in substantial part on the military chaplaincy, which is vital to our Army’s functioning.106

If such a program of religious education, counseling, and training is so crucial to our national defense thereby necessitating a tax-supported chaplaincy for our nation’s soldiers, one might ask if the same kind of program is no less crucial for our nation’s school children who, after all, are being prepared by tax-supported schools to take their place as citizens whose duties include the defense of the nation.

C.     In the Public Schoolhouse

One will look in vain to find a long history of school chaplaincies on a par with that of the legislative and military programs outlined above. But that does not mean that prayer and religious education, training, and counseling have not played an essential role in the education of America’s youth. In the first one hundred years of this nation’s history, education was almost exclusively in private hands. And those private hands were, in turn, almost exclusively those of the church. Not surprisingly, when the task of education was gradually transferred to the state through the establishment of local school boards, prayer and religious teaching came with the transfer. Thus, the Supreme Court pronouncements in the last thirty years excluding prayer and Bible reading have rejected history, not embraced it.

What happened in this educational transformation was the failure of public school supporters to recognize that to retain the religious element in education they would have to separate it out from other functions performed by the classroom teacher in the public schools. Instead, they left the religious function in the hands of ordinary government officials and made themselves vulnerable to the attacks on prayer that came in the early 1960s. To illustrate this point one need only reexamine Justice Hugo Black’s oft-repeated statement in the New York Regent’s prayer case: “[I]n this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”107 Had the New York Board of Regents created a chaplaincy program it would have avoided having imposed upon itself the duty of composing a prayer. That task would have been left to an ordained clergyman in each school district who could have performed this duty in a constitutional manner just as his counterpart in the New York Legislature and at West Point had been doing for decades.

This confusion of roles for lack of the establishment of a chaplaincy has extended from the board level down to the classroom. If the teacher leads the students in the Lord’s Prayer and in Bible reading, his recognized authority in reading, writing, and arithmetic may spill over into the time of religious training. But if the functions are separate, then the teacher may inculcate his students in literature, grammar, and mathematics while the chaplain meets the spiritual needs of the children. This is the very kind of separation of functions that is the hallmark of the legislative and military chaplaincies. It would enable the teacher to inculcate the students in the secular subjects, but with the support of a chaplaincy program within the school system to meet the religious needs of the students.

Without such a spiritual foundation, public education today flounders on the shoals of racial unrest, drug abuse, and suicide. If a military chaplaincy is needed to deal with such problems, how much more is such a chaplaincy needed in the nation’s schools. Educationists have long claimed that the power to maintain a tax-supported public school system is no less than the power to maintain military forces.108

The Kentucky Court of Appeals echoed this sentiment when, in defense of public education, it wrote as follows:

The place assigned [public education] in the deliberate judgment of the American people is scarcely second to any. If it is essentially a prerogative of sovereignty to raise troops in time of war, it is equally so to prepare each generation of youth to discharge the duties of citizenship in time of peace and war. Upon preparation of the younger generations for civic duties depends the perpetuity of this government.109

And the United States Supreme Court has joined this roster of witnesses to the importance of public education in a democratic society:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship.110

How ironic that both the nation’s legislatures and its military branches provide a spiritual support system to its participants, but the Supreme Court in its prayer and Bible-reading cases has taken such support away from the nation’s school children. If those schools are to succeed in the Court’s own definition of their task – inculcating fundamental values necessary to the maintenance of a democratic political system”-then the establishment of a public school chaplaincy system is as essential to that mission as the military and legislative chaplaincies are to the defense and lawmaking missions of the nation’s armed services and legislative bodies.

First:   Banning Religion from Public School: Three Fallacies
Third:   Public School Chaplains: Constitutional Solution


*     Copyright © 1991, 2021 Herbert W. Titus. This article originally published in Regent University Law Review, Vol. 1 (1991). For nearly thirty years Herbert W. Titus taught constitutional law at four different A.B.A.-approved law schools. From 1986 to 1993 he was the founding dean of the law school at Regent University.
   83.    463 U.S. 783 (1983).
   84.    463 U.S. at 797-800 (Brennan, J., dissenting) (citations omitted).
   85.    Katcoff v. Marsh, 755 F.2d 223, 232 (2d Cir. 1985) (military chaplaincy); Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir. 1987) (While the defenders were unsuccessful on the specific facts, the court applied Marsh not Lemon to assess the constitutionality of prayers at graduation ceremonies).
   86.    See Roemer v. Board of Pub. Works, 426 U.S. 736, 768 (1976) (White, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 112 (1985) (Rehnquist, J., dissenting); Aguilar v. Felton, 473 U.S. 402, 429 (1985) (O’Connor, J., dissenting); Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J., dissenting); County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 656 (1989) (Kennedy, J., concurring in the judgment and dissenting in part).
   87.    Marsh v. Chambers, 463 U.S. at 786.
   88.    Id. at 787-88 (citations omitted).
   89.    Id. at 788-89 (citations omitted).
   90.    Id. at 792.
   91.    Id. at 793.
   92.    Id. at 793-94.
   93.    Id. at 794.
   94.    Id. at 794-95.
   95.    Marsh v. Chambers, 463 U.S. at 800-01 (Brennan, J., dissenting).
   96.    Katcoff v. Marsh, 755 F.2d at 225 (citations omitted).
   97.    Id.
   98.    Id.
   99.    Id.
   100.    Id. at 225-26.
   101.    Id. at 226.
   102.    Id. at 228.
   103.    Id. at 232.
   104.    Id. at 235.
   105.    Id. at 236.
   106.    Id. at 237.
   107.    Engel v. Vitale, 370 U.S. at 425.
   108.    See, e.g., N. Edwards, The Courts and the Public Schools 28-24 (3d ed. 1971).
   109.    City of Louisville v. Commonwealth, 134 Ky. 488, 493, 121 S.W. 411, 412 (1909).
   110.    Brown v. Board of Educ., 347 U.S. 483, 493 (1954).