When some Nebraskans pray, they ask God to afflict Oklahoma's Sooners with charley horses. The American Civil Liberties Union probably thinks this violates some constitutional requirement of a wall of separation between church and football, a distinction Nebraskans find unintelligible.
The prayer habits of Nebraskans recently preoccupied the Supreme Court, which held (6-3) that the Constitution does not forbid Nebraska's legislature from beginning each session with a prayer by a chaplain paid by the state. A district court held that praying was permissible, but that paying the chaplain constituted "establishment" of religion. An appeals court agreed that both praying and paying were unconstitutional.
The appeals court's outcome was nutty, but the court was faithful to the three-part test the Supreme Court has concocted for detecting "establishment": government action does not constitute establishment if it has a secular purpose, if its primary effect neither advances nor inhibits religion and if it does not foster "excessive" entanglement of government with religion. Obviously the chaplain's prayers had a religious purpose, and it would have been rude for the appeals court to say that his prayers did not advance religion.
The appeals court noted that one chaplain, a Presbyterian, had served the legislature for 16 years. That court evidently believes that Presbyterianism is Nebraska's "established" religion.
But the Supreme Court says that prayer at the opening of deliberative bodies is "deeply embedded" in American tradition. Writing for the majority, Chief Justice Warren Burger notes that in 1789, three days after the first Congress authorized paid chaplains, it approved the language of the Bill of Rights, including the First Amendment's prohibition of "establishment" of religion.
You might think that that should be sufficient, and in fact it is the core of Burger's opinion. But the court is disqualified from being so reasonable. It has spent several decades splitting hairs and then splitting them again. (In one ruling it held that it is constitutional to use public funds to buy textbooks for non-public school pupils, but unconstitutional to buy other instructional material such as maps. This caused Sen. Daniel P. Moynihan to wonder how the court would feel about atlases--books of maps.) The splitting of split hairs brought the court to the three-part test.
That test disregards the intentions of the framers of the Establishment Clause. That clause was designed to ensure only that government would be neutral between religions, not between religion and irreligion.
In the Nebraska case, the court, eager to avoid coming to the conclusion the appeals court came to, disregarded the three-part test. The court says "an unbroken practice . . . is not something to be lightly cast aside." True, few practices go back as far as 1774, when the Continental Congress began opening its sessions with prayers by a paid chaplain. But it is late in the day for the court to allow its misconstruction of the Establishment Clause to be inhibited by considerations of the framers' intentions or reverence for traditions.
Justice Brennan, dissenting and joined by Marshall (Stevens dissented separately), notes that the majority "makes no pretense" of applying the Establishment Clause "tests" to Nebraska's practice. But Brennan should consider why. Common sense dictates the conclusion that Nebraska's chaplain is compatible with Establishment Clause language approved by Congress three days after Congress decided to hire chaplains. But this conclusion is incompatible with some of the court's recent rulings. So the court hs, in effect, baldly asserted an exception to the Establishment Clause--or, more precisely, an exemption from the criteria the court has foolishly spun to determine "establishment." Thus does the judicial activism of one decade produce a recoiling activism in another.
In another recent Establishment Clause case, the Court held (5-4) constitutional Minnesota's statute granting limited tax deductions for certain expenses incurred by parents of pupils in public and private schools. The court held that the statute was "neutral" because it helped both public and private students--this, in spite of the fact that most of the relief went to parents of private school pupils, 96 percent of whom attended parochial schools. In this case, too, the court seemed to be trying to evade, without repudiating, the three-part test.
In a fire-breathing dissent in a recent Eighth Amendment case (the majority said about "cruel and unusual" punishment approximately what Justice Potter Stewart once said about pornography: we know it when we see it), Burger accused the majority of undermining the rule of law by disregarding a 1980 precedent. The confusion in constitutional law is now sufficient to cause one to say "amen" when the person says at the opening of proceedings in the Supreme Court and other courts, "God save the United States and this Honorable Court."