Lawmakers Ask Court to Dismiss Suit Against Chaplains

Nov 27, 2002 12:40 PM EST

A legal watchdog group has filed a brief on behalf of 22 Members of Congress to dismiss a lawsuit challenging the constitutionality of congressional chaplains.

Paid congressional chaplains have been around since the inception of Congress in the 18th Century, and their role does not violate the Establishment Clause of the First Amendment, which forbids the government from endorsing an official religion, the lawmakers said.

The American Center for Law and Justice, a public interest law firm based in Virginia Beach, filed the brief Friday in U.S. District Court in Washington on behalf of 16 members of the House and six senators.

The brief challenges a claim by Michael Newdow, a California atheist who first achieved notoriety when he sued to remove "under God" from the Pledge of Allegiance.

Newdow argues that paying congressional chaplains with taxpayer money is a violation of the Constitution. He filed a suit against the practice in August and named the entire body of Congress as defendants.

Newdow also opposes putting the words "In God We Trust" on money and references to God in speeches by elected officials in House and Senate resolutions.

James Henderson, a senior counsel with the American Center for Law and Justice, slammed Newdow's latest suit as "meritless."

"I would refer to it as an intellectual exercise if there was any evidence of intellect in it," Henderson said.

In its brief, the ACLJ is asking the court to dismiss Newdow's claim based on a 1983 landmark decision by the U.S. Supreme Court in the Marsh v. Chambers case, in which the justices ruled that paying chaplains with public funds is not the same as establishing a religion.

"To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country," the court ruled.

People who are in doubt about what the Establishment Clause means need only ask how the founders behaved in light of their participation in making it the law of the land, Henderson said.

"They never intended to exclude a practice of chaplaincy as though it were at risk of causing establishment of religion," Henderson said.

Thomas Jefferson not only attended occasional prayer, he also attended church services in the Capitol building, which were held by permission of Congress during the early years of the republic, Henderson said.

Both chambers appointed chaplains in 1789 and a statute providing for their payment was enacted into law the same year.

"There hasn't been a history and tradition of only, for example, Presbyterian chaplaincy or Episcopalian chaplaincy. It has passed through many hands over the years," Henderson said.

Robert Boston, a spokesman for Americans United for the Separation of Church and State, said his group opposed paying congressional chaplains but is otherwise not involved in Newdow's suit.

"If Members of Congress feel the need for spiritual guidance, there are plenty of churches and temples and other houses of worship in Washington that would happily serve their needs," Boston said.

Controversy surrounding the institution is not new, Boston said. In 1994, when the Republicans won a majority in Congress after 40 years of Democratic control, some conservatives talked about abolishing the chaplains as a cost-cutting measure, Boston pointed out.

"The reaction to it was so negative from the religious right that they quickly dropped the idea," Boston said. "Our concerns are more based on the Constitution and not the amount spent."

"People shouldn't have to pay any money at all to support members of the clergy [who] should be supported with voluntary contributions from believers," Boston argued.

The responsibilities of congressional chaplains, whose salaries can reach $147,000 a year, include leading the Senate and House in opening prayers and counseling individual members.

In the House, the ACLJ is representing Republican Reps. Robert Alderholt (Ala.); Todd Akin (Mo.); Michael Collins (Ga.); Jo Ann Davis (Va.); John Doolittle (Calif.); Jeff Flake (Ariz.); Ernest Istook (Okla.); John Linder (Ga.); Donald Manzullo (Ill.); Charles Pickering, Jr. (Miss.); Joseph Pitts (Pa.); Jim Ryun (Kan.); John Sullivan (Okla.); J.C. Watts, Jr. (Okla.), and Democratic Reps. Robert Matsui (Calif.); and Mike McIntyre (N.C.).

In the Senate, the ACLJ is representing Republican Sens. Christopher Bond (Mo.); Michael Enzi (Wyo.); Richard Lugar (Ind.); Rick Santorum (Pa.); Craig Thomas (Wyo.); and George Voinovich (Ohio).

By Lawrence Morahan