Selection of House chaplain spurs church-state questions

Friday, April 7, 2000

Rev. Daniel Cou...
Rev. Daniel Coughlin

The U.S. House of Representatives’ recent fracas over the appointment of a Catholic priest to open each House session with prayer has highlighted what some constitutional law scholars say is an inappropriate use of tax dollars and government time.

Before the appointment on March 23 of the Rev. Daniel Coughlin, a Catholic priest from Chicago, the House was bogged down in a selection process that spurred accusations of religious bigotry.

The House Speaker appoints or re-appoints the chaplain at the start of every session. The House position pays $139,000 a year. The Senate also has a chaplain. All of the chaplains have been Christian.

In late January, a bipartisan committee sent three nominees’ names to the House leadership. Minority Leader Dick Gephardt nominated the Rev. Timothy O’Brien, a Catholic priest, and House Speaker Dennis Hastert and House Majority Leader Dick Armey suggested the Rev. Charles Wright, a Presbyterian minister. O’Brien and the nonprofit Catholic League for Religious and Civil Rights quickly lambasted the selection process as anti-Catholic. Hastert, using his constitutional authority, decided to pass over both committee nominees and in March swore in Coughlin as the new chaplain.

But it was an uneasy compromise, and the whole process prompted Catholic League President William Donohue to decry the selection process as unfair and skewed against O’Brien.

“I have now read all letters received from congressmen involved in the process, the Final Report of the Chaplain Search Committee and all news reports on the subject,” Donohue said in a prepared statement. “The only safe conclusion to draw is that the search for the new House Chaplain is tainted. It is tainted for at least two reasons; questions asked of Father Timothy O’Brien in the second round of interviews were improper at best and bigoted at worst and there are conflicting reports on whether House Speaker Dennis Hastert and House Majority Leader Dick Armey knew that O’Brien was the top candidate as chosen by the selection committee.”

The online news magazine Slate reported that Rep. Henry Hyde, R-Ill., said of the selection process, “I hate to think that this is anti-Catholic bigotry, but I don’t know what other conclusion to draw.”

Tom McCoy, a constitutional law scholar and professor at Vanderbilt University, says the chaplain selection process is purely about religious leanings and a clear example of why the nation’s government should not be entangled with such religious questions. Having a chaplain for a legislative body violates the First Amendment principle of separation of church and state, McCoy says but because Congress has had the position since its inception, the Supreme Court has cited tradition and turned a blind eye to whether it is constitutional. The House appointed its first chaplain in 1789.

In 1982, the 8th U.S. Circuit Court of Appeals invalidated the Nebraska Legislature’s use of a chaplain, saying the position promoted a specific religion and unconstitutionally entangled church and state. A year later, however, the U.S. Supreme Court overturned the 8th Circuit ruling in Marsh v. Chambers and found in favor of the Nebraska practice.

Before citing establishment-clause jurisprudence, the Marsh majority, lead by then-Chief Justice Warren Burger, wrote that tradition saved the practice from constitutional scrutiny.

“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. “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.”

Burger then said that “the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of the Amendment.” Burger, however, did not mention that James Madison, often referred to as the Father of the Constitution, did eventually oppose, on establishment-clause grounds, the institution of House chaplain. John Jay and John Rutledge, members of the Continental Congress, also opposed it.

Justices William Brennan and Thurgood Marshall, two of the three Marsh dissenters, derided the court for ignoring the parameters of the establishment clause.

“I must begin by demonstrating what should be obvious: that, if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause,” Brennan wrote. “To invoke Divine guidance on a public body entrusted with making the laws, is nothing but a religious act. Moreover, whatever secular functions legislative prayer might play — formally opening the legislative session, getting the members of the body to quiet down, and imbuing them with a sense of seriousness and high purpose — could so plainly be performed in a purely nonreligious fashion that to claim a secular purpose for the prayer is an insult to the perfectly honorable individuals who instituted and continue the practice.”

Justice John Paul Stevens also dissented in Marsh, saying “it seems plain to me that the designation of a member of one religious faith to serve as the sole official chaplain of a state legislature for a period of 16 years constitutes the preference of one faith over another in violation of the Establishment Clause of the First Amendment.”

Despite its disgust with the recent selection process, the Catholic League for Religious and Civil Rights said the chaplain’s position should not be discarded.

Patrick Scully, director of communications for the Catholic League, said the chaplain’s position should not be eliminated “because a group of House leaders screwed up” the selection this time.

“I’m not a constitutional scholar, but I’m happy to side with the Founding Fathers,” Scully said. “It is pretty clear that the Founding Fathers who created the establishment clause and also provided for the chaplain found no conflict; and the Supreme Court has upheld that position as well.”

Jim Henderson, a senior attorney with the socially conservative American Center for Law and Justice, also sees no constitutional problems with a chaplain.

“The office of the chaplain is completely consistent with the establishment clause and with our tradition and history,” Henderson said. “The establishment clause was not designed to prevent the general advancement of religion in society, it was designed to prevent the establishment of an official church.”

Marci Hamilton, a constitutional law scholar and professor at Yeshiva University in New York, disagreed, saying the recent House debacle over the position amounted to an unseemly and unnecessary religious battle.

“The wrangling over which denomination should fill the slot for House chaplain this time reveals the sagacity of James Madison’s protest of a congressional chaplain in his time,” Hamilton said. “It is a position that invites inter-sect disputes and that invites politicians to use religious identities to wage political war. Both happened this time, and it is highly unfortunate. Moreover, it is just unnecessary. The House chaplain serves no necessary function.”