The American Constitution and Religion

6. Religious Establishment and Other Questions

142 6 RELIGIOUS ESTABLISHMENT AND OTHER QUESTIONS c Military and Legislative Chaplains Since the Revolution, the United States government has recruited military chaplains to provide for the spiritual needs of military personnel, especially in combat operations. There is an obvious secular civic interest in doing so. The government thereby redresses the lack of access to religious worship and counseling available to civilians that the government creates when it enrolls or conscripts citizens into military services. All but the most extreme secularists concede that this does not violate the religious establishment clause, despite its incidental benefit to religion. Moreover, the military services have an undeniable interest to integrate the chaplains into their chain of command in combat operations rather than rely on civilian chaplains. Whether that structure is compatible with the religious mission of the chaplains ’ religion is one of conscience for the individual ministers and the organizations they represent, not a constitutional question . More debatable is the question of whether the religious establishment clause permits a state legislature to hire a chaplain to 143 Religious Establishment and Other Questions open each day’s sessions with a prayer. In Marsh v. Chambers,1 the Court in 1983 held that it did. Chief Justice Burger, joined by five justices, argued that the long-standing history of the practice in state legislatures and Congress, including an imprimatur from the first Congress three days before passage of the final text of the First Amendment, clearly indicated an intention by the framers of the amendment not to prohibit legislative chaplaincies. Dissenting Justice Brennan, joined by Justice Marshall, argued that legislative chaplaincies run counter to the broad purposes of the establishment clause, and that historical practice should not override those purposes. Justice Stevens, dissenting separately, argued only that the state violated the establishment clause by employing a legislative chaplain of one denomination over the last sixteen years. Chief Justice Burger argued plausibly that the framers of the establishment clause did not thereby intend to prohibit publicly funded legislative chaplaincies. On the other hand, Justice Brennan argued with equal plausibility that the phrase establishment of religion should be interpreted flexibly in the light of the general purposes rather than the specific intentions of the framers. These arguments, however, leave each justice with an unresolved problem of consistency. Burger does not explain how the historical approach he adopts in Marsh can be reconciled with the Schempp-Lemon test. Nor does Brennan explain how the developmental approach he adopts in Marsh can be reconciled with his rigid position on the Schempp-Lemon test regarding government aid to support the secular functions of church-related schools that only incidentally benefits religion. Perhaps the Court could have reached the same outcome if it had called the issue a political question—that is, one reserved to the decision of the legislature and not to the Court. 1. Marsh v. Chambers, 103 S. Ct. 3340 (1982). 144 Religious Establishment and Other Questions Tax Exemption of Church Property Used for Religious Worship The Court in 1970 upheld tax exemptions of the property of religious and charitable organizations, even property used for religious worship (Walz v. Tax Commission).2 Chief Justice Burger, writing for the Court, did not apply the Schempp-Lemon test, but appealed to the fact that such tax exemption avoided what he regarded as excessive entanglement between government and religion. In this way the government manifested “benevolent neutrality” toward religion when tax exemption of church property was coupled with tax exemption for charitable organizations. Justice Brennan, separately concurring, stressed the fact that tax exemption of churches and other fraternal organizations fostered freedom of association. Justice Douglas, the sole dissenter, raised his usual objection to any financial support of religion. Peter Finley Dunne’s famous cartoon maintained that the Supreme Court follows the election returns. In this case the Court anticipated adverse popular reaction had it ruled against tax exemption for churches. It is very probable that adverse popular reaction would have led to a constitutional amendment to overturn the decision. Burger did not claim that the tax exemption of churches had any secular purpose other than avoiding excessive entanglement of government with religion. In my view Brennan filled that lacuna by claiming that tax exemption of churches for religious worship facilitated freedom of association and freedom of religious exercise. Churches and Zoning Denial of a liquor license provided the unlikely background for a 1982 Court decision on the establishment clause...