' Nat Hentoff
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Jewish World Review March 20, 2000 /13 Adar II, 5760

Nat Hentoff

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Should there be a chaplain in Congress?

http://www.jewishworldreview.com -- THE REJECTION of Father Tim O'Brien, a Jesuit priest, as the next chaplain of the House of Representatives by the Republican leadership -- although he was the first choice of the screening committee -- has resulted in continuing accusations of anti-Catholicism, led by the Catholic League for Religious and Civil Rights. Largely overlooked, however, are a number of historical points that may add more context to this controversy.

In 1790, the First Congress, voting for legislative chaplains, ruled that "two Chaplains of different denominations... shall interchange weekly."

That provision has been violated ever since. The chaplain of the House has always been a Protestant. Therefore, he has always been a Christian. (For one year, in the 19th century, there was a Catholic chaplain in the Senate.)

In 1983, the Supreme Court -- in Marsh vs. Chambers -- decided that it is constitutional in the state of Nebraska, and therefore in all our legislatures, to have tax-supported legislative chaplains. The vote was 6-3.

In dissent, Justice John Paul Stevens noted that from 1965 on, the same Presbyterian minister had been the chaplain of the Nebraska legislature. Stevens' point was that some folks might feel there had been a clear preference of one faith over another.

If, for 210 years, not only Christians but solely Protestants have had a lock on that post in Congress, is it unreasonable for some Jews and Muslims, among others, to feel a degree of exclusion from the spiritual side of that branch of government?

The appearance of exclusion aside, there is an argument, with which I agree, that Marsh vs. Chambers was decided wrongly by the Supreme Court because the law establishing chaplains in the legislature had a religious rather than a secular purpose, and so its primary effect was to establish religion. Therefore, the result was to entangle the state with religion.

During the First Congress, James Madison moved unsuccessfully to forbid the appointment of chaplains in Congress. He had been the principal architect of the First Amendment, including its clause that there shall be no law "respecting an establishment of religion, or prohibiting the free exercise thereof."

There have been fiercely different interpretations since then of what constitutes "an establishment of religion," but I am not alone in agreeing with Justice Hugo Black's opinion for the Court in Everson vs. Board of Education (1973):

"The `establishment of religion' clause of the First Amendment means at least... that neither a state or the Federal government... can pass laws which aid one religion, aid all religions, or prefer one religion over another."

Whether Father Tim O'Brien was rejected as chaplain of the House because of his denomination -- and I believe he was -- is a less fundamental issue than whether the taxes of all of us, including non-Christians, should be used to support any clergy in the Congress.

Furthermore, Article VI of the Constitution states unequivocally: "No religious Test shall ever be required as Qualification to any Office or public Trust under the United States."

A congressional chaplaincy is not an elective office, but it is an official public post with sufficient prestige as to be the cause of the continuing controversy over Father O'Brien.

When James Madison opposed the hiring of chaplains in Congress, he emphasized that paying them from the national treasury was in violation of the First Amendment's Establishment Clause. He also made the enduring point that establishing the clergy in Congress was an offense "to members whose creeds and consciences forbid a participation in the majority."

There are, after all, Catholics and Jews in Congress; and quiet as it's kept, maybe a few atheists, or at least deists. But the presence of only Christian chaplains ignores the beliefs and nonbeliefs of millions of other Americans.

As noted in Kramnick and Moore's "The Godless Constitution (W.W. Norton, 1996), Thomas Jefferson, who believed in "the philosophy of Jesus" and attended church services, thought "we should live without an order of priests and moralise for ourselves, following the oracle of conscience." Most Americans believe otherwise, but no one should feel less of an American because he is compelled to pay for government support of a chaplain in Congress of a different faith.

But who in Congress -- or on this Supreme Court -- would dare to say that, except for John Paul Stevens?

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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