Mallory--Situated Chaplaincies

“WELL, BUT THAT SYSTEM HAS FAILED ENTIRELY”: USING THEOLOGICAL AND PHILOSOPHICAL METHODS TO RESOLVE JURISPRUDENTIAL CONFUSION OVER LEGISLATIVE PRAYER

Jeremy G. Mallory* INTRODUCTION In the summer of 1814, John Brackenridge, the thirteenth Senate Chaplain, thundered at Congress during a sermon because they passed legislation that permitted mail-carrying on the Sabbath.1 He proclaimed that “[I]t is not the people who will suffer for these enormities. You, the law-givers, who are the cause of this crime, will in your public capacity suffer for it. Yes, it is the government that will be punished, and as, with Nineveh of old, it will not be the habitations of the people, but your temples and your palaces that will be burned to the ground.”2 Brackenridge’s sermon proved prophetic when the British captured Washington on August 24, 1814, and burned both the Capitol and the White House. According to Margaret Bayard Smith’s letters, Dolley Madison ran into Brackenridge on the street not long after the British left. “I little thought, Sir, that when I heard that threatening sermon of yours, that its denunciation would so soon be realized,” Madison said. Brackenridge replied: “I trust this chastening of the Lord, may not be in vain.”3 John Brackenridge represented one memorable figure in a long line of occupants of an office that came to be known as “so venerable and so *

Kirkland & Ellis, Associate. J.D., University of Chicago, 2007; Ph.D. University of Chicago, 2004. The views expressed in this article are exclusively those of the author and do not necessarily reflect those of Kirkland & Ellis LLP. This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers. The author would like to acknowledge a great debt to people who likely did not anticipate the form their inspiration would take: Jean Bethke Elshtain, Don S. Browning, Franklin I. Gamwell, and William Schweiker. Inspiration and moral support were never in short supply from Jeffrey T. Green, Sarah O. Schrup, and the Hon. Diane P. Wood. Last and never least, he would like to acknowledge deep gratitude to his partner, Ray Hulse. 1

Marjorie Hyer, “From Youth in Show Business to Chaplain of the Senate,” Washington Post (10 April 1981); Robert C. Byrd, The Senate, 1789-1989: Addresses on the History of the United States Senate 301 (GPO 1991). 2 Margaret Bayard Smith, The First Forty Years of Washington Society in the Family Letters of Margaret Bayard Smith, ed. Gaillard Hunt (New York, 1965; reprint of 1906 ed.), 16-17, quoted in Byrd, 301 3 Smith, 16-17, quoted in Byrd, 301

Electronic copy available at: http://ssrn.com/abstract=1859704

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“THAT SYSTEM HAS FAILED ENTIRELY”

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lovely, so respectable and respected,”4 despite having its origins in an occupant who “turned out an apostate and traitor.”5 Brackenridge also illustrates that legislative chaplains do, on occasion, react directly to specific issues before the legislature, and are not simply inoffensive commentators without personality. Nevertheless, by 1854, the House Judiciary Committee could find little fault with the practice of having a congressional chaplain, stating that “the men who would raise the cry of danger in this state of things, would cry fire on the thirty-ninth day of a general deluge.”6 Since the Supreme Court’s decision in Marsh v. Chambers7 in 1983, some legislative chaplaincies have become as controversial as Brackenridge’s sulfurous declamation. Legislative prayer tends to be a little-known niche, and even among those who are familiar with it, the jurisprudence tends to be regarded as a “sideshow,”8 simply an articulation of a single reasonless exception to the Establishment Clause. Even so, “perhaps no other Establishment Clause topic has seen as much litigation” over the last decade.9 This controversy arises from prayergivers who seem to push the envelope of acceptable legislative prayers, such as the chaplain in Indiana who led the House in a revival-style rendition of “Just a Little Talk with Jesus,”10 or from legislatures having difficulty navigating denominational divisions.11 Despite all of these controversies with some chaplains in state, city, and county legislatures, there has been little to no lasting controversy over congressional chaplaincies. 4

Senate Committee on the Judiciary, To Abolish the Office of Chaplain in Both Houses of Congress and in Army and Navy, 32d Cong., 2d sess., 1853, S. Rept. 376, 4. 5 John Adams to Abigail Adams (Yorktown, Pa. Oct 25, 1777), in Frank Shuffleton, ed, The Letters of John and Abigail Adams 320 (Penguin 2004). The chaplain in question was Jacob Duché, a chaplain who helped to rally the Revolutionary troops to war who then turned against the cause when the war began to become more difficult. See George E. Hastings, Jacob Duche, First Chaplain of Congress, 31 South Atlantic Quarterly 395 (October 1932); Jacob Duché to George Washington, Philadelphia, Pa., 8 October 1777, in The Washington-Duché Letters, ed. by Worthington Chauncey Ford (Brooklyn, N.Y.: privately printed, 1890), 20-21. 6 House Committee on the Judiciary, Chaplains in Congress, and in the Army, and Navy, 33d Cong., 1st Sess., 1854, H. Rept. 124, 6. 7 463 U.S. 783 (1983). 8 Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 Harv. L. Rev. 1810, 1881 (2004). 9 Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious Endorsements, 94 Minn. L. Rev. 972, 976 (2009-2010). 10 Hinrichs v. Speaker of the House of Representatives, 506 F.3d 584, 604 (7th Cir. 2007). 11 See Michael McNutt, “Gay Pastor Irks Critics Before Offering Prayer,” Oklahoman 14A (Feb. 12, 2009).

Electronic copy available at: http://ssrn.com/abstract=1859704

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The key distinction that accounts for the fact that the most prominent chaplaincies—those in the federal Congress—have remained relatively uncontroversial while those in state, county, and city legislatures have generated repeated controversy is the nature of the chaplaincy itself. The congressional chaplains are situated, and do not rotate, while those in state, county, and city legislative bodies do rotate, generally speaking. “Congressional chaplains, like the chaplain at issue in Marsh, are not members of the public invited on some representative or wholly open basis to give legislative prayers. They are officers of the state, who hold official government positions.”12 By contrast, those who “do[] not speak from an established chaplaincy position” raise very different questions, such as what may be said and who may say it.13 Prayers will have to be censored in advance, or a court will need to parse them as they are delivered “the gavel ready” in case they tend to proselytize excessively. 14 Ultimately, Judge Lucero concluded that the latter form of rotating chaplaincy could not be constitutional: “I cannot accept that the Constitution allows the government to subject private citizens—as opposed to official chaplaincies—to such liturgical supervision.”15 Judge Lucero was right.16 Marsh’s reasoning does not—and should not be interpreted to—extend to rotating chaplaincies. Just as the “unambiguous and unbroken history of more than 200 years” showed the constitutionality of the situated chaplaincy in Marsh, it also demonstrates that rotating chaplaincies ultimately cannot be reconciled with the Establishment Clause. Applying the tools of practical theology corroborates the distinction Judge Lucero drew between rotating and situated chaplaincies, giving strong reasons for upholding situated chaplaincy practices while striking down rotating chaplaincies. Part I of this article discusses the two faces of legislative prayer, the uncontroversial practices that have persisted seemingly without incident for centuries and the divisive practices that have resulted in concrete threats more akin to Brackenridge’s thundering than the calm reason of the House Judiciary Committee. Part II begins to excavate the foundations of this duality: confusion of the scope of Marsh has allowed succeeding courts to blur the distinction between rotating and situated chaplaincies. Part III introduces the tools of practical theology and philosophy that can help to clarify the issues at stake with the different types of chaplaincy. Part IV is a 12

Snyder v. Murray City Corp., 159 F.3d 1227, 1237 (10th Cir. 1998) (Lucero, J., concurring). 13 Id. at 1238. 14 Id. at 1239. 15 Id. at 1239. 16 See generally Snyder, at 1238-39 (Lucero, J., concurring).

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concluding methodological aside on the potential uses of theological inquiry in legal scholarship. I.

THE TWO FACES OF LEGISLATIVE PRAYER: PRELIMINARY OBSERVATIONS ON THE TRAJECTORY FROM A “TOLERABLE ACKNOWLEDGEMENT” TO A BEHEADED PARROT

Legislative chaplaincies seem to have two faces: an uncontroversial, mild face, and a face that exposes divisiveness and threats. Although legislative chaplaincies began in the Continental Congress with the nomination of Jacob Duché on September 6, 1774, they were not found constitutional until July 5, 1983. By that time, Chief Justice Burger could write about “[t]he unbroken practice for two centuries in the National Congress” without exaggeration or irony.17 The historical pedigree of the practice was determinative for the Court: In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. 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.18

The centrality of history is the key teaching that Marsh carries for other Establishment Clause cases. Van Orden v. Perry19 and McCreary County v. American Civil Liberties Union20 both acknowledged the historical provenance of the Ten Commandments in their respective analyses.21 In Allegheny County v. Greater Pittsburgh ACLU,22 the Court analyzed Marsh’s use of history, finding that it would not justify a blatant violation of the Establishment Clause, notwithstanding a long historical pedigree.23 In her concurrence suggesting that the voluntary recitation of the Pledge of Allegiance would not offend the Establishment Clause, Justice O’Connor wrote, regarding government references to religion: “We have upheld only one such prayer against Establishment Clause challenge, and it was supported by an extremely long and unambiguous history.”24 The 17

Marsh, 463 U.S. at 795. Marsh, 463 U.S. at 792. 19 Van Orden v. Perry, 545 U.S. 677 (2005). 20 McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005). 21 Van Orden, 545 U.S. at 687-89; McCreary, 545 U.S. at 886-87. 22 Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989). 23 Allegheny, 492 U.S. at 602-05. 24 Elk Grove Unified Sch. Dist., 542 U.S. at 40 (O’Connor, J., concurring). The Court did not reach the merits of the case, ruling instead that the petitioner lacked standing. Id. at 17-18. 18

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longstanding historical practice was not only outcome-determinative in Marsh, but has also been the key teaching that the Court has gone back to time and time again. Commentators, however, have drawn different lessons from Marsh, and have framed the dispute in terms that fairly starkly support or oppose chaplaincies as manifestations of religion in the public square. Robert Luther III and David B. Caddell, for example, have argued that Marsh permits openly sectarian references.25 Legislative prayers given by any chaplain, rotating or situated, is simply an “individually promulgated and expressed invocation[]” that “is simply a tolerable accommodation of the religious diversity in this country.”26 The content of the speech is protected as individual religious speech, and courts may not parse or analyze the content unless it “advances or disparages” another faith.27 This pro-religion position essentially permits prayer without any judicial interference at all, insisting that courts focus on the prayer opportunity (for the chaplain) rather than the content of the prayer (for the hearer).28 By contrast, Christopher C. Lund has examined the history of the chaplaincy—the very “unambiguous and unbroken history”29 that was decisive in Marsh—and concluded that chaplaincies create a set of small endorsements that, when summed, effect an establishment of religion.30 In 25

Robert Luther III & David B. Caddell, Breaking Away from the “Prayer Police”: Why the First Amendment Permits Sectarian Legislative Prayer and Demands a “Practice Focused” Analysis, 48 Santa Clara L. Rev. 570, 571 (2008). 26 Luther & Caddell, supra, at 587. 27 Luther & Caddell, supra, at 597. See also Marsh, 463 U.S. at 783 (“The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”). Luther and Caddell do not explain how a court can determine whether a chaplain is advancing or disparaging another faith without parsing the content of prayers. 28 See Luther & Caddell, supra, at 587-93. See also id. at 604 (“To satisfy this aim [neutrality toward religion], any policy a board or council adopts must sincerely affirm the right of all individuals in the community to choose their own words of faith freely when presented the opportunity to pray.”). A key premise is left unstated early in the article and is not articulated until almost three quarters of the way through: “While the government provided the prayer opportunity, the prayer itself was, is, and, unless expressly endorsed, always should be viewed as private speech protected by the Free Exercise and Free Speech Clauses.” Id. at 596. The only citation for this assertion is the First Amendment itself, id. at n.141, which does not define “private speech,” much less affirm in plain text that all prayers before legislative assemblies fall within its ambit. Luther and Caddell only expose their unexamined premise (that all prayers given before legislatures are always protected as private speech) late in their analysis. Compare Marsh, 463 U.S. at 812-13 (Brennan, J., dissenting) (categorically rejecting the argument that the case involved the individual’s private right to pray); id. at 813 (“If this is free exercise, the Establishment Clause has no meaning whatsoever.”). 29 Marsh, 463 U.S. at 792. 30 Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious

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order to set up a chaplaincy practice, a legislative body must give at least provisional answers to several uncomfortable questions: Who will be permitted to pray, and what will they be permitted to say?31 Lund points out that the successive endorsements involved in answering these questions exact diffuse costs on the wider society (the traditional harms of endorsement).32 Moreover, such endorsements also exact a cost from prayergivers, who feel the need to self-censor in order to make sure they do not cross unseen lines.33 Finally, a series of minor endorsements also exact a price on the political process itself, creating unnecessary friction over extremely sensitive issues.34 Lund concluded that “Marsh has committed us to a second-best theory of religious liberty. It would be better if it were overruled.”35 Short of that solution, however, the best option would be to cabin the legislature’s discretion as much as possible through a rigorous judicial examination of chaplaincy practices (probing for impermissible motive and limiting prayers to nonsectarian invocations).36 Lund’s conclusion is distinctly more skeptical about the presence of religion on the legislative floor than Luther and Caddell are. While the latter advocate for prayergivers to have the right to say whatever they wish, shielded by the principle that courts should not parse prayers, the former suggests that Marsh should be overruled outright, or, at the least, legislatures and prayer givers should be deprived of sufficient discretion to guard against the worst endorsements. Lund pointed out that the political climate surrounding endorsements has changed, from an environment where endorsements cause political division to one where striking down endorsements holds a greater risk of divisiveness.37 The climate overall seems to have changed from when Marsh was decided, and the possibilities for division over religious activity on the legislative floor are closer to the

Endorsements, 94 Minn. L. Rev. 972, 1035-50 (2009-2010). 31 Lund, supra, at 1039; see also Marsh, 463 U.S. at 799 (Brennan, J., dissenting) (“In the case of legislative prayer, the process of choosing a ‘suitable’ chaplain, whether on a permanent or rotating basis, and insuring that the chaplain limits himself or herself to ‘suitable’ prayers, involves precisely the sort of supervision that agencies of government should if at all possible avoid.”). 32 Lund, supra, at 1043-44. 33 Lund, supra, at 1044. This cost is also noted by Luther and Caddell, who object strenuously to a “nonsectarian prayer only” limitation and advocate the prayergiver’s freedom to choose whatever words are desired. See Luther and Caddell, supra, at 571. 34 Lund, supra, at 1045-46. 35 Lund, supra, at 1049. 36 Lund, supra, at 1049-50. 37 See Lund, supra, at 1037-38 (suggesting that the Supreme Court’s decision to dismiss Newdow for lack of standing created much less of a firestorm than if the Court had struck down the mild endorsement contained in the Pledge of Allegiance).

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surface.38 The divisiveness has ranged from internecine fights within legislative bodies,39 to threats of or actual violence, including a beheaded parrot stuffed into a mailbox with a note saying “You’re Next!”.40 The starkness of the positions staked out around legislative prayer were forecast in Justice Brennan’s Marsh dissent. He noted the volume of religious debates that legislative prayer implicitly would force upon a state choosing among prayer-givers: Prayer is serious business — serious theological business — and it is not a mere “acknowledgment of beliefs widely held among the people of this country” for the State to immerse itself in that business. Some religious individuals or groups find it theologically problematic to engage in joint religious exercises predominantly influenced by faiths not their own. Some might object even to the attempt to fashion a “non-sectarian” prayer. Some would find it impossible to participate in any “prayer opportunity,” . . . marked by Trinitarian references. Some would find a prayer not invoking the name of Christ to represent a flawed view of the relationship between human beings and God. Some might find any petitionary prayer to be improper. Some might find any prayer that lacked a petitionary element to be deficient. Some might be troubled by what they consider shallow public prayer, or nonspontaneous prayer, or prayer without adequate spiritual preparation or concentration. Some might, of course, have theological objections to any prayer sponsored by an organ of government. Some might object on theological grounds to the level of political neutrality generally expected of government-sponsored invocational prayer. And some might object on theological grounds to the Court's requirement . . . that prayer, even though religious, not be proselytizing.41

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See Christopher C. Lund, The Congressional Chaplaincies, 17 Wm. & Mary Bill Rts. J. 1171, 1174-76 (2008-2009) (summarizing the salience of disputes over chaplaincies). Lund’s summary of threats, public humiliation, and beheaded household pets stands as a counterpoint to commentators who see chaplaincy cases as somehow less significant than, for example, funding a Boy Scout Jamboree. See Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 Harv. L. Rev. 1810, 1881 (2004) (denominating chaplaincy, Pledge of Allegiance, and other endorsement cases “sideshows” compared to funding and regulatory cases). While religious controversies may be easier to deal with from a distance—from the safer space of the budget process or the administrative state—I would suggest that this approach effectively views them through the wrong end of a telescope: very real, vibrant problems are closer than they appear. 39 See Lund, The Congressional Chaplaincies, supra, at 1174-75 & n.12 (describing an election that turned on support or opposition to sectarian prayer in a city council and “political threat[s]” regarding the next election in another town). 40 See id. at 1175 & n.13. 41 Marsh, 463 U.S. at 819-21 (Brennan, J., dissenting) (internal footnotes and citations omitted).

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Justice Brennan’s list of theological complications has not been clearly untangled by the defenders of legislative chaplaincies. By the same token, those who would prefer simply to end legislative chaplaincies have not squarely reckoned with the implications of finding this strong of an argument in dissent, rather than in the majority: however correct he was about the theological implications of legislative prayer, Justice Brennan dissented. While Marsh began as a “tolerable acknowledgement of beliefs widely held among the people of this country,”42 time has proven out that the principles are not so nondescript. Lund correctly points out that “perhaps no other Establishment Clause topic has seen as much litigation” over the last decade.43 From a seemingly noncontroversial result in 1983, Marsh has produced scholarship advocating either for its liberation from judicial intervention (Luther and Caddell) or for its overturning (Lund). The task this article takes on is to stake out a middle ground, advocating for the continuation of the chaplaincy structures actually analyzed in Marsh, but not those that have been grafted on through an unexamined expansion of Marsh’s doctrines. In doing so, this article takes seriously the challenges raised by Justice Brennan’s dissent and applies the tools of theology to understand why situated chaplaincies answer those concerns and rotating chaplaincies exacerbate them. II.

GENESIS OF CONFUSION: WHAT IS MARSH’S SCOPE?

Before proceeding into a more complex analysis, it is important to point out and clear up some of the confusion surrounding the scope of Marsh that has drawn legislative chaplaincy cases away from the actual facts presented to the courts. In essence, courts have been applying Marsh to cases that arise from facts that differ significantly from what the Supreme Court faced in Marsh. Lumping all chaplaincy cases into the same category has needlessly complicated courts’ analysis of the issue. The scope of Marsh is admittedly ambiguous on its face. According to the question presented, only the Nebraska chaplaincy was before the Court.44 In the opinion, the Court worded the grant of certiorari slightly 42

Marsh, 463, U.S. at 792. Lund, Legislative Prayer, supra, at 976. 44 Marsh, 463 U.S. at 784 (“The question presented is whether the Nebraska Legislature’s practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishment Clause of the First Amendment.”). The question presented nominally defines the scope of the issues before the Court, and therefore the scope of the holding. See S. Ct. R. 14.1(a) (“The statement of any question presented is deemed to comprise every subsidiary question fairly included therein. Only the questions set out in the petition, or fairly included therein, will be considered by the Court.”). 43

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differently, however, generalizing beyond the Nebraska practice to other similar (situated) practices: “We granted certiorari limited to the challenge to the practice of opening sessions with prayers by a state-employed clergyman.”45 By the end of the opinion, however, the Court framed its holding in terms of “[t]he unbroken practice for two centuries in the National Congress and for more than a century in Nebraska and in many other states,” which included both situated and rotating chaplaincies.46 Each of the statements of the scope of the case is successively broader. Factually, Marsh concerned a situated chaplaincy, not a rotating chaplaincy.47 The chaplain in Marsh, Robert E. Palmer, had held the office for 16 years as of the time the opinion was written.48 The Court’s chief comparisons were to other situated chaplains (most notably chaplains of the U.S. Senate and the office inaugurated in the First Congress).49 Indeed, the Court looked favorably on a concession that would most likely only be made by a situated chaplain (voluntarily “remov[ing] all references to Christ after a … complaint from a Jewish legislator”).50 In order to reinforce its point that the congressional chaplaincies “continued without interruption ever since” the First Congress,51 the Court gave a brief discussion in a footnote discussing the sole hiccup in that history, when the Senate “invit[ed] local clergy to officiate,” effectively establishing a rotating chaplaincy.52 The Court concluded that discussion by pointing out that a situated chaplaincy was re-established in the next session of Congress.53 Given the centrality of the Court’s discussion of the history of congressional chaplaincies,54 the fact that the Court’s analysis focused solely on situated chaplaincies is significant in delineating the scope of the holding. 45

Marsh, 493 U.S. at 786. Marsh, 493 U.S. at 795. 47 Both rotating and situated chaplains should be distinguished from guest chaplains. Situated chaplains, such as those in Congress, will sometimes invite other religious leaders to give a morning prayer. Robert C. Byrd, The Senate, 1789-1989: Addresses on the History of the United States Senate 305 (GPO 1991). On the surface, guest chaplains appear to operate much like rotating chaplains: there is no ongoing pastoral relationship, and they give their prayer by dint of their position as a representative of a religious tradition or other source of ethical or moral authority. But guest chaplains only exist within the context of a situated chaplaincy to invite them—without that feature, they would be rotating chaplains. Guest chaplains are therefore only subsets of situated chaplaincies, one feature of a complex institution. 48 Marsh, 463 U.S. at 793. 49 See Marsh, 463 U.S. at 787-90, 793-94 & nn. 5-10, 13, 16-17. 50 Marsh, 463 U.S. at 793 n.14. 51 Marsh, 463 U.S. at 788. 52 Marsh, 463 U.S. at 788 n.10. 53 Id. 54 See supra, Part I. 46

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Marsh addresses rotating chaplaincies at best tangentially, merely acknowledging that they exist.55 The Court did note that “[t]he states’ practice differs widely.”56 “Like Nebraska, several states choose a chaplain who serves for the entire legislative session. In other states, the prayer is offered by a different clergyman each day.”57 This distinction was noted only as validation for the point that “many state legislatures and the United States Congress provide compensation for their chaplains.”58 The Court found no special significance to the existence of such rotating chaplains, merely noting that they existed. Rotating chaplaincies did not figure into the historical analysis that was central to Marsh’s holding. The reasoning given in Marsh only discussed situated chaplaincies (the U.S. Congress and Nebraska), and did not analyze a rotating chaplaincy. Even though the stated scope of the Marsh opinion is facially ambiguous, the actual ratio decidendi and the key factual analysis both arise solely in the context of a situated chaplaincy. Courts applying Marsh to legislative chaplaincy programs have ignored Marsh’s specificity, however. No majority opinion from a federal circuit court of appeals has analyzed the scope of the holding per se in Marsh.59 By applying Marsh to cases arising on materially different facts, these courts extended Marsh’s ruling beyond its initial boundaries, ignoring the distinction between situated and rotating chaplaincies. Commentators, likewise, have moved past this distinction without analyzing it. Lund comes closest to analyzing it, but ultimately seems to assert that it is a distinction without a difference.60 Lund notes that the persistence of situated chaplaincies hid religious disputes from view in a 55

The distinction between rotating and situated chaplaincies was one of the crucial points in Judge Lucero’s concurrence in Snyder. See Snyder, 159 F.3d at 1238 (“[W]hen the person giving a legislative prayer does not speak from an established chaplaincy position, then Marsh … is inapplicable.”). But see Mallory, An Officer and Nothing More, supra, at 1450 (taking issue with Lucero’s conclusion; arguing that situated chaplaincies are not the best fit for all legislative bodies). To an extent, this article is a repentant reconsideration of my earlier rejection of Judge Lucero’s argument. 56 Marsh, 463 U.S. at 794 n.18. 57 Id. 58 Marsh, 463 U.S. at 794. 59 See Hinrichs v. Speaker of the House of Representatives, 506 F.3d 584 (7th Cir. 2007); Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494 (5th Cir. 2007) (en banc); Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir. 2006); Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006); Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008); Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004), Turner v. Fredricksburg City Council, 534 F.3d 352 (2008); Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998); Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276 (4th Cir. 2005). 60 See Lund, Legislative Chaplaincies, supra, 1040-42 (discussing rotating chaplaincies).

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way brought to the fore by the prevalence of rotating chaplaincies.61 But rotating chaplaincies are not new: rotating chaplaincies, and therefore the same religious problems, existed at the time of Marsh,62 but were simply not analyzed then. Lund notes that Judge Lucero argued in Snyder v. Murray City that rotating chaplaincies might be independently unconstitutional,63 but simply asserts that “[a]s a matter of existing constitutional doctrine, that analysis probably does not hold much water.”64 Even Lund, the commentator who comes the closest to analyzing the ramifications of the distinction between rotating and situated chaplaincies, simply asserts that there is nothing there to see. This article applies the tools of theology to refute that unanalyzed assertion and illustratively defend Judge Lucero’s argument in Snyder. The significance of eliding the distinction between situated and rotating chaplaincies may not be immediately obvious. On the surface, the distinction appears solely to be a matter of how a legislative body chooses to arrange a public manifestation of an internal practice. But this judgment is too hasty. Applying analytical tools from the field of theology65 (along with accessory tools from moral philosophy) demonstrates that the two practices have very different characteristics and ramifications. From the perspective of the pastoral relationship, the two are dramatically different practices. Viewed through the lens of theology and pastoral care, the difference between a rotating and a situated chaplaincy matters, and by ignoring this perspective courts have extended Marsh beyond its facts. III.

LAW AND PRACTICAL THEOLOGY

Law does not deal well with religious categories, in general. Judges often prefer to avoid confronting the religious portion of questions, even 61

Lund, Legislative Chaplaincies, supra, at 1041 & n.319. Marsh, 463 U.S. at 794 n.18. 63 Lund, Legislative Chaplaincies, supra, at 1041 & n.320. 64 Lund, Legislative Chaplaincies, supra, at 1041-42. 65 The term "theology" is an awkward fit, in that it typically has a narrower meaning in the religious academy than is intended here, and a broader one outside of that context. By the term "theology" I intend to address the broad field of academic religious thought that can be applied across different faith traditions, without necessarily assuming any particular tradition (for the purposes of this article, drawing specifically on the subfields of religious ethics, philosophical ethics, and ecclesiology). My usage is not far from the suggestion that theology is "systematic reflection on the historical self-understanding of a particular religious tradition." Browning, supra at 5. The operative modification this article makes to the definition is to specify legislative chaplaincies as the relevant religious tradition. Even though legislative chaplaincies are not specifically Christian (much less any other faith), they are a uniquely American religious tradition that can serve as the object of theological inquiry in the manner Browning suggests. 62

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when not called upon to decide an issue of religious doctrine.66 By comparison, law willingly applies the insights of economics,67 history,68 sociology,69 and even chemistry and engineering.70 Philosophical inquiry is no stranger in legal academia.71 Theology, however, has not been quite as frequent an attendee at faculty workshops. It is unclear why this boundary has not been crossed more often.72 66

See Mark Modak-Truran, Reenchanting the Law: The Religious Dimension of Judicial Decision Making, 53 Cath. U. L. Rev. 709, 712 & n.13 (2008). Modak-Truran cites to McGowan v. Maryland, 366 U.S. 420 (1961), for the proposition that “the ‘Establishment’ Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions.” Id. at 442. Courts strenuously avoid deciding disputes over church doctrines, even when they are relevant to the case at hand. See Serbian Eastern Orthodox Diocese for the United States and Canada v. Milivojevich, 426 U.S. 696, 708-12 (1976) (articulating a clear bar against courts rejecting the decisions of the highest tribunal of a hierarchical church, even when dispositive for a case). See also Presbyterian Church v. Hull Church, 393 U.S. 440, 449 (1969) (“First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.”). 67 See, e.g., Richard A. Posner, Economic Analysis of Law (Little, Brown, & Co. 1973). 68 See, e.g., Alison L. LaCroix, To Gain the World and Lose His Own Soul: Nineteenth-Century American Dueling as Public Law and Private Code, 33 Hofstra L. Rev. 501 (2004-05) 69 See, e.g., Zdenek M. Krystufek, Law and Sociology, 45 U. Colo. L. Rev. 269 (197374). 70 See, e.g., Andrew C. MacNally, Comment, A Functionalist Approach to the Definition of “Cocaine Base” in § 841, 74 U. Chi. L. Rev. 711 (2007). 71 See, e.g., Martha C. Nussbaum, Flawed Foundations: The Philosophical Critique of (a Particular Type of) Economics, 64 U. Chi. L. Rev. 1197 (1997). 72 One of the obvious barriers that seems to present a difficulty is the ostensibly nonrational basis that seems to lie behind theology. See John Rawls, “The Idea of Public Reason Revisited” § 3, in The Law of Peoples 149-52 (Harvard 1999) (taking pains to reconcile the presence of religious comprehensive doctrines with a fair and just liberal democracy). This distinctive characteristic evaporates upon closer examination, however. Modak-Truran astutely describes how religious beliefs can form the “silent prologue” to judicial decisionmaking, especially in tough cases. See Modak-Truran, supra, at 715 & n.12, 721-37. This article is effectively an instantiation of Modak-Truran’s thesis: that a sufficiently rational and empirical (albeit non-quantitative) style of theological inquiry can be applied usefully to legal questions. It is also a mild challenge to his argument that judges need not become theologians, see Modak-Truran, supra, at 738-41, in that we disagree slightly on what it means to be a “theologian.” The definition of theology he proffers (Schubert Ogden’s description of theology as “critical reflection on the validity claims of some specific religion,” Schubert M. Ogden, Is There Only One True Religion Or Are There Many? 34 (1992); see Modak-Truran, supra, at 738 & n.99) falls more into Browning’s systematic theology submovement. While I would not ask judges to be theologians in the manner suggested by Ogden, I would ask them to apply the tools of descriptive theology in the manner Browning lays out.

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Theologian Don S. Browning articulated a particular style of theology that can be helpfully applied to some legal questions. Browning termed this theology a “fundamental practical theology.”73 Practical theology, “the most beleaguered and despised of the theological disciplines,”74 is a term associated with the corresponding concepts of practical reason and phronesis.75 In essence, practical theology involves the same “systematic reflection on the historical self-understanding of a particular religious tradition”76 as theology writ large, but begins by taking very seriously that the questions prompting the inquiry do not arise in a vacuum and that the answers are not applied to hypotheticals. “We come to the theological task with questions shaped by the secular and religious practices in which we are implicated--sometimes uncomfortably. These practices are meaningful or theory-laden.”77 In full cognizance of this tabula plena,78 the inquiry asks and answers the relevant question on a theoretical level, and then returns to apply the answer to practical concerns: “it goes from present theory-laden practice to a retrieval of normative theory-laden practice to the creation of more critically held theory-laden practices.”79 This practice-theory-practice model acknowledges that theory is always embedded in some form of practice, and draws together 73

Don S. Browning, A Fundamental Practical Theology: Descriptive and Strategic Proposals ix (Fortress 1991). Any systematization of different parts of theology is more or less automatically controversial. Browning “realize[s] that such organizations of knowledge, theological or nontheological, are of little interest to anyone who is not a specialist in theology. Yet changing how we see such issues makes earthshaking differences in the way we think about a religious tradition.” Browning, supra, at 9. In dividing up theology in such a particular manner, Browning set himself at odds with others. See Browning, supra, at 1-12, 42-44. Notably, however, he stated clearly that he was not defining a subspecialty, but rather giving a “proposed model for theology as such.” Browning, supra, at 7. A more thorough exploration of different taxonomies of theology is beyond the scope of this article. 74 Browning, supra, at 3. 75 Browning, supra, at 2-4. Practical theology is, however, different from “practical phrenology,” even though Browning acknowledges that the phrase inspires similar feelings of paradox. Browning, supra, at 4. 76 Browning, supra, at 5. 77 Browning, supra, at 5-6. 78 This neologism signifies the “inscribed tablet” that would be the logical opposite of the tabula rasa. 79 Browning, supra, at 7. One can see an echo of John Rawls’s reflective equilibrium here, along with the theory-laden or thick descriptions of Charles Taylor, Michael J. Sandel, and Alasdair MacIntyre. See John Rawls, A Theory of Justice 42-45 (Belknap 1999) (“this state is one reached after a person has weighed various proposed conceptions and he has either revised his judgments to accord with one of them or held fast to his initial convictions”); Charles Taylor, Sources of the Self 3-52 (Harvard 1989); Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy ix (Belknap 1996); Alasdair MacIntyre, After Virtue: A Study in Moral Theory 1-5 (Notre Dame 2d ed. 1984).

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seemingly disparate academic and practical concerns.80 Browning divides the simple practice-theory-practice model into four movements (or submovements) of theological inquiry: descriptive theology, historical theology, systematic theology, and strategic practical theology.81 Descriptive theology involves “describ[ing] the contemporary theory-laden practices that give rise to the practical questions that general all theological reflection.”82 This description involves not only the immediate situation, but also the “horizon of cultural and religious meanings that surround our religious and secular practices.”83 Browning acknowledges the similarity of descriptive theology to other social sciences: “Descriptive theology ... would be close to sociology if sociology were conceived hermeneutically.”84 This article asks some of the questions implied by the descriptive theological submovement85 to unpack the theoryladen practice of legislative chaplaincies.86 80

Browning, supra, at 9. As with the distinction between doctrinal and clinical faculty in a law school, there appears to be a distinction between academic and ministerial faculty at a divinity school, even to the point of having separate academic (M.A.) and pastoral (M.Div.) degrees. Despite the seemingly deeper divide, however, Browning is indicative of efforts to bridge that divide in the religious academy. 81 Browning, supra, at 8. Browning also uses the term “fully practical theology” for the last submovement. Browning, supra, at 8. 82 Browning, supra, at 47. 83 Browning, supra, at 47. 84 Browning, supra, at 47. “A hermeneutic sociology sees the sociological task as a dialogue or conversation between the researcher and the subjects being researched.” Browning, supra, at 47-48. A similar form of sociological method was applied by Robert Bellah and his colleagues in his seminal Habits of the Heart. See generally Robert Bellah, et al., Habits of the Heart: Individualism and Commitment in American Life (Berkeley 1985). Such non-quantitative sociological inquiry is still a feature of the social sciences. See, e.g., Barbara Ehrenreich, Nickel and Dimed: On (Not) Getting By in America (Holt 2002). See also O’Connor v. Ortega, 480 U.S. 709, 739 (1987) (citing Habits of the Heart to explain why workplace privacy has become more important to workers as the distinction between work and private life has declined). 85 “Questions of the following kind guide this moment of theological reflection: What, within a particular area of practice, are we actually doing? What reasons, ideals, and symbols do we use to interpret what we are doing? What do we consider to be the sources of authority and legitimation for what we do?” Browning, supra, at 48. 86 The other three submovements are less germane to this article. Historical theology describes the moment of turning to grapple with normative texts and history. Browning, supra, at 49. Because of the insights of narrative ethicists such as Stanley Hauerwas and Alasdair MacIntyre, who essentially argue that it is impossible to abstract religious or even secular ethics from the narratives that convey them, Browning, supra, at 101-02, the retrieval of the central meaning of these texts and histories is not a simple matter of exegesis. Systematic theology is the apogee of the theoretical portion of the inquiry, “the fusion of horizons between the vision implicit in contemporary practices and the vision implied in the practices of the normative … texts.” Browning, supra, at 51. Far from being a simple application of theory to practice, this submovement represents the reconciling of

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Legislative prayer is not simply a string of unrelated actions. Legislative prayer, as Marsh pointed out in detail (and numerous cases have repeated), is a historically-embodied practice.87 This practice was inaugurated with particular aims in mind, and continued for specific reasons that helped to perpetuate it. These reasons are built into the practice, which in turn refines those reasons and perpetuates the practice: the practice possesses an inherent teleology. The ongoing and teleological nature of the practice is what persuaded the Marsh court to except legislative chaplaincies from the otherwise-clear Establishment Clause doctrines the Court had previously articulated.88 Finer tools, more from the fields of philosophy and theology than law, can bring into focus what successive courts have missed.89 Applying these tools demonstrates why situated and rotating chaplaincies are horses of very different colors, and courts applying a case concerning the former (Marsh) to cases involving the latter are committing a crucial error. Grasping the quality that transforms a string of legislative prayers into the institution described in Marsh is the key to unpacking the difference between rotating and situated chaplaincies. As noted above, the ongoing and inherently teleological nature of the practice at stake in Marsh was decisive for the Court's decision to create an exception to the Establishment Clause. The choice of the term “practice” is not accidental. The term has been used by Alasdair MacIntyre to specify a particular sort of institution. By a “practice” I am going to mean any coherent and complex form of socially established cooperative human activity through which goods internal deeper religious themes (e.g., love, law, or redemption) with deeper contemporary themes (e.g., “modernity, liberal democracy, or technical rationality,” Browning, supra, at 51). Strategic practical theology mines the insights of the other three submovements to answer the ultimately practical question: “What should be our praxis in this concrete situation?” Browning, supra, at 55. This complex question animates the bulk of Browning’s work. See Browning, supra, at 71, 211-93. A deeper inquiry into legislative chaplaincies--a full sweep through the other submovements of theology--would be possible, but would require much more extensive investigation than is possible within the confines of a law review article. 87 See, e.g., Van Orden, 545 U.S. at 687-88; McCreary, 545 U.S. at 886-89 (Scalia, J., dissenting); Allegheny, 492 U.S. at 602-05. 88 Marsh, 463 U.S. at 797 (Brennan, J., dissenting) (“The Court makes no pretense of subjecting Nebraska’s practice of legislative prayer to any of the formal ‘tests’ that have traditionally structured our inquiry under the Establishment Clause.”). 89 This intersection is marked by the tip of an iceberg poking through the water's surface. American courts in particular and law in general do not analyze religious issues with the clarity and rigor that has been brought to the application of economic or sociological principles to legal inquiries. This article represents just one foray into the broader field of religion and law.

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to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended.90

MacIntyre gives football and chess as examples of “practices” in this sense. Both of them are complex sports that involve not only specific skills (hand-eye coordination, strategic thinking) but also broader social skills (good sportsmanship, diligence in training).91 “Planting turnips is not a practice; farming is.”92 Practices, in this thick sense, are sustained by institutions.93 Just as international sporting organizations support football and chess—complete with politics of their own—so too institutions support farming, ranging from the formal (the Department of Agriculture, Future Farmers of America) to the informal (Poor Richard’s Almanac and Foxfire as repositories of collected wisdom). There are external goods that can be attained through any of these practices: for example, one can become personally wealthy as a farmer, a chess player, or a football player.94 But there are also goods internal to specific practices that can only be achieved by participating in that practice: one does not gain an intuitive understanding of how to rotate crops by playing chess.95 Those internal goods describe a standard of excellence that is also internal to the practice: one becomes an excellent farmer or chess player by gaining a feel for when to plant the winter wheat crop or how to crack open the Sicilian Defense.96 These internal goods and excellences are defined by those who participate in the practice: those chess players who are most excellent set the standard for others to emulate, who in turn become excellent chess players.97 Institutions support this process of internal growth and change through formal and informal mechanisms.98 Institutions also endanger practices by threatening capture or corruption.99 The dialectic between institution and practice leads both to grow and evolve. The complex, thick, inherently teleological nature of a practice distinguishes an unrelated series of chess 90

MacIntyre, After Virtue, 187. This use of the term is very distinct from the “practice centered” inquiry discussed by Luther and Caddell. Compare Luther & Caddell, supra, at 588-93 (describing the “practice focused” analysis of Judge Clement in Doe). 91 MacIntyre, supra, at 187. 92 Id. 93 Id. at 194. 94 Id. at 188. 95 Id. at 188-89; 190-91. 96 Id. at 189-90. 97 Id. at 191. 98 Id. at 194-95. 99 Id. at 194.

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games or failed garden patches from the coherent and rigorous work of a chess player or farmer as such. Descriptively, legislating fits into MacIntyre’s description of a practice. Cynicism about partisanship aside, it is a “socially established cooperative human activity” that relies on at least the implicit assent of those participating for its perpetuation. The Constitution explicitly allows the federal Congress to make its own rules,100 rather than imposing them externally. An academic cottage industry has grown around determining whether and how legislators act within those rules (abide by them or violate them), as well as whether they act well or badly in a broader sense (ethical and philosophical inquiry).101 Yet another industry engages in determining whether legislators achieve the external ends they can reach through politics, among other means: bringing money to their districts, achieving respect for themselves, or landing a nice post-Congress lobbying job. But there is also a school of thought that suggests that there are internal goods realized by legislating, whether or not the legislator acts as a faithful agent for his or her constituents.102 Masters of legislative process teach younger legislators how the practice works.103 And as with every practice, the institution sometimes seems to get in the way of achieving the goods internal to the practice.104 More importantly, the legislative chaplaincy is an institution that has grown up around each practice, state or federal. It is a cooperative undertaking, perpetuated solely by the consent of each successive iteration of a given legislative body.105 It was inaugurated at the Constitutional Convention for particular reasons (even though there is a historical difference of opinion over what those were).106 When it came under 100

U.S. Const. art. I, § 5. See generally Bruce Jennings & Daniel Callahan, eds., Representation and Responsibility: Exploring Legislative Ethics (Plenum 1981). 102 See Hastings Center, The Ethics of Legislative Life 30-32 (Hastings 1985) (emphasizing that legislators do not think of themselves solely as delegates or trustees, and that any legislative ethics must take the multidimensionality and system-dependence of the roles seriously). 103 Shannon McCaffrey, “First Lady Learning the Ropes,” Spartanbug Herald-Journal A6 (Dec. 3, 2000). 104 Hastings Center, supra, at 50-58 (discussing the “moral ecology” of legislatures and difficulties of relying on bare conflict-of-interest rules for maintaining a high standards of legislative ethics). 105 See, e.g., Ind. House R. 10.2 (establishing the “Minister of the Day” program”); Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 279 (2005) (describing selection method for rotating chaplain). 106 Compare James Madison, Notes of Debates in the Federal Convention of 1787 451 (Ohio Univ. 1966) (quoting a speech of Benjamin Franklin “humbly applying to the father of lights to illuminate our understandings”) with id. at 452 (noting that “Mr Hamilton & 101

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challenge, it was perpetuated for reasons that became integral to the way the practice occurred: so the legislative body could establish a pastoral relationship with a particular person.107 Those reasons were reflected in the subsequent adoption then abandonment of rotating chaplaincies in both houses of Congress: although the format was tested, it did not match the reasons and ends that had been built into the institution, and the rotating format was abandoned.108 The reasons for having the institution—the pastoral relationship between chaplain and legislator—were built into the institution. This recapitulation becomes an integral part of the practice, in the MacIntyrean sense.109 several others” thought that inviting prayers would betray that the Convention was in trouble) and id. (crediting Hugh Williamson with pointing out that the Convention was broke). Madison also recounts a strikingly different version of the story, which came from a letter written by William Steele to his son Jonathan, passing on the eyewitness account of Jonathan Dayton. Letter from William Steele to Jonathan Steele (Painted Post, N.Y., Sep. 1825), in Madison, Notes, supra, 471, App. A, § CCCLV. In this version (which, apparently, Dayton recounted to many different people, id. at 473), “The doctor sat down, and never (said Gen. D.) did I behold a countenance at once so dignified and delighted as was that of Washington, at the close of this address!” Id. at 471. Far from an embarrassed silence, that “[t]he words of the venerable Franklin fell upon our ears with a weight and authority, even greater than we may suppose an oracle to have had in a Roman senate!” Id. at 472. Hamilton’s objection was reframed as his desire to avoid “calling in foreign aid!” Id. Such a quip, on Dayton’s account, earned from General Washington a look of “surprise and indignation, while [Hamilton] uttered this impertinent and impious speech.” Id. In the end, “no one deigned to reply, or take the smallest notice of the speaker, but the motion for appointing a chaplain was instantly seconded and carried; whether under the silent disapprobation of Mr. H——, or his solitary negative, I do not recollect.” Id. Despite the vast gulf between Madison’s recording of the events and the account preserved in Steele’s recollection of Dayton’s story, the very fact that both versions are preserved attests to the centrality of the chaplaincy to nascent republic: “As [the facts surrounding the story] relate to a very important feature in our republican institutions, and to some of the most celebrated individuals who achieved our independence and framed our national government, they will, I am persuaded, be interesting to every lover of this happy country.” Id. at 473. 107 See Cong. Globe, 36th Cong., 1st Sess. 98 (Dec. 12, 1859) (Sen. Henry Wilson) (calling for “a Chaplain who would become acquainted with us, and who would know the interests and wants of the body”). 108 See Cong. Globe, 36th Cong., 1st Sess 992-94 (Mar. 5 and 7, 1860) (summarizing the debate over whether the motion to elect a chaplain should be considered a privileged motion); id. at 994 (Rep. Florence) (dismissing the experiment with rotating chaplaincies with a terse “[w]ell, but that system has failed entirely”). 109 Arguably, the institutional role the chaplain plays within the congressional legislative practice is to orient members of Congress to the goods inherent to the practice. Jeremy G. Mallory, unpublished doctoral dissertation, If There Be a God Who Hears Prayer: An Ethical Account of the United States Senate Chaplain 158-260, The University of Chicago Divinity School (2004). See also Karen M. Feaver, The Soul of the Senate, 39 Christianity Today 26, 29 (Jan. 9, 1995) (describing the importance of the chaplain’s role to senators). Viewed in this way, the chaplain would take on an important secular role,

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Understanding the practice means having to understand the pastoral relationship between chaplain and legislator—and it is across that axis that situated and rotating chaplains differ most significantly.110 A situated chaplain forms ongoing pastoral relationships with the legislators he or she serves.111 That relationship forms based on the legislator’s membership in the body, and not based on shared religious denomination.112 This form of chaplaincy relationship is often valued precisely because it crosses religious boundaries without being self-consciously ecumenical.113 By contrast, a rotating chaplain usually does not have the same sort of pastoral relationship with the legislators. When each house of Congress abandoned a situated chaplaincy, the prayers were delivered by a local clergyman.114 In Simpson, the chaplain was selected by a random pick from a phone book.115 In Hinrichs, the chaplains came by invitation of the Speaker of the House, with suggestions from individual legislators.116 In each of these cases, a chaplain may have a pastoral relationship with an individual legislator, but does not have an ongoing relationship with the body.117 This gives rise to a situation where a chaplain becomes a “[person] which will be discussed further below. 110 This is an extended discussion of the analysis given in Jeremy G. Mallory, Comment, “An Officer of the House Which Chooses Him and Nothing More”: How Should Marsh v Chambers Apply to Rotating Chaplains?, 73 U. Chi. L. Rev. 1421, 1426-27, 144550. See also Snyder, 159 F.3d at 1237-39 (Lucero, J., concurring) (emphasizing the difference between rotating and situated chaplaincies). 111 See Cong. Globe, 36th Cong., 1st Sess. 98 (Dec. 12, 1859) (Sen. Henry Wilson); Feaver, supra, at 29; Robert C. Byrd, The Senate, 1789-1989: Addresses on the History of the United States Senate 302 (GPO 1991). 112 See Marsh, 463 U.S. at 793 n.14 (noting how Robert Palmer, the (situated) Nebraska chaplain, changed his prayers after a complaint from a Jewish legislator). See also 141 Cong. Rec. S 3763, 104th Cong., 1st Sess. (Mar. 10, 1995) (Sen. Lieberman) (praising retiring Senate Chaplain Richard Halverson for being “a true student of both the Old and the New Testament”); Kurtz, 644 F. Supp. 613, 616-17 (D.D.C. 1986) (describing an exchange of letters between Richard Halverson and a secular humanist who charged that the chaplain used the prayer opportunity to disparage nonbelievers; the chaplain promised to rectify the situation); Feaver, supra, at 29 (describing Halverson’s ability to reach across denominational lines). Admittedly, religious tensions among denominations may end up whipsawing the chaplain between contested imperatives. In North Carolina, while the House Chaplain attempted to avoid alienating Jewish legislators by reducing the number of invocations of Jesus (versus the broader God), he also received “healthy feedback from Christian lawmakers who sometimes feel like [he is] selling out God by not including Jesus.” Leah Friedman, “Prayer Opens Local Government Meetings,” News & Observer (Raleigh, N.C.) E6 (Feb. 17, 2006) (quoting 113 141 Cong. Rec. S 3763, 104th Cong., 1st Sess. (Mar. 10, 1995) (Sen. Lieberman). 114 See Mallory, If There Be a God Who Hears Prayer, supra, at 57-69. 115 Simpson, 404 F.3d at 279. 116 Hinrichs, 506 F.3d at 598. 117 The practice at issue in Turner is problematic to characterize. In that case, as in

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acting as a member[], leader[], or spokesperson[] of particular religions,”118 rather than “an officer of the house which chooses him and nothing more.”119 The difference between these two orientations is significant from a pastoral perspective, and therefore should also be treated differently from a legal perspective. Speaking broadly, law does take cognizance of whether a particular type of pastoral relationship exists. For example, the clergypenitent privilege will not apply unless a confessional relationship exists between the clergyperson and the witness.120 The pastoral relationship between a clergyperson and other people is not outside the purview of law’s consideration. The different pastoral contexts involved with situated and rotating chaplaincies distinguish the two practices in legally significant ways. A situated chaplaincy involves a coherent, ongoing pastoral relationship that supports goods internal to the practice of legislating. Rotating chaplaincies serve representative and symbolic functions without creating the same ongoing pastoral relationship. Were Marsh to be analytically bracketed and legislative chaplaincies freshly analyzed under the Establishment Clause, situated chaplaincies Wynne, the prayer was given by a member of the legislative body itself. Such a “chaplain” presents a unique factual configuration. Hashmel Turner had an ongoing relationship with the legislative body—he was a member—but he did not have an ongoing pastoral relationship, thus he was more akin to a rotating chaplain. Further, because the speaker is a legislator, the Establishment Clause issue is crossed with a clearly presented free speech issue: whether a legislator may pray on the floor of the legislative body. On the federal level, this fact invokes the Speech and Debate Clause. See Hutchinson v. Proxmire, et al., 443 U.S. 111, 130 (1979) (holding that the Speech and Debate Clause insulates federal legislators from tort suits based on speech on the floor of Congress). In state legislatures, similar legislative free speech issues are presented. See Tenney v. Brandhove, 341 U.S. 367, 375 (1951). As Wynne demonstrates, this situation also raises questions of government speech. See Luther & Caddell, supra, at 579-80. Those issues are important, but do not shed light on the fundamental Establishment Clause problem. 118 Snyder, 159 F.3d at 1238 (Lucero, J., concurring). 119 Committee on the Judiciary, S. Rep. No. 376, 32d Cong., 2d Sess 2 (1853). 120 See In re Grand Jury Investigation, 918 F.2d 374, 378-85 (3d Cir. 1990) (chronicling history of priest-communicant privilege). See also Trammel v. United States, 445 U.S. 40, 51 (1980) (“The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”). Note that searching for such a relationship has required adaptation for religious denominations that do not handle confessional in an individualized manner. See in re Grand Jury Investigation, 918 F.2d at 384-85 & n.14 (discussing extension of relationship beyond the specifically confessional relationship of Roman Catholic priest and penitent communicant). Courts have adapted to differences in theology by applying the basic imperative behind the confessional privilege (protecting specific confidences between individuals and spiritual counselors) while looking behind the formalities of the ritual.

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would likely survive the analysis, while rotating chaplaincies would most likely be found unconstitutional. Applying a traditional Establishment Clause Lemon analysis—as Marsh did not—shows a clear distinction between the two institutions. A situated chaplain supports goods internal to the practice of legislating, and thereby serves a secular purpose without provoking the same religious disputes as a rotating chaplain.121 That secular purpose saves a situated chaplaincy under a traditional Lemon analysis. A situated chaplaincy produces no excessive entanglement because the selection is by secret ballot, and is often based as much on personal qualities as on religious denomination.122 A situated chaplaincy works no advancement of religion because a legislator may choose to take advantage of the services or not. Although Justice Stevens worried in Marsh that a situated chaplaincy would constitute a direct preference of one faith over others,123 the actual practices in question have proven that fear to be unfounded. The important feature of a situated chaplaincy is that the chaplain serves as a guide attached to the institution, rather than a particular faith tradition.124 Thus, for example, a situated Presbyterian chaplain would still have to act as a spiritual guide to Jewish legislators.125 Indeed, a Catholic chaplain was chosen by the Senate at the beginning of a period of intense antiCatholicism.126 Even though that experience ended rapidly,127 Lund points 121

See Lynch v. Donnelly, 465 U.S. 668, 693 (1984) (O’Connor, J., concurring) (describing “the legitimate secular purpose of solemnizing public occasions”); see also id. at 717 (Brennan, J., dissenting) (calling “solemnizing public occasions” a secular purpose). 122 Marsh, 463 U.S. at 793. 123 Marsh, 463 U.S. at 822-23 (Stevens, J., dissenting). 124 The American Heritage Dictionary of the English Language 311 (Houghton Mifflin 4th ed. 2000). 125 Karen Feaver interviewed Richard Halverson, the U.S. Senate Chaplain who retired in 1995, for an article in Christianity Today. He described interactions with people of different faiths that underscores the necessarily interfaith nature of a situated chaplain’s job: In spite of the sensitive nature of the job, the senators have placed no restrictions on the office of the chaplain. Halverson recalls that early in his tenure a few Jewish senators gently reminded him that they felt excluded when he prayed “in the name of Jesus.” Not wanting to offend them-but also not wanting to compromise his calling-the chaplain has sometimes closed his prayers in the name of Jesus and, at other times, in an analogous title like “the Way, the Truth, and the Life.” And he has often said to his Jewish friends in the Senate, “You know everything about my faith is Jewish, and my best friend [Jesus] is Jewish.” Karen M. Feaver, The Soul of the Senate, 39 Christianity Today 26, 29 (Jan. 9, 1995). 126 See Lund, The Congressional Chaplaincies, supra, at 1187-93 (discussing the appointment of Charles Constantine Pise in 1832, compared to the controversy over the appointment of Daniel P. Coughlin in 2000).

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out that it engendered a storm of Protestant protests against congressional chaplaincies, based on the possibility that they might fall into Catholic hands again.128 The prospect of the chaplaincies “fall[ing] into Catholic hands”129 would only be perceived as problematic only if it were the case that the chaplain were perceived to have substantive institutional role. Notably, however, the Senate did not react with the same vehemence, and did not end the chaplaincy because it, in turn, understood that the chaplain is “an officer of the house which chooses him, and nothing more.”130 The role of an institutional, situated chaplain is constrained by the nature of the office in such a manner that any prayergiver who succeeds in the office (i.e., attains repeated reappointment) can only do so by not endorsing any particular faith or lack thereof. A situated chaplain’s success comes only by understanding the institution to which he or she belong and the people he or she serves. A situated chaplain is reappointed “because his [or her] performance and personal qualities were acceptable to the body appointing him [or her],”131 not because he or she successfully represents or exposits a particular faith. Thus, even though a single chaplain may come from a single denomination and may serve over a long period of time, the nature of the office as serving the institution and its people prevents that monotonicity from becoming an endorsement. Conversely, a rotating chaplaincy is much more problematic under a Lemon analysis. Indeed, the Marsh exception would be the only way to save the practice from Establishment Clause.132 The symbolic function served by a rotating chaplaincy is not only not secular, but seems overtly religious: the chief function seems to be to ally the legislature with the chaplain’s proclamation of religious ends.133 Notably, a rotating chaplaincy is not a private affair: no rotating chaplain prays solely for legislators.134 A rotating 127

Lund, The Congressional Chaplaincies, supra, at 1190. Lund, The Congressional Chaplaincies, supra, at 1190-91. 129 Lund, The Congressional Chaplaincies, supra, at 1190. 130 Committee on the Judiciary, S. Rep. No. 376, 32d Cong., 2d Sess 2 (1853). 131 Marsh, 463 U.S. at 793. 132 See Marsh, 463 U.S. at 796-801 (Brennan, J. dissenting). 133 See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 40 (2004) (“Any statement that has as its purpose placing the speaker or listener in a penitent state of mind, or that is intended to create a spiritual communion or invoke divine aid, strays from the legitimate secular purposes of solemnizing an event and recognizing a shared religious history.”). See also Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 309 (2000) (“[T]he use of an invocation to foster . . . solemnity is impermissible when, in actuality, it constitutes [state-sponsored] prayer.”). 134 See, e.g., Hinrichs, 506 F.3d at 586 (noting that the invocation is delivered from the Speaker’s stand, in view of the observation gallery); Simpson, 404 F.3d at 278-79 (indicating that the nonsectarian invocation takes place during the same session as the public hearings). 128

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chaplain’s prayers always take place in public meetings or sessions, and only there: no institutionalized private pastoral connection exists. This outward-facing orientation becomes determinative of the Establishment Clause analysis. Because of its public orientation, a rotating chaplaincy is also an advancement of religion: it demonstrates to the gallery that the legislature is aligned with the relevant divine power. As demonstrated by the questions raised in appeals concerning these practices, rotating chaplaincies entangle the legislature in difficult religious decisions, such as who is permitted to pray and how.135 Rotating chaplaincies present an Establishment Clause nightmare, from a litigation perspective, that situated chaplaincies just do not. Rotating chaplaincies also involve an endorsement of religion in both small and large ways. Lund seems to assert that the distinction between rotating and situated chaplaincies does not matter in terms of the potential problems with endorsement,136 but does admit that all of the dangers he discusses are exacerbated in the context of rotating chaplaincies.137 Lund points out that [h]aving private citizens lead prayers makes censorship both more necessary (in the sense that invited speakers often do not restrain themselves and are not easily subject to political controls) and more troubling (in the sense that their speech bears more resemblance to quintessentially private speech).138

Far from diminishing the potential endorsement, the rotating nature of some chaplaincy practices creates even worse problems. The arguments suggested by Luther and Caddell139 become especially salient for rotating chaplaincies: if the door is ostensibly open to all, then governments must take special care to explain why they are excluding some people and not others, and limiting the content of prayers in some ways and not others. Rotating chaplaincies create intractable endorsement problems. Unlike a rotating chaplaincy, a situated chaplaincy could viably be pulled behind the cloak of the political question doctrine.140 The significant 135

See Lund, Legislative Chaplaincies, supra, at 1039-49; Luther & Caddell, supra, at 585-93. 136 Lund, Legislative Chaplaincies, supra, at 1041-42. 137 Lund, Legislative Chaplaincies, supra, at 1041 (“But spreading around the prayer opportunity has created even more problems, for the more local governments open up the prayer opportunity, the more they have to make difficult decisions about whom to exclude and the harsher it seems to the excluded speakers.”). 138 Lund, Legislative Chaplaincies, supra, at 1041. 139 Luther and Caddell, supra, at 596 (arguing that legislative prayers are simply protected private speech). 140 The political question doctrine could serve this function on the federal level, to be

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pastoral connection is between the chaplain and the legislators, essentially a private matter internal to the legislature.141 The chaplain is “an officer of the house which chooses him, and nothing more.”142 In similar situations courts have found that judicial review does not extend into the internal affairs of a coordinate branch.143 This issue arose in Murray v. Buchanan,144 but Marsh came down before the case was decided and the en banc D.C. Circuit found that Marsh was dispositive.145 Had the Marsh decision not intervened, there is a persuasive argument that the political question doctrine should have barred further inquiry.146 The task of selecting officers is clearly textually committed to a coordinate branch.147 The chaplain is one of the constitutional officers of each house of Congress.148 Moreover, the issue is not easily amenable to judicial decision.149 The private, inward-facing pastoral orientation of situated chaplaincies confirms that the institution is essentially an internal issue for the legislature to monitor and manage. Rotating chaplaincies are fundamentally dissimilar in regard to the sure. While state courts have applied similar doctrines, they have developed distinctly from the federal doctrine. See Nat Stern, The Political Question Doctrine in State Courts, 35 S.C. L. Rev. 405, 422-23 (1983-84). 141 See supra, Part II, text accompanying nn.123-131 (describing pastoral relationship between senators and chaplains). 142 Committee on the Judiciary, S. Rep. No. 376, 32d Cong., 2d Sess 2 (1853). 143 See, e.g., Field v. Clark, 143 U.S. 649, 672, 676-77 (1962) (expressing reluctance to parse whether a bill had complied with all legislative formalities defined in the chamber’s rules); Leser v. Garnett, 258 U.S. 130, 137 (1922). 144 See Murray v. Buchanan, 720 F.2d 689, 699-700 (D.C. Cir. 1983) (Ginsburg, J., concurring). 145 Murray v. Buchanan, 720 F.2d 689, 690 (D.C. Cir.) (en banc) (per curiam). 146 The question of applying the political question doctrine to legislative chaplaincies was raised in Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987), but the majority dismissed the case for lack of standing rather than decline review based on the political question doctrine. Id. at 1137. But see id. at 1148-50 (Ginsburg, J., dissenting) (taking the majority to task for framing the question in terms of standing when the decision fit more clearly under the political question doctrine). 147 U.S. Const. art. I § 2 , cl. 5 (House), § 3, cl. 5 (Senate). 148 The organization charts for the respective bodies classify the chaplain along with the other officers, such as the Secretary, Sergeant-at-Arms, and Parliamentarian. See Senate Organization Chart at http://senate.gov/pagelayout/reference/e_one_section_no_teasers/org_chart.htm (visited Mar. 6, 2011); House Practice: A Guide to the Rules, Precedents and Procedures of the House 647, 108th Cong., 1st Sess., ch. 35, § 1 (GPO 2003) (listing chaplain alongside the Clerk, Sergeant-at-Arms, and Chief Administrative Officer as one of the officers of the House). See also Lewis Deschler, Deschler’s Precedents 612-16, House Doc. 94-661, ch.6, § 21 (1997 ed.). 149 See Murray, 720 F.2d at 690-99 (MacKinnon, J., concurring) (reprinting his dissent from the earlier panel decision discussing the intractable difficulties with adjudicating the constitutionality of chaplains selected by the internal operations of a legislative body).

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political question analysis. There is no constitutional commitment, and rotating chaplains are generally not regarded as constitutional officers of the legislature. Not only are courts able to analyze legislative rotating chaplaincy practices, but they are beginning to establish rubrics for doing so.150 Less justification exists for drawing rotating chaplaincies behind the curtain of the political question doctrine than for providing that shield to situated chaplains. Once taken seriously, the pastoral context behind each institution yields a dramatically different Establishment Clause analysis. Rotating chaplains are probably unconstitutional in almost every configuration, a conclusion reached in 1998 by Judge Lucero.151 Situated chaplaincies do not pose the same threats of establishment of religion, even if the ipse dixit exception in Marsh is set aside. IV.

CONCLUDING METHODOLOGICAL THOUGHTS

The difference between rotating and situated chaplaincies is only drawn into focus once the pastoral context behind the practice is drawn into view. Although not thought of as such within the law, this is effectively the movement of fundamental practical theology: moving from the religious practice to the theory behind it, and back to the practice again (in this case, the application of law to facts, yielding judgment). No court or commentator has undertaken this sort of analysis of legislative prayer.152 Indeed, applying this method of inquiry to a question characterized by confused and inconclusive judicial reasoning opens up a host of tools that 150

See Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188, 211-17 (5th Cir. 2006) (Jones, J., dissenting); Luther & Caddell, supra, at 589-93. Broadly, courts break rotating chaplaincy questions into two parts: the selection process and the context of the prayers. From there, courts analyze each portion separately, (usually) mindful of Marsh's admonition not to “parse the content of particular prayers” when considering the content. Fewer rubrics have evolved for analyzing the selection process, but most generally search for signs of prejudice or bias. For example, crossed-out entries in a phone book were dispositive in Pelphrey v. Cobb County, 547 F.3d 1263, 1281-82 (11th Cir. 2008). If either the selection practice or the content of the prayers seems to “advance any one, or to disparage any other, faith or belief,” Marsh, 463 U.S. at 794-95, the practice is usually found unconstitutional. This worn pattern demonstrates that rotating chaplaincies are evolving standards of justiciability in a mere twenty years. (That said, this article also advances the proposition that those standards are neither fully coherent nor complete, because they do not comprehend the embedded practices and inherent teleology of the institution.) 151 See Snyder, 159 F.3d 1237-39 (Lucero, J., concurring). 152 The closest to this argument, of course, is Judge Lucero, whose arguments in Snyder nevertheless did not command a majority. This article could be viewed as an attempt to flesh out and theorize Judge Lucero’s argument, drawing more explicitly on the analytical tools provided by theology and moral philosophy.

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could aid in understanding religious issues without necessarily resorting to confessional arguments.153 Theological tools will not be appropriate for every case in which courts face a religious issue, but the substantial and rigorous body of academic literature regarding religion should not be overlooked. In the case of legislative chaplaincies, an otherwise confused and confusing body of law can be drawn into sharp focus by applying the insights of practical theology. Understanding the different pastoral relation between a given legislative body on the one hand, and either a situated or a rotating chaplain on the other hand, gives renewed force to Judge Lucero’s concurrence in Snyder, finding that rotating chaplaincies are difficult to the point of impossible to justify against an Establishment Clause challenge, while situated chaplaincies provide much greater certainty. The same office can comprehend something venerable and lovely, respectable and respected, apostate and traitor.154 While Marsh did not draw out this distinction clearly, a new understanding of chaplaincies draws a finer line. The system of understanding all chaplaincies as the same “has failed entirely,” 155 and deserves to be replaced.

153

Applying theological tools without the context of a specific faith would likely be mildly controversial within the religious academy. However, in the case of a practice that deliberately transcends denominational and faith tradition lines, such an application seems not only appropriate, but the only type of theological thinking that would be most applicable to the situation. The possibility of confessional legal theology may be one of the reasons that theology is not often taken as a companion discipline to law. See supra, n. 72 and accompanying text. Hopefully this article is an example of a variety of theological inquiry that could be undertaken without appealing to specific faith-based reasoning that is also applicable to a concrete legal question. 154 Senate Committee on the Judiciary, To Abolish the Office of Chaplain in Both Houses of Congress and in Army and Navy, 32d Cong., 2d sess., 1853, S. Rept. 376, 4; John Adams to Abigail Adams (Yorktown, Pa. Oct 25, 1777), in Frank Shuffleton, ed, The Letters of John and Abigail Adams 320 (Penguin 2004). 155 Cong. Globe, 36th Cong., 1st Sess 994 (Mar. 5 and 7, 1860) (Rep. Florence).