A group of senators, led by Rubio, criticized the decision out of the 2nd U.S. Circuit Court of Appeals, that struck down the legality of prayers at town board meetings in Greece, N.Y.
A group of 85 House lawmakers, almost entirely Republican, filed a separate amicus brief in the case on Aug. 2, calling for the Supreme Court to change the way that federal courts handle questions related to the Establishment Clause.
That effort — coordinated by the Congressional Prayer Caucus and led by Reps. J. Randy Forbes, R-Va., and Mike McIntyre, D-N.C, and the Republican Study Committee — includes doing away with the so-called endorsement test, which is a Supreme Court test of whether the government’s action amounts to the actual or perceived endorsement of religion.
“The endorsement test is fatally flawed by the subjective discretion that reviewing courts must exercise in determining what a ‘reasonable’ observer would perceive and feel, and on what basis those perceptions and feelings would arise,” the House brief contends.
The House and Senate chaplains are well known to creatures of Capitol Hill and frequent viewers of C-SPAN. They open each legislative session with a prayer from the chamber floor that might touch on the issues of the day, particularly during tumultuous debates such as those to raise the debt ceiling or avert a government shutdown.
The constitutionality of paid chaplains themselves hasn’t been in dispute recently. In a 2011 report, the Congressional Research Service highlighted three prior court cases relevant to the issue of chaplains in legislative bodies. The Supreme Court upheld the chaplain in Nebraska’s unicameral legislature back in 1983. In subsequent federal cases, the House chaplaincy and paid chaplains were upheld, though neither reached the Supreme Court.
A 2008 Northwestern University law review article by Andy G. Olree outlines various writings and comments of James Madison and other Founding Fathers on the issue, noting the original use of legislative chaplains might have had something to do with the Revolutionary War effort.
“The person most responsible for establishing the practice of clergy-directed prayer in the national assemblies was probably Samuel Adams, in 1774, and his motivations seem to have been political — he wanted to encourage support for the rebellion by having a rector of the ‘Church of England’ deliver pro-rebellion sermons to congressional delegates in the form of prayers,” Olree wrote. “Others probably supported the practice during this time period because the hostilities with Britain made them fear for their safety and the success of their cause, and they sought to enlist God’s aid.”
Madison, for his part, came to view the chaplains as unconstitutional, noting they are paid for by tax dollars and elected by a majority — violating equal rights for people of other faiths.
“Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative,” he wrote.
But while they hail from particular faiths, the chaplains are meant to serve the spiritual needs of the entire Congressional community, leading prayer discussions and offering counsel to lawmakers in need.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.