WASHINGTON — Thirty years ago, a state senator and a Presbyterian minister faced off in the U.S. Supreme Court over whether the Nebraska Legislature could open its sessions with a prayer. The court said yes, siding with the minister, and for three decades that settled matters. Such prayers are commonplace.
Today, the question of legislative prayer will return to the Supreme Court, in a case from upstate New York. But the actors in the earlier drama — the senator and the minister — have not left the stage.
They continue to differ about the proper role of religion in public life. But they agree that later court decisions have twisted the facts of what went on in Nebraska.
The state senator, Ernie Chambers, once again is serving in his old job, and he still thinks religion has no place in the halls of government.
“We're here to deal with legislation, not salvation,” Chambers said last week.
The minister, the Rev. Dr. Robert E. Palmer, has retired. But he filed a brief in the new case, Town of Greece v. Galloway, urging the justices to confirm that legislative bodies are free to “exercise their First Amendment right to solemnly invoke divine guidance.”
The plaintiffs in the new case, Linda Stephens and Susan Galloway, sued to stop officials in Greece, N.Y., near Rochester, from inviting an unpaid “chaplain of the month” to give an opening prayer at town board meetings.
The chaplain was almost always Christian, and the prayers often featured direct references to Jesus Christ.
The Nebraska case allows this, lawyers for town officials told the justices.
But Stephens and Galloway said there were two important differences between what happened in New York and what the Supreme Court allowed in Nebraska. For starters, they said, the prayers in New York were sectarian, while the ones in Nebraska were not.
The distinction has support in Chief Justice Warren E. Burger's description of the facts in his majority opinion in the 1983 case, Marsh v. Chambers.
A footnote in the decision suggests that Palmer's prayers were acceptable because he considered them nonsectarian and, over time, they had ceased to be “explicitly Christian.” In a later decision, the court said the prayers in Nebraska were constitutional “because the particular chaplain had removed all references to Christ.”
But that is not how the litigants in the old case see things.
“There would be references to God and Christ and the Holy Spirit,” said Chambers.
In an oral history of the case prepared by Duke Law School, Chambers said the chaplain “always ended the prayer with 'in the name of Jesus,' or something to that effect.”
On this point, at least, the old antagonists agreed.
The Nebraska case involved Christian prayers, Palmer told the justices.
“Sen. Chambers was correct — Rev. Palmer's prayers were routinely identifiably Christian,” the minister's lawyers wrote.
In the oral history, Palmer, who turned down a request for an interview through his lawyers, said it was hard to resist mentioning the central figure in his faith.
“I tried to stay away from Jesus Christ,” he said. “It was difficult not to make some reference to Him.” His prayers were part of the court record in the old case, and they were indeed studded with Christian references.
Burger used the term “nonsectarian” just once in the Marsh decision, and that was in a quotation from Palmer's deposition testimony.
In a passage from the deposition not quoted in the decision, Palmer explained what he meant by the word: “By 'sectarian' I mean a prayer which promotes some particular denomination.”
Christianity as a whole is not a sect, he said, meaning that he considered Christian prayers to be nonsectarian.
The plaintiffs in the new case did not seem happy to hear from Palmer, and they dismissed his explanation of his own prayers as “a red herring.”
“What matters is the court's understanding that his prayers were no longer 'explicitly Christian' and that all references to Christ had been removed,” the plaintiffs' lawyers told the justices. “The court's understanding about that cannot be altered by a witness' statements 30 years later about what he really meant.”
The challengers in the New York case said the Nebraska decision was not fatal to their case for a second reason. They said there was a kind of coercion in New York that had not been present in Nebraska.
In New York, they said, ordinary citizens were forced to listen to the prayers in order to take part in town business. In Nebraska, they said, people visiting the Legislature were spectators, not participants, and legislators who listened to the prayers there did so voluntarily.
Here, too, though, the senator and the minister have something to say that complicates the question.
In the oral history, Palmer seemed to take pleasure from describing a time when the state's lieutenant governor started the session early for the purpose of making Chambers listen to a prayer against his will.
“Now, Ernie, that didn't really hurt, did it?” the lieutenant governor asked afterward, Palmer recalled.
Testifying in 1980, Chambers recalled the unseemly ruckus this created.
“The chaplain and I are almost in a race to see whether he'll get to the front before I can get out the back door,” he said. “It creates for people who think of a prayer as a sacred hour somewhat of a spectacle.”
This morning, the Supreme Court's marshal will call the session to order, concluding with the standard invocation: “God save the United States and this honorable court.”
Then the justices will turn to deciding whether a 30-year-old decision allows a town board to open its meetings with a prayer.