June 2018 Church & State Magazine | Featured

The recent flap over the firing – and subsequent “un-firing” – of House chaplain Rev. Patrick J. Conroy raised a number of questions about House Speaker Paul B. Ryan (R-Wisc.) and his motives.

Lurking just below the surface, however, were even more compelling questions: How did a nation founded on separation of church and state end up with taxpayer-funded chaplains in Congress? Is it proper to keep them?

Those questions weren’t highlighted as the kerfuffle dragged on. Instead, the focus tended to be on what happened behind the scenes that led to Conroy’s initial downfall and his return. 

Some media accounts said that Ryan was angered by a prayer Conroy delivered Nov. 6, 2017, during the debate over the tax bill. Conroy prayed in part, “May their efforts these days guarantee that there are not winners and losers under new tax laws, but benefits balanced and shared by all Americans.”

Ryan reportedly interpreted the prayer as being critical of the GOP’s policies toward the poor. According to some accounts, he told Conroy, “Padre, you just got to stay out of politics.” (Ryan denies this, insisting he acted to remove Conroy because the chaplain wasn’t doing enough pastoral counseling for members.)

In the ensuing uproar, House members didn’t hesitate to fling charges at one another as they tried to sort out what happened. One thing they didn’t consider was the option of simply abolishing the position.

As the country considers the controversy, it’s helpful to step back and ask a bedrock question: How did a nation founded on the separation of church and state end up with so many taxpayer-funded or officially designated chaplains in Congress, and in state legislatures as well?

The answer goes back to the period prior to the American Revolution – a time when the proper relationship between church and state was still being hashed out.

The Continental Congress, a body consisting of delegates from the 13 original U.S. colonies, was formed in 1774 and provided a national government during the war. Most members of the Continental Congress, who came out of an era in which many colonies still had established churches, saw no problem with appointing an official chaplain. Although no chaplains were present, nor official prayers offered, at the Constitutional Convention of 1787, the new Congress created during those deliberations accepted the idea of a chaplaincy.

At the time, there was some discussion about whether a chaplain could represent the diversity of religious beliefs without taking sides, but concerns over the legality of the move were apparently not discussed – although it should be noted that the appointment of the first congressional chaplains, the Rev. William Linn (Presbyterian) in the House and the Rev. Samuel Provoost (Episcopalian) in the Senate, occurred in 1789, two years before the Bill of Rights was adopted.

Ironically, James Madison, who served on a joint committee that created the congressional chaplains, later criticized the system in his writings.

America’s fourth president, Madison was a longtime advocate of religious freedom.  He was considered a “founding father” of the Constitution and was a primary author of the First Amendment. He addressed the chaplaincy issue in a series of essays scholars believe were drafted between 1820 and 1830. Known as the “Detached Memoranda,” the essays cover a range of topics, including religious freedom.

In one essay, Madison asked the question, “Is the appointment of Chap­lains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?”

He then answers himself: “In strictness the answer on both points must be in the negative. The Constitution of the U.S. for­bids everything like an establishment of a national religion. The law ap­pointing Chaplains es­t­ab­lishes a religious wor­ship for the national representatives, to be per­formed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, ap­plicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation[?]”

Concludes Madison, “The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles.”

Madison offered an alternative: He suggested that members of Congress, if they desired the services of a chaplain, pay for one out of their own pockets. He also believed the practice had degenerated into mere ritual, observing, “[A]re not the daily devotions conducted by these legal Ecclesiastics already degenerating into a scanty attendance, and a tiresome formality?”

Madison’s observations ring true to anyone who visits the U.S. Capitol or watches Congress’ proceedings on C-SPAN. The daily prayers in both the House and Senate, delivered by taxpayer-funded chaplains, are often recited to an empty chamber.

Apparently this has been the case for a long time. In his classic volume Church, State and Freedom first published in 1953, scholar Leo Pfeffer observed, “The visitor to the capital today can hardly fail to notice how often the chaplain’s prayers are made to empty seats. This has been a long-standing complaint of chaplains.”

Yet despite this disinterest, the chaplaincy appears to be well entrenched. The only serious challenge to it as an institution occurred in the 1850s. In a 2009 paper published in the William & Mary Bill of Rights Journal, Christopher C. Lund, a law professor now at Wayne State University in Detroit, noted that in that decade Congress received dozens of petitions from religious and secular groups asking that the chaplaincy be abolished. For a few years, Congress actually did so and moved to a system of rotating volunteers – but it didn’t last long.

On occasion, chaplains angered the lawmakers they were supposed to be serving. In April 1864, U.S. Sen. Willard Saulsbury, a Delaware Democrat, introduced a resolution calling on the Senate chaplain to “be respectfully requested hereafter to pray to supplicate Almighty God in our behalf, and not to lecture Him … under the form of prayer [or] to lecture the Senate in relation to questions before the body.” (It’s unclear what set Saulsbury off, but he was known to be a harsh critic of Abraham Lincoln’s administration. He was also a hothead and a heavy drinker.)

The issue of diversity has also dogged the chaplaincy. The congressional chaplains have all been male Christians. Although Conroy is a Jesuit priest, Protestants have dominated. Until 2000, only one Catholic had served as a congressional chaplain, and that was for one year, from 1832-33. Over the years, efforts have been made to bring religious diversity to the House and Senate by allowing guest ministers to offer a prayer for the day.

But even this hasn’t always gone off without controversy. On July 12, 2007, Hindu priest Rajan Zed, a Nevada resident, gave the opening prayer in the Senate at the invitation of U.S. Sen. Harry Reid (D-Nev.).

As Zed began his remarks, three fundamentalist Christian protestors in the Senate visitors’ gallery began shouting. It later came to light that the trio was affiliated with the Rev. Flip Benham’s Operation Save America, a group known mainly for strident protests against legal abortion.

“Lord Jesus, forgive us, Father, for allowing a prayer of the wicked which is an abomination in your sight,” one hollered. “This is an abomination! We shall have no other gods before you.”

The sergeant-at-arms restored order, and the three were removed.

The disruption came on the heels of a campaign against Zed led by Religious Right groups. The Rev. Donald Wildmon’s American Family Association implored its members to complain to their senators about the invitation. OneNewsNow, the AFA’s propaganda arm, reported that “Christian nation” activist David Barton had carped that Hinduism has few followers in the United States, and that prayer to a “non-monotheistic god” is “outside the American paradigm.”

Yet inclusion goes only so far. Congress has been open to a variety of invocations led by religious leaders, but there’s one group that has yet to score an invitation: non-believers.

It’s not for lack of trying. In 1987, Paul Kurtz, a professor of philosophy at the State University of New York in Buffalo and a Secular Humanist, filed a lawsuit seeking the right to open a session of Congress with a secular invocation.

Three years earlier, Kurtz had written to the Rev. Richard C. Halverson, chaplain of the Senate, and the Rev. James D. Ford, chaplain of the House, offering to make a “short statement” reminding members of Congress “of their moral responsibilities.”

Kurtz added, “As a secular humanist, I would not, of course, invoke any deity during my remarks. However, my remarks would otherwise fall within the traditional format.”

Both chaplains rebuffed Kurtz, who sought relief in the federal courts. But his case, Kurtz v. Baker, was rejected by the U.S. Circuit Court of Appeals for the District of Columbia, which ruled that Kurtz lacked “standing” – that is, the legal right to bring the case.

More recently, Dan Barker, co-president of the Freedom From Religion Foundation, sued Conroy in May 2016 after being denied the opportunity to give a secular invocation before Congress.

Barker’s case features an interesting twist: Although he is an atheist, Barker was a Christian minister for 19 years and never gave up his ordination. He was invited to serve as a guest chaplain by U.S. Rep. Mark Pocan (D-Wisc.) in line with congressional procedures, but Conroy wrote to Barker declaring that since Barker had “announced his atheism publicly,” he was not a true “minister of the gospel,” thus deeming him ineligible to appear before Congress. (Americans United last month filed a brief in the case, Barker v. Conroy, supporting Barker.)

Kurtz, and now Barker, sued to be included. Why didn’t they challenge the chaplaincy on its face as an unconstitutional violation of separation of church and state? The answer is that someone had tried that already – and failed.

Ernie Chambers, a state senator from Nebraska, challenged that state’s policy of paying a chaplain with tax funds to offer opening prayers before its unicameral legislature. The case, Marsh v. Chambers, reached the U.S. Supreme Court in 1983, which ruled 6-3 against Chambers.

In the ruling, instead of applying its normal test for deciding church-state cases, the high court relied on a unique historical analysis. The court majority reasoned that because the First Congress enacted a congressional chaplaincy the same week that it approved submission of the First Amendment to the states for ratification, the amendment’s framers must have believed that the First Amendment permits tax-funded legislative chaplains.

Legal battles after Marsh have been about the content of legislative invocations and who may give them. In 2014, the Supreme Court decided Town of Greece v. Galloway, a case brought by Americans United challenging a New York community’s practice of opening nearly all of its city council meetings with predominantly sectarian Christian prayers.

While the justices ruled that sectarian prayers are permissible, they stressed that governmental bodies must not discriminate based on religion in selecting people to deliver opening invocations. In light of that ruling, Americans United has worked with groups around the country that are seeking to give representatives of minority voices, such as Islam, Hinduism, Wicca and Humanism, a place at the invocation table.

Often this goes off without a hitch, but some communities and states are stubbornly refusing to give nonbelievers the same rights they extend to believers.

Americans United is currently litigating two cases, one in Pennsylvania and one in Florida, seeking to secure equal rights for nontheists.

The Pennsylvania case, Fields v. Speaker of the Pennsylvania House of Representatives, challenges the state House of Representatives’ policy barring people who do not believe in God from offering opening invocations. In the lawsuit, filed in August 2016, Americans United and American Atheists explain that a number of nontheist individuals and groups who requested to deliver opening invocations before the House were deemed ineligible on the grounds that they are “non-adherents or nonbelievers.”

The Pennsylvania House allows about half of its opening invocations to be delivered by guests from the community. During a two-year period preceding the filing of the lawsuit, with assistance from Americans Uni­ted, the nontheist plaintiffs had made repeated requests to take part in that practice; all were rejected.

“Just like people who believe in God, atheists and Humanists are capable of delivering inspiring and moving invocations,” Americans United Associate Legal Director Alex J. Luchenitser said at the time the case was filed. “There is no good reason for the House to exclude them.”

In Brevard County, Fla., Americans United, the Freedom From Religion Foundation, the American Civil Liberties Union and the American Civil Liberties Union of Florida are suing on behalf of multiple plaintiffs, asserting that the county’s rejection of atheists, Humanists and other nontheists who sought to deliver solemnizing messages at the beginning of commission meetings violates the U.S. and Florida Constitutions.

A federal court ruled in AU’s favor in the case, Williamson v. Brevard County, in late September 2017. The case is currently on appeal to the 11th U.S. Circuit Court of Appeals.

AU points out that flaps over legislative prayers aren’t uncommon. In 1996, a guest minister named Joe Wright was invited to speak before the Kansas House of Representatives. He unleashed a highly politicized screed that read in part, “We have ridiculed the absolute truth of Your Word and called it pluralism. We have worshipped other gods and called it multiculturalism. We have endorsed perversion and called it alternative lifestyle. … We have rewarded laziness and called it welfare. We have killed our unborn and called it choice.”

Wright became a folk hero to the Religious Right, and his controversial invocation surfaced in a few other jurisdictions as well.

In January 1999, another prayer flap struck Kansas when guest chaplain Brian Schieber, pastor of the Most Pure Heart of Mary Catholic Church, took advantage of his place at the speaker’s podium before the House of Representatives to launch a vitriolic attack on reproductive freedom.

“We remember the over 53 million beautiful, innocent unborn children who have been legally exterminated in our land,” Schieber said. “By your grace, guide us to transform this culture of death into a culture of life and a civilization of love.”

State Rep. Tom Sawyer, a Wichita Democrat, was not pleased. “Prayers ought to be more ecumenical,” he told the Associated Press.  “It’s supposed to be a prayer that all 125 people will feel comfortable praying.”

House Speaker Mike O’Neal later apologized, noting that the prayer “caused some concern.”

In Oklahoma, a dispute over guest chaplains in the House of Representatives has been festering. State Rep. Chuck Strohm, a Republican from Jenks, has been accused of trying to eliminate non-Christian religious leaders from serving in the House Chaplain of the Day/Chaplain of the Week program. (See “Okla. Legislator Restricts Non-Christians From House Chaplain Program,” People & Events, May 2018 Church & State.)

Back in the U.S. House, the situation with Conroy was resolved in May after Ryan agreed he could remain. Before that happened, some Catholic members of the chamber floated the possibility that anti-Catholic bias may have played a role in the flap.

U.S. Rep. Mark Walker (R-N.C.), didn’t help matters when he told reporters that Congress needs a chaplain who “has adult children, that kind of can connect with the bulk” of legislators. Walker said a chaplain like that could help members deal with difficulties they may be having with children and spouses.

“Having someone who’s walked in those shoes, I think, allows you to immediately relate a little bit more than others,” Walker said. (Walker resigned from a committee charged with finding a new chaplain after his comments went public.)

U.S. Rep. Joseph Crowley (D-N.Y.) noted that this standard would rule out ever having a Catholic chaplain again, since priests are celibate.

This isn’t the first time there’s been a flap over a Catholic chaplain in Congress. In late 1999, a bipartisan committee recommended that the Rev. Timothy O’Brien, a Catholic priest, be hired as the new House chaplain. But then-House Speaker Dennis Hastert (R-Ill.) and then-House Majority Leader Richard Armey (R-Texas) ignored the committee and offered the job to the Rev. Charles Wright, a Presby­terian minister who had been active in planning the annual National Prayer Breakfast.

O’Brien later reported that he had been asked about whether his clerical collar would be off-putting and whether he’d be able to counsel married men and women with children. He interpreted some of these comments as anti-Catholic animus.

The issue dragged on for about half a year. To defuse matters, Hastert called Cardinal Francis George of Chicago and asked for a list of suitable Catholic clergy. Hastert interviewed one of them, the Rev. Daniel Coughlin, by phone and then offered him the job. Coughlin was promptly flown to the capital and sworn in.

Americans United has repeatedly pointed out to Congress that all this fuss and controversy could be avoided if the chaplaincy were simply discontinued. The organization has also noted that cutting the two positions would save money, since the two offices have a joint annual budget in excess of $800,000.

During the flap over O’Brien, Americans United wrote to Hastert and recommended that the chaplain positions be abolished.

It’s a view AU still holds. In a column published in The Washington Post May 2, Rachel Laser, Americans United’s president and CEO, observed, “Despite our nation’s exploding pluralism, every congressional chaplain since 1776 has been a male Christian. Yet in modern America, the ways of relating to God are many and varied, and growing numbers of Americans choose not to relate to a deity at all.

“In this atmosphere,” Laser continued, “a one-size-fits-all prayer delivered by a taxpayer-funded religious leader isn’t just an anachronism. It’s an impossibility. In today’s religi­ously diverse America, government­sponsored, taxpayer-funded chaplains don’t unify; they often divide and perpetuate (one version of) Christian dominance in American religious life.”