44 Pages Posted: 17 Aug 2008 Last revised: 28 Sep 2016
Date Written: August 14, 2008
Twenty five years ago, in Marsh v. Chambers, the Supreme Court considered the congressional chaplaincies, and concluded that they were not "an 'establishment' of religion or a step toward establishment," but instead were "simply a tolerable acknowledgment of beliefs widely held among the people of this country." That latter phrase has been repeated hundreds of times in cases and law review articles; it suggests that the chaplaincies are uninteresting and uncontroversial and that they have been so throughout our history.
The Court in Marsh looked only briefly at the history of the chaplaincies. A deeper look at that history reveals an American institution that is neither boring nor entirely benign. The chaplaincies have a remarkable, and a remarkably checkered, history. Sometimes they have indeed been a source of unity for the country, as Marsh intimated. But they have also, at times, been a source of discord and dissension. Indeed, perhaps one lesson taught by the history of the chaplaincies is that they operate the way one would expect any religious establishment to operate - when the government is empowered to act religiously, there is a natural but sometimes unenviable fight for control. The history of the chaplaincies is, in part, a history of that fight for control.
In the last decade, this fight has reached a critical stage. While Marsh approved legislative prayer, it did so only with constitutional restrictions - restrictions which have themselves now become sources of constant litigation. In these modern battles, as was the case with Marsh itself, history plays an influential role. It is thus now more important than ever to bring to light certain episodes, some untold and some somewhat misremembered, in the history of the chaplaincies.
This Article takes up that burden. It considers the practices of the Continental Congress and Constitutional Convention, the origin of the congressional chaplaincies in 1789, the rise of Catholicism and the fight over Catholic chaplains, the collapse of Unitarianism and the decline of Unitarian chaplains, the crisis over and suspension of the chaplaincies in the 1850s, and the modern operations of the chaplaincy. With that history in mind, it reflects on Marsh and the practice of legislative prayer.
Keywords: Establishment Clause, Religion Clauses, chaplains, chaplaincies, Congress, First Congress, Continental Congress, Constitutional Convention, Catholicism, Nativism, Protestantism, Unitarianism, Anti-Catholicism, Religion, Diversity, James Madison, Marsh v. Chambers
Suggested Citation: Suggested Citation
Lund, Christopher C., The Congressional Chaplaincies (August 14, 2008). William & Mary Bill of Rights Journal, Vol. 17, p. 1171, 2009; Mississippi College School of Law Research Paper No. 2009-01. Available at SSRN: https://ssrn.com/abstract=1226762