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. But a deeper look at that history reveals an American institution that is far from being either boring or benign. The chaplains 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 just as frequently have been a source of discord. Perhaps the most fundamental 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 unenviable fight for control over what the government will do. 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 certain constitutional restrictions – restrictions which have themselves become sources of almost endless litigation. In these modern battles, as was the case with Marsh itself, history plays an exceedingly influential role. It is thus now more important than ever that the true and complete history of the chaplaincies be told.
This Article takes up that burden and examines the history of the congressional chaplaincies. It considers the practices of the Continental Congress and Constitutional Convention, the origin of the congressional chaplaincies in 1787, 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, the intersection of the chaplaincies and slavery, and the modern operations of the chaplaincy. With that history in mind, it turns to Marsh and attempts to take an understanding of the eighteenth and nineteenth centuries to guide us in the present struggles.
- Establishment Clause,
- Separation of Church and State,
Available at: http://works.bepress.com/christopher_lund/2/