AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
MARSH, NEBRASKA STATE TREASURER, ET AL.
v.
CHAMBERS
Supreme Court of United States.
*784 Shanler D. Cronk, Assistant Attorney General of Nebraska, argued the cause for petitioners. With him on the briefs was Paul L. Douglas, Attorney General.
Herbert J. Friedman argued the cause for respondent. With him on the brief were Stephen L. Pevar, Burt Neuborne, and Charles S. Sims.[*]
Briefs of amici curiae urging affirmance were filed by Nathan Z. Dershowitz and Marc D. Stern for the American Jewish Congress; by David J. Eiseman, Justin J. Finger, and Jeffrey P. Sinensky for the Anti-Defamation League of B'nai Brith; and by Thomas P. Gies for Jon Garth Murray et al.
Lanny M. Proffer filed a brief for the National Conference of State Legislatures as amicus curiae.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
The question presented is whether the Nebraska Legislature's practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishment Clause of the First Amendment.
I
The Nebraska Legislature begins each of its sessions with a prayer offered by a chaplain who is chosen biennially by the Executive Board of the Legislative Council and paid out of *785 public funds.[1] Robert E. Palmer, a Presbyterian minister, has served as chaplain since 1965 at a salary of $319.75 per month for each month the legislature is in session.
Ernest Chambers is a member of the Nebraska Legislature and a taxpayer of Nebraska. Claiming that the Nebraska Legislature's chaplaincy practice violates the Establishment Clause of the First Amendment, he brought this action under 42 U. S. C. § 1983, seeking to enjoin enforcement of the practice.[2] After denying a motion to dismiss on the ground of legislative immunity, the District Court held that the Establishment Clause was not breached by the prayers, but was violated by paying the chaplain from public funds. 504 F. Supp. 585 (Neb. 1980). It therefore enjoined the legislature from using public funds to pay the chaplain; it declined to enjoin the policy of beginning sessions with prayers. Cross-appeals were taken.[3]
The Court of Appeals for the Eighth Circuit rejected arguments that the case should be dismissed on Tenth Amendment, legislative immunity, standing, or federalism grounds. On the merits of the chaplaincy issue, the court refused to treat respondent's challenges as separable issues as the District Court had done. Instead, the Court of Appeals assessed the practice as a whole because "[p]arsing out [the] *786 elements" would lead to "an incongruous result." 675 F. 2d 228, 233 (1982).
Applying the three-part test of Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971), as set out in Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 773 (1973), the court held that the chaplaincy practice violated all three elements of the test: the purpose and primary effect of selecting the same minister for 16 years and publishing his prayers was to promote a particular religious expression; use of state money for compensation and publication led to entanglement. 675 F. 2d, at 234-235. Accordingly, the Court of Appeals modified the District Court's injunction and prohibited the State from engaging in any aspect of its established chaplaincy practice.
We granted certiorari limited to the challenge to the practice of opening sessions with prayers by a state-employed clergyman, 459 U. S. 966 (1982), and we reverse.[4]
II
The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, "God save the United States and this Honorable Court." The same invocation occurs at all sessions of this Court.
*787 The tradition in many of the Colonies was, of course, linked to an established church,[5] but the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain. See, e. g., 1 J. Continental Cong. 26 (1774); 2 id., at 12 (1775); 5 id., at 530 (1776); 6 id., at 887 (1776); 27 id., at 683 (1784). See also 1 A. Stokes, Church and State in the United States 448-450 (1950). Although prayers were not offered during the Constitutional Convention,[6] the First Congress, as one of *788 its early items of business, adopted the policy of selecting a chaplain to open each session with prayer. Thus, on April 7, 1789, the Senate appointed a committee "to take under consideration the manner of electing Chaplains." S. Jour., 1st Cong., 1st Sess., 10 (1820 ed.). On April 9, 1789, a similar committee was appointed by the House of Representatives. On April 25, 1789, the Senate elected its first chaplain, id., at 16; the House followed suit on May 1, 1789, H. R. Jour., 1st Cong., 1st Sess., 26 (1826 ed.). A statute providing for the payment of these chaplains was enacted into law on September 22, 1789.[7] 2 Annals of Cong. 2180; § 4, 1 Stat. 71.[8]
On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights, S. Jour., supra, at 88; H. R. Jour., supra, at 121.[9] Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.[10] It has also been followed consistently *789 in most of the states,[11] including Nebraska, where the institution of opening legislative sessions with prayer was adopted even before the State attained statehood. Neb. *790 Jour. of Council, General Assembly, 1st Sess., 16 (Jan. 22, 1855).
Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns. In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress their actions reveal their intent. An Act
"passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, . . . is contemporaneous and weighty evidence of its true meaning." Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888).
In Walz v. Tax Comm'n, 397 U. S. 664, 678 (1970), we considered the weight to be accorded to history:
"It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice . . . is not something to be lightly cast aside."
No more is Nebraska's practice of over a century, consistent with two centuries of national practice, to be cast aside. It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable. In applying the First Amendment to the states through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U. S. 296 (1940), it would be incongruous to interpret that Clause as imposing more stringent *791 First Amendment limits on the states than the draftsmen imposed on the Federal Government.
This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged. We conclude that legislative prayer presents no more potential for establishment than the provision of school transportation, Everson v. Board of Education, 330 U. S. 1 (1947), beneficial grants for higher education, Tilton v. Richardson, 403 U. S. 672 (1971), or tax exemptions for religious organizations, Walz, supra.
Respondent cites JUSTICE BRENNAN's concurring opinion in Abington School Dist. v. Schempp, 374 U. S. 203, 237 (1963), and argues that we should not rely too heavily on "the advice of the Founding Fathers" because the messages of history often tend to be ambiguous and not relevant to a society far more heterogeneous than that of the Framers, id., at 240. Respondent also points out that John Jay and John Rutledge opposed the motion to begin the first session of the Continental Congress with prayer. Brief for Respondent 60.[12]
We do not agree that evidence of opposition to a measure weakens the force of the historical argument; indeed it infuses it with power by demonstrating that the subject was considered carefully and the action not taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic society. Jay and Rutledge specifically grounded their objection on the fact that the delegates to the Congress "were so divided in religious sentiments . . . that [they] could not join in the same act of worship." Their objection *792 was met by Samuel Adams, who stated that "he was no bigot, and could hear a prayer form a gentleman of piety and virtue, who was at the same time a friend to his country." C. Adams, Familiar Letters of John Adams and his Wife, Abigail Adams, during the Revolution 37-38, reprinted in Stokes, at 449.
This interchange emphasizes that the delegates did not consider opening prayers as a proselytizing activity or as symbolically placing the government's "official seal of approval on one religious view," cf. 675 F. 2d, at 234. Rather, the Founding Fathers looked at invocations as "conduct whose . . . effect . . . harmonize[d] with the tenets of some or all religions." McGowan v. Maryland, 366 U. S. 420, 442 (1961). The Establishment Clause does not always bar a state from regulating conduct simply because it "harmonizes with religious canons." Id., at 462 (Frankfurter, J., concurring). Here, the individual claiming injury by the practice is an adult, presumably not readily susceptible to "religious indoctrination," see Tilton, supra, at 686; Colo v. Treasurer & Receiver General, 378 Mass. 550, 559, 392 N. E. 2d 1195, 1200 (1979), or peer pressure, compare Abington, supra, at 290 (BRENNAN, J., concurring).
In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U. S. 306, 313 (1952).
III
We turn then to the question of whether any features of the Nebraska practice violate the Establishment Clause. *793 Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination Presbyterian has been selected for 16 years;[13] second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo-Christian tradition.[14] Weighed against the historical background, these factors do not serve to invalidate Nebraska's practice.[15]
The Court of Appeals was concerned that Palmer's long tenure has the effect of giving preference to his religious views. We cannot, any more than Members of the Congresses of this century, perceive any suggestion that choosing a clergyman of one denomination advances the beliefs of a particular church. To the contrary, the evidence indicates that Palmer was reappointed because his performance and personal qualities were acceptable to the body appointing him.[16] Palmer was not the only clergyman heard by the legislature; guest chaplains have officiated at the request of various legislators and as substitutes during Palmer's absences. Tr. of Oral Arg. 10. Absent proof that the chaplain's reappointment stemmed from an impermissible motive, we conclude *794 that his long tenure does not in itself conflict with the Establishment Clause.[17]
Nor is the compensation of the chaplain from public funds a reason to invalidate the Nebraska Legislature's chaplaincy; remuneration is grounded in historic practice initiated, as we noted earlier, supra, at 788, by the same Congress that drafted the Establishment Clause of the First Amendment. The Continental Congress paid its chaplain, see, e. g., 6 J. Continental Cong. 887 (1776), as did some of the states, see, e. g., Debates of the Convention of Virginia 470 (June 26, 1788). Currently, many state legislatures and the United States Congress provide compensation for their chaplains, Brief for National Conference of State Legislatures as Amicus Curiae 3; 2 U. S. C. §§ 61d and 84-2 (1982 ed.); H. R. Res. 7, 96th Cong., 1st Sess. (1979).[18] Nebraska has paid its chaplain for well over a century, see 1867 Neb. Laws 85, §§ 2-4 (June 21, 1867), reprinted in Neb. Gen. Stat. 459 (1873). The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, *795 or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.
We do not doubt the sincerity of those, who like respondent, believe that to have prayer in this context risks the beginning of the establishment the Founding Fathers feared. But this concern is not well founded, for as Justice Goldberg aptly observed in his concurring opinion in Abington, 374 U. S., at 308:
"It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow."
The unbroken practice for two centuries in the National Congress and for more than a century in Nebraska and in many other states gives abundant assurance that there is no real threat "while this Court sits," Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting).
The judgment of the Court of Appeals is
Reversed.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
The Court today has written a narrow and, on the whole, careful opinion. In effect, the Court holds that officially sponsored legislative prayer, primarily on account of its "unique history," ante, at 791, is generally exempted from the First Amendment's prohibition against "an establishment of religion." The Court's opinion is consistent with dictum in at least one of our prior decisions,[1] and its limited rationale should pose little threat to the overall fate of the Establishment Clause. Moreover, disagreement with the Court *796 requires that I confront the fact that some 20 years ago, in a concurring opinion in one of the cases striking down official prayer and ceremonial Bible reading in the public schools, I came very close to endorsing essentially the result reached by the Court today.[2] Nevertheless, after much reflection, I have come to the conclusion that I was wrong then and that the Court is wrong today. I now believe that the practice of official invocational prayer, as it exists in Nebraska and most other state legislatures, is unconstitutional. It is contrary to the doctrine as well the underlying purposes of the Establishment Clause, and it is not saved either by its history or by any of the other considerations suggested in the Court's opinion.
I respectfully dissent.
I
The Court makes no pretense of subjecting Nebraska's practice of legislative prayer to any of the formal "tests" that have traditionally structured our inquiry under the Establishment Clause. That it fails to do so is, in a sense, a good thing, for it simply confirms that the Court is carving out an exception to the Establishment Clause rather than reshaping Establishment Clause doctrine to accommodate legislative prayer. For my purposes, however, I must begin by demonstrating what should be obvious: that, if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.
The most commonly cited formulation of prevailing Establishment Clause doctrine is found in Lemon v. Kurtzman, 403 U. S. 602 (1971):
*797 "Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute [at issue] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster `an excessive government entanglement with religion.' " Id., at 612-613 (citations omitted).[3]
That the "purpose" of legislative prayer is pre-eminently religious rather than secular seems to me to be self-evident.[4] "To invoke Divine guidance on a public body entrusted with making the laws," ante, at 792, is nothing but a religious act. Moreover, whatever secular functions legislative prayer might play formally opening the legislative session, getting the members of the body to quiet down, and imbuing them with a sense of seriousness and high purpose could so plainly be performed in a purely nonreligious fashion that to claim a secular purpose for the prayer is an insult to the perfectly *798 honorable individuals who instituted and continue the practice.
The "primary effect" of legislative prayer is also clearly religious. As we said in the context of officially sponsored prayers in the public schools, "prescribing a particular form of religious worship," even if the individuals involved have the choice not to participate, places "indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion . . . ." Engel v. Vitale, 370 U. S. 421, 431 (1962).[5] More importantly, invocations in Nebraska's legislative halls explicitly link religious belief and observance to the power and prestige of the State. "[T]he mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred." Larkin v. Grendel's Den, Inc., 459 U. S. 116, 125-126 (1982).[6] See Abington School Dist. v. Schempp, 374 U. S. 203, 224 (1963).
Finally, there can be no doubt that the practice of legislative prayer leads to excessive "entanglement" between the State and religion. Lemon pointed out that "entanglement" can take two forms: First, a state statute or program might involve the state impermissibly in monitoring and overseeing *799 religious affairs. 403 U. S., at 614-622.[7] In the case of legislative prayer, the process of choosing a "suitable" chaplain, whether on a permanent or rotating basis, and insuring that the chaplain limits himself or herself to "suitable" prayers, involves precisely the sort of supervision that agencies of government should if at all possible avoid.[8]
Second, excessive "entanglement" might arise out of "the divisive political potential" of a state statute or program. 403 U. S., at 622.
"Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. The potential divisiveness of such conflict is a threat to the normal political process." Ibid. (citations omitted).
In this case, this second aspect of entanglement is also clear. The controversy between Senator Chambers and his colleagues, which had reached the stage of difficulty and rancor long before this lawsuit was brought, has split the Nebraska *800 Legislature precisely on issues of religion and religious conformity. App. 21-24. The record in this case also reports a series of instances, involving legislators other than Senator Chambers, in which invocations by Reverend Palmer and others led to controversy along religious lines.[9] And in general, the history of legislative prayer has been far more eventful and divisive than a hasty reading of the Court's opinion might indicate.[10]
In sum, I have no doubt that, if any group of law students were asked to apply the principles of Lemon to the question *801 of legislative prayer, they would nearly unanimously find the practice to be unconstitutional.[11]
II
The path of formal doctrine, however, can only imperfectly capture the nature and importance of the issues at stake in this case. A more adequate analysis must therefore take *802 into account the underlying function of the Establishment Clause, and the forces that have shaped its doctrine.
A
Most of the provisions of the Bill of Rights, even if they are not generally enforceable in the absence of state action, nevertheless arise out of moral intuitions applicable to individuals as well as governments. The Establishment Clause, however, is quite different. It is, to its core, nothing less and nothing more than a statement about the proper role of government in the society that we have shaped for ourselves in this land.
The Establishment Clause embodies a judgment, born of a long and turbulent history, that, in our society, religion "must be a private matter for the individual, the family, and the institutions of private choice . . . ." Lemon v. Kurtzman, 403 U. S., at 625.
"Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and non-religion." Epperson v. Arkansas, 393 U. S. 97, 103-104 (1968) (footnote omitted).
"In the words of Jefferson, the clause against establishment of religion by law was intended to erect `a wall of separation between church and State.' " Everson v. Board of Education, 330 U. S. 1, 16 (1947), quoting Reynolds v. United States, 98 U. S. 145, 164 (1879).[12]
*803 The principles of "separation" and "neutrality" implicit in the Establishment Clause serve many purposes. Four of these are particularly relevant here.
The first, which is most closely related to the more general conceptions of liberty found in the remainder of the First Amendment, is to guarantee the individual right to conscience.[13] The right to conscience, in the religious sphere, is not only implicated when the government engages in direct or indirect coercion. It is also implicated when the government requires individuals to support the practices of a faith with which they do not agree.
" `[T]o compel a man to furnish contributions of money for the propagation of [religious] opinions which he disbelieves, is sinful and tyrannical; . . . even . . . forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern . . . .' " Everson v. Board of Education, supra, at 13, quoting Virginia Bill for Religious Liberty, 12 Hening, Statutes of Virginia 84 (1823).
The second purpose of separation and neutrality is to keep the state from interfering in the essential autonomy of religious life, either by taking upon itself the decision of religious *804 issues,[14] or by unduly involving itself in the supervision of religious institutions or officials.[15]
The third purpose of separation and neutrality is to prevent the trivialization and degradation of religion by too close an attachment to the organs of government. The Establishment Clause "stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its `unhallowed perversion' by a civil magistrate." Engel v. Vitale, 370 U. S., at 432, quoting Memorial and Remonstrance against Religious Assessments, 2 Writings of Madison 187. See also Schempp, 374 U. S., at 221-222; id., at 283-287 (BRENNAN, J., concurring).[16]
*805 Finally, the principles of separation and neutrality help assure that essentially religious issues, precisely because of their importance and sensitivity, not become the occasion for battle in the political arena. See Lemon, 403 U. S., at 622-624; Board of Education v. Allen, 392 U. S. 236, 249 (Harlan, J., concurring); Engel, supra, at 429-430. With regard to most issues, the government may be influenced by partisan argument and may act as a partisan itself. In each case, there will be winners and losers in the political battle, and the losers' most common recourse is the right to dissent and the right to fight the battle again another day. With regard to matters that are essentially religious, however, the Establishment Clause seeks that there should be no political battles, and that no American should at any point feel alienated *806 from his government because that government has declared or acted upon some "official" or "authorized" point of view on a matter of religion.[17]
B
The imperatives of separation and neutrality are not limited to the relationship of government to religious institutions or denominations, but extend as well to the relationship of government to religious beliefs and practices. In Torcaso v. Watkins, 367 U. S. 488 (1961), for example, we struck down a state provision requiring a religious oath as a qualification to hold office, not only because it violated principles of free exercise of religion, but also because it violated the principles of nonestablishment of religion. And, of course, in the pair of cases that hang over this one like a reproachful set of parents, we held that official prayer and prescribed Bible reading in the public schools represent a serious encroachment on the Establishment Clause. Schempp, supra; Engel, supra. As we said in Engel, "[i]t is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance." 370 U. S., at 435 (footnote omitted).
Nor should it be thought that this view of the Establishment Clause is a recent concoction of an overreaching judiciary. *807 Even before the First Amendment was written, the Framers of the Constitution broke with the practice of the Articles of Confederation and many state constitutions, and did not invoke the name of God in the document. This "omission of a reference to the Deity was not inadvertent; nor did it remain unnoticed."[18] Moreover, Thomas Jefferson and Andrew Jackson, during their respective terms as President, both refused on Establishment Clause grounds to declare national days of thanksgiving or fasting.[19] And James Madison, writing subsequent to his own Presidency on essentially the very issue we face today, stated:
"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. 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 *808 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." Fleet, Madison's "Detached Memoranda," 3 Wm. & Mary Quarterly 534, 558 (1946).
C
Legislative prayer clearly violates the principles of neutrality and separation that are embedded within the Establishment Clause. It is contrary to the fundamental message of Engel and Schempp. It intrudes on the right to conscience by forcing some legislators either to participate in a "prayer opportunity," ante, at 794, with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate. It forces all residents of the State to support a religious exercise that may be contrary to their own beliefs. It requires the State to commit itself on fundamental theological issues.[20] It has the potential for degrading religion by allowing a religious call to worship to be intermeshed with a secular call to order. And it injects religion into the political sphere by creating the potential that each and every selection of a chaplain, or consideration of a particular prayer, or even reconsideration of the practice itself, will provoke a political battle along religious lines and ultimately alienate some religiously identified group of citizens.[21]
*809 D
One response to the foregoing account, of course, is that "neutrality" and "separation" do not exhaust the full meaning of the Establishment Clause as it has developed in our cases. It is indeed true that there are certain tensions inherent in the First Amendment itself, or inherent in the role of religion and religious belief in any free society, that have shaped the doctrine of the Establishment Clause, and required us to deviate from an absolute adherence to separation and neutrality. Nevertheless, these considerations, although very important, are also quite specific, and where none of them is present, the Establishment Clause gives us no warrant simply to look the other way and treat an unconstitutional practice as if it were constitutional. Because the Court occasionally suggests that some of these considerations might apply here, it becomes important that I briefly identify the most prominent of them and explain why they do not in fact have any relevance to legislative prayer.
(1)
A number of our cases have recognized that religious institutions and religious practices may, in certain contexts, receive the benefit of government programs and policies generally available, on the basis of some secular criterion, to a wide class of similarly situated nonreligious beneficiaries,[22] and the precise cataloging of those contexts is not necessarily an easy task. I need not tarry long here, however, because the provision for a daily official invocation by a nonmember officer of *810 a legislative body could by no stretch of the imagination appear anywhere in that catalog.
(2)
Conversely, our cases have recognized that religion can encompass a broad, if not total, spectrum of concerns, overlapping considerably with the range of secular concerns, and that not every governmental act which coincides with or conflicts with a particular religious belief is for that reason an establishment of religion. See, e. g., McGowan v. Maryland, 366 U. S. 420, 431-445 (1961) (Sunday Laws); Harris v. McRae, 448 U. S. 297, 319-320 (1980) (abortion restrictions). The Court seems to suggest at one point that the practice of legislative prayer may be excused on this ground, ante, at 792, but I cannot really believe that it takes this position seriously.[23] The practice of legislative prayer is nothing like the statutes we considered in McGowan and Harris v. McRae; prayer is not merely "conduct whose . . . effect . . . harmonize[s] with the tenets of some or all religions," McGowan, supra, at 442; prayer is fundamentally and necessarily religious. "It is prayer which distinguishes religious phenomena from all those which resemble them or lie near to them, from the moral sense, for instance, or aesthetic feeling."[24] Accord, Engel, 370 U. S., at 424.
(3)
We have also recognized that government cannot, without adopting a decidedly anti-religious point of view, be forbidden *811 to recognize the religious beliefs and practices of the American people as an aspect of our history and culture.[25] Certainly, bona fide classes in comparative religion can be offered in the public schools.[26] And certainly, the text of Abraham Lincoln's Second Inaugural Address which is inscribed on a wall of the Lincoln Memorial need not be purged of its profound theological content. The practice of offering invocations at legislative sessions cannot, however, simply be dismissed as "a tolerable acknowledgment of beliefs widely held among the people of this country." Ante, at 792 (emphasis added). "Prayer is religion in act."[27] "Praying means to take hold of a word, the end, so to speak, of a line that leads to God."[28] Reverend Palmer and other members of the clergy who offer invocations at legislative sessions are not museum pieces put on display once a day for the edification of the legislature. Rather, they are engaged by the legislature to lead it as a body in an act of religious worship. If upholding the practice requires denial of this fact, I suspect that many supporters of legislative prayer would feel that they had been handed a pyrrhic victory.
(4)
Our cases have recognized that the purposes of the Establishment Clause can sometimes conflict. For example, in Walz v. Tax Comm'n, 397 U. S. 664 (1970), we upheld tax exemptions for religious institutions in part because subjecting those institutions to taxation might foster serious administrative entanglement. Id., at 674-676. Here, however, no *812 such tension exists; the State can vindicate all the purposes of the Establishment Clause by abolishing legislative prayer.
(5)
Finally, our cases recognize that, in one important respect, the Constitution is not neutral on the subject of religion: Under the Free Exercise Clause, religiously motivated claims of conscience may give rise to constitutional rights that other strongly held beliefs do not. See n. 13, supra. Moreover, even when the government is not compelled to do so by the Free Exercise Clause, it may to some extent act to facilitate the opportunities of individuals to practice their religion.[29] See Schempp, 374 U. S., at 299 (BRENNAN, J., concurring) ("hostility, not neutrality, would characterize the refusal to provide chaplains and places of worship for prisoners and soldiers cut off by the State from all civilian opportunities for public communion"). This is not, however, a case in which a State is accommodating individual religious interests. We are not faced here with the right of the legislature to allow its members to offer prayers during the course of *813 general legislative debate. We are certainly not faced with the right of legislators to form voluntary groups for prayer or worship. We are not even faced with the right of the State to employ members of the clergy to minister to the private religious needs of individual legislators. Rather, we are faced here with the regularized practice of conducting official prayers, on behalf of the entire legislature, as part of the order of business constituting the formal opening of every single session of the legislative term. If this is free exercise, the Establishment Clause has no meaning whatsoever.
III
With the exception of the few lapses I have already noted, each of which is commendably qualified so as to be limited to the facts of this case, the Court says almost nothing contrary to the above analysis. Instead, it holds that "the practice of opening legislative sessions with prayer has become part of the fabric of our society," ante, at 792, and chooses not to interfere