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sel". Like the laws providing for a daily invocation of prayer in public schools, these statutes had a "significant religious purpose and thereby contravened the Establishment Clause, the plaintiffs claimed. Only in cases involving "captive” persons, like prison inmates or members of the armed forces, had the U.S. Supreme Court sanctioned funding for chaplains, the plaintiffs contended, and since Congressmen were able to attend the church of their choosing near the Capitol, their freedom of worship would not be abridged by striking down these statutes. Second, the plaintiffs asserted, the statutes had the "primary effect" of advancing religion, even if they had a secular legislative purpose, since the salaries of the chaplains financed "a specifically religious activity-prayer.' Third, the plaintiffs asserted, the statutes caused excessive government entanglement with religion particularly with the Protestant religion (the faith of the chaplains of both houses of Congress.) The use of public funds to support the activities of ministers of particular churches, to the exclusion of the other faiths, the plaintiffs maintained, was impermissible under the First Amendment.

On November 6, 1980, the General Counsel to the Clerk, on behalf on the House defendants, filed an opposition to the plaintiffs' motion for summary judgment. He also filed a reply to the plaintiffs' opposition to the motion to dismiss the complaint. Again, the General Counsel challenged the plaintiffs' notions of justiciability, Speech or Debate Clause implications, and First Amendment law. On the last issue, the General Counsel strongly disagreed that the statute involved authorized "religious counsel” for Members, and asserted that “the statute is devoid of any such express or implied grant of such authority." (Opposition to the Motion for Summary Judgment, November 6, 1980, at 4] Moreover, the memorandum continued, "the payment of a salary to the House chaplain can only infinitesimally and metaphysically, provide incidental aid to religion when compared to incidential aid to religion provided by educational grants to religiously affiliated schools . . . or by general public welfare programs.” [Id. at 4-5] Finally, the General Counsel argued:

We do not contest that the Chaplain offers prayers or that prayers are by their nature religious. We simply contend, as the court concluded in Colo v. Treasurer and Receiver General, 392 N.E. 2d 1195, 1200 (Mass. 1979) that it Caimot be said that they have the primary effect of advancing religion, but rather provide a ceremonial moment of meditation upon the commencement of legislative ses

sions. (Id. at 6] On November 10, 1980, the intervening defendants Senator Jesse Helms et al., formally moved to dismiss the complaint. In a memorandum in support of this motion, and in opposition to the plaintiffs' motion for summary judgment, the intervenors raised political question, standing, and First Amendment arguments similar to those advanced by the other deferrants. On November 17, 1980, the U.S. Attorney, on behalf of the United States, the Congress, the Senate, and the Senate and Executive branch defendants, filed a memorandum in opposition to the plaintiffs' motion for summary judgment. The memorandum reiter

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ated the arguments raised previously, including that of res judicata.

On January 6, 1981, the district court held a hearing on the outstanding motions and Judge Oberdorfer, after oral argument, indicated his intention to grant the defendants' motions to dismiss the complaint. This was done in an order filed on January 12, 1981, which also denied the plaintiffs' motion for summary judgment.

In a memorandum filed the same day, the court held that the plaintiffs lacked standing because "a taxpayer's action to bar the expenditure of funds for the services of Chaplains in the House and Senate is precluded by our Court of Appeals decision in Elliott v. White, 23 F.2d 997 (D.C. Cir. 1928).” [Murray v. Morton, · 505 F Supp. 144, 145 (D.D.C. 1981)] Although Judge Oberdorfer recognized that a line of cases had granted standing to taxpayers to challenge expenditures for general public purposes in violation of the Estab lishment Clause, he held that this did not confer standing to chal lenge the constitutionality of Congress' conduct of its internal af fairs, specifically the compensation of its officers. The court notec that the challenge in this case was only to the payment of funds for the Chaplains, not to their appointment or to the opening prayer at each session of the House and Senate. Given that, the court stated, “[T]he conclusion seems inescapable that it would be 'impossible for this Court, consistently with the respect which courts owe to coordinate branches of government and to each other, to undertake an 'independent resolution of the question o Congress' power to compensate its Chaplains, on this complaint o these particular taxpayers." [Id. at 147] The court concluded:

The taxpayer plaintiffs allege no interest, other than their views with respect to religion, to distinguish themselves or their personal stake in the outcome from that of any one of the population who pay taxes. They have no duty, indeed no occasion, to be present when the Chaplains perform their services in the House and Senate. They do not allege that they have been offended by, or even seen, the material allegedly circulated by the Chaplain of the Senate. This is not an action brought by a Senator, Congressman, or employee of the Senate or the House. See e.q., Powellv. McCormack, supra; Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). Nor is it a complaint by one allegedly suffering from discrimination because of persistent employment of chaplains of one denomination rather than another. Accordingly, unless and until the Court of Appeals or the Supreme Court decides otherwise, this Court considers itself bound by Elliott to dismiss this complaint.

[Id.] On March 13, 1981, the plaintiffs filed a notice of appeal fron the district court's January 12th judgment in the U.S. Court of Ap peals for the District of Columbia Circuit. [No. 81-1301)

On May 18, 1981, the plaintiff-appellants filed their brief in th circuit court arguing once again that they had standing to chal lenge the constitutionality of public funding of the salaries of th House and Senate chaplains, and that the Establishment Claus prohibited Congress from authorizing the expenditure of such funds.

On the standing issue, the plaintiffs asserted that the district court's reliance on Elliott v. White, supra, was misplaced because the "law of taxpayer's standing has changed dramatically” since the case was decided in 1928. [Brief for Appellants, May 18, 1981, at 3] Again, the plaintiffs cited the case of Flast v. Cohen, supra, for this assertion, and claimed the suit should be adjudicated because they had “demonstrated a logical nexus, that they are federal taxpayers and that taxpayers' funds are being appropriated for a religious purpose.” [Id.] The plaintiffs also dismissed the defendants' claim that the statutes in question in the case were “internal” rules of the House and Senate, arguing instead that the case was "clearly focused” on public statutes. Finally, the plaintiffs pointed to a purportedly similar Federal court case in Nebraska, Chambers v. Marsh, 504 F. Supp. 585 (D. Neb., December 24, 1980), appeal pending (Nos. 81-1077 and 81-1088, 8th Cir.), which, they claimed, accorded taxpayer standing to a state senator and declared unconstitutional the expenditure of public funds to pay a state senate chaplain.

On the merits, the plaintiffs made the same arguments they had in the district court, insisting again that the statutes authorizing payment of the salaries and expenses of legislative chaplains violated each part of the Supreme Court's three-pronged test for determining whether a particular law or activity is permissible under the Establishment Clause. First, they contended, the statutes had no clearly secular legislative purpose and were not necessary to avoid abridgement of the legislators' freedom of worship; therefore the statutes in effect authorized a subsidy of religion by the Federal Government. According to the plaintiffs, the statutes authorized as well the subsidy of specific religions, "since the same chaplains have occupied their positions in the House and Senate for eleven and two years respectively." [Id. at 10)

Second, the plaintiffs argued, the statutes had the primary effect of advancing religion because they provided for financing "a specifically religious activity-prayer in the otherwise secular setting of the federal legislature." (Id. at 12] Finally, the plaintiffs asserted again that the statutes caused excessive government entanglement with religion because “both branches of the legislature have had the same chaplains of minority Protestant faith for many years which) gives the appearance that the Congress and the United States favor the Protestant religion over others.(Id. at 13]

On July 22, 1981, the General Counsel to the Clerk submitted a brief on behalf of the House defendant-appellees, asserting that the district court properly dismissed the complaint on the interrelated grounds of standing and justiciability. Again, the General Counsel reiterated the arguments he had raised in the lower court.

With respect to standing, the General Counsel maintained that Elliott v. White, supra, remained good law insofar as a challenge to the internal affairs of a coordinate branch was concerned. Further, the General Counsel argued that the case cited by the plaintiffs, Chambers v. Marsh, supra, was inapposite since it involved a state legislator suing in Federal court and there were] no separation of powers or justiciability concerns present in ... (the) suit, and it has no applicability to a suit against the federal legislature.” [Brief for Appellees O'Neill and Ford, July 22, 1981, at 10]

The General Counsel next asserted that the subject matter of the suit presented a political question and was therefore nonjusticiable. He explained:

This suit presents a nonjusticiable political question the resolution of which is expressly confided by the Constitution to a political branch of government. Appellants' asserted claim that the_statute compensating the House Chaplain violates the Establishment Clause of the First Amendment directly implicates and challenges the Election of Officers and Rules of Proceedings Clauses of the Constitution. These Clauses together provide a textually demonstrable constitutional commitment of internal rulemaking authority to the House regarding the election of its own officers and their performance of assigned duties to Congress. The House's statutory provision for compensation of its Chaplain is a constitutionally valid exercise by the House of Congress' implied power to enact laws conducive to the execution of its enumerated Article I powers to elect its officers and adopt its procedural rules. Thus the challenged statute is merely a derivative exercise of the House's constitutional rulemaking power. Moreover, the House, alternatively, could provide for compensation of its Chaplain by exercising its rulemaking authority directly through adoption of a House rule fixing the level of his pay, rather than by statutory enactment. Consequently, resolution of the tendered claim is committed to the House as a matter of constitutional power, and, as a result, this

case raises no justiciable controversy. (Id. at 26-27] Finally, the General Counsel contended that the challenged ac tions by Congress fell within the legitimate legislative sphere of activity protected by the Speech or Debate Clause and were therefore absolutely immune from judicial interference:

Because of the Chaplain's status as a 'ranking nonmember of the House, Buckley v. Valeo, 424 U.S. 1, 128 (1976) and an officer of the Congress’, 2 U.S.C. $60-1(b)(1) (1976), he cannot be the subject of a suit challenging his performance of legislatively assigned duties anymore than a committee counsel can be made a defendant for assisting Members in issuing subpoenas alleged to be violative of the Constitution ... or for preparation of an allegedly li

belous committee report. (Id. at 29] On July 29, 1981, a joint brief was filed by the Senate, the Execu tive branch defendants, and the intervening Members of Congres also arguing that the district court decision should be upheld. Lik the House defendants, these appellees contended that the politica question doctrine precluded judicial review of the exercise by th Houses of Congress of their constitutional authority to choose thei officers and determine the rules of their proceedings. Only the com pensation of the chaplains had been challenged, they noted, an the "ability of the Houses of Congress to compensate their officer is a natural and necessary concomitant of their right to choose them.” (Appellees' Joint Brief, July 29, 1981, at 22] The joint brief also agreed that the case was controlled by Elliott v. White, supra. Finally, the joint brief maintained that the district court had properly ruled that the plaintiffs' action was barred by the doctrine of res judicata, based on the dismissal of a similar suit filed in 1973 by plaintiff O'Hair.

On October 19, 1981, the plaintiffs filed a reply brief restating the arguments they had made in the district court and in their original appellate brief, and disputing the contentions of the House, Senate, and Executive branch defendants on standing, justiciability under the political question doctrine, and the merits. With respect to standing, the plaintiffs maintained that there was “nothing to distinguish this case from Flast v. Cohen, which according to them superseded the Elliott case relied on by the defendants. With respect to the political question issue, the plaintiffs contended that although there are constitutional provisions which provide that the House and Senate shall choose their officers, "there is absolutely no support for the proposition that these provisions grant to Congress the judicially nonreviewable power to compensate its officers out of public funds when . . . this use of public funds violates the first amendment.” (Reply Brief for the Appellants, October 19, 1981, at 4] With respect to the res judicata point, the plaintiffs argued that the 1973 O'Hair case was dismissed without an adjudication on the merits and therefore the doctrine was inapplicable. And with respect to the merits, the plaintiffs asserted that there “can be no reasonable dispute that the enactments lack any meaningful secular purpose, that their principal effect is to advance religion and that they excessively entangle government with religion by placing the power, prestige and financial support of the government behind particular religious beliefs." [Id. at 5] The plaintiffs asked that the appeals court reverse the judgment of the district court and remand the case for further proceedings. Should the court decide to reach the merits, the plaintiffs asked that it find the challenged statutes unconstitutional and enjoin further payment of the salaries and expenses of the Congressional chap

lains.

On October 26, 1981, the case was argued before a panel of the court of appeals.

On January 18, 1982, the counsel for the plaintiff-appellants filed a letter with the court advising it of a recent decision of the Supreme Court, Valley Forge Christian College v. Americans United for Separation of Church and State, No. 80–327 (January 12, 1982), which, the counsel claimed, supported the plaintiffs' position on standing based on Flast v. Cohen.

Status- The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. The court had not handed down its opinion as of March 1, 1982. The complete text of the January 2, 1981 memorandum of the district court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981. Common Cause v. Bolger (formerly Bailar, formerly Klassen)

Civil Action No. 1887-73 (D.D.C.)

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