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Congressional Chaplains Being Challenged in Court - 2002-11-28

When the members of the first U.S. Congress convened in New York City in March of 1789, one of the very first actions they took was to approve the first amendment to the Constitution, which guarantees that Congress will not make any laws regarding the establishment of a national religion. Yet, just one week after approving that amendment, the Congressmen also voted to hire two chaplains, one for the House, and one for the Senate.

Chaplains have been a standard part of Congressional life almost ever since. But that may change. An atheist who has already made a name for himself as a crusader, is challenging the idea of Congressional chaplains, in court.

Michael Newdow generated quite a bit of controversy last June, when he managed to convince a court in California that the "Pledge of Allegiance," which is recited by millions of American school children every morning, is unconstitutional. That pledge is a promise of loyalty to the United States. But it also refers to the country as "one nation under God," and it's this assumption of God's existence that Mr. Newdow insists is a violation of the First Amendment, when it's advocated by employees of a taxpayer-funded public school.

Michael Newdow says it isn't enough that the "God" referred to is a generic deity that can be embraced by people of all religious faiths. He says the notion of "God" isn't embraced by atheists, and therefore it has no place in government. "I believe that atheists are a disenfranchised minority," he says. "Plus people have this view of atheism and atheists that's somewhat derogatory. And I think that needs to be remedied."

Mr. Newdow is looking beyond the "Pledge of Allegiance" in his effort to remedy atheists' disenfranchised' status. He recently filed a lawsuit against the U.S. government, claiming the salaries Congressional chaplains receive from American taxpayers are unconstitutional. The current salary for a Congressional chaplain is $139,000 a year, just slightly less than what the senators and representatives themselves earn. And Mr. Newdow says that when Congress pays someone to say a prayer, it's unabashedly violating the First Amendment. He says the U.S. Supreme Court said as much when it ruled in 2000 that prayers at public school football games are unconstitutional.

"Justice Stevens wrote for the majority, and he said that the religious liberty protected by the Constitution is abridged when the state affirmatively sponsors the particular religious practice of prayer," says Mr. Newdow. "Seems to me that you can't more sponsor the particular religious practice of prayer than taking your two legislative bodies, and paying for a chaplain to sit there and give prayer every morning."

But the Supreme Court has also determined there's such a thing as a 'civil religion' in America, which includes the hiring of legislative chaplains, provided those spiritual advisors don't favor one religion over another. In 1983, the Court ruled it was acceptable for lawmakers in Nebraska to hire a chaplain to serve in that state's legislature.

Neither of the chaplains in the U.S. Congress will comment on Michael Newdow's lawsuit, but Reverend Lloyd Ogilvie, Chaplain for the Senate, says he does understand what the Supreme Court meant 20 years ago, when it talked about a 'civil religion'. Reverend Ogilvie says the Court was talking about tradition. "I'm the 61st chaplain in American history. The Continental Congress when it met in 1774 had the first prayer in a congressional meeting. And George Washington's first and last recommendation to the founders of the new Senate after the Constitution was finished was that they elect a chaplain," he says. "It's certainly been a part of the history of the United States to have chaplains for both houses. And that's an affirmation of the faith of the American people."

But the fact that something has been a part of America's history doesn't make it right, according to Michael Newdow. "As a matter of fact, it makes it more of something that needs to be remedied. We had for, I don't know how many years, close to 200, segregation in this society. We said that's a horrible thing, and we need to change it," he says. "We don't need to say, 'Oh, let's keep it up, 'cause we've always done it.' And the argument that people use, you know, that it's OK to continue this violation of fundamental liberties is ridiculous."

Michael Newdow isn't the first person to challenge the notion of Congressional chaplains. In 1789, James Madison, author of the first 10 amendments to the Constitution and, eventually, the fourth U.S. president, spoke out against the idea when Congress voted to hire chaplains. Nearly 60 years later, in the 1850s, Congress briefly got rid of its chaplains, because many voters believed the well-paying offices had become nothing more than opportunities for lawmakers to reward loyal constituents who also happened to be ministers.

Michael Newdow says he fully expects to lose his lawsuit when it comes before a federal judge some time in 2003. But he intends to appeal that decision, and if the U.S. Supreme Court agrees to hear his case, Mr. Newdow says he believes he'll win.