Murray v. Buchanan

• Citation: 720 F.2d 689
• Decision Date: 28 October 1983
• Docket Number: No. 81-1301,81-1301
• Parties: Jon Garth MURRAY, et al., Appellants, v. Angela Marie BUCHANAN, Treasurer of the United States, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 689

720 F.2d 689

232 U.S.App.D.C. 42

Jon Garth MURRAY, et al., Appellants, v. Angela Marie BUCHANAN, Treasurer of the United States, et al.

No. 81-1301.

United States Court of Appeals District of Columbia Circuit.

Argued En Banc Oct. 27, 1982.

Decided Oct. 28, 1983.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 80-01475).

Ronald A. Lindsay, Washington, D.C., with whom Myra C. Selby, Indianapolis, Ind., was on the brief, for appellants.

Michael Jay Singer, Atty., Dept. of Justice, Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees, Buchanan, et al. Royce C. Lamberth, Kenneth M. Raisler and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., also entered appearances for Buchanan, et al.

Stanley M. Brand, General Counsel, Washington, D.C., with whom Steven R. Ross, Asst. Counsel, Washington, D.C., United States House of Representatives, was on the brief, for appellees O'Neill and Ford.

Michael Davidson, Senate Legal Counsel, Washington, D.C., with whom M. Elizabeth Culbreth, Deputy Senate Legal Counsel, Washington, D.C., for Senate and Daniel J. Popeo, Paul D. Kamenar and Nicholas E. Calio, Washington, D.C., for Senator Helms, et al., were on the joint brief, for appellees.

Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief, for amicus curiae urging the case be reversed and remanded for further proceedings.

ON REHEARING EN BANC

Before ROBINSON, Chief Judge, WRIGHT, TAMM, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG, BORK and SCALIA, Circuit Judges, and BAZELON and MacKINNON, Senior Circuit Judges.

Opinion PER CURIAM.

Special concurrence filed by Senior Circuit Judge MacKINNON.

Separate statement filed by Circuit Judge GINSBURG in which Senior Circuit Judge BAZELON concurs.

PER CURIAM:

After argument of this appeal before the court sitting en banc, the Supreme Court decided Marsh v. Chambers, --- U.S. ----, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). Marsh rejected a first amendment-establishment clause challenge to the Nebraska Legislature's practice of beginning each session with a prayer by a chaplain paid by the state.

On July 18, 1983, the court directed the parties here "to show cause why, in light of ... Marsh v. Chambers ..., this appeal should not be dismissed and the district court instructed to vacate its judgment and dismiss the complaint for failure to raise a substantial constitutional question." See Hagans v. Lavine, 415 U.S. 528, 536-38, 94 S.Ct. 1372, 1378-80, 39 L.Ed.2d 577 (1974); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-06, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933). All parties have now responded to that order.

We have reviewed the parties' presentations, and are persuaded that the complaint in this action retains no vitality. The Supreme Court's decision in Marsh v. Chambers is dispositive of appellants' challenge to the public funding of congressional chaplains. The Court answered the question presented in Marsh with unmistakable clarity: The "practice of opening each legislative day with a prayer by a chaplain paid by the State [does not] violate[ ] the Establishment Clause of the First Amendment." Id. --- U.S. at ----, 103 S.Ct. at 3331. In so ruling, the Court relied heavily on the "unambiguous" history of congressional chaplaincies. Id. at ---- - ----, 103 S.Ct. at 3332-36. The practice at issue, the High Court said, has been "unbroken ... for two centuries in the National Congress," id. at ----, 103 S.Ct. at 3336, and "ha[d] become part of the fabric of our society." Id. at ----, 103 S.Ct. at 3335.

We perceive no tenable basis for a claim that the very congressional practice deliberately traced by the Court in Marsh should be subject to further review. Therefore, we dismiss this appeal, vacate the judgment of the district court, and remand the case with instructions to dismiss the complaint for want of a substantial constitutional question.

MacKINNON, Senior Circuit Judge (concurring specially).

The foregoing en banc opinion, which I join, dismisses the appeal, vacates the judgment of the district court, 505 F.Supp. 144, and remands the case with instructions to dismiss the complaint for want of a substantial federal question. Reliance is placed on the Supreme Court opinion by Chief Justice Burger in Marsh v. Chambers, --- U.S. ----, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), which involved the Chaplain of the Nebraska Legislature and was decided after the panel decision in this case. The en banc opinion is somewhat at variance with the panel decision, which remanded this case to the district court. In doing so, the panel had held that it was not necessary to consider the extent to which the political question issue involved some consideration of the Establishment Clause and that "[t]his case occasions no need for a [lengthy historical analysis of the political question issue]." Slip op. at 17 n. 23. My views were in disagreement with the majority's refusal to reach the full merits of the political question issue insofar as it necessarily involved some consideration of the Establishment Clause, and as to the need for substantial historical analysis in determining the presence of a political question. Cf. Marsh v. Chambers, supra. Accordingly, I dissented from the decision of the panel and filed an opinion. Since it is the practice of this court to vacate panel opinions when the case is placed en banc, and since this case involved the Chaplains of Congress and some different constitutional considerations than were present in the Nebraska case, I set forth below extracts from my earlier dissent that provide additional support for

                the court's present decision in this case.  These reflect in greater detail the constitutional and unique historical base which supports our decision.  Also addressed are additional issues, including the federal separation of powers issue that is present in this case, involving Congress, and which was not an issue in Marsh v. Chambers.    Other matters in my dissent to the original panel decision also point to the recognition of God and religion in the Constitution (slip op. at 5-8), which is a further "tolerable acknowledgment of beliefs widely held among the people of this country."    at ----, 103 S.Ct. at 3336
                

DISSENT TO PANEL OPINION IN MURRAY V. BUCHANAN

(No. 81-1301, D.C.Cir., March 9, 1982)

MacKINNON, Circuit Judge (dissenting): ^*

Appellants' claims against the payment of legislative chaplains must be dismissed ... if the issues involved are nonjusticiable within the purview of the political question doctrine. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706 (1974) .... [This hurdle] is [not] cleared here. Accordingly, in my judgment we should affirm the holding of the District Court.

I. The Political Question Doctrine

As the Supreme Court noted in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962),

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; ... or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government ....

Both of these criteria are met here.

A. Textual Commitment

The Constitution textually commits to the Senate and the House of Representatives the exclusive authority to choose their officers and determine their rules of proceedings. It provides that (1) "[t]he House of Representatives shall chuse their Speaker and other officers ...," U.S. Const. art. I, Sec. 2, cl. 5; (2) "[t]he Senate shall chuse their other officers ...," id., art. I, Sec. 3, cl. 5; and (3) "[e]ach house may determine the Rules of its proceedings," id., art. I, Sec. 5, cl. 2. Pursuant to these provisions, when the First Congress met in 1789 after the adoption of the Constitution, the first order of business in the Senate, after the adoption of the procedural rules, was to establish the Office and elect a Chaplain. ¹ The House appointed its Chaplain the following week. ² At some later time both Houses assigned to their chaplains the duty of opening daily sessions of the respective houses with an invocation, and enacted a statute prescribing their respective compensation. 2 U.S.C. Secs. 61d, 61d-1, 61d-2, 84-2 (1976 & Supp. IV 1980).

Appellants attack the payments to the chaplains as violating the Constitution and assert that the above quoted provisions of Article I of the Constitution do not give Congress the right to spend public funds for such purpose.

That contention assumes a narrow reading of the quoted provisions of Article I that, in my opinion, is not justified. The decision of the Senate and the House to compensate one of their duly elected officers from the legislative appropriation, for performance of his historical duties to Congress, is a judgment made pursuant to and in execution of the powers conferred on the Senate and the House to "chuse their The majority asserts that Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), upholds their contention. In Powell, the House voted to exclude Representative Adam Clayton Powell from its membership. The House relied upon the authority allegedly vested in it by the Constitution, which provides that "[e]ach House shall be the Judge of the ... Qualifications of its own Members." Art. I, sec. 5. Powell contended that he was excluded for failure to comply with eligibility requirements that exceeded those prescribed by the Constitution and his exclusion was therefore beyond the authority conferred by the exclusion clause. The Supreme Court considered the political question defenses offered by the Government in support of its contention that the issue was nonjusticiable, as being...