Colo v. Treasurer and Receiver General

• Citation: 378 Mass. 550,392 N.E.2d 1195
• Parties: H. Thomas COLO et al. 1 v. TREASURER AND RECEIVER GENERAL.
• Decision Date: 31 July 1979
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1195

392 N.E.2d 1195

378 Mass. 550

H. Thomas COLO et al. ¹ v. TREASURER AND RECEIVER GENERAL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 2, 1979.

Decided July 31, 1979.

Michael Broad, Boston, for plaintiffs.

Andrew J. McElaney, Jr., Asst. Atty. Gen., for defendant.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and LIACOS, JJ.

QUIRICO, Justice.

The plaintiffs, twenty-nine taxable inhabitants of the Commonwealth, brought suit under G.L. c. 29, § 63, to restrain the defendant from expending any public monies to pay the salaries of the chaplains of the Massachusetts House of Representatives and the Senate, and for a declaration that G.L. c. 3, § 14, which authorizes such payment, is unconstitutional. The case was reserved and reported by a single justice, and it is before us for decision on pleadings and the parties' stipulation of facts.

We conclude that neither the statute nor the expenditure of public funds pursuant thereto violates any constitutional provision.

We summarize the facts on which the parties have agreed. The House and the Senate each employ a chaplain. The primary duty of these chaplains is to open each daily legislative session with a brief prayer. Attendance by the members during the opening prayer is voluntary. The chaplains are also available to members of the Legislature for religious and secular consultation and counseling.

The chaplain of the House since 1955 has been the Reverend George Kerr, and the chaplain of the Senate since 1959 has been the Reverend Christopher P. Griffin. Both are Roman Catholic priests. Visiting ministers of various faiths, usually at the request of members of the Legislature, occasionally give the opening prayer without compensation, but the vast majority of these invocations are given by the chaplains. Each day's prayers are printed in the journals of the respective branches of the Legislature.

General Laws c. 3, § 14, authorizes the rules committee of each branch to set a salary for the chaplain of that branch. For fiscal year 1978-1979, the Legislature appropriated $9,550 for the salary of the Senate chaplain and $7,883 for the salary of the House chaplain. St.1978, c. 367, § 2, items 0113-000 and 0123-000. It is the expenditure of public funds for payment of these salaries that the plaintiffs contend violates the First Amendment to the United States Constitution, ² the equal protection clause of the Fourteenth Amendment to the United States Constitution, ³ and arts. 2 and 3 of the Massachusetts Declaration of Rights, and art. 18, § 2, of the Articles of Amendment to the Massachusetts Constitution. ⁴

1. Before reaching the merits of these constitutional questions, we consider the defendant's contention that this controversy is not susceptible of judicial resolution because any attempt by this court to resolve it would violate either the doctrine of the separation of powers, art. 30 of the Massachusetts Declaration of Rights, or the political question doctrine. The defendant contends that both branches of the Legislature are authorized by our Constitution (Part II, c. 1, § 2, art. 7, and § 3, art. 10 ⁵) to establish their own rules of proceedings, that both branches have exercised these powers to establish rules calling for the appointment of chaplains, and that these are "internal procedures," the propriety of which this court has no power to adjudicate. The subject at issue, however, contrary to the defendant's characterization of it, is not an "internal" rule of the Legislature, but the constitutionality of a statute (G.L. c. 3, § 14) which authorizes a certain expenditure of public funds for a specified purpose. On its face, G.L. c. 29, § 63, gives this court power to restrain the expenditure of public funds where there is no "constitutional right and power" to use them for the intended purpose. The plaintiffs contend that these payments are for a purpose which is not constitutionally permitted. Without in any way attempting to invade the rightful province of the Legislature to conduct its own business, we have the duty, certainly since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L.Ed. 60 (1803), to adjudicate a claim that a law and the actions undertaken pursuant to that law conflict with the requirements of the Constitution. "This," in the words of Mr. Chief Justice Marshall, "is of the very essence of judicial duty."

2. The Legislature of each of the fifty States and of the Federal government begins each day with an opening prayer. Like Massachusetts, seventeen other States and the United States Congress employ a chaplain or chaplains for this purpose. ⁶ Plaintiffs' and defendant's joint exhibit A. A.P. Stokes & L. Pfeffer, Church and State in the United States 84 (rev. ed. 1960). Despite the universality of this practice of opening prayers, this appears to be the first case in which the constitutionality of the expenditure of public funds for such a purpose has been put in issue. ⁷ In considering this question of first impression, we are mindful of the words of Mr. Justice Powell that, "(i)t has never been thought either possible or desirable to enforce a regime of total separation (between church and State), and as a consequence cases arising under these Clauses have presented some of the most perplexing questions to come before this Court." Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 760, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). There are no simple tests or precise lines by which we can determine the constitutionality of the challenged payments. See Meek v. Pittenger, 421 U.S. 349, 359, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975); Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); School Dist. of Abington v. Schempp, 374 U.S. 203, 231, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring). In reaching a conclusion, we must view the purposes and history of the practice in relation to the purposes and history of the governing constitutional amendments, ⁸ and in the light of what can be gleaned from decisions on somewhat similar practices by other State and Federal courts.

The motivation for and history of the passage of the First Amendment have been discussed at some length in opinions of various Justices of the United States Supreme Court, and no purpose would be served by repeating this history in detail. See, e. g., Everson v. Board of Educ. of Ewing, 330 U.S. 1, 8-15, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Id. at 33-43, 67 S.Ct. 504 (Rutledge, J., dissenting); McGowan v. Maryland, 366 U.S. 420, 437-441, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Walz v. Tax Comm'n of City of N. Y., 397 U.S. 664, 704-727, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (Douglas, J., dissenting). Certainly, the degree of intermingling of religious and secular life was much greater at the time the First Amendment was being debated than it is today. Most of the original States, including Massachusetts, had established churches supported directly by tax dollars, and there was often little tolerance for dissenting religious views. The drafters and ratifiers of the First Amendment designed it to address far more pervasive threats to religious liberty and the separation of church and State than any that exist today. See School Dist. of Abington v. Schempp, 374 U.S. 203, 237, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring). In this context, employment of legislative chaplains does not appear to have been a source of concern. Although there is evidence that James Madison, who was one of the leading proponents of the First Amendment, had private doubts about the validity of the appointment of legislative chaplains, ⁹ no serious objections to the practice appear to have been raised. Opening invocations were accepted as a matter of course at a wide range of public occasions, including legislative sessions, presidential inaugurations, and the opening of terms of court.

In Massachusetts, the original Declaration of Rights, adopted in 1780, provided for public financial support of the christian religion. ¹⁰ Not until 1833 was the present art 3 (see note 4 Supra ) substituted for this provision, ending direct public support of religion. A second major issue concerning the appropriation of public funds for religious purposes was debated at the Constitutional Convention of 1917-1918, when various amendments were proposed to prohibit public funding of parochial schools. Cf. Bloom v. School Comm. of Springfield, --- Mass. --- ^A, 379 N.E.2d 578 (1978); Haddad v. School Comm. of Worcester, --- Mass. ---, --- ^B, 379 N.E.2d 586 (1978). Throughout this history of often vigorous debate about the proper relationship between church and State, the appointment and payment ¹¹ of legislative chaplains continued without apparent dissension. As one delegate (John W. McAnarney of Quincy) to the 1917-1918 Constitutional Convention remarked, the sentiment which led to the convention's approval of an "anti-aid amendment" was not that "the State is opposed to religion, . . . (we) bear testimony to that every morning in this Convention, sir, when we have the divine aid and assistance invoked to guide us in our deliberations." 1 Debates in the Massachusetts Constitutional Convention 1917-1918 at 190 (1919).

Of course, the mere fact that a certain practice has gone unchallenged for a long period of time cannot alone immunize it from constitutional invalidity, "even when that span of time covers our entire national existence and indeed predates it." Walz v. Tax Comm'n of City of N. Y., 397 U.S. 664, 678, 90 S.Ct. 1409, 1416, 25 L.Ed.2d 697 (1970). The long history of a certain practice, however, and its acceptance as an uncontroversial part of our national and State tradition do suggest that we should reflect carefully before striking it down.

The plaintiffs advance a second argument. Even if the appointment of legislative chaplains were permissible under the First Amendment (and cognate...