Jon Garth Murray v. Angela Marie Buchanan, Treasurer of the United States

D.C. Circuit

Jon Garth Murray v. Angela Marie Buchanan, Treasurer of the United States

720 F.2d 689, 232 U.S. App. D.C. 42, 1983 U.S. App. LEXIS 15762

CourtCourt of Appeals for the D.C. Circuit

DecidedOctober 28, 1983

Docket81-1301

StatusPublished

Cited by20 cases

This text of 720 F.2d 689 (Jon Garth Murray v. Angela Marie Buchanan, Treasurer of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jon Garth Murray v. Angela Marie Buchanan, Treasurer of the United States, 720 F.2d 689, 232 U.S. App. D.C. 42, 1983 U.S. App. LEXIS 15762 (D.C. Cir. 1983).

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Opinion PER CURIAM.

[690]*690Special 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] violatef ] 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.

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Opinion PER CURIAM.

[690]*690Special 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] violatef ] 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.

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720 F.2d 689, 232 U.S. App. D.C. 42, 1983 U.S. App. LEXIS 15762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jon-garth-murray-v-angela-marie-buchanan-treasurer-of-the-united-states-cadc-1983.

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