In U.S. Congress, both the House and Senate have their own chaplain, who typically say a prayer in the chamber when it convenes for the day. All chaplains in the House and Senate since the chamber's founding have been Christian, and the Senate's website says the following:

Throughout the years, the United States Senate has honored the historic separation of Church and State, but not the separation of God and State ... During the past two hundred and seven years, all sessions of the Senate have been opened with prayer, strongly affirming the Senate's faith in God as Sovereign Lord of our Nation.

What is the constitutional justification among members of U.S. congress for keeping an official chaplain, and, using the Senate's wording, how does "separation of God and State" differ from "separation of Church and State?"

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    Because not only is there no separation of God and State (as the quote puts it), in the Constitution, but there's not even a separation of separation of Church and State. Literally. If you look, the text appears nowhere in Constitution - it originated in Jefferson's letter, and was first used by the US Supreme Court in 1800s and only started to be used regularly by SCOTUS since 1947.
    – user4012
    May 29, 2018 at 21:52
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    @user4012 - That's a facile argument. The people who wrote the Constitution summed up it's meaning with that term, there's no magic imbued by the exact wording. Who would know better than the Founders about what the intended and actual effect was? candst.tripod.com/tnppage/arg1.htm May 29, 2018 at 22:52
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    James Madison, aka "the Father of the Constitution" felt Congressional chaplains were unconstitutional, FYI. en.wikipedia.org/wiki/… May 29, 2018 at 22:56

1 Answer 1


Looking at Marsh v. Chambers as suggested by Avi, the precedent for the Congressional prayer appears to be in part that a prayer was held in the First Congress' session, which drafted the First Amendment. Thus, because a prayer was held before the Establishment Clause was ratified, the drafters must not have intended for it to prohibit a prayer before legislative sessions. According to the ruling, since it is now precedent and appears not to contradict the intention of the drafters, it is permissible:

In light of the history, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.

I think the justification for the US Motto ("In God we Trust") and including "One Nation Under God" in the Pledge of Allegiance are also helpful. There's some case law in both of those links, but both tend to point to Aronow v. United States, which ruled in favor of allowing the use of the word "God" in the motto. Wikipedia has this excerpt from the ruling:

It is quite obvious that the national motto and the slogan on coinage and currency 'In God We Trust' has nothing whatsoever to do with the establishment of religion. Its use is of patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise. ...It is not easy to discern any religious significance attendant the payment of a bill with coin or currency on which has been imprinted 'In God We Trust' or the study of a government publication or document bearing that slogan. In fact, such secular uses of the motto was viewed as sacrilegious and irreverent by President Theodore Roosevelt. Yet Congress has directed such uses. While 'ceremonial' and 'patriotic' may not be particularly apt words to describe the category of the national motto, it is excluded from First Amendment significance because the motto has no theological or ritualistic impact. As stated by the Congressional report, it has 'spiritual and psychological value' and 'inspirational quality.

The same logic can be applied to a prayer which affirms faith in God as "ceremonial" and thus holding no theological or ritualistic impact. This may be why the Senate site is careful to say that they separate Church and State, but not God and State - specifying a particular theological version of God (e.g. the Christian God) could be challenged as making the prayer "theological" in nature.

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    These cases aren't totally on point. If you want cases on legislative prayer, you should look at Marsh v. Chambers and Town of Greece v. Galloway.
    – Publius
    May 29, 2018 at 21:38
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    @Avi Thanks, of course both of those use the Congressional prayer as precedent for their rulings, but they do shed some light on the justification for interpreting it as permissible under the Establishment Clause. May 29, 2018 at 22:13
  • "hus, because a prayer was held before the Establishment Clause was ratified, the drafters must not have intended for it to prohibit a prayer before legislative sessions. " As an aside intention is regularly of no concern to activist judges
    – user19831
    May 30, 2018 at 12:25

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