Why Do We Have Congressional Chaplains To Begin With?

The incident involving Paul Ryan and the House Chaplain has raised some questions.

Yesterday’s post about the dismissal and return of Fr. Pat Conroy as Chaplain of the House of Representatives raises the rather obvious question that all of this brings to mind, of course, is why there is a Chaplain for the House of Representatives or the Senate to begin with and how such a position can possibly be constitutional given the fact of the First Amendment’s drawing of a red line between church and state. Newsweek’s Wendy Cadge and Laura Olson tackled that question earlier this week, and they get the basic information mostly correct although they don’t go into very much detail in doing so, but the issues involved are far more detailed than their short essay gets into.

On the first question, the basic answer is that it has been historically the case that legislatures have opened and closed their sessions with a prayer since before the beginning of the Republic. The historical record shows, for example, that the Continental Congress that existed before and during the American Revolution regularly opened their sessions with a prayer and this practice continued when the United States was governed by a Congress convened pursuant to the Articles of Confederation. The practice was also followed by the legislative assemblies in the original Thirteen Colonies and in the states that followed. When the Constitutional Convention met in Philadelphia it was common to open sessions with a prayer, typically led by one of the delegates. Perhaps most notable in the last case is that the idea of opening sessions with a prayer was first raised by Benjamin Franklin, who was at best a Deist and often quite critical of the established religions of the day. With those roots, the idea of appointing Chaplains to preside over the House and the Senate no doubt seemed like a matter of course once the Constitution was ratified, and it doesn’t appear that there were any serious arguments that the position was unconstitutional at the time.

As they note, the answer to that question can be found in a 1983 Supreme Court case called Marsh v. Chambers in which a member of Nebraska’s unicameral state legislature challenged the constitutionality of both the practice of opening each day’s session with a prayer and the fact that the state was paying for the chaplain with taxpayer dollars. The U.S. District Court Judge that first heard the case held that an opening prayer did not violate the Constitution, but that state support for the position and the office did. On appeal, the Eighth Circuit Court of Appeals ruled that both practices were unconstitutional due to the fact that they violated the Establishment Clause of the First Amendment. In its opinion, the Supreme Court overruled the Eighth Circuit in a 6-3 ruling that relied mostly on the history I make note of above and did not address the constitutional arguments raised by the challengers. Instead, the Court essentially said that, like the practice of putting “In God We Trust” on currency, the practice of having a chaplain deliver prayers at the start of a legislative session, and making that a position paid for out of taxpayer funds, was at best a de minimis violation of the Establishment Clause.

In response to the Court’s opinion, the late Justice Brennan noted that the majority opinion didn’t engage in any serious attempt to subject the practice of legislative prayer to the standards that the Court had established in Lemon v. Kurtzman, a 1977 case dealing with Pennsylvania’s practice of using taxpayer dollars to reimburse parochial and religious schools for the salaries of teachers clearly engaged in non-secular education:

The Court makes no pretense of subjecting Nebraska’s practice of legislative prayer to any of the formal “tests” that have traditionally structured our inquiry under the Establishment Clause. That it fails to do so is, in a sense, a good thing, for it simply confirms that the Court is carving out an exception to the Establishment Clause, rather than reshaping Establishment Clause doctrine to accommodate legislative prayer. For my purposes, however, I must begin by demonstrating what should be obvious: that, if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause

(…)

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute [at issue] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.

Based on these tests, Brennan concluded that the practice of legislative prayer, and most specifically the idea of paying the chaplain delivering those prayers with taxpayer funds, clearly violated the Establishment Clause. In a separate dissent, Justice John Paul Stevens noted that there was a strong likelihood that such legislative prayer would obviously be biased in favor of majority religions:

Prayers may be said by a Catholic priest in the Massachusetts Legislature and by a Presbyterian minister in the Nebraska Legislature, but I would not expect to find a Jehovah’s Witness or a disciple of Mary Baker Eddy or the Reverend Moon serving as the official chaplain in any state legislature. Regardless of the motivation of the majority that exercises the power to appoint the chaplain, it seems plain to me that the designation of a member of one religious faith to serve as the sole official chaplain of a state legislature for a period of 16 years constitutes the preference of one faith over another in violation of the Establishment Clause of the First Amendment.

The issue came up again in 2014 in Town of Greece v. Galloway where the Supreme Court dealt with the practice by the town of Greece, New York to open each meeting of its Council with a prayer, a practice that was challenged by a town resident assisted by civil liberties organizations. In a 5-4 ruling, the Court sided with the town and largely follow the precedent set in Marsh. As I noted at the time the court accepted the case, this seems like the ideal ruling in a case like this:

Some government practices that reference religion, I would argue, fall into a de minimis category where it’s recognized that some practices are essentially so harmless that they ought to be permitted as a general rule so long as they don’t become overtly sectarian. One example of that is the whole issue of the inclusion of the words “Under God” in the Pledge of Allegiance, or the appearance of “In God We Trust” on paper currency and coins. As a general rule, there doesn’t seem to me to be anything inherently coercive about either practice. Nobody, including schoolchildren, is legally required to recite the Pledge, and nobody can be legitimately punished for refusing to do so, or for refusing to say “Under God” if they day. Similarly, while we all use coins and paper bills at some point, I doubt anyone pays much attention to what’s written upon them beyond the denomination. Lawsuits challenging both of these practices have been routinely rejected by Federal Courts in no small part because of these facts.

As a general rule, I’d suggest that the idea of opening a legislative session with a prayer falls into this de minimis category in most cases. The prayers that open the House and Senate, for example, are usually fairly general to the point where they can’t be said to be representative of any particular religious tradition beyond, of course, an appeal to a God of some kind. It’s also worth noting, as the Supreme Court did in Marsh, that the practice of opening a legislative session with some kind of prayer has a long history in the United States. Indeed, at one point during the Convention of 1787 when delegates found themselves at an impasse over the drafting of the Constitution, it was Benjamin Franklin, who was, at best, a Deist, who suggested that the body engage in a short prayer. Additionally, the Supreme Court itself opens with the appeal that “God save the United States and this Honorable Court.” Given that history, it seems difficult to argue that those who drafted and ratified the First Amendment intended to ban a practice they themselves engaged in both before and after the Bill of Rights were ratified. Of course, this whole issue becomes arguably problematic when you’re talking about the fact that there are atheists and agnostics in the world, I’m not entirely convinced of the argument that the practice in and of itself is so inherently wrong that it ought to be prohibited for this reason alone. And I say this as someone who considers themselves to be an atheist.

Obviously, this is a policy argument rather than a legal one, but it mostly frames my position on the issue. The idea of prayer opening a legislative session, or a session of the Supreme Court, doesn’t exactly thrill me, but it really doesn’t outrage me very much either. Like “In God We Trust” on our money or “Under God” in the Pledge of Allegiance, it is one of those public displays of piety that really don’t mean much of anything and which don’t really impose a burden on non-believers. In a nation where the overwhelming majority of people believe in some kind of deity, and in which the overwhelming majority of that group are Christians of one form or another, it is something that is sort of to be expected. Obviously, there are limits to what governments can do to recognize these beliefs, and the Courts have issued many rulings on that subject over the years, most of them against the government practice in question. Allowing a short prayer before a town meeting begins business doesn’t strike me as the type of egregious practices requiring a Constitutional bar.

FILED UNDER: *FEATURED, Congress, Law and the Courts, Religion, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Notafk says:

    I am not OK with this unnecessary, cushy, light-duty, religious, full time, PAID, position-for-life that has a platform at the beginning of each session. Ryan’s plan was to get rid of this mainstream Catholic and to replace him with a political nutbar evangelical… for life.




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  2. @Notafk:

    Chaplain of the House is not a lifetime appointment.




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  3. Mister Bluster says:

    So, the former image of State and Church street name signs showed State above Church.
    This new image displays State and Church at equal height on the post.
    What could this mean?




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  4. de stijl says:

    We were the OG secular nation. Established specifically without a religion or denomination. The 1st Amendment blah, blah, blah.

    All of the citations Doug showed that having a Chaplain / (and more importantly) starting a session with a prayer are de minimus violations of the Establishment Clause of the First Amendment and do not warrant correction.

    But, none of these things are necessary: the official, salaried Chaplain. The opening prayer.

    They are not required by the constitution and are basically a remnant / tradition.

    If there is to be a Chaplain (don’t really care that much on the matter except as it is an anachronism and potentially favors one religion, or denomination above others, then the Chaplain role should be a squad. They’d probably prefer the word Council, but it’s a squad.

    Any religious belief that polls above 1% of religious adherents should have a representative. Plus, the various flavors of “none” should be represented too. Wiccan, Hindu, Catholic, Nordic, Methodist, agnostic, etc., etc. should all be represented on the squad.

    And all of their opening prayers should be as open and affirming as possible without proselytizing or calling upon specific dogma or theology inherent to that spiritual belief system.

    It would be easiest to just eliminate the opening prayer (and the office of Chaplain) altogether, don’t you think?




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  5. @Mister Bluster:

    It means nothing other than the fact that I decided to use a different image this time.




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  6. Notafk says:

    @Doug Mataconis: In practice, chaplins have resigned a year or two before their deaths.

    [Comment edited to clear up formatting issue. Link added to text of comment instead of standing on its own — DM]




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  7. @Notafk:

    That is a different matter from saying that it is a lifetime appointment. The Chaplain can be removed, as the Ryan/Conroy incident shows. The fact that Ryan reinstated him is irrelevant.




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  8. de stijl says:

    The role of Chaplain is enigmatic at best given our Constitution. And the opening prayer situation is a PR scandal waiting to happen. And the whole schmeer is not required.

    Eliminate it.




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  9. gVOR08 says:

    Yes. A pointless, but essentially harmless, anachronism. And somehow Paul Ryan managed to turn it into a minor scandal.




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  10. Slugger says:

    The US does not have a formally established state religion. However, informal institutional standards can be very important and powerful in every society. In the 1960s female attorneys, MDs, US Senators, and Supreme Court Justices were uncommon; all of this is changing now. The US was mostly a mainstream Protestant country until very recently; the 1960 election of Kennedy was a big change. Sure we did not have an established religion, but in many ways we acted just like we did. The Chaplain was part of this.




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  11. HarvardLaw92 says:

    The Senate chaplain enjoys a salary of $164,200 per year. The House chaplain (yes, each chamber has its own taxpayer funded chaplain and associated office) earns the same.

    Without even getting into the total cost of their respective office budgets (the latest numbers I could find for the Senate chaplain’s office budget was nearly $425,000 in 2011 – 7 years ago …), the taxpayers funding exclusive religious activities for members of Congress to the tune of at least $1 million per year doesn’t exactly seem de minimis to me.

    We haven’t even gotten into the larger point – are there no churches / mosques / synagogues / whatever in DC that these people can attend? When did DC become an area so totally bereft of religious institutions that it somehow became necessary for the taxpayers to fund these people having their own private priest? Too lazy to drive to Georgetown?

    Even more so when we consider that Jesuits, in particular, are subject to a vow of poverty and salaries earned for professional activities are typically surrendered to the church, so we have a situation where the US government is essentially giving the Archdiocese / Jesuits / Roman Catholic Church a donation funded by the taxpayers of $164,200 per year.

    At best, if this position is going to exist at all (and I see no rational reason that it should, but …), then it should be a volunteer position, perhaps with a small stipend for expense reimbursements, but that’s it. The US Government has no business paying salaries to congressional priests (or reverends, or rabbis, or whatever else).




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  12. Stormy Dragon says:

    nobody can be legitimately punished for refusing to do so

    Except we regular hear news stories about people being punished for refusing to do so anyways.




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  13. Mister Bluster says:

    …then it should be a volunteer position, perhaps with a small stipend for expense reimbursements,..

    I’ll bet the Hare Krishna would do it for free!




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  14. de stijl says:

    @Mister Bluster:

    I will do the job at present salary level from my house via Skype. I’m an atheist, but I have no issue with people of faith who behave like proper US citizens and don’t get weird and pushy and act like they own the joint.

    My only condition is that would be no background check. That could be problematic. And who needs those uncomfortable issues brought to the fore and that happened a long, long time ago? You fake news “reporters” are vampires. Get off my lawn!




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  15. de stijl says:

    I’ll do it $150k. Bottom offer.




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  16. de stijl says:

    $250k for both chambers. I’d cashier all existing staff. Eliminate all on-going programs.

    That’s a bargain!

    I would be like Mike Mulvaney with the CFPB and just gut the place, but waay cheaper.

    If some congress critter is actually having a crisis of faith (as if!) and wanted to talk to a dude, I would Google and find someone. After 8PM on Fridays and Saturdays I might be a wee tipsy. Forewarned.




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  17. de stijl says:

    I have a better solution. You keep me on the payroll as an outside consultant and in exchange for my salary, my job will be never to tell people these things that I know. I don’t even have to come into the office, I can do this job from home.

    I am Jack’s smirking revenge.




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  18. Franklin says:

    This chaplain case had piqued my curiosity as well, including the case of military chaplains. Apparently the case that is to be made there is that it allows the free exercise of religion (since they might be out in the field and have no other access). And I’m actually fine with that, even though I’m not religious. It’s true that Congressmen are away from their homes, but unlike our armed forces stationed overseas (for example), I’m pretty sure there are some churches around DC that they could visit if so inclined.




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  19. HarvardLaw92 says:

    @Franklin:

    I’ll go out in a limb and assert that military chaplains should only be detailed to legitimate combat zones or foreign areas where the traditional denominations that US service members are accustomed to simply aren’t extant.

    Short version: Afghanistan, ok. Iraq, ok. Europe, not ok. CONUS, not ok. There are far too many civilian options available in those places, certainly within CONUS to say the least, to satisfy the religious needs of the vast majority of service members. The military should be funding chaplains only as a last resort, where no other options exist for its members, not as a standard practice. Where it does so, the demographics of its chaplain corps should, to the greatest extent possible, mirror the demographics of the populations that they serve.

    And, before you folks go there, consider that a study performed in 2012 determined that evangelistic denominations comprised (at the time) 17.39% of all military personnel, but 62.74% of all military chaplains, while Roman Catholics comprised 19.5% of all military personnel, but only 7.34% of all military chaplains. The second largest grouping of service members – 22.5% – indicated NORELPREF. A further 0.67% identified as atheists. At last glance, the military was getting a growing population of Wiccans / Pagans, but it doesn’t have a single Wicca / Pagan practitioner in its chaplaincy. Who, in a chaplain corps in which essentially 2 out of every 3 chaplains is an evangelistic Christian, do these people turn to to tend to their spiritual needs?

    It’s clearly far larger, and far more denominationally concerning, than it should be.




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  20. de stijl says:

    @HarvardLaw92:

    Way back when, I recall that chaplain functions were basically the entry point to the larger social and psychological services that were provided, and that they had way better insight into that arena than I ever had and they cared more about the fuzzy stuff than I did.




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  21. de stijl says:

    @HarvardLaw92:

    I hear what you are saying about proper representation, but unless things have changed radically, chaplains are essentially triage social workers with a rolodex (okay, that word dates me.)

    Retry – active duty chaplains are essentially social workers with a good contact list.

    I may have interacted with a chaplain once, at a social event. Maybe. (Things may have changed – this was a long time ago.)




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  22. DrDaveT says:

    Obviously, this is a rationalization rather than a legal argument

    FTFY

    The vast majority of instances of discrimination and oppression are de minimus. Cumulatively, of course, they have great mass and momentum. It’s like the way a person can be crushed under a bunch of grains of sand, each of which is negligible.




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  23. michael reynolds says:

    I was an atheist long before atheism was cool, and I agree with Doug: Don’t really give a sht.




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  24. HarvardLaw92 says:

    @de stijl:

    And I get that. My concern is that when your proportion of evangelistic personnel gets this high, IMO you’re unavoidably going to get the sales pitch worked into the counseling. It’s the basis, the foundational principle, if you will, of these peoples’ religious belief structure that they’re supposed to seek to gain converts. It’s what they do.

    That’s clearly inappropriate in a multitude of circumstances, for obvious reasons, so which master do they ultimately serve when they’re tasked with having to choose (as they obviously would be)? I can’t think of anything more grossly offensive to the 1st Amendment than evangelism conducted on the government’s dime and time.

    I just see it as problematic, on multiple levels. I’m one of those people who believe that the separation between church and state should resemble the Grand Canyon. Public funding certainly has no business ever being expended towards a religious end. Never the two shall meet. History gives us too many examples why they shouldn’t.




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  25. the Q says:

    Madison had it right and saw the potential problems with a house chaplain 200 years ago:

    Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness, the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.

    The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers. or that the major sects have a he establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers. or that the major sects have a right to govern the minor.




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  26. OzarkHillbilly says:

    As an atheist I have long said that if a belief makes it easier for one to get thru this vale of tears called “life”, it’s fine with me. That said, I’ll believe this is merely a symbolic and otherwise meaningless tradition the day they name an atheist as House/Senate chaplain. This should not in any way shape or form be a taxpayer supported office. If the religious members of Congress want their own personal prayer monger, then they should damn well pay for it out of their own damn pockets.




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  27. HarvardLaw92 says:

    @the Q:

    Mmhmm. Consider for a moment that, over the course of our history, there have been 197 observant Jewish members of Congress. Many are presently serving as such.

    Yet a rabbi has never served as a chaplain for either house of Congress. Why is this so? I can’t imagine that peculiarity has anything to do with some shortage of rabbis who would have been willing to fulfill the role, you know?

    In fact, every single chaplain, in both houses of Congress, has been Christian. In a nation which has been – from day one – comprised of a wide variety of faiths as well as the lack thereof, the reasons why that state of affairs is problematic should be obvious.

    They were, after all, quite obvious to James Madison over 200 years ago …




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  28. Franklin says:

    @HarvardLaw92: Fair point on the military chaplains. (And I had failed to read your original post before I wrote mine, so I repeated your observation that there are surely religious services available around the Capitol.)




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  29. wr says:

    Why? Because religion, not patriotism, is the last refuge of scoundrels.




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  30. Mikey says:

    @HarvardLaw92:

    At last glance, the military was getting a growing population of Wiccans / Pagans, but it doesn’t have a single Wicca / Pagan practitioner in its chaplaincy.

    Wiccan ministry (such as it is) has been assigned to the Seventh-day Adventist chaplains.

    If you knew SDA like I know SDA–and I grew up SDA, so I know it well–this would make you bust a gut laughing just like I did.

    In my experience during my 20-year military career, I never saw military chaplains, regardless of denomination, engage in proselytizing activities. I saw that more than once from other people, but never from a chaplain.




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  31. DrDaveT says:

    @Mikey:

    In my experience during my 20-year military career, I never saw military chaplains, regardless of denomination, engage in proselytizing activities.

    At the Air Force Academy, the chaplains leave that to the commanders.




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  32. the Q says:

    Harvard Law, to go along with your rather obtuse comment, how many Catholics served in Congress before the first Catholic chaplain was appointed in 2000?

    As an Irish Catholic descendant of Potato Famine immigrants, I find your lumping all Christians into one monolithic group as exceptionally tone deaf considering the anti Catholic bigotry that has existed until well into the 20th century.




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  33. HarvardLaw92 says:

    @the Q:

    Actually, the first Roman Catholic congressional chaplain, Father Charles Constantine Pise, was appointed as chaplain to the Senate in 1832, but don’t let that inconvenient fact get in the way of your drama queening …

    Meanwhile, we’re still waiting … 🙂




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  34. the Q says:

    Harvard Law, you pompous a$$whole, you just proved Madison’s and my point. One Catholic Senate chaplain (1 out of 62) and one House Chaplain (1 out of 60) in 220+ years. Did you research how many Catholics Reps/Senators and the percentage of the U.S. population that were Catholic during that same time period? And you think that Catholic chaplain ratio of 2 out of 122 or 0.016% reflects the demographics of Catholics in the US.

    With sterling logic like this, I just can’t see how you made your living as an attorney




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  35. HarvardLaw92 says:

    @the Q:

    Two more than we’ve had …

    I remain amused at a Catholic trying to lecture a Jew about being oppressed … 🙄




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  36. Grewgills says:

    @the Q, your math is off by two orders of magnitude.




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