Constitutionality
The question of the constitutionality of the position of the House Chaplain (as well as that of the Senate Chaplain, and at times, that of military chaplains as well), has been a subject of study and debate over the centuries.
[11] Opponents have argued that it violates the separation of church-and-state and proponents have argued, among other factors, that the fact that the same early legislators who wrote the
United States Constitution and its
Bill of Rights, from which the position of "non-establishment" and church and state separation is derived, were the same ones who approved and appointed the chaplains.
[11]
Madison
President
James Madison was an example of a leader who ultimately came to think that the positions of Senate and House Chaplains could not be constitutionally supported, although whether he always held this view (and to what extent he believed it at various times during his life) is a subject of debate.
[11] However it is clear from his "Detached Memoranda" writings during his retirement that he had come to believe the positions could not be justified:
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 Congress 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 against 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.
[11]"