It thus reversed the decision of the Eighth Circuit, finding "abundant assurance" that the public funding and practices of Nebraska's legislative chaplain did not "risk[] the beginning of the establishment the Founding Fathers feared." Id. at 795.
Thirteen days after the Supreme Court rendered its decision in Marsh, the D.C. Circuit en bane directed the parties in Murray to show cause why the appeal in that case should not be dismissed for failure to raise a substantial constitutional question. Upon review of the parties' submissions, a unanimous en bane court stated in a per curium opinion (Murray, 720 F.2d at 690):
We are ... persuaded that the complaint in this action retains no vitality. The Supreme Court's decision inMarsh v. Chambers is dispositive of appellants' challenge to the public funding of congressional chaplains. The Court answered the question presented in Marsh with remarkable clarity: The "practice of opening each legislative day with a prayer by a chaplain paid by the State [does not] violate[] the Establishment Clause of the First Amendment."
Accordingly, because the D.C. Circuit en bane saw "no tenable basis for a claim that the very congressional practice deliberately traced by the Court in Marsh should be subject to further review," the court dismissed the appeal, vacated the judgment of the District Court, and remanded the case with instructions to dismiss the complaint for want of a substantial constitutional question. Id.
The en bane court's instruction that the complaint be dismissed for failure to allege a substantial constitutional question underscored its view of the wholly insubstantial nature of the claim presented in that case. "Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is 'so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'" Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89
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