to "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Gravel, 408 U.S. at 617, and also serves "the additional function of reinforcing the separation of powers so deliberately established by the Founders." United States v. Johnson, 383 U.S. 169,178 (1966).
The Speech or Debate Clause provides immunity from civil actions, "whether for an injunction or damages." Eastland, 421 U.S. at 503. Moreover, the Supreme Court has made clear that the immunity provided by the Clause serves not merely as "a defense on the merits[,] but also protects a legislator from the burden of defending himself." Pawell v. McCormack, 395 U.S. at 502-03; Dombrowski v. Eastland, 387 U.S. 82,85 (1967) (per curiam). Furthermore, the Clause also protects congressional staffwhen they perform tasks necessary to the legislative business of Members that "would be... protected... act[s] if performed by the Member himself." Gravel, 408 U.S. at 618.
Because he cannot point to any rule or statute requiring a religious test for the office of the Chaplain, plaintiffalleges that the actions of Members have demonstrated a defacto religious test imposed on the Senate and House Chaplaincies. Specifically, plaintiff alleges that such a religious test can be inferred from the past election oftheistic Chaplains, Compl. ^ 51-53,63 ("it is clear that the position of congressional chaplain is available only to theists"), from the votes of the two Houses expressing disapproval of the holding in Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002), Compl. ^ 57-58, and from speeches by Members of the Senate and House on the floor of their respective Chambers expressing their religious beliefs regarding a Supreme Being. Id. ^ 59 and app. VI. But these very actions - voting on resolutions to select
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