D.    Plaintiff's Allegations of a Religious Test in Violation of Article VI Fail To State a Claim
Even if plaintiff could overcome thejurisdictional hurdles to bringing his religious test claim, his challenge would nonetheless fail to state a claim as a matter of law. As an initial matter, the religious test clause prohibitions are essentially subsumed into the First Amendment religion clauses. Laurence H. Tribe, American Constitutional Law § 14-2 at 1155 n.l (2d ed. 1988) ("As a practical matter, the [Establishment and Free Exercise] [C]lauses are dispositive in cases challenging alleged "religious tests"; hence the religious test clause is now of little independent significance."). Thus, because the congressional chaplaincies do not violate the Establishment Clause, see Section I, supra, they do not run afoul of the narrower religious test clause. See Anderson v. Laird, 316 F. Supp. 1081, 1093 (D.D.C. 1970) ("The Court having determined that there is no violation of the Establishment Clause in the mandatory attendance regulations, it necessarily follows that there can be no violation of the test oath prohibition."), rev'don other grounds, 466 F.2d 283 (D.C. Cir. 1972).21
However, even if the Court concludes that the religious test clause of Article VI prohibits some government actions that would not be prohibited by the Establishment or Free Exercise Clauses, plaintiffs religious test oath claim would still fail, as there is simply no religious test oath applied to the House or Senate Chaplains.
21 Indeed, as then-Judge Ruth Bader Ginsburg recognized in Kurtz, the "High Court's recent and resounding declaration [in Marsh}" has resolved the issue of legislative prayers, and the matters surrounding such prayers are no longer "subject to constitutional assault." Kurtz, 829 F.2d at 1147 (Ruth Bader Ginsburg, J., dissenting from court's standing disposition) (finding plaintiffs Free Speech, Establishment Clause, and Due Process Clause challenges to guest chaplain practice to be without any merit). This Court should reject summarily plaintiff s fruitless search for alternative constitutional claims on which to base his attempt to litigate a legal question - the constitutionality of legislative chaplains - that has been definitively resolved by the Supreme Court and the D.C. Circuit.
-34-