challenge to the public funding of congressional chaplains.2 See 720 F.2d at 690. In a short per curiam opinion, the en bane court stated:
The Supreme Court's decision in Marsh v. Chambers is dispositive of appellants' challenge to the public funding of congressional chaplains. The Court answered the question presented in Marsh with unmistakable 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.'
Id. at 690 (alterations in original) (citation omitted). The court concluded: "[wje perceive no tenable basis for a claim that the very congressional practice deliberately traced by the Court in Marsh should be subject to further review." Id; See also id, at 699 (separate statement of then-Judge Ruth Bader Ginsburg) ("[tjhe nation's High Court has now indicated unambiguously how the merits of the controversy must be resolved").
c. Kurtz v. Baker. Four years later, in Kurtz v. Baker, the D.C. Circuit considered a challenge by a "secular humanist" to the House and Senate chaplains' refusal to "invite non-believers [as guest speakers] to deliver secular remarks in both houses of Congress during the period each house reserves for morning prayer."3 See 829 F.2d at 1134. The panel majority held
Murray has a somewhat complicated procedural history. The district court dismissed plaintiffs' taxpayer challenge to Congress's chaplaincy practice onjusticiability grounds. See Murray v. Morton. 505 F.Supp. 144 (D.D.C. 1981). A divided panel of the D.C. Circuit reversed, but that opinion was vacated and withdrawn after the court granted rehearing en bane. §ee 674 F.2d at 14-34 ("Editor's Note"). While Murray was pending en bane. the Supreme Court decided Marsh. After Marsh was decided, the D.C. Circuit (in the decision discussed in the text) directed the parties to '"show cause why, in light of... Marsh v. Chambers ..., this appeal should not be dismissed and the district court instructed to vacate its judgment and dismiss the complaint for failure to raise a substantial constitutional question.'" See 720 F.2d at 690 (ellipses in original) (internal citation omitted). We discuss Murray's impact on ourjusticiability arguments in Part I.B infra.
^urtz was not a direct attack on Marsh and Murray. The plaintiff in Kurtz recognized that "Marsh accepted legislative prayer against an establishment clause objection," but argued that "Marsh did not involve free speech and due process contentions by one who seeks an
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