B.    Congress's Chaplaincy Practice is Consistent With Article VPs Religious Test Clause
Article VTs Religious Test Clause provides that "no religious test shall ever be required as a qualification to any office or public trust under the United States." U.S. Const. Art. VI, cl. 3. Plaintiff contends, first, that chaplains are officers of the Congress, and second, that Congress's chaplaincy practice is unconstitutional because "it is clear that the position of congressional chaplain is available only to theists." See Compl. at ^ 62-66. This latter point is wrong.
At the outset, we note that, although chaplains are congressional officers, see 2 U.S.C. § 60-l(b), it is not at all clear that the Office of Chaplain is an "office ... under the United States" for purposes of Article VI. See Bucklev v. Valeo. 424 U.S. 1, 128 (1976) (finding it unnecessary to decide whether non-Member congressional officers like the Clerk, Chaplain, Doorkeeper, Postmaster, and Sergeant at Anns are "officers of the United States" for purposes of the Appointments Clause): Powell v. McCormack. 395 U.S. 486, 504-05 (1969) (describing House Sergeant at Arms and Doorkeeper as "employees"); Murray. 720 F.2d at 697 (MacKinnon, J., concurring specially) ('"[tjhe chaplain is an officer of the house which chooses him, and nothing more'") (internal citation omitted). If the Office of Chaplain is not an "office ... under the United States," Article VI simply would not apply.19
But even assuming Article VI applies here, plaintiffs claim lacks merit. The Religious Test Clause is not a frequent source of litigation. Although there are scattered references to the
"Article VI also would not apply absent some allegation that chaplains are subject to a "religious test" oath as a condition of employment. Cf. American Communications Ass'n v. Douds. 339 U.S. 382, 414 (1950) ("[a]ll that [i]s forbidden [in Article VI] [i]s a 'religious Test'"). Plaintiff notes (see Compl. at ^ 51-52) that all House and Senate chaplains through the years have been Christian, but that does not prove the existence of a "religious Test."
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