consistent with Torcaso. and seems to be the prevailing one.21 Accordingly, given that Congress's chaplaincy practice is consistent with the Establishment Clause, see Marsh. Murray. supra, it "necessarily follows" that its practice is consistent with the Religious Test Clause.
But even if the Religious Test Clause had some limited significance independent of the First Amendment (see Congressional Defendants' Brief at 37-38 & n.26), plaintiffs claim still would fail. While Marsh did not consider a Religious Test Clause challenge (possibly because Marsh involved a state prayer practice), the Court's opinion makes clear that legislative prayer is not subject to a general constitutional attack. See Kurtz. 829 F.2d at 1147 (R.B. Ginsburg, J., dissenting from the court's standing disposition) (in rejecting non-theist's free speech and due process/equal protection challenge to "guest speaker" practice, noting that "the existing legislative prayer practice, Marsh plainly indicates, fits into a special nook - a narrow space tightly sealed off from otherwise applicable first amendment doctrine").
Moreover, Marsh's historical argument applies with equal force to the Article VI context. Just as "the men who wrote the First Amendment Religion Clauses did not view paid legislative
Clauses. See 466 F.2d at 284-97. Judge Leventhal filed a separate opinion concluding that the requirement violated only the Establishment Clause. See id_ at 297-305. While Judge Bazelon noted Judge Corcoran's analysis of the Religious Test Clause, see 466 F.2d at 285 n.8, neither Judge Bazelon nor Judge Leventhal analyzed the Religious Test Clause claim.
"See Idaho v. Freeman. 507 F.Supp. 706, 729 (D. Idaho 1981) (observing that "courts have noted an overlap between article VI and the first amendment establishment clause and have usually resolved questions which could arise under article VI under the first amendment"); L. Tribe, American Constitutional Law, § 14-2, at 1155 n. 1 (2d ed. 1988) ("[a]s a practical matter, the [First Amendment's religion] clauses are dispositive in cases challenging alleged 'religious tests'; hence the religious test clause is now of little independent significance"); cf. Theriault v. A Religious Office in the Structure of the Gov't Requiring a Religious Test as a Qualification. 895 F.2d 104, 106 (2d Cir. 1990) (assuming, without deciding, the correctness of the district court's conclusion that "the protections of the religious test clause are coextensive with those of the establishment and free exercise clauses").
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