[Congressional Record Volume 148, Number 136 (Wednesday, October 16, 2002)]
[Senate]
[Pages S10598-S10599]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           AUTHORIZING REPRESENTATION BY SENATE LEGAL COUNSEL

  Mr. REID. Mr. President, I ask unanimous consent the Senate proceed 
to the consideration of S. Res. 343, submitted earlier today by the two 
leaders.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The legislative clerk read as follows:

       A resolution (S. Res. 343) to authorize representation by 
     the Senate Legal Counsel in Newdow v. Eagen, et al.

  There being no objection, the Senate proceeded to consider the 
resolution.
  Mr. DASCHLE. Mr. President, this resolution concerns a civil action 
commenced in the United States District Court for the District of 
Columbia against Secretary Jeri Thomson, Financial Clerk Timothy 
Wineman, their counterparts in the House of Representatives, the 
Congress, and the United States.
  The plaintiff in this case, Mr. Michael Newdow, is the individual 
challenging the constitutionality of the Pledge of Allegiance in 
California. Mr. Newdow alleges in this action that the disbursement of 
public funds to the offices of the congressional chaplains violates the 
First and Fifth Amendments to the Constitution, and Article VI.
  Both the United States Supreme Court and the United States Court of 
Appeals for the District of Columbia Circuit have already established 
the constitutionality of the congressional chaplaincies, which date 
from 1789. In the landmark Supreme Court decision Marsh v. Chambers, 
463 U.S. 783 (1983), the Supreme Court unequivocally rejected a 
challenge to the constitutionality of Nebraska's legislative chaplain. 
It stated that given the ``unambiguous and unbroken history'' of 
legislative chaplains, the ``practice of opening legislative sessions 
with prayer has become part of the fabric of our society'' and is not 
``an `establishment' of religion or a step toward establishment; it is 
simply a tolerable acknowledgement of beliefs widely held among the 
people of this country.'' Id. at 792. Several months later, the United 
States Court of Appeals for the District of Columbia Circuit, sitting 
en banc, dismissed a constitutional challenge to the Congressional 
chaplains. Murray v. Buchanan, 720 F.2d 689 (D.C. Cir. 1983) (en banc). 
It stated that the Supreme Court ``answered the question presented in 
Marsh with unmistakable clarity: The `practice of opening each 
legislative day with a prayer by chaplain paid by the State [does not] 
violate[] the Establishment Clause of the First Amendment.' '' Id. at 
690 (quoting Marsh, 463 U.S. at 784).
  This resolution authorizes the Senate legal counsel to represent 
Secretary Thompson and Mr. Wineman to seek dismissal of this action.
  Mr. REID. Mr. President, I ask unanimous consent the resolution and 
the preamble be agreed to, the motion to reconsider be laid upon the 
table, and that any statements in relation thereto be printed in the 
Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. Res. 343) was agreed to.
  The preamble was agreed to.
  The resolution, with its preamble, reads as follows:

                              S. Res. 343

       Whereas, Secretary Jeri Thomson and Financial Clerk Timothy 
     Wineman have been named as defendants in the case of Newdow 
     v. Eagen, et al., Case No. 1:02CV01704, now pending in the 
     United States District Court for the District of Columbia; 
     and
       Whereas, pursuant to sections 703(a) and 704(a)(1) of the 
     Ethics in Government Act of 1978, 2 U.S.C. Sec. Sec. 288b(a) 
     and 288c(a)(1), the Senate may direct its counsel to 
     represent officers and employees of the Senate in civil 
     actions with respect to their official responsibilities: Now, 
     therefore, be it

[[Page S10599]]

       Resolved, That the Senate Legal Counsel is authorized to 
     represent Secretary Thomson and Mr. Wineman in the case of 
     Newdow v. Eagen, et al.

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