Nebraska State Senator Ernie Chambers has not sat down in his seat in that unicameral body for a decade. Standing is his way of signaling his physical strength at age 76, he says, and his mental resolve to continue his 38-year career representing the voiceless, the scorned, and the marginalized citizens of his state.

In 1983, in one of his many causes, Chambers strenuously argued before his colleagues and then through the federal courts that nothing religious in nature should transpire on the legislative floor. The U.S. Supreme Court disagreed with him in the case that bears his name: Marsh v. Chambers.

Thirty years later, the Roberts Court is being asked to take that decision upholding legislative prayers a step further in one of the new term's potentially biggest cases.

In Town of Greece, N.Y. v. Galloway, the town board relies heavily on the Marsh decision to defend its practice since 1999 of opening monthly meetings with prayers by volunteer clergy or citizens.

"This case can begin and end with Marsh v. Chambers," the town's high court counsel, Thomas Hungar of Gibson, Dunn & Crutcher, wrote.

In Marsh, a 6-3 majority, led by Chief Justice Warren Burger, upheld the Nebraska Legislature's practice of opening each session with prayer by a chaplain selected by the Legislature and paid with state funds. The decision was the court's "first official departure" from the principle that government must be neutral between religions and between religion and nonreligion, said religion-clause scholar Christopher Lund of Wayne State University Law School.

The justices did not apply their three-part test for establishment-clause violations, which was announced in Lemon v. Kurtzman in 1971. Instead, the majority relied primarily on the nation's historical practice of legislative prayer.

In the new case before the high court, the U.S. Court of Appeals for the Second Circuit used a different test — the so-called endorsement test — and ruled against the town of Greece after finding that "the town's prayer practice had the effect, even if not the purpose, of establishing religion." Roughly two-thirds of the prayers, according to that court, included uniquely Christian references while others had more generic theistic terms.

Twenty-five amicus briefs have been filed in the Supreme Court in support of the town, including one on behalf of the Nebraska chaplain who was at the heart of the Marsh case.

FIGHTING PRAYER

The three decades since the court's ruling in the Nebraska case have not softened Chambers' belief that the Marsh decision was wrong nor dimmed his memory of the "unseemly, disgraceful" events that brought the prayer issue to a head in the Legislature.

"There had been these prayers ever since I came to the Legislature in 1971," recalled Chambers, the son of a minister. "I, at that time, objected but simply expressed my disagreement by being absent from the chamber whenever prayers were said. Because I came early each day, my colleagues laughed and bet whether Senator Chambers left by the back door before the preacher came in the front door."

The Legislature has an executive board that handles business when the lawmakers are not in session, he said. In 1978, the board decided to replace the long-time Protestant chaplain, Robert Palmer. When the new session began in 1979, the old board's term had expired; new senators had arrived, and some senators were upset that Palmer had been replaced by another minister.

What then ensued, he said, was a lobbying battle over and between the new and the old chaplains.

"It was a spectacle to see this lobbying over someone who got $300 a month for two minutes of work each day," he said. "I blasted them, saying it was inappropriate to even have these prayers in the first instance and then to be paying them. If some of them felt they needed prayer, I told them that instead of going over the noon hour to eat and drink with lobbyists, they should go pray. Naturally, I lost and they appointed Palmer."

Chambers is not a religious person and resists any type of label. For him, the prayer issue was simple. "What it tells people like me is we don't count," he explained. "If I were a religious person, I would tell these people who want this prayer, 'Every time we present what we believe in, it automatically triggers hostility; we should not do it. To try to impose what we call our god on somebody else is blasphemy.' That's the way I have to talk to them. I do this year after year, session after session, day after day."

Indeed, Chambers, who lives off his part-time legislative salary, takes no campaign contributions and describes himself as "relentless and fearless," became such a thorn in the side of those who opposed him over the years that in 2009, they initiated and succeeded in passing a term-limit amendment that specifically targeted him. He was forced to sit out one term of four years, but was voted back into office by his district in 2012.

"For the last decade I have never sat down in my chair," he said. "I tell [my colleagues], 'You'll see before you are an old man. When a person is old, he will wear out, he will lose energy. But you will lose your energy and will wear out before I will.' They waited to see any sign of weakness and they won't."

He is known for his unmatched mastery of legislative rules, which he uses to block bills that he opposes. "My job is to stop unwise, unjust legislation and to see that wise, just, fair legislation is enacted. Why do I stop so many bills? I believe prevention is better than cure."

The lone African-American senator for many years, he persuaded his colleagues to be the first legislature in the country to take action against South Africa's apartheid by selling off investments in companies that did business there. He led the successful effort to abolish corporal punishment in the schools and reform of the state pension system to treat women equally with men. He again led the Legislature in ending executions of the mentally retarded and juveniles before the U.S. Supreme Court acted.

And Chambers, a nonpracticing graduate of Creighton University School of Law, received national attention when he sued God in state court in 2007 as a reaction to his colleagues' bills seeking to prohibit certain types of suits. The Constitution, he said, requires the courthouse doors to be open to all.

"Ernie Chambers knows more about that Legislature than anybody and he was smarter than all but a handful," said Herbert Friedman, the Lincoln lawyer who represented Chambers in the Marsh case. "They never voted him as chair of any committee. In all the years he has been there, I think he was vice chairman of a committee. However, they all respected him."

A HIGH COURT CHALLENGE

It was around the time of the Legislature's battle over the two chaplains that Friedman, who sat on the lawyers' panel of the local American Civil Liberties Union, said a letter arrived from a woman complaining about the prayer practice.

"We're sitting around and I said to the lawyers, 'That sounds like something I'd be interested in,' and I said I'd talk to Ernie Chambers. He said to send over the letter. I later said we were thinking of filing a suit and would he like to be the plaintiff. He said, 'I'd love to.' "

At the time of the suit, the Protestant chaplain had occupied that office for 16 years. The district court held that the legislative prayers did not violate the First Amendment's establishment clause, but paying the chaplain with public funds did. The court enjoined the use of the funds. On appeal, the Eighth Circuit applied the three-part Lemon test and held that the entire practice violated all three elements of the test.

Friedman made his first and only Supreme Court argument in Marsh on April 20, 1983. "It was an exciting experience," he recalled. "It was a battering experience. I think I held my own; by that I mean, I didn't walk away crying. I got a lot of questions from the chief justice and [Justice William] Rehnquist."

Chambers, also known for his ability to quickly pen poetry, said he was so offended by the decision that he wrote a letter in verse addressed to the chief justice and "the French fries." The main point, he explained, was the flaw in Burger's chief argument that because there was a paid congressional chaplain in 1789, the practice in Nebraska was constitutional.

"I told him that since he is a scholar of the law and history, he knows that even with adoption of the Eighth Amendment there were barbarous punishments allowed, such as maiming, that were subsequently stricken by the Supreme Court," he recalled. "In the same way, the Constitution should apply to changing conditions and to maintain separation of church and state. Naturally I didn't get a response, but I felt better."

The Nebraska Legislature no longer has a paid chaplain. There is a chaplain coordinator, said Chambers, who makes clear to the members that anyone can have his or her preacher come and pray. "But so few people show up that the senators have to do it themselves," he said, adding, "There is no impact as a result of this praying, but it does generate hostility. It does not influence the conduct or type of legislation any of these bodies bring forth."

A SECOND LOOK

As the Roberts Court prepares for November arguments in the Town of Greece case, scholars generally agree the court's establishment-clause jurisprudence is a mess.

"Whatever side one is on, it really is a train wreck on one level in terms of the proliferation of tests in a variety of contexts," said Scott Gaylord of Elon University School of Law, referring to court decisions involving crosses on public land, nativity scenes, prayer in schools, Ten Commandments monuments and others.

There is the Lemon test, which a number of justices have criticized since 1971; Justice Sandra Day O'Connor's endorsement test, also disliked by some justices, and the coercion test sometimes endorsed by Justice Anthony Kennedy but equally disliked by some of his colleagues.

"The Second Circuit [in Greece] talks more about the endorsement test and there is some speculation the court may use it as an opportunity to revisit the endorsement test," said Gaylord, adding, "That could be a landmark case. Extending Marsh would be important for thousands of local communities and would be a concern for groups who challenge these types of prayer practices, but not as big a ruling as revisiting the endorsement test."

He and Wayne State's Lund agree that Kennedy, as true in so many cases, will be key to what the court does.

"We don't know what Justice Kennedy really thinks about this," said Lund. "He's been with conservatives on passive display cases — when government displays a cross or crèche. He's been with liberals on prayer cases, but they all involve public schools. Is he driven by the fact it's public schools or by prayer? We just don't know. We don't know what he thinks about Marsh v. Chambers."

Contact Marcia Coyle at mcoyle@alm.com.