Judge Allows Advancement of Lawsuit Challenging Denial of ‘Atheist Prayer’ Before Pennsylvania House

HARRISBURG, Pa. — A federal judge has allowed the advancement of parts of a lawsuit filed by a coalition of atheist groups upset that unbelievers cannot present a prayer before the Pennsylvania House of Representatives just like Christian chaplains.

As previously reported, since its initial formation in 1682, the Pennsylvania House has invited a chaplain to offer a prayer at the opening of each meeting. The House’s general operating rules require that those delivering the invocation be “a member of a regularly established church or religious organization or shall be a member of the House of Representatives.”

Nonetheless, in 2014, Carl Silverman with Pennsylvania Nonbelievers contacted House leaders to apply to serve as chaplain and deliver an invocation before the House.

“We do not believe that governmental bodies are required to allow non-adherents or nonbelievers the opportunity to serve as chaplains,” Samuel Smith, the former Speaker of the House, replied to Silverman in denying his request. “We disagree with your assertion that the House may not disallow atheists from serving as chaplains.”

The following year, Alex Luchenitser with Americans United for Separation of Church and State similarly submitted an inquiry as to whether unbelievers may deliver secular invocations before the House. His request was likewise rejected.

“We cannot approve your request,” Parliamentarian Clancy Myer responded.

Last August, a coalition of three atheist groups—Pennsylvania Nonbelievers, the Dillsburg Area Freethinkers and the Lancaster Freethought Society—as well as five individuals affiliated with the groups, filed a federal lawsuit asserting that the denial violates the Equal Protection Clause of the Fourteenth Amendment and the Establishment Clause of the First Amendment.

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“Over the last half-century, our country has made great progress—both legally and socially—toward eradicating discrimination and meeting the goal of equality for all, which lies at the heart of our Constitution. ….  Nevertheless, in the House’s eyes, people who do not believe in God remain a disfavored minority against whom it is acceptable to discriminate,” the legal challenge read.

On Friday, U.S. District Judge Christopher Conner dismissed parts of the suit, while allowing other claims to proceed. Conner rejected the plaintiffs’ arguments that the House rules violate the Equal Protection Clause, as well as the free speech and free exercise of religion clauses of the First Amendment.

However, the case was permitted to move forward based on the atheists’ Establishment Clause claims.

“Whether history and tradition sanctify the House’s line of demarcation between theistic and nontheistic chaplains is a factual issue for a later day,” Conner wrote. “Establishment Clause issues are inherently fact-intensive, and we must resist the academic intrigue of casting the salient inquiry too narrowly at this juncture.”

“To the extent the parties’ arguments evoke more nuanced constitutional questions—e.g., whether plaintiffs practice ‘religion’ and are capable of ‘praying,’ or whether tradition dictates that legislative prayer address a ‘higher power’—any such determination demands, and deserves, a fully developed record,” he said.

American Atheists, which is partnered with Pennsylvania Nonbelievers, expressed satisfaction that the lawsuit will proceed.

“We’re pleased the court has decided that this lawsuit can continue,” said Amanda Knief, legal director for American Atheists. “There is no question that this policy discriminates against atheists. If the House of Representatives is going to invite members of the community to deliver invocations, they must welcome all members of the community, not just those with particular religious beliefs.”

But House Republican Spokesman Steve Miskin noted that Conner’s ruling simply means that the court needs to gather additional facts in making a determination.

“The practices in the House began 335 years ago and we believe conform with constitutional requirements,” he said.

According to the office of the chaplain of the U.S. House of Representatives, the first prayer of the Continental Congress was presented on Sept. 7, 1774 by Jacob Duche of Christ Church of Philadelphia, and was delivered in the name of Jesus.

“O Lord our Heavenly Father, high and mighty King of kings, and Lord of lords, who dost from thy throne behold all the dwellers on earth and reignest with power supreme and uncontrolled over all the kingdoms, empires and governments,” he prayed, “look down in mercy, we beseech Thee, on these our American States, who have fled to Thee from the rod of the oppressor and thrown themselves on Thy gracious protection, desiring to be henceforth dependent only on Thee.”

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