Judge: Pa. House of Reps. Policy Prohibiting Atheists From Delivering Invocation ‘Discriminates’ on ‘Basis of Religion’

HARRISBURG, Pa. — A federal judge appointed to the bench by then-President George W. Bush has ruled that the Pennsylvania House of Representatives may not continue to deny atheists the opportunity to present an invocation before the House, as doing so “intentionally discriminates” on the basis of religion in violation of the First Amendment.

“We conclude that the House guest chaplain policy facially violates the Establishment Clause of the First Amendment to the United States Constitution,” Christopher Conner, chief judge of the United States District Court for the Middle District of Pennsylvania, wrote on Wednesday. “The House policy intentionally discriminates among invocation presenters on the basis of religion and thereby transcends the bounds of permissible legislative prayer.”

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.

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In August 2016, 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.

“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.

In April 2017, 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.

“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.

On Wednesday, Conner ruled on the remaining claims, this time siding with the atheists who had challenged the policy.

While acknowledging that “in the Founding era, the primary evil that Framers sought to prevent through the Establishment Clause may well have been the establishment of a state religion aligning with one particular sect of Protestant Christianity,” he said that over time, “that understanding has evolved and, quite naturally, broadened” to rather pertain to Christianity over other religions.

“In light of this nation’s vastly diverse religious tapestry, there is no justification to sanction government’s establishment of a category of favored religions—like monotheistic or theistic faiths—through legislative prayer,” he wrote.

He concluded, in analyzing legal precedent, that there is no harm in allowing atheists to deliver the invocation as both the sacred and secular can be represented without issue. Conner opined that legislative prayer does not have to be defined as entreating God.

“[S]eeking to include secular or nontheist invocations does not automatically impugn the constitutionality of legislative prayer,” Conner concluded. “[M]any legislative bodies have granted requests from atheists, secular humanists, and other nontheists to deliver opening invocations while simultaneously permitting theistic invocations.”

“Granting such requests has not resulted in a concomitant challenge to the ability of the legislative body to open with prayer,” he said. “The two concepts are not mutually exclusive. To hold otherwise implies that ‘prayer’ in the legislative prayer context must be defined as a theistic invocation, which of course is not so.”

Pointing to language in the 2014 U.S. Supreme Court decision of Town of Greece v. Galloway, which stated that legislative prayer is to “reflect values long part of the nation’s heritage,” be “solemn and respectful in tone,” and remind “lawmakers to transcend petty differences in pursuit of a higher purpose,” Conner felt that atheists could still accomplish these purposes with their invocation.

“Nontheistic invocations are equally capable of satisfying these lofty objectives,” he concluded. “We reiterate that many legislative bodies across this nation have opened with nontheistic invocations, and there is no evidence that such prayers fared worse than their theistic counterparts at fulfilling the foregoing purposes. We further observe that both theistic and nontheistic invocations could contravene the purposes of legislative prayer if they were divisive, exclusionary, or disparaging.”

“In other words, it is the content of the prayers, rather than their theistic or nontheistic nature, that matters,” Conner said.

Read Conner’s ruling in full here.

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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