PHILADELPHIA, Pa. — The Third Circuit Court of Appeals has overturned a lower court ruling that would have allowed atheists to present invocations before the Pennsylvania House of Representatives.
“A group of non-theists have challenged the theists-only policy under the Establishment, Free Exercise, Free Speech, and Equal Protection Clauses of our Constitution. As to the Establishment Clause, we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking, the basis for the Supreme Court taking as a given that prayer presumes a higher power,” wrote Judge Thomas Ambro, nominated to the bench by then-President Bill Clinton.
“For the Free Exercise, Free Speech, and Equal Protection Clauses, we hold that legislative prayer is government speech not open to attack via those channels.”
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.
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, and Conner sided 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,” Conner 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.”
However, on Friday, the Third Circuit Court of Appeals overturned Conner’s ruling 2-1, noting that prayer has been a practice in the legislature from the founding of the nation, and that while government bodies may open its sessions with secular presentations, they are not required to do so.
“Twice the Supreme Court has drawn on early congressional practice to uphold legislative prayer. It emphasized that Congress approved the draft of the First Amendment in the same week it established paid congressional chaplains to provide opening prayers,” Judge Ambro wrote on behalf of the majority.
“Congress approved theistic religious expression in other ways as well. A day after proposing the First Amendment, it ‘urged President Washington to proclaim ‘a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts, the many and signal favours of Almighty God,’” he explained.
The court also noted several times in its ruling that the very definition of prayer is entreating God for His aid.
“Instead of rocking the constitutional boat, today we merely observe what the Supreme Court has long taken as given: that prayer traditionally presumes a higher power,” Ambro outlined. “Because this notion flows from the historical understanding and practice of legislative prayer, it lends further support to the policy of the Pennsylvania House.”
“[T]he existence of a high power to whom one can pray for divine guidance in lawmaking — is a necessary element of traditional legislative prayer,” he likewise stated at another point. “The non-theists here may be members of ‘religions’ for First Amendment purposes, but, because they do not proclaim the existence of a higher power, they cannot offer religious prayer in the historical sense.”
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.”