WASHINGTON (CN) – The D.C. Circuit ruled Friday that the House of Representatives did not violate the First Amendment when it denied an atheist the opportunity to deliver a secular prayer at the opening of a legislative session.
Dan Barber, a former Christian minister turned atheist who co-founded the Freedom From Religion Foundation, sued both the House of Representatives and its chaplain Reverend Patrick Conroy in 2016 after the chaplain denied his request to give an invocation before Congress.
Barber was invited to give the invocation by a sitting member of the House, Democratic Representative Mark Pocan of Wisconsin. But per congressional rules, besides sponsorship by a lawmaker, anyone who makes an invocation must also have proof of religious ordination and must agree only to address a “higher power” and not members of Congress directly.
When Conroy denied the request – after Barber waited four months for a response – he cited only the former minister’s lack of credentials as the basis for his rejection.
Barber, Conroy said, might have been ordained once, but he wasn’t any longer and therefore he would not be allowed to speak.
Conroy’s explanation for the denial evolved however, after Barber sued and the matter was argued in court.
Before the case reached the D.C. Circuit, a lower court also decided Barber was not permitted to serve as a guest chaplain or speaker because, as an atheist, he would only be able to deliver a message that was secular.
Since the lawsuit was filed, the House of Representatives, through its counsel, has since ratified the position that the House interprets its own rules around invocation and requires that they be religious in nature.
Kicking off legislative sessions with prayer has been a long held tradition and stems all the way back to the very first Congress that ratified the First Amendment.
As a result, rules mandating that invocations must be religious do not fall under purview of the establishment clause of the First Amendment which prohibits establishment of religion in Congress.
“That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the framers considered legislative prayer a benign acknowledgement of religion’s role in society,” U.S. Circuit Judge David Tatel wrote in Friday’s ruling.
Although the court has warned against discriminating among religions or “tolerating a pattern of prayers that proselytize or disparage” certain faiths or beliefs, the court has also “never suggested that legislatures must allow secular as well as religious prayer,” the ruling states.
If Barker’s complaint only hinged on the contention that a religious prayer requirement was unconstitutional, the court could stop there.
“But Barker alleges and we must accept as true at this stage of the case that Conroy excluded him not because he proposed to give a secular prayer but because Barker is an atheist,” Tatel wrote.
But in order to resolve the years-long dispute, the court does not need to decide whether there is a constitutional difference between excluding a would-be prayer giver from the guest chaplain program because they are an atheist or excluding a person because they express a desire to deliver a nonreligious prayer.
“Even though we accept as true Barker’s allegation that Conroy rejected him because he is an atheist, the House’s requirement that prayers must be religious nonetheless precludes Barker from doing the very thing he asks us to order Conroy to allow him to do: deliver a secular prayer,” Tatel wrote for the panel.
Barker’s failure to state a claim now leaves him an opportunity to appeal again, but that appeal might not get very far. It will likely be left to the House to determine any changes in rules around daily prayer.