PHILADELPHIA (CN) – The Pennsylvania Legislature can bar people who don’t believe in a higher power from giving its invocation prayer, the Third Circuit ruled Friday.
The 39-page ruling by U.S. Circuit Judge Thomas Ambro, a Bill Clinton appointee, rests on two pillars: that the point of legislative prayer is to “invoke divine guidance,” and the Supreme Court’s determination that prayer presumes existence of a higher power.
Neither pillar excludes people who believe in a higher power – theists – but the Legislature can exclude “nontheists” and atheists since people who do not believe in a higher power cannot possibly offer prayer as it’s defined by law, Ambro concluded, joined in the opinion by U.S. Circuit Judge D. Michael Fisher, a George W. Bush appointee.
Ambro also said the Legislature cannot discriminate between religions that believe in a higher power.
“A prayer by a Muslim is different in kind from one by a nontheist – different enough that a legislature may permissibly exclude the latter but not the former,” he explained, later quoting the D.C. Circuit: “‘A]lthough the [Supreme] Court has warned against discriminating among religions, it has never suggested that legislatures must allow secular as well as religious prayer.’”
Ambro listed the secular purposes legislative prayer serves, including lending gravity to the proceedings, providing time for reflection, and unifying lawmakers over shared goals.
“But, as a matter of traditional practice, a petition to human wisdom and the power of science does not capture the full sense of ‘prayer,’ historically understood. At bottom, legislative prayers seek ‘divine guidance’ in lawmaking,” he wrote.
Leaders and members of nontheist groups sued Pennsylvania lawmakers in Middle District of Pennsylvania, claiming the House’s policy of excluding nontheists from giving the opening invocation violates the Establishment Clause of the Constitution prohibiting the establishment of religion by Congress, as well as the free exercise, free speech and equal protection clauses.
Both sides appealed after a federal judge found in favor of the nontheists on the Establishment Clause but that requests to “please rise” before the prayer were not unconstitutionally coercive after the Legislature amended its policy and security guards stopped forcing people to stand.
“As to the Establishment Clause,” wrote Ambro, “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.”
As for the other three clauses, Ambro added, the court decided legislative prayer is government speech and therefore “not open to attack via those channels.”
Nontheism and atheism are now considered religions for First Amendment purposes, Ambro noted. But it’s a different question whether those groups believe in a supreme being.
“And only the latter question – the existence of a high power to whom one can pray for divine guidance in lawmaking – is a necessary element of traditional legislative prayer. The nontheists 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,” he wrote.
Ambro cited and quoted Supreme Court decisions showing early congresses paid professional chaplains to open proceedings and that the “‘practice of opening legislative sessions with prayer has become part of the fabric of our society.’”
In a 16-page dissent, U.S. Circuit Judge Luis Felipe Restrepo explained that the House’s practice of selecting guest chaplains does violate the establishment clause, and the majority’s framing of the Pennsylvania House’s policy as limiting prayer to “theistic prayer” is a problem.
“The Pennsylvania House purposefully excludes adherents of certain religions and persons who hold certain religious beliefs from serving as guest chaplains and, consequently, prohibits them from delivering opening prayers,” the Barack Obama appointee wrote.
“By mandating that all guest chaplains profess a belief in a ‘higher power’ or God, the Pennsylvania House fails to stay ‘neutral in matters of religious theory,’” he added. “When, as here, the government subjects prospective guest chaplains to a litmus test of whether they believe in the existence of a ‘higher power’ or God, the government actively lends its power and prestige to the religious theory that a ‘higher power’ or God indeed exists.”
Representing a cadre of so-called “nontheist” groups as well as seven Pennsylvania residents, attorney Alexander Luchenitser with the group Americans United for Separation of Church and State made his case before the panel nearly a year after the federal judge’s finding in his clients’ favor.
Apart from invocations delivered by House members, guest chaplains delivered half of the House invocations between January 2008 to July 2017. Luchenitser noted that each time the invocation represented a monotheistic face, with Christianity being the most common.
Neither Luchenitser nor the Pennsylvania Nonbelievers, the Philadelphia Ethical Society, and the Lancaster Freethought Society, all parties in the suit, returned requests for comment Friday.
Pennsylvania House Speaker Michael Turzai did not immediately return a request for comment.