Brian Fields v. Speaker of the Pennsylvania ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 18-2974 & 18-3167
________________
BRIAN FIELDS; PAUL TUCKER; DEANA WEAVER;
SCOTT RHOADES; JOSHUA E. NEIDERHISER;
PENNSYLVANIA NONBELIEVERS, INC.;
DILLSBURG AREA FREETHINKERS;
LANCASTER FREETHOUGHT SOCIETY;
REV. DR. NEAL JONES; PHILADELPHIA ETHICAL
SOCIETY; RICHARD KINIRY
BRIAN FIELDS; PAUL TUCKER;
DEANA WEAVER; SCOTT
RHOADES;
JOSHUA E. NEIDERHISER;
PENNSYLVANIA
NONBELIEVERS, INC.;
DILLSBURG AREA
FREETHINKERS; LANCASTER
FREETHOUGHT SOCIETY;
REV. DR. NEAL JONES;
PHILADELPHIA ETHICAL
SOCIETY
Appellants (18-3167)
v.
SPEAKER OF THE PENNSYLVANIA
HOUSE OF REPRESENTATIVES;
PARLIAMENTARIAN OF THE PENNSYLVANIA
HOUSE OF REPRESENTATIVES;
DIRECTOR OF SPECIAL EVENTS OF THE
PENNSYLVANIA HOUSE OF REPRESENTATIVES;
REPRESENTATIVE FOR PENNSYLVANIA
HOUSE DISTRICT 92;
REPRESENTATIVE FOR PENNSYLVANIA
HOUSE DISTRICT 95;
REPRESENTATIVE FOR PENNSYLVANIA
HOUSE DISTRICT 97;
REPRESENTATIVE FOR PENNSYLVANIA HOUSE
DISTRICT 165;
REPRESENTATIVE FOR PENNSYLVANIA HOUSE
DISTRICT 167;
REPRESENTATIVE FOR PENNSYLVANIA HOUSE
DISTRICT 182;
REPRESENTATIVE FOR PENNSYLVANIA HOUSE
DISTRICT 193;
REPRESENTATIVE FOR PENNSYLVANIA HOUSE
DISTRICT 196,
all solely in their official Capacities
Appellants (18-2974)
________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-16-cv-01764)
District Judge: Honorable Christopher C. Conner
________________
2
Argued June 17, 2019
Before: AMBRO, RESTREPO, and FISHER, Circuit Judges
(Opinion filed: August 23, 2019)
Jonathan F. Bloom
Karl S. Myers (Argued)
Spencer R. Short
Kyle A. Jacobsen
Stradley Ronon Stevens & Young
2005 Market Street, Suite 2600
Philadelphia, PA 19103
Mark E. Chopko
Stradley Ronon Stevens & Young
1250 Connecticut Avenue NW
Washington, DC 20036
Counsel for Appellant/Cross Appellee
Speaker of the Pennsylvania House of Representatives
Patrick Grubel
Richard B. Katskee
Alexander J. Luchenitser (Argued)
Americans United for Separation of Church & State
1310 L Street NW, Suite 200
Washington, DC 20005
Allen C. Warshaw
1035 McCormick Avenue
Mechanicsburg, PA 17055
3
Eric O. Husby
American Atheists
306 South Blvd
Tampa, FL 33606
Counsel for Appellee/Cross Appellant
Brian Fields
Randall L. Wenger
Jeremy L. Samek
Independence Law Center
23 North Front Street
Harrisburg, PA 17101
John J. Bursch
David A. Cortman
Jeremy Tedesco
Alliance Defending Freedom
440 First Street NW, Suite 600
Washington, DC 20001
Counsel for Amicus Appellants/Cross Appellees
Mike Kelly, Scott Perry, Lloyd Smucker, Glenn
Thompson
Steven W. Fitschen
James A. Davids
The National Legal Foundation
2224 Virginia Beach Blvd, Suite 204
Virginia Beach, VA 23454
Counsel for Amicus Appellants/ Cross Appellee
Congressional Prayer Caucus
4
Foundation, International
Conference of Evangelical Chaplain
Endorsers, National Legal Foundation,
Veterans in Defense of Liberty
Eric S. Baxter
Chase T. Harrington
Becket Fund for Religious Liberty
1200 New Hampshire Avenue NW, Suite 700
Washington, DC 20036
Counsel for Proposed Amicus
Aleph Institute
Gregory E. Ostfeld
Greenberg Traurig
77 West Wacker Drive, Suite 3100
Chicago, IL 60601
Alan Hersh
Greenberg Traurig
300 West 6th Street, Suite 2050
Austin, TX 78701
Vitaliy Kats
Greenberg Traurig
101 East Kennedy Blvd., Suite 1900
Tampa, FL 33602
Gregory M. Lipper
Clinton & Peed
777 6th Street NW, 11th Floor
Washington, DC 20001
5
Monica L. Miller
American Humanist Association
1821 Jefferson Place NW
Washington, DC 20036
Counsel for Amicus Appellees/ Cross Appellants
Anti-Defamation League, Central Conference of
American Rabbis, Hindu American Foundation,
Interfaith Alliance Foundation, Jewish Social Policy
Action Network, Keshet, Men of Reform Judaism,
National Council of Jewish Women, Asian Pacific
American Advocates, People for the American Way
Foundation, Truah Rabbinic Call for Human Rights,
Union for Reform Judaism, Women of Reform
Judaism, American Humanist Association, Jamie
Raskin, Representative Jared Huffman
Patrick C. Elliott
Colin E. McNamara
Freedom from Religion Foundation
10 North Henry Street
Madison, WI 53703
Counsel for Amicus Appellee
Freedom from Religion Foundation
________________
OPINION OF THE COURT
________________
6
AMBRO, Circuit Judge
The Pennsylvania House of Representatives begins
most legislative sessions with a prayer. The practice has two
features that are challenged in this appeal. First, the House
invites guest chaplains to offer the prayer, but it excludes
nontheists (those who do not espouse belief in a god or gods,
though not necessarily atheists) from serving as chaplains on
the theory that “prayer” presupposes a higher power. Second,
visitors to the House chamber pass a sign asking them to stand
for the prayer, and the Speaker of the House requests that
audience members “please rise” immediately before the
prayer. At least once a House security guard pressured two
visitors who refused to stand.
A group of nontheists have challenged the theists-only
policy under the Establishment, Free Exercise, Free Speech,1
and Equal Protection Clauses2 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
1
The First Amendment states in part that “Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom
of speech . . . .” U.S. Const. amend. I. These limits on
government action are applied to the states per Everson v. Bd.
of Educ. of Ewing Twp., 330 U.S. 1, 15–16 (1947)
(Establishment Clause); Cantwell v. Connecticut, 310 U.S.
296, 303–04 (1940) (Free Exercise Clause); and Gitlow v. New
York, 268 U.S. 652, 666 (1925) (Free Speech Clause).
2
“[N]or shall any State . . . deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1.
7
Court taking as a given that prayer presumes a higher power.
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.
The nontheists also challenge as unconstitutionally
coercive the requests to “please rise” for the prayer. We hold
that the single incident involving pressure from a security
guard is moot. As for the sign outside the House chamber and
the Speaker’s introductory request that guests “please rise,” we
hold that these are not coercive.
Thus we affirm in part and reverse in part the ruling of
the District Court.
Background
A. Guest Chaplain Policy – Exclusion of Nontheists
A member of the Pennsylvania House or a guest
chaplain opens most legislative sessions with a prayer. A guest
chaplain must be “a member of a regularly established church
or religious organization.” The House defines “opening
prayer” as a chance for its members “to seek divine
intervention in their work and their lives.” Taken together, the
House rules do not allow nontheists to give the opening prayer.
Once a guest chaplain is selected, he or she is told to
craft a prayer “respectful of all religious beliefs.” Fields v.
Speaker of the Pa. House of Representatives, 251 F. Supp. 3d
772, 777 (M.D. Pa. 2017) (Fields I). The 203 members of the
House “com[e] from a wide variety of faiths,” so “efforts to
deliver an inter-faith prayer are greatly appreciated.” Fields v.
Speaker of the Pa. House of Representatives, 327 F. Supp. 3d
748, 751 (M.D. Pa. 2018) (Fields II). Still, no House member
reviews the prayer ahead of time.
8
From 2008 to 2016 the House prayer practice was as
follows. For 678 legislative sessions, 575 began with a prayer.
Of those prayers, 310 were offered by House members and 265
by guest chaplains. Among the 265 guest chaplains were 238
Christian clergy, 23 Jewish rabbis, three Muslim imams, and
one monotheistic (yet otherwise unrecognizable) speaker.
Fields I, 251 F. Supp. 3d at 777. The House branched out in
2017 from the Abrahamic faiths with its first Sikh guest
chaplain. Fields II, 327 F. Supp. 3d at 752.
The plaintiffs here wish to offer the opening prayer as
well. They represent a variety of nontheist organizations,
including Secular Humanists, Unitarian Universalists, and
Freethinkers.3 Most of these groups self-identify as “religious”
organizations, and their practices parallel those of a church.
For instance, they gather regularly to discuss their worldviews,
study important texts, observe annual celebrations, and
participate in community service. Fields I, 251 F. Supp. 3d at
776. Their “clergy” even perform weddings and officiate at
funerals. In short, they look and act like a church or synagogue
in all ways but one: they do not profess belief in the existence
of a higher power.
For this reason alone, the House denied their requests to
offer a prayer. Each group had proposed an uplifting secular
message — a “nontheistic” prayer touching on themes such as
equality, unity, decency, hope, peace, compassion, tolerance,
and justice. Fields II, 327 F. Supp. 3d at 750. But because
3
While not identical, Secular Humanism and
Freethought both posit that humans can be moral without any
god; truth and morality should be based on logic, reason, and
evidence, rather than on authority, tradition, or dogma. The
nontheistic branches of Unitarian Universalism assert no creed,
instead emphasizing tolerance and intellectual freedom.
9
their proposed invocations would not appeal to a “higher
power,” they were turned away. Id. at 753.
B. Prayer Practice – Request to “Please Rise”
Two features of the prayer practice changed in response
to this lawsuit. First, the Speaker of the House had asked
guests to “please rise.” Id. In 2017 he elaborated that guests
“please rise as able.” Id. Second, a sign outside the House
chamber had explained that legislative sessions begin with a
prayer and the Pledge of Allegiance, and it had asked that all
guests “who are physically able” rise “during this order of
business.” After this lawsuit, “physically” was dropped. Id. at
754. On appeal, the parties dispute only whether the pre-2017
practice was unconstitutionally coercive.
The nontheists also challenge the coercive nature of one
incident in 2012. After the Speaker’s general request to
“please rise,” plaintiffs Brian Fields and Scott Rhoades
remained seated. A House security guard singled them out and
pressured them to stand. Id. at 753. However, they were not
asked to leave, and no action was taken against them.
C. Procedural History
The leaders of several nontheist groups, along with the
groups themselves, brought this suit under 42 U.S.C. § 1983against the Speaker of the House, the House Parliamentarian,
and several House members. The plaintiffs took aim at the
guest chaplain policy and the practice of asking that guests
“please rise” for the prayer. First, they asserted that the policy
of excluding nontheists from serving as guest chaplains
violated the Establishment, Free Speech, Free Exercise, and
Equal Protection Clauses. Second, they claimed that asking
guests to “please rise” for the prayer was unconstitutionally
coercive in violation of the Establishment Clause.
10
At the motion-to-dismiss stage, the District Court
winnowed the claims to the alleged Establishment Clause
violations. Reasoning that legislative prayer is government
speech rather than speech by private citizens, the Court
dismissed the claims brought under the Free Exercise, Free
Speech, and Equal Protection Clauses. The Establishment
Clause claims survived, however, because the Court needed a
record at summary judgment to determine (1) “[w]hether
history and tradition sanctify the House’s line of demarcation
between theistic and nontheistic chaplains,” and (2) whether
the Speaker’s request to “please rise” for the prayer was
unconstitutionally coercive. Fields I, 251 F. Supp. 3d at 789.
After discovery, both sides moved for summary
judgment. The Court held that the guest chaplain policy
violated the Establishment Clause and issued a permanent
injunction. As for the requests to “please rise” for the opening
prayer, it held that the current policy (amended in response to
the lawsuit) was not coercive, but that the pre-2017 policy was.
Both sides have appealed.
Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction per 28 U.S.C. § 1291. We review
the Court’s findings of fact for clear error and its conclusions
of law de novo. VICI Racing, LLC v. T-Mobile USA, Inc., 763
F.3d 273, 282–83 (3d Cir. 2014).
11
Discussion
A. Guest Chaplain Policy – Establishment Clause
Challenge
Principally before us is whether the Pennsylvania House
may intentionally exclude nontheists from offering prayers to
open the legislative session. Because the House’s policy
preferring theistic over nontheistic prayers fits squarely within
the historical tradition of legislative prayer, we part with the
District Court on this point and uphold the prayer policy.
1. Pennsylvania’s Policy is Consistent with Historical
Practice.
(i) Background on the Historical Framework —
History supplies our method of analyzing cases involving
legislative prayer. In Establishment Clause challenges like
this, we ask “whether the prayer practice” in question “fits
within the tradition long followed in Congress and the state
legislatures.” Town of Greece v. Galloway, 572 U.S. 565, 577
(2014). The early legislative practice of those who drafted the
Establishment Clause “reveal[s] their intent” as to its scope.
Marsh v. Chambers, 463 U.S. 783, 790 (1983); see also New
Doe Child #1 v. United States, 901 F.3d 1015, 1020 (8th Cir.
2018) (“[H]istorical practices often reveal what the
Establishment Clause was originally understood to permit.”).
In other words, we employ “a history and tradition test.” Am.
Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2092 (2019)
(Kavanaugh, J., concurring); see also Freedom From Religion
Found., Inc. v. Cty. of Lehigh, No. 17-3581, 2019 WL
3720709, — F.3d — (3d Cir. Aug. 8, 2019) (noting “the
Supreme Court’s more recent focus on evaluating challenges
to government action in the context of historical practices and
understandings,” id. at *2, and explaining that “[a] practice’s
12
fit within our Nation’s public traditions may confirm its
constitutionality,” id. at *5).
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. Marsh, 463 U.S. at 790;
see also Town of Greece, 572 U.S. at 575 (“The First Congress
made it an early item of business to appoint and pay official
chaplains, and both the House and Senate have maintained the
office virtually uninterrupted since that time.”). 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.’” Lynch v
Donnelly, 465 U.S. 668, 675 n.2 (1984) (quoting A. Stokes &
L. Pfeffer, Church and State in the United States 87 (rev. 1st
ed. 1964)).
These insights — paired with the general use of history
as the decisional framework — paved the way to the holdings
in both Marsh and Town of Greece. The former upheld
Nebraska’s practice of offering legislative prayer by the same
paid Presbyterian minister for 16 years. “In light of the
unambiguous and unbroken history of more than 200 years,
there can be no doubt that the practice of opening legislative
sessions with prayer has become part of the fabric of our
society.” Marsh, 463 U.S. at 792. Likewise, Town of Greece
upheld sectarian (for example, invocations “in Jesus’ name”
for a given sect) as opposed to ecumenical (for example,
nonsectarian or nondenominational invocations to a “generic
God”) legislative prayer by guest chaplains. Town of Greece,
572 U.S. at 572–73. The Court refused to “sweep away” a
13
practice that “was accepted by the Framers and has withstood
the critical scrutiny of time and political change.” Id. at 577.
The D.C. Circuit recently deployed this historical
framework to answer the same question before us today. See
Barker v. Conroy, 921 F.3d 1118 (D.C. Cir. 2019) (Tatel, J.).
There it considered the U.S. House of Representatives’
practice of excluding nontheists from offering legislative
prayers. Following the path charted by Marsh and Town of
Greece, the Court defined its task as “determin[ing] whether
that practice falls within the tradition the Supreme Court has
recognized as consistent with the Establishment Clause.” Id.
at 1130. Put another way, “does the House’s decision to limit
the opening prayer to religious prayer fit ‘within the tradition
long followed in Congress and the state legislatures’?” Id.
(quoting Town of Greece, 572 U.S. at 577). The answer was
“yes.” Id.
Even more recently, the Supreme Court has expanded
its historical framework beyond the confines of legislative
prayer. In rejecting an Establishment Clause challenge to a
Christian cross commemorating World War I on state property,
the Court held that the memorial “must be viewed in [its]
historical context.” Am. Legion, 139 S. Ct. at 2074. It also
announced “a presumption of constitutionality for
longstanding monuments, symbols, and practices.” Id. at 2082.
Indeed, our Court just reiterated the “strong presumption of
constitutionality” for practices like the one before us. See
Freedom From Religion Found., 2019 WL 3720709, at *3
(quoting Am. Legion, 139 S. Ct. at 2085). That presumption
applies to the longstanding practice of theistic prayer in the
United States; since the first congressional prayers in 1789, the
U.S. House of Representatives “has never had an openly atheist
or agnostic guest chaplain.” Barker, 921 F.3d at 1122.
14
With this background on the historical framework —
and bearing in mind the thumb on the scale for the
constitutionality of longstanding practices like that of
Pennsylvania House, see Am. Legion, 139 S. Ct. at 2085 — we
turn to two reasons why Pennsylvania’s practice is historically
sound. First, only theistic prayer can satisfy all the traditional
purposes of legislative prayer. Second, the Supreme Court has
long taken as given that prayer presumes invoking a higher
power.
(ii) Purposes of Legislative Prayer — Legislative
prayer has historically served many purposes, both secular and
religious. Because only theistic prayer can achieve them all,
the historical tradition supports the House’s choice to restrict
prayer to theistic invocations.
To be sure, legislative prayer achieves several secular
purposes. It solemnizes the occasion by “lend[ing] gravity” to
the proceedings and placing legislators in a “deliberative frame
of mind.” Town of Greece, 572 U.S. at 587, 570. It provides
a moment of “quiet reflection” that “sets the mind to a higher
purpose.” Id. at 587. It unifies lawmakers by inviting them “to
reflect upon shared ideals and common ends before they
embark on the fractious business of governing.” Id. at 583.
And it stresses the values of justice, peace, and wisdom. Id.
No surprise, then, that even the D.C. Circuit in Barker
saw it was “at least plausible” that the word “prayer” could
“encompass[] a secular invocation.” 921 F.3d at 1125.
Channeling these secular purposes, at least seven state
legislative chambers (including the Pennsylvania Senate) have
begun to allow nontheistic invocations. See Br. of Amici
Curiae U.S. Reps. Jared Huffman & Jaime Raskin at 5–11.
But, as a matter of traditional practice, a petition to
human wisdom and the power of science does not capture the
15
full sense of “prayer,” historically understood. At bottom,
legislative prayers seek “divine guidance” in lawmaking.
Town of Greece, 572 U.S. at 570; Marsh, 463 U.S. at 792. See
generally Br. of Amici Curiae Pa. Members of Congress at 4–
15. They also allow the legislature to “acknowledge the place
religion holds in the lives of many private citizens.” Town of
Greece, 572 U.S. at 587; see also Am. Legion, 139 S. Ct. at
2089 (“The practice begun by the First Congress stands out as
. . . a recognition of the important role that religion plays in the
lives of many Americans. Where . . . practices with a
longstanding history follow in that tradition, they are likewise
constitutional.”). And they “connect [lawmakers] to a tradition
dating to the time of the Framers,” Town of Greece, 572 U.S.
at 588, one that has always included a higher power.
Finally, prayers “accommodate the spiritual needs of
lawmakers.” Id. Though this purpose is now accepted by the
Supreme Court, see id., one might wonder whether a religious
minister can accommodate the spiritual needs of a “secular
agnostic” member of the Pennsylvania House, see Fields II,
327 F. Supp. 3d at 763, or vice versa. Or, for that matter, can
a Catholic priest in the U.S. Senate accommodate the spiritual
needs of Chuck Schumer, or a Jewish rabbi those of Mitt
Romney? These questions are as old as the Republic, but they
have been settled since the Founding. In the Continental
Congress, John Jay and John Rutledge opposed legislative
prayer on the theory that the delegates were “so divided in
religious sentiments” that they “could not join in the same act
of worship.” Marsh, 463 U.S. at 791 (quotations omitted). The
two future Chief Justices could not see what an Episcopalian
minister could possibly offer a Presbyterian or
Congregationalist lawmaker. Their view lost out, however,
when Samuel Adams countered that “he was no bigot” and
would gladly “hear a prayer from a gentleman of piety and
virtue,” no matter his denomination. Id. at 792 (quotations
omitted); see also Am. Legion, 139 S. Ct. at 2088. Hence we
16
take as given that an invocation by a prayer-giver of one
theistic faith can accommodate the spiritual needs of listeners
of other theistic faiths.
In sum, the view that prayer “necessarily requires that a
‘higher power’ be invoked” may be “overly narrow” by current
standards. Williamson v. Brevard Cty., 276 F. Supp. 3d 1260,
1281 (M.D. Fla. 2017), aff’d in part on other grounds, 928 F.3d
1296 (11th Cir. 2019). But modern, evolving standards are not
our lodestar when evaluating a practice like this; instead, past
is prologue for our inquiry. And history tells us that only
theistic invocations can achieve all the purposes of legislative
prayer. Thus the historical tradition supports the House’s
choice to restrict its invocations to theistic prayer.
(iii) “Prayer” Presumes a Higher Power. — The
Supreme Court has long taken as given that prayer presumes a
higher power. To begin, the Court in Marsh described
legislative prayer as “invok[ing] Divine guidance on a public
body entrusted with making the laws,” 463 U.S. at 792, and
quoted with approval Justice Douglas’s statement that “we are
a religious people whose institutions presuppose a Supreme
Being,” id. (quoting Zorach v. Clauson, 343 U.S. 306, 313
(1952)). Even the dissent in Marsh stressed that “prayer is
fundamentally and necessarily religious,” and distinguished it
from a nontheistic “moral sense” or “aesthetic feeling.” Id. at
810 (Brennan, J., dissenting) (quotations omitted).
The assumption that prayer must be theistic apparently
persuaded then-Judge Ruth Bader Ginsburg that Congress’s
practice of excluding nontheists from offering opening prayers
did not violate the Establishment Clause. See Kurtz v. Baker,
829 F.2d 1133, 1147 (D.C. Cir. 1987) (R.B. Ginsburg, J.,
dissenting). Although the challenge was dismissed on standing
grounds, she wrote separately that she would have upheld
Congress’s policy on the merits. “The common feature” of
17
legislative prayer was “the invocation of ‘Divine guidance.’”
Id. (quoting Marsh, 463 U.S. at 792). Thus we believe later-
Justice Ginsburg would have rejected the challenger’s “claim
of a constitutional right not to be excluded, because he is a
nontheist, from the opportunity” to offer a prayer. Id. at 1146.
More recently, the notion that prayer is definitionally
theistic suffuses the opinions in Town of Greece. The majority
opinion described prayer as a chance to “show respect for the
divine,” 572 U.S. at 584, and to “address [one’s] own God or
gods,” id. at 582. Prayer is an “acknowledgment[] of the
divine,” id. at 587, or of “belief in a higher power,” id. at 591.
It is a “reference to the sacred,” id. at 581, or, more simply, it
is “religious worship,” id. at 588 (quotations omitted). Even
the dissent cast legislative prayers as “[c]eremonial references
to the divine,” id. at 635 (Kagan, J., dissenting), and,
pejoratively, as “government-sponsored worship,” id. at 628.
Urging nonsectarian prayer, it asserted that an ecumenical
message would still “unite[]” listeners with “a respect paid
higher providence.” Id. at 632 (quoting Joyner v. Forsyth
Cty., 653 F.3d 341, 347 (4th Cir. 2011)).
Just as Marsh persuaded then-Judge Ginsburg that
Congress’s policy excluding nontheistic prayers was
permissible, Marsh and Town of Greece together convinced the
D.C. Circuit to hold that the policy did not violate the
Establishment Clause. See Barker, 921 F.3d at 1121. It
explained that Marsh “took as a given the religious nature of
legislative prayer,” and quoted that “we are a religious people
whose institutions presuppose a Supreme Being.” Id. at 1130
(quoting Marsh, 463 U.S. at 792). Turning to Town of Greece,
the Court saw the same assumption that prayer requires a deity,
stressing Town of Greece’s statement that “legislative
prayer, while religious in nature, has long been understood as
compatible with the Establishment Clause.” Id. at 1131
(quoting Town of Greece, 572 U.S. at 575) (emphasis added by
18
Barker). Since Barker, the Supreme Court has underscored the
point yet again: “prayer is by definition religious.” Am.
Legion, 139 S. Ct. at 2087.
Recognizing that prayer has traditionally presumed a
higher power does not amount to “instituting a religious
orthodoxy.” Dissenting Op. at 10. Our dissenting colleague
thinks otherwise; in his view, accepting that prayer has (until
very recently) been an entreaty to a divine being is tantamount
to “the government actively lend[ing] its power and prestige to
the religious theory that a ‘higher power’ or God indeed
exists.” Id. at 10. But if that were so, then we would have to
rethink settled law upholding, for example, the motto “In God
We Trust” on our coinage. See, e.g., New Doe Child #1, 901
F.3d at 1019 (8th Cir. 2018); Mayle v. United States, 891 F.3d
680, 684–86 (7th Cir. 2018); Newdow v. Peterson, 753 F.3d
105, 108 (2d Cir. 2014) (per curiam); Newdow v. Lefevre, 598
F.3d 638, 645 (9th Cir. 2010); Gaylor v. United States, 74 F.3d
214, 217–18 (10th Cir. 1996); O’Hair v. Murray, 588 F.2d
1144, 1144 (5th Cir. 1979) (per curiam). We would also need
to scrub the phrase “under God” from the Pledge of Allegiance
— again upending established precedent. See, e.g., Freedom
From Religion Found. v. Hanover Sch. Dist., 626 F.3d 1, 6 n.13
(1st Cir. 2010); Croft v. Perry, 624 F.3d 157, 166 (5th Cir.
2010); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007,
1037 (9th Cir. 2010); Myers v. Loudoun Cty. Pub. Sch., 418
F.3d 395, 408 (4th Cir. 2005); Sherman v. Cmty. Consol. Sch.
Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992); see also Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 18 (2004)
(Rehnquist, C.J., concurring in the judgment). 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. Because this notion
flows from the historical understanding and practice of
legislative prayer, it lends further support to the policy of the
Pennsylvania House.
19
Nor is our observation about traditional prayer
“tantamount to a holding that legislative prayer must be theistic
in nature.” Dissenting Op. at 8 n.4 (emphasis in text). A
legislative body is free to open its sessions with secular
invocations. We hold only that it is not required to do so.
(iv) Effect of Challengers’ Status as “Religions” —
The nontheistic organizations that brought this challenge may
be “religions” for First Amendment purposes. See Torcaso v.
Watkins, 367 U.S. 488, 495 n.11 (1961). Indeed, the Supreme
Court “has moved considerably beyond the wholly theistic
interpretation” of the term “religion.” Africa v.
Commonwealth of Pennsylvania, 662 F.2d 1025, 1031 (3d Cir.
1981). Its understanding of “religion” now “includes
nontheistic and atheistic beliefs, as well as theistic ones.”
Kaufman v. McCaughtry, 419 F.3d 678, 682 (7th Cir. 2005);
accord Dissenting Op. at 1.
Still, the policy of the Pennsylvania House does not
transgress the rule against favoring “one religion over another,
or religion over irreligion.” McCreary Cty. v. ACLU of Ky.,
545 U.S. 844, 875 (2005). That is because “whether atheism
is a ‘religion’ for First Amendment purposes is a . . . different
question than whether its adherents believe in a supreme
being.” Kaufman, 419 F.3d at 681. 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. Cf. Williamson, 928 F.3d 1296 (concluding that policy
of chaplain selection barring prayers from nontheistic Secular
Humanists, as well as from Rastafarians, Deists, Wiccans, and
Hindus, id. at 1313–14, was unconstitutional discrimination
“on the basis of religion,” id. at 1316, but only as against the
20
theistic religions, id. at 1311, while refusing to decide “whether
atheists and secular humanists must be allowed to deliver non-
theistic invocations,” id. at 1299, even as the Court recognized
that atheistic beliefs constitute a “religion” for Establishment
Clause purposes, id. at 1300). And because history guides our
inquiry in matters of legislative prayer, the Pennsylvania
House may insist on traditional, theistic prayers.
In doing so, the House does not “impermissibly direct[]
or control[] the content of the prayers delivered by guest
chaplains.” Dissenting Op. at 13. To the contrary, no House
member reviews a guest chaplain’s prayer ahead of time.
Chaplains are simply instructed to be “respectful of all
religious beliefs,” Fields I, 251 F. Supp. 3d at 777, and are
encouraged to “deliver an inter-faith prayer,” Fields II, 327 F.
Supp. 3d at 751.
2. Further Exclusions are Impermissible.
Our decision today does not open the door to more
extreme exclusions. Neutrality principles emanating from
Marsh and Town of Greece hold the historical framework in
check and prevent grandfathering antiquated discrimination
into the present day.
Taken too far, importing historical legislative-prayer
practices would justify excluding all sorts of theists. For
instance, Justice Scalia maintained that, in matters of “public
acknowledgment of religious belief,” the nation’s “historical
practices” demonstrate that the government could exclude not
only “devout atheists” but also “polytheists” (those who
believe in multiple gods). McCreary Cty., 545 U.S. at 893(Scalia, J., dissenting). In the same vein, the Fourth Circuit has
approved the exclusion of polytheist guest chaplains from
legislative prayer. Simpson v. Chesterfield Cty. Bd. of
Supervisors, 404 F.3d 276, 286 (4th Cir. 2005) (Wilkinson, J.).
21
There a county opened its board meetings with prayers from
the leaders of “monotheistic congregations” but denied a
Wiccan witch the chance to offer a prayer. Id. at 284. The
Court noted the more restrictive practice approved in Marsh —
one permanent Presbyterian minister for 16 years. Compared
to that baseline, it reasoned, the county’s monotheists-only rule
was “an indisputably broad and inclusive legislative invocation
practice.” Id. at 285 n.4. “[T]he practice here is in many ways
more inclusive than that approved by the Marsh Court.” Id. at
285. As a result, even after a lawmaking body opens its door
to guest chaplains, it may still opt not “to go beyond the
monotheistic tradition.” Id. at 286. But see Williamson, 928
F.3d at 1315 (striking down county policy of chaplain selection
that “categorically exclude[d] certain faiths — some
monotheistic and apparently all polytheistic ones — based on
their belief systems”).
The Pennsylvania House pushes this exclusionary logic
to the extreme, claiming that a prayer practice is permissible
unless it allows chaplains from only a single sect. The House
emphasizes “legislatures’ long history of turning away all but
a few faiths,” and urges that “[h]istory confirms the
constitutionality of prayer practices far more exclusive” than
the theists-only rule here. Opening Br. of Appellants/Cross-
Appellees at 40. So long as two sects are represented — even
to the exclusion of all others — the House argues that the
prayer practice is constitutional. After all, by approving the
sole use of a chaplain from a single sect for 16 years, Marsh
was even more exclusive. Cf. Ctr. for Inquiry, Inc. v. Marion
Circuit Court Clerk, 758 F.3d 869, 874 (7th Cir. 2014)
(Easterbrook, J.) (dictum) (“Marsh and Greece show that a
government may, consistent with the First Amendment, open
legislative sessions with Christian prayers while not inviting
leaders of other religions.”).
22
What the House sees as the outer bound of its
constitutional authority, its opponents abhor as the bottom of a
slippery slope greased by our decision today. Given the specter
of the House’s proposed two-sect rule, amici on the side of the
nontheists warn that their exclusion could justify barring the
legislative pulpit to other religious minorities as well. See Br.
of Amici Curiae Anti-Defamation League et al. at 6. If the
House may rely on historical practice to exclude nontheists,
may it also do so to prohibit prayers by Hindus, Jews, and
Quakers?
Plainly not. To begin, our decision today rests on only
two pillars: (1) the purpose of legislative prayer is to invoke
divine guidance, and (2) “prayer” presupposes a higher power.
Neither supports excluding any group of theists. And contrary
to our dissenting colleague’s assertion, our reasoning today
could not be twisted to exclude Buddhists — an outcome we
agree would be “unconscionable.” Dissenting Op. at 7; see,
e.g., Alex Rogers, Dalai Lama Gives Prayer on Senate Floor,
Time (Mar. 6, 2014), https://time.com/14056/dalai-lama-
senate-prayer/ (recounting that the Dalai Lama opened his
invocation before the U.S. Senate in 2014 with the exhortation
to “pray to Buddha and all other gods”).
Next, the two-sect rule is unworkable. At what level of
generality are we to define a sect? Is “Christianity” a sect?
Compare Lund v. Rowan Cty., 863 F.3d 268, 280 (4th Cir.
2017) (en banc) (disapproving of government’s alignment with
the “particular faith” of Christianity), with Am. Legion, 139 S.
Ct. at 2096 (Thomas, J., concurring in the judgment)
(“Christianity is not a ‘sect.’”), and id. at 2107 n.7 (Ginsburg,
J., dissenting) (“Christianity comprises numerous
denominations.”). If not, does Protestantism comprise one sect
or many? Is the Anglican Communion a single sect despite
theological divisions among its churches?
23
More fundamentally, the two-sect rule is inconsistent
with nondiscrimination principles in Marsh and Town of
Greece. Per Marsh, the “prayer opportunity” may not be
“exploited to proselytize or advance any one, or to disparage
any other, faith or belief.” Marsh, 463 U.S. at 794–95; see also
Am. Legion, 139 S. Ct. at 2088 (noting the First Congress saw
that “legislative prayer needed to be inclusive rather than
divisive”).
As to the selection of the prayer-giver, Marsh instructed
that a chaplain’s appointment could not “stem[] from an
impermissible motive.” 463 U.S. at 793. The Eleventh Circuit
has read Marsh’s “impermissible motive” standard to
“prohibit[] purposeful discrimination.” Pelphrey v. Cobb Cty.,
547 F.3d 1263, 1281 (11th Cir. 2008). The Court concluded
this rule had been violated when the phone book used by a
county in Georgia to invite guest chaplains contained “a long
and continuous line through certain categories of faiths,”
including Muslims and Latter-day Saints. Id. at 1282. “The
categorical exclusion of certain faiths based on their beliefs,”
it explained, “is unconstitutional.” Id. This statement is
enough to foreclose the House’s two-sect rule.
But, as we have explained, 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. The Eleventh Circuit itself sees discrimination against
theists as unlike discrimination against nontheists. The Court
recently drew on its rule that legislators “may not categorically
exclude from consideration speakers from a religion simply
because they do not like the nature of its beliefs,” Williamson,
928 F.3d at 1299, to strike down a county’s invocation policy
of “favoring some monotheistic religions over others and
disfavoring and excluding — at least — religions that are
polytheistic, pantheistic [belief that the entire universe and God
are one — “God is everything and everything is God,” Africa,
24
662 F.2d at 1033 n.16 (quotation omitted)], or otherwise
outside of the ‘mainstream,’” Williamson, 928 F.3d at 1311.
But it stopped short of applying the same rule to the categorical
exclusion of prayers by nontheists, refusing to decide “whether
the [c]ounty is obliged to allow . . . atheists and Secular
Humanists . . . the opportunity to deliver an invocation at the
start of one of its board meetings.” Id. at 1316.
Turning to the opinion in Town of Greece, three features
relating to nondiscrimination stand out. First, it noted that an
1853 study by Congress of its own prayer practice found that
“no faith was excluded by law, nor any favored.” Town of
Greece, 572 U.S. at 576; see Am. Legion, 139 S. Ct. at 2089(“The practice begun by the First Congress stands out as . . . an
honest endeavor to achieve inclusivity and
nondiscrimination . . . .”). Such a finding is inconsistent with
the House’s proposed two-sect rule. As to nontheists,
however, we doubt whether the Congress of 1853 understood
atheism as a “faith,” given that its study was from an era that
still defined “religion” as “one’s views of his relations to his
Creator.” Cf. Davis v. Beason, 133 U.S. 333, 342 (1890).
Second, as for the specific prayer practice at issue in
Town of Greece, the Court stressed that the town’s selection of
guest chaplains was admirably inclusive. “The town at no
point excluded or denied an opportunity to a would-be prayer
giver.” Town of Greece, 572 U.S. at 571. “[A] minister or
layperson of any persuasion, including an atheist, could give
the invocation.” Id. Even the D.C. Circuit, in upholding
Congress’s theists-only rule, marveled that the practice in
Town of Greece was “significantly more inclusive than the one
in Marsh.” Barker, 921 F.3d at 1131.
The en banc Fourth Circuit contrasted the inclusivity in
Town of Greece with the comparatively “rigid, restrictive
practice” of a North Carolina county in which only the county
25
commissioners (all Christians) were permitted to offer the
prayer. See Lund, 863 F.3d at 282. “By opening its prayer
opportunity to all comers, the [T]own [of Greece] cultivated an
atmosphere of greater tolerance and inclusion.” Id. The Fourth
Circuit struck down the county’s practice as falling short of the
“flexible, inclusive approach” upheld in Town of Greece. Id.
By allowing guest chaplains of any theistic tradition, the
Pennsylvania House is more inclusive than the county in Lund;
by excluding nontheists, the House is less inclusive than the
town in Town of Greece, at least as a facial matter, but
permissibly so.
Third, Town of Greece held that a guest chaplain policy
resulting in prayers of predominantly one religion is
permissible so long as the selection process is not
discriminatory:
That nearly all of the congregations in
town turned out to be Christian does not
reflect an aversion or bias on the part of
town leaders against minority faiths. So
long as the town maintains a policy of
nondiscrimination, the Constitution does
not require it to search beyond its borders
for non-Christian prayer givers in an
effort to achieve religious balancing.
Town of Greece, 572 U.S. at 585–86 (emphasis added). Justice
Alito’s concurrence reinforced these nondiscrimination
principles. The town’s failure to invite the rabbis of certain
Jewish synagogues “was at worst careless, and it was not done
with a discriminatory intent.” Id. at 597 (Alito, J., concurring).
“I would view this case very differently if the omission of these
synagogues were intentional.” Id. Likewise, the Sixth Circuit
has taken the “policy of nondiscrimination” language in Town
of Greece to mean that a policy of prayer-giver selection must
26
be “facially neutral.” Bormuth v. Cty. of Jackson, 870 F.3d
494, 514 (6th Cir. 2017) (en banc).
There appears to be a dispute brewing over whether a
“policy of nondiscrimination” is needed to render a prayer
practice constitutional. For Justice Kagan, “neutrality” is a
“constitutional requirement” that calls for “pluralism and
inclusion.” Town of Greece, 572 U.S. at 616 (Kagan, J.,
dissenting); see also Am. Legion, 139 S. Ct. at 2094 (Kagan, J.,
concurring) (stressing “the values of neutrality and inclusion
that the First Amendment demands”). For Justice Kavanaugh,
by contrast, equal treatment is only one way to salvage a
challenged practice; even a non-neutral practice passes muster
if it is “not coercive” and is “rooted in history and tradition.”
Id. at 2093 (Kavanaugh, J., concurring).
We need not resolve that issue. The D.C. Circuit in
Barker sidestepped the nondiscrimination requirement as
applied to nontheists. “[A]lthough the [Supreme] Court has
warned against discriminating among religions,” the Circuit
Court reasoned, “it has never suggested that legislatures must
allow secular as well as religious prayer.” Barker, 921 F.3d at
1131. We share that view.
3. Further Inclusion is Not Needed.
Before moving on from the Establishment Clause claim,
we explain why a supercharged nondiscrimination rule does
not apply to legislative prayer. To begin, “there is no single
formula for resolving Establishment Clause challenges.” Am.
Legion, 139 S. Ct. at 2090 (Breyer, J., concurring). Instead,
legislative prayer “fits into a special nook — a narrow space
tightly sealed off from otherwise applicable [F]irst
[A]mendment doctrine.” Kurtz, 829 F.2d at 1147 (R.B.
Ginsburg, J., dissenting). And on this doctrinal island,
27
principles of neutrality must not be so onerous that they signal
the end of legislative prayer altogether.
Taken too far, a nondiscrimination rule in legislative
prayer provides a heckler’s veto to voices on the fringe. If, in
the name of nondiscrimination, the House must abide prayers
from nontheists, Satanists, and groups that deride religion, it
will stop accepting guest chaplains altogether. This will result
in less diversity of religious expression — a “particularly
perverse result.” Simpson, 404 F.3d at 287 (upholding
exclusion of Wiccan from prayer practice to avoid “push[ing]
localities intent on avoiding litigation to select only one
minister from only one faith”); cf. Freedom from Religion
Found., Inc. v. City of Warren, 707 F.3d 686, 694 (6th Cir.
2013) (noting, in the context of religious holiday displays, that
“requiring governments to add all comers to the mix” would
create a “poison pill”). In matters of promoting religious
diversity, the perfect should not be the enemy of the good.
A nondiscrimination rule that regulates guest-chaplain
programs out of existence would also be a step backward as a
constitutional matter. Under a permanent-chaplain model, in
which “the governmental body hires a faith leader (necessarily
of one faith) to say the prayers,” the risk of an impermissible
endorsement of religion “grows, rather than diminishes.”
Bormuth, 870 F.3d at 523 (Sutton, J., concurring). By contrast,
the use of guest chaplains weighs in favor of constitutionality
because it promotes diversity of religious expression. See
Town of Greece, 572 U.S. at 632 (Kagan, J., dissenting)
(urging legislatures to invite “clergy of many faiths to serve as
chaplains” so that “the government does not identify itself with
one religion”). Congress’s adoption of a guest-chaplain
program in the mid-1800s allowed it to hear an opening prayer
from a Jewish rabbi as early as 1860 and, eventually, prayers
from Muslims, Hindus, and Buddhists. Am. Legion, 139 S. Ct.
at 2088.
28
Finally, a nondiscrimination rule that parks guest-
chaplain programs would contrast incongruously with
permissive rules for permanent chaplains. In the world of
permanent chaplains, a legislature may leave one paid chaplain
from a single denomination in place for decades. See Marsh,
463 U.S. at 793. For guest chaplains, however, a stringent rule
against exclusions would mean a legislature would have to
accept all comers. Cf. Dissenting Op. at 15. This asymmetry
makes little sense.
B. Guest Chaplain Policy – Free Speech Challenge
The nontheists argue that the House has violated their
free-speech rights by allowing only theistic prayers. Because
legislative prayer is government speech, we affirm the District
Court’s dismissal of that claim.
1. Legislative Prayer Is Government Speech.
Like the District Court, we conclude that legislative
prayer is government speech. (This conclusion bears not only
on the free-speech claim, but also on the free-exercise and
equal-protection claims.) The Supreme Court has identified
several factors relevant for distinguishing government speech
from private speech, including a reasonable observer’s
perception of the speaker and the government’s control over
the message. See, e.g., Walker v. Texas Div., Sons of
Confederate Veterans, Inc., 135 S. Ct. 2239, 2248–50 (2015).
The prayer here falls on the government side of the line.
To begin, legislative prayer is expression by a
government. It is “symbolic expression,” Town of Greece, 572
U.S. at 575, that allows lawmakers to convey their own
message by “show[ing] who and what they are,” id. at 588. A
legislative prayer, even one offered by a guest chaplain, is a
“chance to pray on behalf of the government.” Turner v. City
29
Council of Fredericksburg, 534 F.3d 352, 356 (4th Cir. 2008)
(O’Connor, J.) (emphasis added). The government may
control “what is or is not expressed” in order to “convey its
own message.” Simpson, 404 F.3d at 288 (quotations omitted).
The prayer is “what a chosen agent of the government says as
part of the government’s own operations.” Ctr. for Inquiry,
758 F.3d at 874. At bottom, the government is the speaker.
The government is the listener as well. “The principal
audience for these invocations is not, indeed, the public but
lawmakers themselves.” Town of Greece, 572 U.S. at 587.
Unlike prayer in schools, in the legislative setting “government
officials invoke spiritual inspiration entirely for their own
benefit.” Lee v. Weisman, 505 U.S. 577, 630 n.8 (1992)
(Souter, J., concurring); see also Freedom From Religion
Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ.,
896 F.3d 1132, 1142 (9th Cir. 2018) (explaining that legislative
prayer is “directed at lawmakers themselves”). This is so even
though the prayer here is given by a member of the public who
faces the public — the same conditions that existed in Town of
Greece. “[T]he government speech doctrine may apply even
when the government uses other parties to express its
message.” Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 330 (1st
Cir. 2009). As a largely internal matter — by lawmakers and
primarily for lawmakers — legislative prayer receives double
deference.
Legislative prayer is government speech even though
some limits exist on what the government may say. Legislative
prayers may not “proselytize” or “denigrate” any faith, see
Town of Greece, 572 U.S. at 585; Marsh, 463 U.S. at 794–95,
and the government may not “mandate a civic religion” by
requiring that guest chaplains offer only nonsectarian prayer,
Town of Greece, 572 U.S. at 581. But these restrictions all
flow from the Establishment Clause. Because “government
speech must comport with the Establishment Clause” anyway,
30
Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009),
any Establishment Clause–based limits do not change the
conclusion that legislative prayer is government speech.
Supporting this conclusion is a recent three-Justice
dissent from a denial of certiorari that cited Marsh as an
example of “government-sponsored prayer” in which “the
government itself is engaging in religious speech.” See Morris
Cty. Bd. of Chosen Freeholders v. Freedom From Religion
Found., 139 S. Ct. 909, 910–11 (2019) (Kavanaugh, J., joined
by Justices Alito and Gorsuch, dissenting from denial of
certiorari). And, as explained above, the Seventh and Fourth
Circuits agree. See Ctr. for Inquiry, 758 F.3d at 874; Simpson,
404 F.3d at 288.
Evidently, only one Court disagrees. The District Court
in Williamson was “not persuaded that legislative prayer
claims are necessarily subject to analysis under only the
Establishment Clause.” Williamson, 276 F. Supp. 3d at 1294.
Instead, it explained that the availability of a potential cause of
action “depends on the circumstances of each case and the
nature of the claim being asserted.” Id. On appeal, however,
the Eleventh Circuit refused to adopt this case-by-case
approach. See Williamson, 928 F.3d at 1316 (“The trial court’s
injunction goes too far and says too much.”). We follow suit
and join the Seventh and Fourth Circuits, as well as at least
three Supreme Court Justices, in holding that legislative prayer
is government speech.
2. The Free Speech Clause Does Not Regulate
Government Speech.
Because legislative prayer is government speech, the
analysis is straightforward. “[T]he Free Speech Clause does
not regulate government speech.” Matal v. Tam, 137 S. Ct.
1744, 1757 (2017) (quoting Summum, 555 U.S. at 467). The
31
nontheists’ claim thus fails. See Simpson, 404 F.3d at 287–88
(same); see also Kurtz, 829 F.2d at 1147 (R.B. Ginsburg, J.,
dissenting) (predicting that the Supreme Court would reject a
free-speech challenge to Congress’s theists-only chaplain
policy and dismissing challenger’s argument to the contrary as
exhibiting “little realism and large indulgence in wishful
thinking”). As a result, we affirm the District Court on this
issue.
C. Guest Chaplain Policy – Free Exercise Challenge
The nontheists also challenge the guest chaplain policy
on free-exercise grounds. Because legislative prayer is
government speech, the Free Exercise Clause does not apply,
and the nontheists’ free-exercise claim fails. See Simpson, 404
F.3d at 287–88 (same). Judge Niemeyer concurred in Simpson
to stress this point: “when members of a governmental body
participate in a prayer for themselves and do not impose it on
or prescribe it for the people, the religious liberties secured to
the people by the First Amendment are not directly
implicated.” Id. at 289 (Niemeyer, J., concurring). In a
subsequent Fourth Circuit case, retired Justice O’Connor
(sitting by designation) made a similar point: although the
challenger refused to offer a legislative prayer “in the manner
that the government had proscribed,” he remained “free to pray
on his own behalf, in nongovernmental endeavors, in the
manner dictated by his conscience.” Turner, 534 F.3d at 356.
Because the free-exercise challenge fails, we affirm the District
Court as well.
D. Guest Chaplain Policy – Equal Protection Challenge
The nontheists argue that the House’s theists-only guest
chaplain policy violates their equal-protection rights. But
private citizens “have no personal interest in government
speech on which to base an equal protection claim.” Johnson
32
v. Poway Unified Sch. Dist., 658 F.3d 954, 970 (9th Cir. 2011)
(citing Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1017
(9th Cir. 2000)). “It is the very business of government to favor
and disfavor points of view.” Id. at 975 (quoting Nat’l
Endowment for Arts v. Finley, 524 U.S. 569, 598 (1998)
(Scalia, J., concurring)). For this reason, the Fourth Circuit has
rejected an equal-protection challenge to legislative prayer.
See Simpson, 404 F.3d at 287–88. The Sixth Circuit has done
the same in the context of a city’s choice to accept some, and
reject other, holiday displays on city property. See Freedom
from Religion Found., 707 F.3d at 698 (“To the extent the
Foundation means to claim that the City’s government speech
commemorating the holiday disparately treats its preferred
message, the answer is: welcome to the crowd.”). The Court
drew on this precedent to rebuff an equal-protection challenge
to the motto “In God We Trust” on U.S. coinage brought by
atheists claiming the government’s speech “disparately
treat[ed]” their views. New Doe Child #1 v. Cong. of United
States, 891 F.3d 578, 594 (6th Cir. 2018).
Likewise, the Fifth Circuit concluded that a private
plaintiff lacked standing to bring an equal-protection challenge
to the Confederate flag’s presence in the Mississippi state flag,
explaining that “exposure to a discriminatory message, without
a corresponding denial of equal treatment, is insufficient to
plead injury in an equal protection case.” Moore v. Bryant, 853
F.3d 245, 250 (5th Cir. 2017). To be sure, the Court explained,
“discriminatory government speech would certainly be useful
in proving a discriminatory treatment claim, because it loudly
speaks to discriminatory purpose.” Id. at 251 n.4. On its own,
however, disparate messaging is not enough to make out an
equal-protection violation. “[T]he gravamen of an equal
protection claim is differential governmental treatment, not
differential governmental messaging.” Id. at 250.
33
We acknowledge that the First and D.C. Circuits have
suggested (without deciding and without explanation) that the
Equal Protection Clause might apply to government speech.
See Sutliffe, 584 F.3d at 331 n.9 (noting that the Equal
Protection Clause “may be . . . another restraint on government
speech”); People for the Ethical Treatment of Animals, Inc. v.
Gittens, 414 F.3d 23, 28 (D.C. Cir. 2005) (noting that the Equal
Protection Clause “might . . . limit the government as speaker,”
but observing that “[t]he curator of a state-owned museum, for
example, may decide to display only busts of Union Army
generals of the Civil War, or the curator may decide to exhibit
only busts of Confederate generals.”). And in a concurrence in
Summum, Justice Stevens stated that “government speakers are
bound by” both “the Establishment and Equal Protection
Clauses.” Summum, 555 U.S. at 482 (Stevens, J., concurring).
Even so, we join the authority holding that the Equal Protection
Clause does not apply to government speech. As a result, we
affirm the District Court’s rejection of this claim.4
E. Coercion Claim
The nontheists have not appealed the District Court’s
ruling that the House’s current practice of asking visitors to
“please rise as able” is not coercive. As a result, we review
only the pre-2017 practice, which had two features. First, the
4
Although she didn’t couch her conclusion as a matter of
government speech, then-Judge Ginsburg also stated that a
nontheist’s equal-protection challenge to Congress’s theists-
only prayer policy should fail. Because “the historic practice
of an opening prayer burdens no ‘fundamental right’ of non-
theists,” the challenger could not “salvage his failed first
amendment claim by cloaking it in a fifth amendment due
process (equal protection component) mantle.” Kurtz, 829
F.2d at 1147 n.3 (R.B. Ginsburg, J., dissenting).
34
sign outside the House chamber read, “[a]ll guests who are
physically able are requested to stand during [the prayer],” and
the Speaker introduced the prayer by requesting that
“[m]embers and all guests, please rise.” Second, in the 2012
incident, a House security guard singled out Fields and
Rhoades and pressured them to stand.
To begin, we assess whether the challenge to either
feature is moot. The House has voluntarily ceased both aspects
of its pre-2017 practice. It has amended the sign and Speaker
statement to their current (undisputed) form, and it has
instructed its security guards not to single out visitors who
remain seated during the prayer.
Voluntary cessation of challenged activity will moot a
case only if it is “absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.” Parents
Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
719 (2007) (quoting Friends of Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)); see also United
States v. Gov’t of Virgin Islands, 363 F.3d 276, 285 (3d Cir.
2004). The party urging mootness bears the “heavy burden” of
showing that it will not “revert to” its prior policy. Trinity
Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012,
2019 n.1 (2017) (quoting Friends of the Earth, 528 U.S. at
189).
Here, the House continues to defend the
constitutionality of the pre-2017 sign and Speaker statement
despite its counsel’s statements at oral argument that it would
not reinstate them. As a result, it is not “absolutely clear” that
the House would not revert to its pre-2017 policy in the future.
In fact, it only changed the sign and statement in response to
this litigation, which weighs against mootness. See Marcavage
v. Nat’l Park Serv., 666 F.3d 856, 861 (3d Cir. 2012). And the
nontheists seek not only an injunction, but also a declaratory
35
judgment about the pre-2017 practice. In this context, the sign-
and-statement feature of the coercion claim is not moot.
But the 2012 incident of pressure from a security guard
is moot. The House has disavowed the security guard’s actions
in this one-off incident. See Second Br. of Appellants/Cross-
Appellees at 48 n.31 (“The House has not argued, and would
not argue, that visitors should be publicly confronted for
refusing to stand.”). Its choice not to defend the security
guard’s actions weighs in favor of mootness. Cf. Marcavage,
666 F.3d at 861 (finding mootness when the Park Service did
not challenge an adverse injunction on appeal and had stopped
enforcing its enjoined rule). Its decision not to defend on this
practice is wise, given that the security guard’s behavior almost
certainly crossed the constitutional line. See Town of Greece,
572 U.S. at 588 (suggesting that coercion occurs when a
lawmaker “direct[s] the public to participate in the prayers” or
“single[s] out dissidents for opprobrium”).
Turning from mootness to the merits of the coercion
claim, both sides agree that Justice Kennedy’s plurality opinion
in Town of Greece controls on the question of coercion in
legislative prayer. See, e.g., Br. of Appellees/Cross-Appellants
at 66 n.10; see also Lund, 863 F.3d at 286 (looking to plurality
opinion for rule on coercion). Aside from holding that
legislative prayer could be sectarian, the Court in Town of
Greece rejected the challenger’s claim that the prayer practice
was unconstitutionally coercive. See 572 U.S. at 591. Writing
for himself, Chief Justice Roberts, and Justice Alito, Justice
Kennedy stated that “government may not coerce its citizens
to support or participate in any religion or its exercise.” Id. at
586 (quotations omitted). The coercion inquiry “remains a
fact-sensitive one that considers both the setting in which the
prayer arises and the audience to whom it is directed.” Id. at
587. (Justice Thomas, joined by Justice Scalia, would have
gone further to hold that a prayer practice is not coercive unless
36
religious orthodoxy is enforced by “force of law and threat of
penalty.” Id. at 608 (Thomas, J., concurring) (quotations
omitted).)
Applying this “fact-sensitive” test to the House practice
here, we hold that the pre-2017 sign and Speaker statement
were not coercive. To begin, the sign and statement were
merely requests to rise, which on their own are permissible.
See Bormuth, 870 F.3d at 517 (concluding that asking “adult
members of the public” to “ris[e] and remain[] quiet in a
reverent position” was not coercive). “[L]egislative prayer
does not force religious practice on an audience.” Mayle, 891
F.3d at 685. The challengers here are adults, “presumably not
readily susceptible to religious indoctrination or peer
pressure.” Marsh, 463 U.S. at 792 (quotations omitted). Nor
is this situation analogous to a request to stand in a school
setting. See Lee, 505 U.S. at 596–97 (Kennedy, J.) (school-
prayer coercion case explicitly distinguishing Marsh); Town of
Greece, 572 U.S. at 590 (explicitly distinguishing Lee).
Next, the setting here is even less conducive to coercion
than it was in Town of Greece. Unlike the intimate meeting
room there, the Pennsylvania House chamber accommodates
over 200 members and nearly 100 visitors in the gallery. A
small townhall is more coercive than a large legislative
chamber. See, e.g., Town of Greece, 572 U.S. at 625–27
(Kagan, J., dissenting). Unlike Pennsylvania House members,
county commissioners and town councilors have more direct
control over their constituents’ daily lives and typically hear
citizen petitions immediately after the prayer. See Lund, 863
F.3d at 287–88.
That Fields and Rhoades felt offended by the prayers
does not aid their claim of coercion. “[L]egislative bodies do
not engage in impermissible coercion merely by exposing
37
constituents to prayer they would rather not hear and in which
they need not participate.” Town of Greece, 572 U.S. at 590.
To be sure, one aspect of the House practice weighing
in favor of coercion is the identity of the person asking visitors
to rise: the Speaker of the House. This makes the situation
more coercive than one in which a guest chaplain makes the
request, and it separates our case from Town of Greece. See id.
at 588. The Fourth Circuit in Lund distinguished Town of
Greece in the same way to strike down a practice in which
county commissioners asked attendees to rise and led them in
prayer. See Lund, 863 F.3d at 272. When the words “[l]et us
pray” come from “elected representatives acting in their
official capacity,” the Court concluded, “they become a request
on behalf of the state.” Id. at 287.
Even so, two factors cut against the importance of the
Speaker’s role in the request to rise. His request is typically
followed by a prayer from a guest chaplain (not from another
lawmaker, as in Lund). And the Speaker still asks visitors to
rise today, yet the nontheists have abandoned their challenge
to the current policy.
In sum, the pre-2017 sign and Speaker statement were
not coercive.
Conclusion
We affirm in part and reverse in part. The House’s
policy preferring theistic over nontheistic prayers does not
violate the Establishment Clause because it fits squarely within
the historical tradition of legislative prayer. Next, legislative
prayer is government speech, so the policy is not susceptible to
an attack on free-speech, free-exercise, or equal-protection
grounds. Finally, the sole incident of pressure from a security
38
guard is moot, and the general practice pre-2017 of asking the
visitors’ gallery to rise for the opening prayer was not coercive.
39
RESTREPO, Circuit Judge, concurring in part and dissenting
in part.
I join the majority opinion only with respect to the
majority’s analysis of the Pennsylvania House’s pre-2017
policy of requesting that members of the public “please rise”
during opening prayers, in which the majority holds that all
aspects of the policy are either constitutionally permissible or
moot. I respectfully dissent from the remainder of the majority
opinion because, in my view, the Pennsylvania House’s
process of selecting guest chaplains violates the Establishment
Clause of the First Amendment.1
As the Supreme Court has recognized, Plaintiffs are
members of “religions” for purposes of the First Amendment.
See Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961)
(“Among religions in this country which do not teach what
would generally be considered a belief in the existence of God
are . . . Ethical Culture, Secular Humanism[,] and others.”
(emphasis added)). Plaintiffs simply seek the opportunity to
deliver prayers at the opening of the Pennsylvania House’s
legislative days that reflect their religious beliefs. The
Pennsylvania House, however, denied Plaintiffs such an
opportunity solely on the grounds that their religious beliefs do
not comport with the Pennsylvania House’s preferred religious
beliefs and that Plaintiffs, thus, are incapable of delivering a
1
Because I would hold that the Pennsylvania House’s
guest-chaplain policy violates the Establishment Clause, I
would not reach—and, in this opinion, I do not discuss—
Plaintiffs’ claims arising under the Free Speech and Free
Exercise Clauses of the First Amendment and the Equal
Protection Clause of the Fourteenth Amendment.
“prayer” within the Pennsylvania House’s conception of that
term. In my view, the Pennsylvania House’s policy of
explicitly and purposefully excluding certain persons from
serving as guest chaplains solely on the basis of their religions
and religious beliefs finds no refuge in the history and tradition
of legislative prayer in this country. Further, even assuming
arguendo that the Pennsylvania House’s purposeful
exclusionary policy indeed fits within the history and tradition
of legislative prayer in the United States, the policy
nonetheless violates core tenets of the Establishment Clause by
instituting an impermissible “religious orthodoxy,” Town of
Greece v. Galloway, 572 U.S. 565, 581 (2014), and by, in
effect, “direct[ing] and controll[ing] the content of . . .
prayers,” Lee v. Weisman, 505 U.S. 577, 588 (1992).
Rather than acknowledging these violations of the
Establishment Clause, the majority accommodates the
Pennsylvania House’s purposeful discrimination against
Plaintiffs, their religions, and their religious beliefs by
concluding that (i) “the purpose of legislative prayer is to
invoke divine guidance,” (ii) “‘prayer’ presupposes a higher
power,” and (iii) Plaintiffs, because their religious beliefs do
not include a belief in a “higher power” or God, cannot offer a
“prayer.” This line of reasoning by necessity involves
answering sensitive questions about what constitutes the
“divine” and what words must be strung together for a speech
to constitute a “prayer,” which, in my view, are precisely the
type of questions that the Establishment Clause forbids the
government—including courts—from answering. I therefore
respectfully dissent.
2
I.
In analyzing whether the Pennsylvania House’s guest-
chaplain policy is permissible under the Establishment Clause,
we must “determine whether the prayer practice . . . fits within
the tradition long followed in Congress and the state
legislatures.” Town of Greece, 572 U.S. at 577. When framing
the contours of the relevant prayer practice, courts should be
“specific,” and “where history shows that the specific practice
is permitted,” “it is not necessary [for courts] to define the
precise boundary of the Establishment Clause.” Id. (emphasis
added) (citing Marsh v. Chambers, 463 U.S. 783 (1983)).
In devising the key inquiry in this case, the majority, in
my view, frames the Pennsylvania House’s guest-chaplain
policy in a way that is too broad and that does not capture the
true exclusionary nature of the policy. Relying on the D.C.
Circuit’s opinion in Barker v. Conroy, 921 F.3d 1118 (D.C.
Cir. 2019), the majority formulates the key inquiry as whether
“the House’s decision to limit the opening prayer to religious[2]
prayer fit[s] ‘within the tradition long followed in Congress
and the state legislatures,’” id. at 1130 (quoting Town of
Greece, 572 U.S. at 577).
Conceptualizing the Pennsylvania House’s guest-
chaplain policy as “limiting” prayer to theistic prayer is not
technically an incorrect way to express the contours of the
2
I assume that by “religious prayer,” the majority
intended to convey that the Pennsylvania House “limits the
opening prayer to theistic prayer.” If the Pennsylvania House
limited opening prayer to “religious” prayer, Plaintiffs would
not have been excluded because they are indeed members of
“religions.” See Torcaso, 367 U.S. at 495 n.11.
3
policy, but framing the policy in such a way omits the most
notable and constitutionally suspect facet of the policy: 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. Saying that the
Pennsylvania House merely “limits” legislative prayer to
theistic prayer fails to capture the purposeful exclusionary
actions undertaken by the Pennsylvania House to ensure that
its prayer practice is “limited” to theistic prayer; under the
majority’s formulation, it is equally as likely that the prayer
offered by guest chaplains simply is “confine[d] within [the]
limits” of theistic prayer through no voluntary action on the
part of the Pennsylvania House whatsoever. Limit, Oxford
English Dictionary (3d ed. 2014).
By framing the Pennsylvania House’s prayer practice as
simply being “limited” to theistic prayer, the majority’s
ultimate holding is nothing more than a foregone conclusion:
the prayer practice at issue in Town of Greece v. Galloway, 572
U.S. at 571, which the Supreme Court upheld, could properly
be described as one that was “limited” to theistic prayer
because all of the guest ministers in that case belonged to
theistic religions and were nearly all Christian. What
distinguishes Town of Greece from this case, however, is that
the town council in Town of Greece “at no point excluded or
denied an opportunity to a would-be prayer giver,” and “[i]ts
leaders maintained that a minister or layperson of any
persuasion, including an atheist, could give the invocation.”
Id. In Town of Greece, the prayers offered at the beginning of
town board meetings were “limited” to theistic prayers simply
by virtue of the fact that “nearly all of the congregations in
town were Christian,” and therefore ministers of other religions
4
generally were not available to deliver the prayers. Here, by
contrast, the Pennsylvania House explicitly and purposefully
excludes persons who hold Plaintiffs’ religious beliefs from
serving as guest chaplains and from delivering opening
prayers, but the majority’s framing of the Pennsylvania
House’s guest-chaplain policy fails to capture this crucial
distinction.
Thus, in my view, the key inquiry in this case is more
properly formulated as “whether the Pennsylvania House’s
policy of purposefully excluding persons of certain religious
faiths from serving as guest chaplains fits ‘within the tradition
long followed in Congress and the state legislatures.’” Id. at
577. When framed in this way, the answer to this question is
clearly “no.” The First Congress intended legislative prayer
“to be inclusive rather than divisive.” Am. Legion v. Am.
Humanist Ass’n, 139 S. Ct. 2067, 2088 (2019) (Kavanaugh, J.)
(plurality opinion). Members of the First Congress held
divergent views regarding the motion to appoint a
congressional chaplain, but Samuel Adams ended debate on
the motion by supporting it: “I am no bigot. I can hear a prayer
from a man of piety and virtue, who is at the same time a friend
of his country.” Derek H. Davis, Religion and the Continental
Congress, 1774–1778, at 74 (2000) (quoting Adams).
Throughout the early years of the Republic, Congress
maintained this policy of inclusion. In 1853, the Judiciary
Committees of the House of Representatives and the Senate
concluded that “no faith was excluded by law, nor any favored”
in the selection of congressional chaplains. Town of Greece,
572 U.S. at 576.
This history demonstrates that legislative prayer, as
envisioned by the First Congress and as subsequently practiced
5
by Congress since then, never involved the purposeful
exclusion of persons from consideration to serve as chaplains
on the basis of their religions or religious beliefs. This lack of
a history of purposeful, religion-based discrimination in
legislative prayer is what, in my view, animates the anti-
discrimination language in Town of Greece. See id. at 585–86
(“So long as the town maintains a policy of nondiscrimination,
the Constitution does not require it to search beyond its borders
for non-Christian prayer givers in an effort to achieve religious
balancing.”). And by virtue of the fact that the history and
tradition of legislative prayer in this country is thus devoid of
any history of purposeful exclusion of persons from serving as
chaplains based on their religions or religious beliefs, the
Pennsylvania House’s guest-chaplain policy—which
purposefully excludes adherents of Plaintiffs’ religions and
persons who hold Plaintiffs’ religious beliefs from serving as
guest chaplains—does not fit “within the tradition long
followed in Congress and the state legislatures” and therefore
violates the Establishment Clause. Id. at 577.
The majority’s response to this line of reasoning is that
it “doubt[s] whether the Congress of 1853”—which found that
“no faith was excluded by law, nor any favored” in the
selection of congressional chaplains, id. at 576—“understood
atheism as a ‘faith,’ given that its study was from an era that
still defined ‘religion’ as ‘one’s views of his relations to his
Creator.’” This cannot possibly be a standard around which to
build Establishment Clause jurisprudence. Such a standard
would permit, for example, a legislature to purposefully
exclude all adherents of Buddhism, the world’s fourth largest
religion by population, from delivering legislative prayers
because Buddhists do not believe in a “Creator”: “If absence
of a Creator-God is atheism, Buddhism is atheistic.” Huston
6
Smith, The World’s Religions 114 (rev. & updated ed. 1991).
It is unconscionable to think that the Establishment Clause
permits legislatures to purposefully exclude all Buddhists from
delivering legislative prayers, and it should be equally
unconscionable to think that the Establishment Clause permits
such purposeful exclusion of persons who hold Plaintiffs’
religious beliefs because there is no principled difference
between Buddhism and Plaintiffs’ religions in this regard.3
In sum, the majority, in my view, paints with too broad
a brush in framing the question with respect to whether the
Pennsylvania House’s guest-chaplain policy fits within the
tradition of legislative prayer that has long been followed in
Congress and the state legislatures. The defining characteristic
3
The fact that a Buddhist previously has delivered a
prayer in the United States Senate is immaterial to the issue of
whether Congress—or any other legislature—may later
purposefully exclude Buddhists from delivering legislative
prayers under the majority opinion. The only manageable
standard that I can glean from the majority opinion in this
regard is that a legislature cannot, at some later point,
purposefully exclude members of a nontheistic religion from
delivering legislative prayers once that legislature welcomes a
member of that nontheistic religion to deliver a legislative
prayer. Such a rule would lead to absurd results. For example,
the Pennsylvania Senate, which previously has welcomed
adherents of Plaintiffs’ religions to serve as guest chaplains,
would be prohibited from later choosing to exclude adherents
of such religions from serving as guest chaplains, even though
the majority today holds that the Pennsylvania House can, as a
matter of constitutional law, exclude such persons from serving
as guest chaplains.
7
of the Pennsylvania House’s policy is that it purposefully
excludes adherents of Plaintiffs’ religions and persons who
hold Plaintiffs’ religious beliefs from serving as guest
chaplains, but the majority’s formulation of the key inquiry in
this case omits any reference to such purposeful exclusion.
Purposeful exclusion of adherents of certain religions or
persons who hold certain religious beliefs has never been
countenanced in the history of legislative prayer in the United
States, and, therefore, viewed in the proper context, the
Pennsylvania House’s guest-chaplain policy does not fit
“within the tradition long followed in Congress and the state
legislatures” because it purposefully excludes persons from
serving as guest chaplains solely on the basis of their religions
and religious beliefs.4 Town of Greece, 572 U.S. at 577.
4
I am not persuaded otherwise by what the majority
construes as the Supreme Court’s alleged “tak[ing] as given
that prayer presumes a higher power.” To support this
contention, the majority primarily cites passages from Marsh
v. Chambers, 463 U.S. 783, and Town of Greece in which the
Supreme Court, in the words of the majority, “described
legislative prayer” as a practice that involves the invocation of
a “higher power” or God. It is only natural that the Supreme
Court described legislative prayer in these terms: until
recently, nearly all legislative prayer in this country happens to
have been explicitly theistic in nature. It is quite a different
thing to construe this description in dicta as tantamount to a
holding that legislative prayer must be theistic in nature to
qualify as such.
The majority also lends a great deal of weight to then-
Judge Ginsburg’s dissenting opinion in Kurtz v. Baker, 829
8
F.2d 1133 (D.C. Cir. 1987), a dissent in a case decided in 1987
by a court of appeals other than our own. In relying heavily on
this dissent, the majority implicitly makes a number of
presumptions that I am not willing to make, including (i) that
now-Justice Ginsburg’s views on this issue have not evolved
in the intervening thirty-two years; (ii) that Justice Ginsburg’s
views would not change given the particular facts of this case,
which are distinguishable from those in Kurtz insofar as the
plaintiff in that case did not wish to deliver a “prayer,” but
rather “opening remarks” as a “guest speaker, id. at 1146
(Ginsburg, J., dissenting), whereas here, Plaintiffs explicitly
wish to deliver “prayers” as “guest chaplains”; and (iii) that,
for reasons not stated, the views expressed solely by Justice
Ginsburg in a dissenting opinion in a factually distinguishable
case decided by a court of appeals thirty-two years ago are
apparently decisive on this particular issue.
Finally, it is not clear to me how the Eleventh Circuit’s
opinion in Williamson v. Brevard County, 928 F.3d 1296 (11th
Cir. 2019), supports the majority’s position. The Eleventh
Circuit did not reach the issue of whether a government can
exclude persons with nontheistic religious beliefs from
delivering legislative prayers, and it chose not to reach that
issue explicitly as a matter of “judicial restraint.” See id. at
1317 (emphasis added) (quoting Lyng v. Nw. Indian Cemetery
Protective Ass’n, 485 U.S. 439, 445 (1988)). That court
already had found that the relevant legislative body’s prayer
practice “plainly” violated the Constitution, even setting aside
the discrimination against persons with nontheistic beliefs in
particular, and thus the court determined, as a prudential
matter, that it was unnecessary to adjudicate any of the
plaintiffs’ further claims. Id. at 1316. Thus, the Eleventh
9
II.
Even assuming arguendo that the Pennsylvania House’s
guest-chaplain policy indeed fits within the tradition of
legislative prayer that has long been followed in Congress and
the state legislatures, that fact alone, in my view, would not
save the policy. The Supreme Court has held that, “standing
alone, historical patterns cannot justify contemporary
violations of constitutional guarantees” in the context of
legislative prayer. Marsh, 463 U.S. at 790; see also Town of
Greece, 572 U.S. at 576 (“Marsh must not be understood as
permitting a practice that would amount to a constitutional
violation if not for its historical foundation.”). In my view,
even if the Pennsylvania House’s exclusionary guest-chaplain
policy fits within the history and tradition of legislative prayer
in this country—which, for the reasons stated above, it does
not—the policy nonetheless additionally runs afoul of the
Establishment Clause by instituting a religious orthodoxy and
by directing and controlling the content of legislative prayer.
At its core, the Establishment Clause requires the
government to remain “neutral in matters of religious theory,
doctrine, and practice,” and the government “may not aid,
foster, or promote one religion or religious theory against
another.” Epperson v. Arkansas, 393 U.S. 97, 103–04 (1968).
This neutrality principle mandates that the “[g]overnment may
not . . . prescribe a religious orthodoxy.” Town of Greece, 572
U.S. at 581.
Circuit did not, as the majority argues, draw a constitutional
distinction between theistic prayer and nontheistic prayer—it
simply concluded that it was neither necessary nor prudent to
take up the issue of nontheistic prayer. See id. at 1316–17.
10
The Establishment Clause also prohibits the
government from “defin[ing] permissible categories of
religious speech.” Id. at 582. For example, “government in
this country, be it state or federal, is without power to prescribe
. . . any particular form of prayer which is to be used as an
official prayer in carrying on any program of governmentally
sponsored religious activity.” Engel v. Vitale, 370 U.S. 421,
430 (1962). The Supreme Court has held that it is a
“cornerstone principle of . . . Establishment Clause
jurisprudence” that the government may not “direct[] and
control[] the content of . . . prayers” delivered at government-
sponsored public events. Lee, 505 U.S. at 588.
Through the implementation of its guest-chaplain
policy, the Pennsylvania House violates both of these tenets of
the Establishment Clause. 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”; in effect, the Pennsylvania House
“promote[s] one . . . religious theory”—belief in God or some
sort of supreme deity—“against another”—the denial of the
existence of such a deity. Epperson, 393 U.S. at 103–04. This
is not to say that a government violates the neutrality principle
simply by consistently selecting guest ministers who happen to
believe in a “higher power”—legislative prayer that is even
explicitly sectarian and almost uniformly Christian in nature
has been approved by the Supreme Court. See Town of Greece,
572 U.S. at 581. But 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,
thus violating the Establishment Clause’s neutrality principle
11
and instituting belief in a supreme deity as “religious
orthodoxy.”5 See Engel, 370 U.S. at 431 (“When the power
[and] prestige . . . of government is placed behind a particular
religious belief, the indirect coercive pressure upon religious
5
To be clear, I do not believe that the inclusion of the
phrases “In God We Trust” on United States currency and
“under God” in the Pledge of Allegiance raises similar
constitutional concerns. In my view, the government’s passive
speech in the form of text on currency and through the approval
of the official text of the Pledge is categorically different than
the government’s actively and purposefully excluding persons
from participating in a government-sponsored activity based
solely on their belief or disbelief in a “higher power” or God.
The nature of the actions are meaningfully different: in the
former case, the government exercises its power merely to
approve text and mottos, but in the latter case, the government
plays an active role, exercising its power to purposefully
discriminate against citizens solely on the basis of their
religious beliefs. Indeed, even in the context of the Pledge,
when the government has attempted to exercise its power in a
way that exceeds the mere approval of text, the Supreme Court
has held that such actions violate the First Amendment. See
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)
(holding that the government cannot enforce a policy to compel
persons to recite the Pledge because “[i]f there is any fixed star
in our constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion,” and thus
such a policy “transcends constitutional limitations on the[
government’s] power”).
12
minorities to conform to the prevailing officially approved
religion is plain.”).
The Pennsylvania House also impermissibly directs and
controls the content of the prayers delivered by guest chaplains
by only permitting persons who profess a belief in a “higher
power” or God to serve as guest chaplains. If the Pennsylvania
House instituted a rule that required all guest chaplains to
include references to a “higher power” or God in their prayers,
we undoubtedly would hold that such a rule clearly violates the
Establishment Clause under current precedent. Cf. Lee, 505
U.S. at 588 (holding that the government violated the
Establishment Clause by “advis[ing a clergyman] that his
prayers [delivered at a high school graduation] should be
nonsectarian” because such an attempt to “direct[] and
control[] the content of the prayers” violates the “cornerstone
principle of our Establishment Clause jurisprudence that ‘it is
no part of the business of government to compose official
prayers’” (quoting Engel, 370 U.S. at 425)). The record
suggests that the Pennsylvania House sought to accomplish
this very goal—ensuring that prayers include references to a
“higher power” or God—albeit indirectly through the guest-
chaplain selection process. For example, the Speaker of the
Pennsylvania House testified that a “prayer” should be “an
appeal to a benevolent higher being” and that Plaintiffs were
excluded because they could not deliver such a “prayer.” App.
650:13–23 (emphasis added). The former Speaker of the
Pennsylvania House testified that for a “prayer” to be
acceptable, it must be directed “to a higher being and ask[] for
intervention,” id. at 712:18–19 (emphasis added), and that he
would have rejected any prospective guest chaplains who
indicated that they would not “spell [out] an actual [higher]
being that [would] be[] addressed” in their prayers, id. at
13
714:24–25 (emphasis added). Further, the Parliamentarian of
the Pennsylvania House testified that he was “very concerned
about the content” of potential prayers, id. at 519:5 (emphasis
added), and that there was a certain “type of prayer we would
be looking for,” id. at 523:22 (emphasis added).
Rather than instituting an outright requirement that
guest chaplains include references to a “higher power” or God
in their prayers, the Pennsylvania House simply addressed the
issue one step earlier in the process by only selecting persons
who professed a belief in a “higher power” or God to serve as
guest chaplains and by purposefully excluding all others.
While this action is more indirect in nature than an outright
requirement that guest chaplains include references to a
“higher power” or God in their prayers, the intentional effect
on the content of the prayers that were actually delivered is the
same; the Pennsylvania House exerted its power over the
guest-chaplain selection process to ensure that the “prayers
[that were] recited . . . promote[d] a preferred system of
belief”—namely, belief in a “higher power” or God. Town of
Greece, 572 U.S. at 581.
Thus, even setting aside the issue of whether the
Pennsylvania House’s guest-chaplain policy fits “within the
tradition long followed in Congress and the state legislatures,”
id. at 577, the actions of the Pennsylvania House amount to an
Establishment Clause violation. Pursuant to the Establishment
Clause, a government can neither institute a religious
orthodoxy nor direct or control the content of legislative
prayer, but here, the Pennsylvania House sought to
accomplish—and indeed succeeded in accomplishing—both
of these constitutionally impermissible goals.
14
III.
A legislature is free to appoint a single chaplain, of a
single denomination, for nearly two decades to deliver
Christian opening prayers on an almost permanent basis, so
long as the chaplain’s appointment and reappointment did not
“stem[] from an impermissible motive.” Marsh, 463 U.S. at
793. A legislature is free to select guest ministers that are
nearly all Christian and who deliver explicitly sectarian
prayers, so long as the selection of such ministers “does not
reflect an aversion or bias on the part of [legislators] against
minority faiths.” Town of Greece, 572 U.S. at 586. A
legislature also is free to enact rules to exclude—as the
majority phrases it—the “heckler,” who may, among other
things, “denigrate nonbelievers or religious minorities,
threaten damnation, . . . preach conversion,” or “disparage . . .
other . . . faith[s] or belief[s].” Id. at 583 (quoting Marsh, 463
U.S. at 794–95).
What a legislature cannot do, however, is purposefully
exclude persons from serving as guest chaplains—and thereby
prohibit such persons from delivering legislative prayers—
solely on the basis of such persons’ religions or religious
beliefs. See id. at 585–86. Yet that is precisely what the
Pennsylvania House did here: the Pennsylvania House denied
Plaintiffs—who, as the Supreme Court has recognized, are
members of “religions” for the purposes of the First
Amendment, see Torcaso, 367 U.S. at 495 n.11—the
opportunity to serve as guest chaplains solely on the basis of
their religions and religious beliefs.
The majority provides sanction to the Pennsylvania
House’s purposeful, religion-based discrimination by
reasoning that whether Plaintiffs are members of a “religion”
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for the purposes of the First Amendment is immaterial to the
question at hand; rather, the “only . . . question” that is relevant,
in the majority’s view, is “whether [Plaintiffs] believe in a
supreme being.” In other words, while the Supreme Court has
held that Plaintiffs are members of “religions” for First
Amendment purposes, the majority holds that Plaintiffs are not
members of “religions” for these First Amendment purposes
because the only religions that “count” for these purposes are
those that profess a belief in a “higher being” or God. In
essence, the majority, in my view, casts Plaintiffs’ religions as
“second class.”
The First Amendment knows no “first class” or “second
class”; the Establishment Clause was intended to prohibit the
government from making such distinctions. Courts should not
make such distinctions, and we need not make such
distinctions—including with respect to whether persons of
certain religions possess the ability to offer a “prayer”—to
adjudicate the facts of this case. When framed properly, the
Pennsylvania House’s policy of purposefully excluding
persons from serving as guest chaplains solely on the basis of
their religions and religious beliefs does not fit within the
inclusive tradition of legislative prayer that has long been
followed in Congress and the state legislatures, and for this
reason, among other reasons, the policy violates the
Establishment Clause. I thus would affirm the judgment of the
District Court in this regard.
Therefore, for the reasons stated above, I respectfully
dissent.
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