Pa. legislature can ban atheist invocations, court rules, 'only theistic prayer can' appeal to God

By Michael Gryboski, Mainline Church Editor Tuesday, August 27, 2019

An appeals court upheld the Pennsylvania House of Representatives’ invocation policy that allows guest chaplains to give prayers and bars atheists from participating.

A three judge panel of the United States Court of Appeals for the Third Circuit ruled last Friday that the invocation policy was constitutional, overturning a lower court decision.

Circuit Judge Thomas Ambro authored the majority opinion, writing they upheld the ban on non-theistic invocations because “only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking.”

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“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,” wrote Judge Ambro.

“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.”

While the majority agreed with the lower court that the atheists’ free speech rights were violated by the ban, the appeals court concluded that the invocations were “government speech” and thus were not regulated by the Free Speech Clause of the Constitution.

“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,” continued Ambro.

“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.”

Circuit Judge Luis Felipe Restrepo wrote an opinion that dissented in part and concurred in part with the majority, arguing that the chaplain policy violated the Establishment Clause.

“Plaintiffs simply seek the opportunity to deliver prayers at the opening of the Pennsylvania House’s legislative days that reflect their religious beliefs,” wrote Judge Restrepo.

“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 ‘prayer’ within the Pennsylvania House’s conception of that term.”

In August 2016, Americans United for Separation of Church & State, American Atheists and a few other secular groups filed a lawsuit against the state House of Representatives over the policy on behalf of local residents who were barred from giving a non-religious invocation.

In August 2018, Judge Christopher C. Conner of the Middle District of Pennsylvania ruled against the legislature, arguing that the invocation policy “facially violates the Establishment Clause of the First Amendment to the United States Constitution.”

“The House's selection process invites members of the public to serve as guest chaplains but draws a qualifying line of demarcation between theistic and nontheistic belief systems,” wrote Judge Conner last year.