May 22, 2018

The First Amendment protects the integrity of religion, prevents discord and preserves the freedom to participate in American life regardless of one’s beliefs. Yesterday, Americans United filed a friend-of-the-court brief urging the D.C. Circuit Court of Appeals to uphold those values in our nation’s Capitol.

In Barker v. Conroy, the D.C. Circuit will decide whether a policy of the Chaplain of the U.S. House of Representatives – requiring guest chaplains to be ordained by a recognized religious body, to currently practice that body’s faith and to address a deity in their prayers – violates the First Amendment. Dan Barker, who is an atheist, an ordained Christian minister and co-president of the Freedom From Religion Foundation, wanted only the same opportunity that the House chaplain affords to others: the chance to address the House as a guest chaplain. But that request was denied for explicitly discriminatory reasons: Barker cannot deliver an opening invocation because he doesn’t practice the religion in which he is ordained and he doesn’t pray to a divine higher power.

This policy is antithetical to the First Amendment for three reasons: It involves government in value assessments of religion, causes fractures in our society and degrades the status of millions of Americans.

The policy entangles government with religion and requires federal officials to assess whether a would-be guest chaplain professes and practices the “correct” beliefs. On its face, the policy requires guest chaplains to be ordained by an accepted religious body, to practice that religion to the House chaplain’s satisfaction and to pray to a divine higher power. Religious freedom means that government has no authority to decide which beliefs are right or wrong – but the House chaplain does just that. This policy requires investigation of the personal beliefs and practices of guest-chaplain nominees and tells people who do not profess belief in God (for example, Humanists, Buddhists and many Unitarian Universalists) and groups without formal ordination (including Muslims, certain Buddhists and Quakers) that their views are less-than – indeed, that they are less-than.

Moreover, the policy furthers the disharmony that inevitably accompanies the mingling of government and religion. We need look no further for an example of this discord than the House chaplaincy itself, which recently became the cause of huge conflict when House Chaplain the Rev. Patrick Conroy resigned – reportedly at the behest of House Speaker Paul Ryan (R-Wisc.). Conroy later withdrew his resignation and remains House chaplain. But tension over the matter remains. The incident sparked accusations of anti-Catholic discrimination and even led to an argument on the House floor that was so impassioned that some feared a fist fight. Though this controversy illustrates that there are good reasons to end the practice of having tax-funded, permanent Congressional chaplains altogether, if such chaplains continue to exist, our constitutional tradition requires that they invite guest chaplains of all beliefs in order to reflect our pluralistic society.

The House chaplain’s discriminatory policy also degrades our society’s equality by excluding the 9 percent of Americans who do not believe in God. Nontheists are by far the largest non-Christian belief group in the United States today. And their numbers are rising: Between 2007 and 2014, the percentage of Americans identifying themselves as nonbelievers nearly doubled. This is a generational trend that will likely continue. And the recently founded Congressional Freethought Caucus in the U.S. House proves that these widespread beliefs have a place in our representative government.

The House Chaplain’s attorneys have argued that it’s okay to exclude nontheists from participating in legislative prayer because any prayer must inherently reflect theistic beliefs. But the U.S. Supreme Court has said that legislative prayer should “lend gravity to the occasion,” “reflect values long part of the Nation’s heritage” and “invite[ ] lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing.” Nothing in these guidelines requires an invocation to reference a divine higher power. And the Court has also held that governmental bodies must not discriminate against would-be chaplains on the basis of their beliefs.

Nontheists are as capable as theists of solemnizing events by calling upon the traditional values that our nation holds dear – values like unity, tolerance and equality that are, in fact, undermined by the House chaplain’s policy.