October 2018 Church & State | Featured

The Pennsylvania House of Representatives has a policy of soliciting guest speakers to open its sessions with invocations. Over the years, members have heard from lots of Christian speakers and occasionally adherents of other faith traditions, but there’s one thing they’re not getting: nontheistic invocations.

It’s not because of a lack of volunteers. Indeed, several nonbelievers in the state have stepped forward and offered to deliver a nontheistic invocation. But the House leadership has decided they don’t want to hear from those folks. In fact, they put a policy in place that specifies that invited chaplains must be “a member of a regularly established church or religious organization,” a restriction that was intended to support the House’s exclusion of nontheistic speakers.

To many people, that sounds like discrimination. And, thanks to Americans United, the House has been ordered to end its exclusionary conduct.

On Aug. 29, a federal court issued an important ruling in a case brought by Americans United and its allies challenging the invocation policies of the Pennsylvania House of Representatives.

U.S. District Judge Christopher C. Conner held that the House’s invocation policy “purposefully discriminates among invocation presenters on the basis of religion and thus exceeds the constitutional boundaries of legislative prayer.”

Americans United welcomed the decision.

“Government’s first duty is to treat all citizens equally, regardless of what they may believe or not believe about religion,” said Rachel Laser, president and CEO of Americans United. “Pennsylvania’s House of Representatives failed in that task, and we’re glad the court has set them straight.”

Government’s first duty is to treat all citizens equally, regardless of what they may believe or not believe about religion. Pennsylvania’s House of Representatives failed in that task, and we’re glad the court has set them straight.

~ Rachel Laser, president and CEO of Americans United

Conner was not swayed by arguments that nontheists can’t perform the secular function of solemnizing a meeting. In his ruling the judge observed, “[M]any legislative bodies across this nation have opened with nontheistic invocations, and there is no evidence that such prayers fared worse than their theistic counterparts at fulfilling [solemnizing] purposes.”

The lawsuit, Fields v. Speaker of the Pennsylvania House of Representatives, got started in 2014 after nontheists in the Keystone State submitted requests to offer guest invo­ca­tions before the state’s lower house. After being turned down, they contacted Americans Uni­ted and American Atheists for help.

The two organizations tried to resolve the matter outside of court by writing to House officials, advising them that their policy was discriminatory and problematic. When that failed, the groups filed a lawsuit.

AU and American Atheists represented 11 plaintiffs: the Rev. Dr. Neal Jones (AU’s board chairman and a Unitarian Universalist minister near Phila­delphia), Brian Fields, Richard Kiniry, Joshua Neiderhiser, Scott Rhoades, Paul Tucker and Deana Weaver, as well as the organizations Dillsburg Area Free­thinkers, Lancaster Freethought Society, Pennsylvania Nonbelievers and Phila­del­phia Ethical Society.

Pennsylvania Plaintiffs Scott Rhoades, Brian Fields, Deana Weaver and the Rev. Neal Jones

(Photo: Plaintiffs Scott Rhoades, Brian Fields, Deana Weaver and the Rev. Neal Jones.)

The purpose of the lawsuit is not to stop the Pennsylvania House from having invocations. The U.S. Supreme Court in 2014 upheld the concept of legislative prayer in Greece v. Galloway, a case brought by Americans United. But while the high court gave a green light to such prayers in Greece, it also called for inclusion.

The high court held that governing bodies must “maintain … a policy of non­discrimination” when selecting in­vocation speakers, and that official policies of selection cannot “reflect an aversion or bias … against minority faiths.”

AU believed the Pennsylvania House was in clear violation of this language, and filed the lawsuit to expand the circle of invocation-givers so that nontheists would no longer be treated differently from believers.

Interestingly, this has proven to be a non-issue in Pennsylvania’s other legislative body. The state Senate has allowed a nontheist, Deana Weaver, one of the plaintiffs in Americans United’s case against the House, to deliver an opening invocation with no ill results.

In fact, as Americans United has pointed out, in the post-Greece era many states and local communities have allowed non-religious people to of­fer secular invocations without incident.

In El Paso, Texas, for example, David Marcus, an Americans United chapter leader, offered a secular invocation on Dec. 2, 2014. Nontheists affiliated with AU and other organizations have offered similar secular invocations elsewhere.

Yet resistance remains. In Brevard County, Fla., Americans United is litigating a case similar to the one in Pennsylvania. The Brevard County Board of Commissioners persistently rejected offers from nontheists to offer an opening invocation. The board in July 2015 pas­sed a policy formalizing the exclusion of non-religious people.

(AU is litigating the Williamson v. Brevard County case alongside the Freedom From Religion Foundation and the American Civil Liberties Un­ion. A federal court ruled in the groups’ favor in September 2017; the ruling is currently on appeal.)

In 2015, Americans United wrote to officials in Coolidge, Ariz., after they voted to limit pre-meeting prayers to Christians only. Council members quickly called a meeting and dropped the policy. (See “‘Christians-Only’ Pray­er?” November 2015 Church & State.)

In March 2016, some members of the Arizona House of Representatives were so incensed after state Rep. Juan Mendez, an atheist, offered a secular invocation to open a session that they hastily arranged for a Christian minister to come and offer a do-over.

Battles over the content of legislative prayer have also erupted at the county level in North Carolina and Michigan. The Supreme Court in June concluded its 2017-18 term by dodging two cases from those states that point in different directions. A federal appeals court struck down the invocation practice in Rowan County, N.C., because the county commissioners gave the prayers themselves, the pray­ers were overwhelmingly Christian in content and the commissioners directed people to stand and take part.

In Jackson County, Mich., however, a separate federal appeals court upheld a similar invocation practice.

The Pennsylvania case has been ap­pealed as well. Officials from that state’s lower chamber last month asked the U.S. 3rd Circuit Court of Ap­peals to overturn the ruling.

“The Pennsylvania House of Representatives should fully welcome all Pennsylvanians, including nontheists, as legislators conduct business on behalf of the people,” said Alex Luchenitser, AU’s associate legal director, who serves as lead attorney in the case. “The Pennsylvania House’s exclusionary policy treats nontheists like lesser citizens. Such discrimination must not be permitted.”        

The Pennsylvania House of Representatives should fully welcome all Pennsylvanians, including nontheists, as legislators conduct business on behalf of the people. The Pennsylvania House’s exclusionary policy treats nontheists like lesser citizens. Such discrimination must not be permitted.

~ Alex Luchenitser, AU’s associate legal director