October 2019 Church & State Magazine | People & Events

A federal appeals court ruled Aug. 23 that the Pennsylvania House of Representatives may limit its opening invocations to theistic believers, a move that Americans Uni­ted says elevates the rights of religious people over non-theists.

The 3rd U.S. Circuit Court of Appeals’ decision in Fields v. Speaker of the Pennsylvania House of Representatives, AU says, is part of a troubling trend in the courts that not only dilutes separation of church and state but grants special privileges to people because they believe in a god.

“The court has permitted the Pennsylvania House of Representatives to discriminate based on religion against people who do not believe in a god,” AU Associate Legal Director Alex J. Luchenitser told the Associated Press.

Americans United and American Atheists brought the case on behalf of a group of non-theist state residents who wanted to do something theistic believers do frequently: give guest invocations before the Pennsylvania House of Representatives. Officials at the House refused, and AU filed suit.

The court ruled 2-1 that the House could constitutionally turn away the non-theists, ruling in part that non-theistic people are not capable of meeting the goals of legislative prayer. Only believers in the divine can do that, the court said.

“[O]nly theistic prayer can satisfy all the traditional purposes of legislative prayer,” wrote the court. “Second, the Supreme Court has long taken as given that prayer presumes invoking a higher power.”

The court went on to say, “[A]s a matter of traditional practice, a petition to human wisdom and the power of science does not capture the full sense of ‘prayer,’ historically understood. At bottom, legislative prayers seek ‘divine guidance’ in lawmaking.”

The court buttressed its argument by pointing to “historical practices.” The U.S. Supreme Court used the same logic to permit a large cross to remain on public land in Bladensburg, Md., earlier this year.

Judge L. Felipe Restrepo dissented. Restrepo held that allowing the government to limit invocations to theists requires officials to wade into a theological thicket. Buddhism, he noted, has no concept of a personal god but is still considered a major world religion. Yet under the rules of the Pennsylvania House, Buddhists could be excluded from offering guest prayers. (The court’s majority opinion, however, insisted that it would be unconstitutional to exclude Buddhists.)

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.

Restrepo observed, “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.”

Jodine Mayberry, a columnist with the Delaware County Daily Times, reached out to the Rev. Dr. Neal Jones, senior minister of Main Line Unitarian Church in Devon, Pa., and a plaintiff in the case, and asked him what type of invocation he would offer.

Jones, who serves as chair of AU’s Board of Trustees, replied that he would tell the Pennsylvania House in part, “We pray that our government truly be representative of all of the people – the vulnerable as well as the powerful, the unfortunate as well as the privileged, the invisible and the forgotten as well as the high-ranking and the influential. Let all citizens, whatever their station or status in life, have a seat at the table of this government of the people, by the people, and for the people. Grant our representatives the vision to see beyond the next election to future generations who, for better or ill, will be the heirs of their present decisions.”

Concluded Mayberry, “As a lifelong atheist/humanist myself, I would say that’s pretty darn inspirational.”