The Pennsylvania House of Representatives opened its daily sessions with an invocation given either by one of its members or by an invited invocation-speaker. According to the House’s Rules, the invited invocation-speaker had to be a “member of a regularly established church or religious organization.” And from 2008 on, all invocations had been theistic. When nontheists asked to be guest invocation-speakers for the House, the House leadership repeatedly turned them down, explaining, “[W]e do not believe that governmental bodies are required to allow non-adherents or nonbelievers the opportunity to serve as chaplains.”
In August 2016, we filed suit in federal court on behalf of five nontheists and three nontheist organizations who wished to give opening invocations before the House. We claimed that the House’s practice and policy of denying nontheists the same opportunity to give an opening invocation as the House gave to theists violated the U.S. Constitution’s Establishment, Free Exercise, Free Speech, and Equal Protection Clauses. We also challenged House practices under which the Speaker of the House directed visitors in the gallery to rise for opening prayers and House security officers pressured visitors to rise.
In October 2016, the defendants moved to dismiss the case. After receiving briefing, the court heard the motion in February 2017. Americans United Associate Legal Director Alex Luchenitser and then-Madison Fellow Andrew Nellis presented oral argument.
In April 2017, the court largely denied the defendants’ motion to dismiss, allowing our Establishment Clause claim to proceed, though the court did dismiss the back-up claims that we had made under other constitutional clauses. The defendants thereafter sought to have the case reviewed immediately by the U.S. Court of Appeals for the Third Circuit—an attempt that we successfully opposed.
As we went through the discovery process, deposing multiple House officials and reviewing thousands of pages of documents from the House, we learned that House security officers had stopped pressuring visitors to rise for opening prayers, and that the Speaker had started inviting visitors in the gallery to “please rise as able” for the opening prayers.
Both sides moved for summary judgment. In August 2018, the court ruled mostly in our favor, holding that the House’s discriminatory guest-chaplain program violated the Establishment Clause by discriminating based on religion and that the House’s previous practice of pressuring attendees to stand for the prayers was also unconstitutional. The court issued an injunction against the discriminatory guest-chaplain policy and the prior policy of pressuring visitors to stand for prayer. The court ruled, however, that the Speaker’s new practice of inviting visitors in the gallery to “please rise as able” before the opening prayers was constitutional.
In September 2018, the defendants appealed the rulings against them to the U.S. Court of Appeals for the Third Circuit, and we cross-appealed to preserve the three other constitutional claims that the district court had dismissed early on. The defendants also requested that the district court stay its injunction pending appeal, even though they had suspended their guest-chaplain program after the district court issued its injunction and had instead assigned House members to deliver all opening invocations. The district court denied the motion in October 2018.
The defendants filed their opening appellate brief in December 2018. We filed ours in February 2019. AU’s Luchenitser presented oral argument before the Third Circuit in June 2019. The Third Circuit ruled in favor of the defendants in August 2019, finding that the House’s policies were constitutional, except for an incident in which a House security officer pressured visitors to rise for prayer.