On August 29, 2018, U.S. Chief Judge Christopher C. Conner (M.D. Pa.) issued a permanent injunction against the Pennsylvania Speaker of the House finding that the “Guest Chaplain” policy which mandates “theistic entreaties to a divine or higher power” in the opening invocation violates the Establishment Clause of the First Amendment. The opinion is a thorough and scholarly review of several “legislative prayer” cases viewed through the prism of the Supreme Court’s limited guidance on such cases.
The Plaintiffs were a group of atheists or agnostics, some of which were selfdescribed “clergy” in “Ethical Humanist” and “Unitarian Universalist” beliefs. They are socalled freethinkers who wished to conduct the invocation at the beginning of a Pennsylvania legislative session with a “positive, uplifting, unifying, and respectful toward all” message that happened to not acknowledge the existence of God.
The defense made several excellent arguments to demonstrate that their restriction on who could deliver the invocation should pass Constitutional muster. They argued that the policy does not offend the Establishment Clause (prohibition against “respecting an establishment of religion”) because they welcomed adherents to multiple different religions and were not adhering to any specific or particular religion. The court found this unavailing. Taken to its logical extension, defendants’ argument implies that a policy permitting only Jewish and Christian presenters would not offend the Constitution because they were not aligning with a “single” religious perspective. As Justice Blackmun commented in County of Allegheny, “simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm that the endorsement of Christianity alone.” (Citations omitted.) Simply put, the fact that they were mandating a theistic view violated the “establishment of religion.”
As a last resort, the defense argued that without this screening process, they could be forced to recognize fringe groups that align with “white supremacy, mockery of religion, and subjugation of women.” The court was not concerned with this floodgate argument. The Supreme Court has directed that legislatures do not have to “achieve religious balancing” in invocation processes. There is nothing constitutionally infirm by requiring the message to be uplifting and not disparaging of any particular religion or group.
The case was not a complete loss for the Pennsylvania legislature. Plaintiffs were also challenging the fact that all present were encouraged to stand during the invocation. Prior to 2017, a few of the Plaintiffs attended the invocation and declined to rise when invited. They were loudly and boisterously reprimanded by a Sergeant at Arms who called for them to rise. Post 2017, the policy was changed to limit the encouragement to stand to only the announcement and signage. Plaintiffs claimed this amounted to unconstitutional coercion to take part in prayer. The court disagreed. An announcement to “please rise as able” unaccompanied by any censure or singling out of dissidents – as is the current policy – does not amount to coercion. However, the pre-2017 policy, having a member of the body loudly and repeatedly single out the dissidents would certainly rise to the real and substantial likelihood of coercion in violation of our free rights.
It will be interesting to see where this case goes and whether the Pennsylvania House will soon be opened by positive messages from Humanist Clergy. Or, will this work its way up to a newly rebalanced Supreme Court to revisit the notions of requiring prayer in public places.