Appeals court: Congress can discriminate against atheists

Appeals court: Congress can discriminate against atheists June 19, 2019

Talk about a catch-22.

I just ran across an April 19 federal appeals-court ruling that it is constitutionally appropriate for the U.S. House of Representatives to prohibit a citizen, just because he or she is an atheist, from reciting a secular “prayer” to legislators on the House floor.

congress prayer atheism law discrimination
Norman Rockwell’s religious freedom illustration for his “Four Freedoms” series. (Wikimedia, Public Domain)

Christian prayers to open sessions are routinely delivered at the House, and some 40 percent of the time “guest chaplains” of various other religions — Jewish, Hindu and Muslim — have been allowed to present prayers.

But atheists have long been barred.

I could not imagine how such a decision was defensible, when common sense should tell us this is a fair free-speech and religious- freedom issue, not to mention one of fairness. So, I waded through most of the legally dense text of the decision to try and answer that question.

House rules

As best I understand the complex reasoning by the Court of Appeals for the District of Columbia in upholding Barker v. Conroy, the House’s rules are “special,” including requiring that its session-opening invocations be religious in nature — with the mandate that they evoke a “higher power.”

According to the court decision, congressional rules are so constitutionally sacrosanct that even the U.S. Supreme Court loathes to second-guess them.

So, the appeals court decided that the plaintiff in the case, longtime atheist activist Dan Barker, co-president of the Freedom of Religion Foundation, requested something (to deliver a secular invocation at the House) that the House’s chaplain couldn’t ever agree to because it is supposedly against House rules.

In the final paragraph of its decision, the court wrote:

“Even though we accept as true Barker’s allegation that Conroy rejected him ‘because he is an atheist,’ the House’s requirement that prayers must be religious nonetheless precludes Barker from doing the very thing he asks us to order Conroy to allow him to do: deliver a secular prayer. In other words, even if, as Barker alleges, he was actually excluded simply for being an atheist, he is entitled to none of the relief he seeks. We could not order Conroy to allow Barker to deliver a secular invocation because the House permissibly limits the opening prayer to religious prayer. Barker has therefore failed to state a claim for which relief can be granted.”

Prayers and ‘prayers’

This, even though as Barker’s counsel argued, prayers that other guest chaplains had delivered “are nearly identical to the prayer that Mr. Barker wishes to give. It’s just a question of who he is, an atheist, and that’s why he was denied,” the decision noted.

In its decision, the court alluded to that, writing, “Barker’s complaint contains factual allegations that Conroy, apparently without objection from members of the House, has allowed certain guest chaplains to deliver prayers that did not invoke a divine power.”

But they were delivered by theists.

The court even admitted it noticed Conroy’s apparent disingenuity in purposefully revising the rules — after the appeal was filed — to require only religious invocations (although that language is nowhere evident House rules). The chaplain and his attorneys crafted the belated specific requirement that all invocations must be “religious in substance and purpose.”

Also troubling, the appeals court decision concluded that “it was at least plausible at the time Barker filed his complaint that Conroy had discretion and authority under House rules to grant his request to deliver a secular invocation.” Conroy claimed he had no such discretion, which was the heart of his initial refusal.

Still, the court ruled against Barker, in effect deciding that even if Conroy created his “religious” requirement for all invocations — after the fact, as it were — a rule is a rule, and if the House makes it it must be obeyed.

“In other words,” opined an April 19 USA Today article, “the court ignored the issue of an atheist as a guest chaplain by finding than an atheist’s prayer would not, by definition, be a religious prayer.”

In other other words, the conservative court was saying, “Leave it be. It’s the way we’ve always done it.”

This is one critical way Christianity has perpetuated itself in America, by embedding itself in the nation’s laws and cultural norms — and pulling the available levers of power whenever the status quo is threatened.

Men of the cloth only

In earlier court iterations of the case, the Catholic chaplain, Patrick Conroy, argued that prayers at the House could only be delivered by certified men of the cloth. The House chaplain claimed, at first, that Barker, an ordained minister who is now an atheist, could not give the invocation because he is no longer “ordained by a recognized body in the faith in which he practices.”

That’s the catch-22: Barker could only give an invocation if he were an ordained and practicing pastor. If not, his ordination was deemed as lapsed as his faith and he could thus be barred from delivering a congressional invocation. Later, when Conroy changed the rules to mandate prayers be religious, it precluded Barker and any other atheist from delivering one.

This is how the House sees it:

“What I’m saying,” Conroy’s counsel explained at oral argument, “and what the House is saying, and has authorized me to say . . . is, as explained in our briefs below and in this court, that persons who desire to deliver a secular invocation in lieu of a prayer, as the House interprets its prayer rule and has consistently applied it for 225 years, are not entitled to do so.”

So traditional, they’re unchallengeable

To summarize the apparent thinking in this head-scratching appeals court decision:

Because prayers to open House sessions have been allowed since 1789, they’re so traditional in America as to be sacrosanct and nearly immune to constitutional challenge. In addition, everyone knows that “prayers” and “invocations” are religious in nature, so trying to slip a nontheistic one in there is, well, practically un-American. Also congressional rules apparently trump even edicts in the Constitution and are protected from Supreme Court tampering.

In a nutshell, I read all this to mean that because Congress ill-advisedly authorized religious invocations before its sessions more than two centuries ago, we’re stuck with them forever. And today, that means almost exclusively Christian prayers, as it has since 1789. And certainly no secular humanist ones.

The D.C. Court of Appeals said it believed the framers of the Constitution were certainly on board with this because invocations were codified shortly before the Bill of Rights was.

My guess is the Founding Fathers didn’t want to quibble about brief, ceremonial congressional prayers when the Bill of Rights was their most pressing concern at the time, and had no idea how it might turn out down the road.

But now we have a problem that won’t go away.

Meanwhile, a quarter or more of the U.S. populace either doesn’t believe in God and/or couldn’t care less about religion.

Rob Boston, editor of Church & State, the magazine of Americans United for Separation of Church and State (AU), wrote recently in AU’s “Wall of Separation” blog that:

“Allowing the House to prohibit secular invocations excludes millions of Americans who identify as non-theist, agnostic, spiritual but not religious or ‘nones,’ relegating them to second-class citizenship. Ironically, this is the segment of the population that is growing most rapidly.”

Image/Wikimedia/Public Domain

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