Pennsylvania House wins appeal in atheist prayer-policy suit

August 23, 2019 GMT

HARRISBURG, Pa. (AP) — A federal appeals court reversed a lower court decision and ruled Friday that the Pennsylvania House of Representatives’ policy of barring atheists from delivering invocations does not violate the U.S. Constitution.

Friday’s decision by the 3rd U.S. Circuit Court of Appeals upholds the Pennsylvania House’s policy of limiting prayers at the start of legislative sessions to guest chaplains who believe in God or a divine or higher power.

It reverses last year’s decision by a district judge, who sided with the atheists, agnostics, freethinkers and humanists who sued. The judge ruled that the restrictions violated constitutional prohibitions on making laws that establish a religion.

After the guest chaplain policy was blocked, House Speaker Mike Turzai, R-Allegheny, began assigning the invocation to House members. The plaintiffs were never invited to give an invocation.

The appeals court’s 2-1 majority said the policy did not violate the establishment clause of the First Amendment because it fits within the “historical tradition of legislative prayer” and counts as government speech that is protected from a free speech or equal protection challenge.

The Pennsylvania House’s policy to limit the opening prayer to religious prayer fits within the tradition long followed in Congress, a tradition that the U.S. Supreme Court has relied on previously to uphold legislative prayer, the appeals court’s majority wrote.

“The House’s practice of beginning its legislative sessions with prayer dates back to the earliest days of our commonwealth and our nation and the current House practice is simply a continuation of that historical tradition,” said Karl Myers, a Philadelphia-based lawyer who argued the case for Turzai.

One of the plaintiffs, web developer Brian Fields, reacted to the decision on Twitter, calling it “very disappointing.” The plaintiffs — seven individuals and four organizations — sued after they sought to give the invocation and were rejected because they do not believe in God, their lawyer said.

“The court has permitted the Pennsylvania House of Representatives to discriminate based on religion against people who do not believe in a god,” said Alex Luchenitser, a lawyer for the Washington-based Americans United for Separation of Church and State who argued the case for the plaintiffs.

The court relied heavily on historical practice in reaching a decision, Luchenitser said, but that doesn’t mean that historical practice is right.

The majority opinion also cited a June decision in the U.S. Supreme Court that allowed a World War I memorial in the shape of a 40-foot-tall cross to continue to stand on public land in Maryland.

In that decision, the appeals court wrote, the Supreme Court “expanded its historical framework beyond the confines of legislative prayer” and established a presumption of constitutionality for longstanding monuments, symbols and practices.

“Indeed, our Court just reiterated the ‘strong presumption of constitutionality’ for practices like the one before us,” the appeals court wrote.

Turzai and the other defendants had argued that the policy did not violate the establishment clause because it allowed people of different faiths to give the invocation and, as a result, did not favor any one religion.

Luchenitser said he had not discussed whether to appeal with his clients.

If there is a silver lining, Luchenitser said, it is that the court’s decision is limited to legislative prayer and prohibits the Pennsylvania House from discriminating based on religion among people who believe in god.