The Freedom From Religion Foundation’s case against the U.S. Congress has reached a new stage.
Earlier this year, FFRF sued Speaker of the House Paul Ryan and House Chaplain Rev. Patrick Conroy over the refusal to allow Dan Barker, an atheist, to deliver the opening invocation before the U.S. House. The government asked the court to dismiss that case. On Nov. 14, Barker responded to the government’s specious arguments.
The House of Representatives begins each day in session with a prayer. Forty percent of those prayers, more than 900 in the last 15 years, have been given by guest chaplains. No nontheist has ever been allowed to openly give the House invocation, despite the fact that the nonreligious make up almost 24 percent of the population. From the years 2000 to 2015, 96.7 percent of the invocations have been Christian, 2.7 percent Jewish and less than half a percent Muslim or Hindu.
The government raised several disturbing arguments for why it should be allowed to discriminate against Barker and other atheists. One of the House chaplain’s major claims was that Barker does not have legal standing to bring the lawsuit because he was not “injured” by the discrimination. Of course, discrimination is itself an injury that courts can redress.
At one point, the government even argued that religious discrimination did not harm Barker because he “has derived more notoriety from the denial . . . than he could have hoped to gain from delivering a brief secular invocation.” But as Barker pointed out, every oppressor claims that their prejudice “is done ‘for the good’ of the oppressed” and said that the court must reject this degrading argument.
Another of the chaplain’s central claims was that the courts, as a co-equal branch of government, cannot review the House’s actions for constitutional violations. In its response, FFRF pointed out that the judiciary has always reviewed legislative action for constitutional compliance. Being a government officer is not a license to discriminate and the courts have jurisdiction to ensure equal treatment for all.
The government also attempted to argue that Barker was challenging the prayers themselves, rather than seeking an opportunity to deliver a secular invocation. But citizens have been delivering such invocations at government meetings around the country ever since the U.S. Supreme Court approved this practice. More than 75 have been given recently, including in state legislatures.
When the Supreme Court allowed legislative prayers in the 2014 case Town of Greece v. Galloway, it did so partly because the town involved “at no point excluded or denied an opportunity to a would-be prayer giver” and “maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation.” It was this promise of nondiscrimination that led Barker to seek the guest chaplaincy in the first place. The D.C. district court must now decide whether that language was true and valid or a meaningless sop thrown to the Nones.
Barker is a Lifetime Member of FFRF and is represented by FFRF attorneys Andrew L. Seidel and Sam Grover, who authored the response, and Rich Bolton of Boardman Clark. Barker sued as an individual, not as co-president of FFRF.
