The Freedom From Religion Foundation is poised to sue the chaplain of the U.S. House of Representatives over the refusal to allow Dan Barker, an atheist, to deliver the opening invocation before the House.
FFRF is representing Barker, a lifetime member and co-president of FFRF.
No nontheist has ever been allowed to 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, 0.4 percent Muslim and 0.2 percent Hindu. More than a third were delivered by guest chaplains.
The lawsuit is being readied for a May filing, more than 18 months after the Rev. Patrick Conroy, a Roman Catholic priest who has been House chaplain since 2011, was first asked to permit Barker to give an invocation. House Speaker Paul Ryan is also named because he’s the presiding officer whose duties include overseeing other House officers, including the chaplain.
FFRF Staff Attorneys Sam Grover and Andrew Seidel first met with the chaplain’s office in 2014, asking about a nonreligious citizen delivering the opening invocation. The aides, Assistant to the Chaplain Elisa Aglieco and Chaplain’s Liaison to Staff Karen Bronson, will also be named as defendants.
No written requirements exist, but the chaplain’s office replied that someone could give the invocation (1) if they are sponsored by a member of the House, (2) they are ordained, and (3) they do not directly address House members but instead address a “higher power.”
U.S. Rep. Mark Pocan, who represents Barker in Congress, requested in February 2015 that the chaplain’s office invite Barker, a former minister who retains a valid ordination. Pocan provided Barker’s requested information, biography and ordinance certificate. Conroy then asked for something other applicants haven’t been required to provide — a draft of the proposed remarks, expressing doubt Barker could craft an appropriate invocation.
When no permission was forthcoming, Barker provided his remarks in June 2015. Barker proposed saying there is no power higher than “We, the people of these United States,” and invoking “the ‘spirit’ of the founding patriot Thomas Paine, a non-Christian deist who argued for Common Sense over dogma.”
Four months passed without a word. When recontacted, the chaplain’s office, insultingly, claimed it did not think Pocan’s request was “genuine.”
FFRF is planning to sue both under the Fifth Amendment’s due process clause, and, in a novel twist, the Religious Freedom Restoration Act of 1993. RFRA is the statute under which the U.S. Supreme Court upheld Hobby Lobby’s decision to meddle in its female employees’ contraceptive decisions. RFRA states that the federal government, which includes the house chaplain, “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government demonstrates that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest.
FFRF plans to argue that the chaplain’s office is putting substantial pressure on Barker to modify his behavior and to violate his beliefs. FFRF is also planning to invoke Article VI, Section III of the U.S. Constitution, which states that “no religious test shall ever be required as a qualification of any office or public trust.”
FFRF will be asking the U.S. District Court for the District of Columbia to declare that barring atheists and other nonreligious individuals from the position of guest chaplain violates the Constitution and RFRA, that requiring guest chaplains to invoke a supernatural power violates Article VI, and to enjoin the defendants from barring otherwise qualified atheist and nonreligious individuals from delivering the opening invocation before the U.S. House.
