FFRF sues Congress for invocation discrimination (2019)

On the 2016 National Day of Prayer, May 5, the Freedom From Religion Foundation filed suit against Congress for refusing to allow Co-President Dan Barker to deliver the House of Representatives invocation as a guest chaplain.

As noted in Barker’s complaint, he is not asking for special treatment. "The House employs a chaplain who coordinates and approves guest chaplains, historically allowing them to deliver about 40% of invocations—more than 800—in the last 15 years.” In keeping with the requirements for guest chaplains, U.S. Rep. Mark Pocan sponsored Barker to deliver a guest invocation in February of 2015. Barker fulfilled all of the chaplain office's requirements, but House Chaplain Patrick Conroy denied Barker's request in January 2016, noting in a letter to Pocan that Barker had "announced his atheism publicly" and therefore was not a true "minister of the gospel" eligible for the honor of appearing in front of Congress.

FFRF's legal complaint documents that nearly 97 percent of House invocations over the past 15 years have been Christian, 2.7 percent have been Jewish, and less than half a percent Muslim or Hindu. None have been delivered by an open nonbeliever, despite a quarter of the adult population in the U.S. being nonreligious.

FFRF is asking the federal court to declare that barring atheists and other nonreligious individuals from the position of guest chaplain violates the Constitution and Religious Freedom Restoration Act, and that requiring guest chaplains to invoke a supernatural power violates Article VI's ban on a religious test for a public office or trust. The organization is also bringing an Establishment Clause claim under the First Amendment of the Constitution, pointing out the chaplain's office is showing an unconstitutional preference for religion over nonreligion.

Chaplain Conroy and the rest of the defendants filed motions to dismiss on September 30, 2016, which FFRF responded to on November 14, 2016. On October 11, 2017, the District Court ruled in favor of motions to dismiss. Judge Rosemary M. Collyer presided over the case in the D.C. District Court, No. 1:16-cv-00580.

The case was appealed to the U.S. Court of Appeals for the District of Columbia, appeal number 17-5278. Barker submitted his arguments on appeal on May 14, 2018.

Amicus briefs in support of FFRF

Chaplain Conroy and the rest of the defendants submitted their arguments on appeal on July 12, 2018.

Amicus briefs in support of Conroy

On April 19, 2019, a three-judge panel unanimously upheld the dismissal of the case, but for different reasoning than was used by the district court. The appeals court did not directly rule that it is legal to discriminate against atheists. Rather, it wrote that Barker was not entitled to the relief he sought because Congress gets special deference in interpreting its own rules: “[T]he 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.”

The court noted that its decision is limited, due to the unique relationship between Congress and the courts. Given the narrow nature of the ruling, which is confined to Congress, FFRF decided not to appeal the decision further.

FFRF is a non-profit, educational organization. All dues and donations are deductible for income-tax purposes.

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FFRF is a member of the Secular Coalition for America

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