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 was 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 documented 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. At the time none hadbeen delivered by an open nonbeliever, despite a quarter of the adult population in the U.S. being nonreligious.
FFRF asked 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 also brought an Establishment Clause claim under the First Amendment of the Constitution, pointing out the chaplain's office was showing an unconstitutional preference for religion over nonreligion.
- FFRF News Release: "FFRF sues Congress for banning atheist from delivering House invocation"
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.
- Conroy Motion to Dismiss
- Defendants' Motion to Dismiss
- FFRF Memo Opposing Conroy Motion to Dismiss
- FFRF Memo Opposing Defendants' Motion to Dismiss
- District Court Opinion
The case was appealed to the U.S. Court of Appeals for the District of Columbia, case number 17-5278. Barker submitted his arguments on appeal on May 14, 2018.
Amicus briefs in support of FFRF
- Rep. Mark Pocan, D-Wis., along with Rep. Jared Huffman, D-Calif., and Rep. Jamie Raskin, D-Md.
- Americans United for the Separation of State and Church
- The Center for Inquiry and American Atheists
- The American Humanist Association
Chaplain Conroy and the rest of the defendants submitted their arguments on appeal on July 12, 2018.
Amicus briefs in support of Conroy
- Becket Fund for Religious Liberty
- Jewish Coalition for Religious Liberty
- Twenty State Attorneys General
- Forty Eight Members of Congress