A federal appeals court pointed to precedent and the Founding Fathers in ruling Friday that atheists can be barred from delivering official invocations.
The U.S. Third Circuit Court of Appeals, in a 2-1 decision, upheld the policy of the Pennsylvania House of Representatives, which requires that the person who prays must be “a member of a regularly established church or religious organization.” The policy further says the prayer’s purpose is “to seek divine intervention” in the work and lives of House members.
It was the second such decision this year by an appeals court. The D.C. Circuit Court of Appeals in April ruled the chaplain of the U.S. House of Representatives could bar atheists from praying.
The Pennsylvania lawsuit was brought on behalf of a group of secular humanists, Unitarian Universalists and freethinkers who don’t believe in a higher power and wanted the opportunity to pray before the Pennsylvania House. Most, if not all, could be labeled as “atheists.”
The plaintiffs argued the policy of excluding atheists and nontheists violates the Establishment, Free Speech, Free Exercise, and Equal Protection Clauses of the U.S. Constitution. The Third Circuit overturned a lower court decision that had sided with the atheists.
Judge Thomas L. Ambro wrote Friday’s majority opinion, ruling that “only theistic prayer can satisfy all the traditional purposes of legislative prayer.”
“The Supreme Court has long taken as given that prayer presumes invoking a higher power,” he wrote.
Ambro, who was nominated by President Clinton, was joined in his opinion by D. Michael Fisher, a nominee of President George W. Bush. Judge L. Felipe Restrepo, a nominee of President Obama, dissented.
The majority opinion pointed to the Founding Fathers and noted that a day after proposing the First Amendment during the 18th century, Congress “urged President Washington to proclaim ‘a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts, the many and signal favours of Almighty God.’”
The court quoted Supreme Court precedent and argued that, historically, legislatures prayers “seek ‘divine guidance’ in lawmaking” and “allow the legislature to ‘acknowledge the place religion holds in the lives of many private citizens.’” Such prayers also “connect [lawmakers] to a tradition dating to the time of the Framers” — one that “has always included a higher power.”
It also cited the Supreme Court’s recent decision upholding the constitutionality of a 40-foot cross.
“As a matter of traditional practice, a petition to human wisdom and the power of science does not capture the full sense of ‘prayer,’ historically understood,” the majority decision said.
Among the 265 Pennsylvania House guest chaplains between 2008 and 2016, 238 were Christian, 23 were Jewish, three were Muslim and one was defined only as “monotheistic.”
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