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A Litigious Society Is Going To Litigate: The Religion Clauses

An atheist sued the US House Chaplain for establishing a religion.

Under House Rules, a religious invocation must be delivered at the opening of each session. The House Chaplain invites guest chaplains at the request of members of congress. One congressman invited Dan Barker (Freedom From Religion Foundation) to give a “secular prayer” in lieu of the religious invocation.

According to the Washington Examiner, Barker sued.  He claimed that as an atheist, he was being discriminated against and that the House had established a religion. “The case dates back to 2015, when Barker sought to serve as a guest chaplain in the House and deliver the invocation, which is given at the start of each legislative day. Guest chaplains are required to be sponsored by a member of Congress, ordained, and address a “higher power” rather than House members.”

The district court dismissed his case for lack of standing.  The DC Circuit took up the case and ruled in favor of the House and its chaplain.

The ruling says,

“In Marsh, the Supreme Court took as a given the religious nature of legislative prayer. In holding that opening the legislative day with a prayer amounted not to an establishment of religion but rather to “a tolerable acknowledgment of beliefs widely held among the people of this country,” the Court explained that “‘[w]e are a religious people whose institutions presuppose a Supreme Being.’”

the 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. We could not order Conroy to allow Barker to deliver a secular invocation because the House permissibly limits the opening prayer to religious prayer. Barker has therefore failed to state a claim for which relief can be granted. For the foregoing reasons, we affirm the district court’s dismissal of Barker’s Establishment Clause claim.”

The case arises from two competing norms of government.

1: The Constitution gives Congress alone the authority to “determine the Rules of its Proceedings” (Article I, Section 5).

2: The First Amendment prohibits the establishment of religion.

The court acknowledges that the rule making power is vast, but precedent precludes congress from enacting unconstitutional rules. One source contends that the court’s power cannot reach Congressional rules even in areas that might be unconstitutional.  I would be inclined to think that the courts would be very hesitant to address an issue that is wholly contained within the power of the legislative branch.  But we needn’t address whether the first amendment applies to congressional rules since there are no rules that would even implicate it.

Atheists see establishment of religion in their soup. The constitutional claims of the Freedom From Religion Foundation are completely untethered to the history of establishment.  The court addresses this history briefly, but manages to thoroughly debunk the idea that legislative prayer constitutes establishment of religion. I will go a bit further.   Establishment of religion only exists if the following historical criteria are met: Mandated religious attendance, doctrine enforced by civil authorities, religious salaries and buildings funded by taxation, and religious tests.  States even had established churches during the 1800s as the First Amendment only applied to congress.

We know what establishment is because history tells us.  It isn’t what the Supreme Court has concocted over the years.  And it certainly isn’t what Freedom From Religion says it is.

The DC Court of Appeals made the right decision. 

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