The Pennsylvania House of Representatives may restrict its opening prayers to theists and exclude nontheists without violating the Establishment Clause, a federal appeals court has ruled.   The appeals court reasoned that the practice fits within the “historical tradition of legislative prayer.”

The House’s policy allows either legislators or guest chaplains to open sessions with prayer.  A guest chaplain must be “a member of a regularly established church or religious organization” and the opening prayer serves as a chance for members “to seek divine intervention in their work and their lives.”

Rule excluded Unitarians, Humanists, others from delivering legislative prayer

Interpreted by the House, these measures amount to a rule that prohibits Secular Humanists, Unitarian Universalists, and Freethinkers from delivering prayer because they do not profess belief in a higher power. 

A group of nontheists contended that the theists-only policy violated the Establishment Clause, the Free Exercise Clause, the Free Speech Clause, and the Equal Protection Clause.   A reviewing federal district court determined that legislative prayer was a form of government speech and thus immune from challenge under the Free Exercise, Free Speech, and Equal Protection Clauses.    If speech is deemed to be government speech, it is immune from constitutional scrutiny.   

However, the Establishment Clause is an exception.   And the federal district court ultimately held that the theists-only policy violated the church-state separation principle.   

Court upheld theist-only prayer against church-state separation challenge

On appeal, a divided three-judge panel of the 3rd U.S. Circuit Court of Appeals reversed on the Establishment Clause issue in its August 23, 2019, opinion in Fields v. Speaker of the Pennsylvania House of Representatives.    

The majority relied chiefly on two U.S. Supreme Court decisions – Marsh v. Chambers (1983) and Town of Greece v. Galloway (2014).   In Marsh, the Court upheld by a vote of 6-3 the Nebraska legislature’s practice of opening sessions with a legislative prayer.   In Galloway, the Court upheld by a vote of 5-4 a New York town’s policy of opening town hall sessions with a prayer.

The appeals court also relied on the Supreme Court’s more recent decision in American Legion v. American Humanist Association (2019), in which the Court ruled a 33-foot Latin cross honoring World War I veterans did not violate the Establishment Clause.   In American Legion, the Court emphasized that the memorial “must be viewed in historical context” – a phrase seized upon by the 3rd Circuit. 

Majority: Prayer has traditionally presumed higher power

The majority reasoned that theistic prayer could achieve the many purposes of legislative prayer – both secular and religious.    For example, the majority reasoned that theistic prayer can serve the spiritual needs of the legislators and allow legislators to rely on a “divine power.” 

“Instead of rocking the constitutional boat, today we merely observe what the Supreme Court has long taken as given: that prayer traditionally presumes a higher power,” the majority wrote.  “Because this notion flows from the historical understanding and practice of legislative prayer, it lends further support to the policy of the Pennsylvania House.” 

With respect to the Free Speech, Free Exercise, and Equal Protection challenges, the panel majority agreed with the district court that those claims are foreclosed by the government speech doctrine. 

Judge Luis Felipe Restrepo dissented, finding that the theist-only policy violated the Establishment Clause.  He determined that the Pennsylvania House’s practice of excluding certain would-be guest chaplains of certain religious faiths to be exclusionary and unconstitutional. 

“By mandating that all guest chaplains profess a belief in a ‘higher power’ or God, the Pennsylvania House fails to stay neutral in matters of religious theory,” he wrote. 

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017).