Published by the Freedom From Religion Foundation, Inc. FFRF.org

Members of Congress, others support FFRF against House chaplain

Vol. 35 No. 5 June/July 2018
Rep. Jamie Raskin                                                                                                                                                                                                                                                                                                                 

FFRF Co-President Dan Barker’s discrimination case against Rev. Pat Conroy, the chaplain of the House of Representatives, has received a boost. Several members of Congress, secular groups and religious groups — including Jewish, Sikh and interfaith — have weighed in, asking the court to strike down the House chaplain’s discriminatory invocation practices.

In May, U.S. Rep. Mark Pocan, D-Wis., who sponsored Barker’s guest chaplain request, signed on to a brief along with U.S. Rep. Jared Huffman, D-Calif., and U.S. Rep. Jamie Raskin, D-Md. Their court action marks the first time one, let alone multiple, sitting members of Congress have filed a brief supporting FFRF.

In May 2016, Barker initially filed suit because Conroy, a Roman Catholic priest, refused to allow him to give the opening invocation before Congress, claiming that atheists cannot solemnize important occasions. The chaplain invented several requirements that Barker met, including being ordained (Barker is a former minister) and addressing a higher power (Barker planned to address the highest power in this nation, “We the People”). None of these invented requirements was applied to other guest chaplains. Moreover, atheists and nonbelievers have delivered invocations at city councils, county boards and even in state legislatures around the country.

In October 2017, U.S. District Judge Rosemary M. Collyer, a President George W. Bush appointee, ruled against Barker, so he appealed.

On May 21, secular and religious groups and those three members of Congress filed friend of the court briefs supporting Barker.

Reps. Pocan, Huffman and Raskin, who made history in April when they announced the formation of the first Congressional Freethought Caucus, argue that “The First Amendment’s Establishment Clause does not permit Congress or its chaplains to discriminate against atheists and agnostics who have been duly invited by their elected representatives.” The brief also points out that nonbelievers “can and do solemnize legislative sessions” and provides examples.

Americans United for the Separation of State and Church has authored a strong brief that several groups have 

signed on to, including the Anti-Defamation League, the American Ethical Union, the Interfaith Alliance Foundation, the Jewish Social Policy Action Network, the National Council of Jewish Women, the Sikh American Legal Defense and Education Fund, the Sikh Coalition, the Union for Reform Judaism, the Central Conference of American Rabbis, the Women of Reform Judaism, the Men of Reform Judaism, and the Unitarian Universalist Association.

These groups argue, “In addition to the prohibitions against religious discrimination, the House chaplain’s conduct violates the Establishment Clause’s bar against religious entanglement.”

In fact, the criteria the chaplain “has been using to determine who may serve as a guest chaplain and to exclude Mr. Barker inherently leads the House to become entangled in inappropriate religious inquiries and judgments,” the brief states. It notes that one of the chaplain’s requirements, the requirement to be ordained, “discriminates against adherents of faiths that do not ordain clergy, such as Muslims, certain Buddhists, Bahais, and Quakers.”

The Center for Inquiry and American Atheists have filed a separate brief in which they argue that the chaplain’s rules are discriminatory and violate the Constitution, including that the religious test to become a guest chaplain violates Article 6: “[N]o religious test shall ever be required as a qualification to any office or public trust under the United States.”

The American Humanist Association contends in its brief on the basis of extensive precedent that a government “practice that categorically excludes atheists from delivering invocations is
. . . plainly unconstitutional” and that the “principle of religious freedom was trampled on by the district court’s decision, which accordingly, must be reversed.”

“I’m touched by the breadth, depth and quality of the support I’ve received,” says Barker. “The fact that so many groups representing minorities — religious and nonreligious — have expressed their solidarity shows how dangerous the district court’s decision is. If the House of Representatives, which is supposed to be representative, can discriminate against me for not believing, who’s next?”

FFRF filed its opening appellate brief on May 14. In it, FFRF has documented that Conroy relies on many “guest chaplains,” with such guests delivering about 40 percent of invocations, or more than 800 in the past 15 years. Yet when an atheist was invited to give the opening remarks, Conroy imposed requirements that intentionally discriminated against him.

The brief points out that House rules specify the sole duty of the chaplain is to pray at the commencement of each day’s sitting of the House. No requirements or written rules exist for guest chaplains.

“God does not an invocation make,” wrote Attorney Richard L. Bolton, the outside counsel who drafted the FFRF brief. “Constitutionally acceptable invocations may include religious references, but religion is not essential to the solemnizing purpose of legislative invocations.”

Conroy evinced “discrimination, pretext and hostility toward Barker, based on his status as a nonbeliever,” the brief concludes.

The chaplain’s response is due no later than July 12. FFRF will have two weeks to reply to that brief.