Written by Don Byrd

A policy of the Pennsylvania House of Representatives excluding nontheists from delivering the opening invocation violates the Establishment Clause of the Constitution, a federal court ruled yesterday. Denying nontheists the opportunity to act as guest chaplain solely because of the nature of their beliefs, the judge emphasized, amounts to impermissible religious discrimination.

The judge found there is no reason to believe nontheists cannot deliver an appropriate invocation in line with the purposes for legislative prayer the Supreme Court has identified. Here is an excerpt from the opinion.

[D]efendants’ perception of the purposes of legislative prayer is myopic. In Town of Greece, the Court explained that legislative prayer “lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.” It is meant to “reflect values long part of the Nation’s heritage” and to be “solemn and respectful in tone,” inviting our legislators “to reflect upon shared ideals and common ends before they embark on the fractious business of governing[.]” As Justice O’Connor observed in an earlier case, legislative prayer serves “the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.”

Nontheistic invocations are equally capable of satisfying these lofty objectives. We reiterate that many legislative bodies across this nation have opened with nontheistic invocations, and there is no evidence that such prayers fared worse than their theistic counterparts at fulfilling the foregoing purposes. We further observe that both theistic and nontheistic invocations could contravene the purposes of legislative prayer if they were divisive, exclusionary, or disparaging. In other words, it is the content of the prayers, rather than their theistic or nontheistic nature, that matters.

The court also found the Pennsylvania House’s earlier (pre-2017) practice of requiring visitors to stand for the opening prayer “and having Sergeants at Arms repeatedly and loudly direct consciously seated visitors to comply with the Speaker’s request to stand amounts to an unconstitutional level of coercion.” 

For more on this topic, see the Baptist Joint Committee’s resource page on Town of Greece v. Galloway, the most recent Supreme Court case on the issue of legislative prayer.