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09/18/87 Paul Kurtz, Dr., v. James A. Baker

September 18, 1987








Appeal from the United States District Court for the District of Columbia, D.C. Civil No. 84-2919.


Ruth B. Ginsburg, Buckley, and D. H. Ginsburg, Circuit Judges. Opinion for the court filed by Circuit Judge Buckley. Opinion filed by Circuit Judge Ruth B. Ginsburg dissenting from the court's standing disposition.


Dr. Paul Kurtz is a professor of philosophy and an advocate of "secular humanism." He challenges the refusal of chaplains of the United States Senate and House of Representatives to invite non-believers to deliver secular remarks in both houses of Congress during the period each house reserves for morning prayer. He advances claims under the establishment and free speech clauses of the First Amendment, and under the equal protection principles of the due process clause of the Fifth Amendment. Because appellant lacks standing under Article III of the Constitution, the judgment of the district court is vacated and the case is remanded with directions to dismiss the complaint for lack of subject matter jurisdiction. I. BACKGROUND

The United States Senate and the United States House of Representatives have each appointed an official chaplain whose duties include the opening of daily sessions with prayer. The official chaplains of the Senate and the House occasionally invite guest chaplains of various denominations, some not ordained, to deliver the opening prayer. Dr. Kurtz asserts that these guest chaplains must be considered "guest speakers" because restricting their function to prayer would violate the Constitution. He would like to be invited as a "guest speaker" to deliver a moral but "non-theistic" invocation in the Senate and the House during what he styles their "opening ceremonies." Because denial of standing should rest on a careful assessment of all relevant circumstances, it is necessary to set out the facts in some detail.

A. Appellant's Request to the Chaplains

Appellant wrote to the Reverend Richard C. Halverson, Chaplain of the Senate, and the Reverend James D. Ford, Chaplain of the House, requesting permission to address their respective houses "on behalf of the Council for Democratic and Secular Humanism." Letter from Dr. Kurtz to Rev. Halverson (Feb. 13, 1984), Joint Appendix at 29-30; Letter from Dr. Kurtz to Rev. Ford (Feb. 13, 1984), J.A. at 71-72. In each letter Kurtz "request[ed] the opportunity to appear as a guest speaker and to open a daily session . . . with a short statement in which [he] would remind the [members of the Senate and the House] of their moral responsibilities." Letter to Rev. Halverson, J.A. at 29; Letter to Rev. Ford, J.A. at 71. He advised both chaplains that he would not utter a prayer if invited:

As a secular humanist, I would not, of course, invoke any deity during my remarks. However, my remarks would otherwise fall within the traditional format. If for some reason you believe it is necessary to open the session with the invocation of a deity, I would have no objection to sharing the podium with you. I do believe that it is important, however, for the [members of the Senate and the House] occasionally to have the opportunity to hear non-theists speak of moral responsibilities since one of the common prejudices in our country is that non-theists do not recognize any moral responsibilities.

On February 27, 1984, Halverson responded with thanks and the following statement: "In the three years I have been the Chaplain my policy has been to invite those who are sponsored by a Senator." Letter from Rev. Halverson to Dr. Kurtz (Feb. 27, 1984), J.A. at 31. Kurtz, a citizen of the State of New York, then wrote to Senators Moynihan, D'Amato, Goldwater, Hatfield, and Weicker requesting sponsorship, but none agreed. J.A. at 32-33 (first letter to Sen. Moynihan), 35-36 (to Sen. Weicker), 37-38 (second letter to Sen. Moynihan), 39 (to Sen. D'Amato), 40 (to Sen. Goldwater), 41 (to Sen. Hatfield). Only the chief legislative assistant to Senator Hatfield responded in writing, essentially as follows:

There is no provision or desire for lectures from whatever source. I can appreciate the convictions which you expressed in your "proposed opening." However, the intent of the time of prayer is to acknowledge our dependence upon the transcendent Creator.

. . . [Moreover Senator Hatfield would not] use one of his rare opportunities to present a guest pastor for someone who [sic] he does not know and who cannot out of conviction abide by the spirit of the rules of the Senate.

Letter from Thomas R. Getman, Chief Legislative Assistant to Sen. Mark O. Hatfield, to Dr. Kurtz (June 5, 1984) J.A. at 42.

After failing to attract a sponsor, Kurtz again wrote to Halverson, renewing his earlier request and stating he was not aware of the existence of a Senate rule supporting Halverson's sponsorship requirement. Letter from Dr. Kurtz to Rev. Halverson (Aug. 30, 1984), J.A. at 43. Halverson responded on September 7 by restating his earlier position, explaining that only the Senate can make an exception to the rule that only Senators may address the Senate, and that the Senate Chaplain was allowed "to invite two guests per month to open the Senate with prayer. Obviously this does not include inviting someone to speak, however briefly." Letter from Rev. Halverson to Dr. Kurtz (Sept. 7, 1984), J.A. at 44.

Ford responded to appellant's first letter by stating that "the rules of the United States House of Representatives provide that each session will open with a prayer by the Chaplain. It is therefore impossible, pursuant to the rules of the House, for me to invite you be [sic] a guest speaker." Letter from Rev. Ford to Dr. Kurtz (Mar. 26, 1984), J.A. at 73. Kurtz then sent Ford a second letter suggesting he would speak after Ford said a prayer. Letter from Dr. Kurtz to Rev. Ford (Apr. 6, 1984), J.A. at 74-75. Ford replied that "the chaplain cannot yield to another person for a statement." Letter from Rev. Ford to Dr. Kurtz (Apr. 25, 1984), J.A. at 76. Kurtz then predictably suggested that he speak before Ford or, perhaps less predictably, that they "deliver a truly joint opening by alternating the lines of our texts." Letter from Dr. Kurtz to Rev. Ford (May 23, 1984), J.A. at 77.

C. The Complaint

On September 19, 1984, appellant Kurtz filed a complaint styled an "action challenging the constitutionality of certain practices of the Chaplain of the U.S. House of Representatives . . . and the Chaplain of the U.S. Senate." Complaint at 1, J.A. at 8. Kurtz names as defendants the Secretary of the Treasury and the Treasurer of the United States ("Treasury appellees"), and the Reverends Ford and Halverson. The complaint alleges two counts. Count one in part makes the following allegations concerning the chaplains:

38. The exclusion of non-theists, such as Plaintiff, from the guest speakers program on the basis of the content of their remarks violates the Free Speech, Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution.

39. To the extent that Senate and House rules require guest speakers to utter a prayer, those rules violate the Free Speech, Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution.

40. To the extent that any policy of the Senate or the Senate Chaplain to invite only those speakers sponsored by a Senator results in discrimination against speakers from unpopular minority groups, such as Plaintiff, that policy violates the Free Speech, Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution.

Complaint at 10, J.A. at 17.

In regard to the Treasury appellees, count one makes only one specific assertion, namely that they "are responsible for disbursing federal funds that support the chaplaincies." Complaint at 8, J.A. at 15. Count two of the complaint alleges that Halverson routinely uses opening prayers in the Senate to disparage "the beliefs of non-theists." Complaint at 11, J.A. at 18. Count two, however, is not before us.

Kurtz requests declaratory and injunctive relief with respect to count one. He seeks declarations that (1) the exclusion of "non-theists" from the "guest speaker program" in the Senate and the House, (2) any Senate or House rule requiring "guest speakers to utter a prayer," and (3) any policy to invite only sponsored speakers to the Senate which results in discrimination against "non-theists," violate the free speech and religion clauses of the First Amendment and the due process clause of the Fifth Amendment. Id. at 19. He also requests permanent injunctions barring the exclusion of "non-theists" from the "guest speaker program[s]" of the House and the Senate, or alternatively barring the disbursement of funds from the United States Treasury for the House and Senate chaplaincies.

D. Disposition in the District Court

The defendants moved for summary judgment on all counts. The district court granted that motion as to count one, reserving its disposition of count two for a later date. Kurtz v. Baker, 630 F. Supp. 850, 859, 861 (D.D.C. 1986). The court first considered defendants' three-pronged challenge to its jurisdiction over the subject of the complaint; namely, that (1) Kurtz lacked standing, (2) his challenge presented non-justiciable political questions, and (3) his action was barred by defendants' immunity derived from the Speech or Debate Clause, U.S. Const. art. I, ยง 6, cl. 1. It rejected all three arguments, affirmed Kurtz' standing, and proceeded to decide the merits. Id. at 854-55.

The court determined that Kurtz' injury was sufficiently concrete, directly traceable to the challenged conduct, and redressable. It also interpreted Kurtz' challenge as one to the chaplains' interpretation of Senate and House rules, but not to the rules themselves, thus distinguishing cases that applied the increasingly weak political question doctrine. Finally, it found that opening prayers did not so intimately partake of the legislative process as to fall within the protection of the Speech or Debate Clause. Id. The court concluded that the free speech and equal protection claims in count one lacked merit, relying primarily on Marsh v. Chambers, 463 U.S. 783, 77 L. Ed. 2d 1019, 103 S. Ct. 3330 (1983) (Nebraska legislature's chaplaincy practice does not violate the establishment clause). Kurtz, 630 F. Supp. at 855-58.

E. Arguments on Appeal

Kurtz calls this case a "textbook illustration" of proper standing. Brief for Appellant at 34. Appellees disagree. House counsel contend that Kurtz lacks standing in part because his request was not personal, but rather a request on behalf of the Council for Democratic and Secular Humanism. Brief for Appellee Ford at 22-23 (quoting Letter from Dr. Kurtz to Rev. Ford, J.A. at 71). Senate counsel asserts that there is no "guest speaker program" in the Senate except one very closely controlled by the Senate leadership. See Brief for Appellee Halverson at 8. Senate counsel further contends that "the lack of judicial power to compel either House of the coordinate legislative branch to alter its constitutionally valid rules requires affirmance of the grant of summary judgment." Id. at 16-17.

The Treasury appellees invoke Article III against appellant by relying on the requirement that the injury alleged be legally cognizable. They then invoke the political question doctrine to define Kurtz' alleged injury as non-cognizable for purposes of Article III. Brief for Appellees Baker and Ortega at 16-19. In their political question discussion, counsel for the Treasury appellees argue that Kurtz' complaint is a challenge to House and Senate rules, notwithstanding the district court's contrary conclusion, and that the Constitution textually commits to each house the exclusive power to adopt the challenged rules. Although they concede that in United States v. Ballin, 144 U.S. 1, 36 L. Ed. 321, 12 S. Ct. 507 (1892), the Supreme Court reviewed the constitutionality of a House Rule, they assert that the Court did so only to the extent necessary to establish whether the Rule "ignore[d] constitutional restraints or violate[d] fundamental rights." Brief for Appellees Baker and Ortega at 20-21 (quoting Ballin, 144 U.S. at 5). They then rely on Marsh v. Chambers to show that the rules meet the constitutional tests. As we conclude appellant is without Article III standing for the reasons set forth below, we do not reach the

In Anglo-American law the traditional case has pitted a personally aggrieved plaintiff against a defendant who has wronged him. The judicial task has been to determine whether the defendant caused the plaintiff a readily identifiable injury, and if so, whether to order the defendant to stop or make whole the wrong. Like so many others the Supreme Court has recently examined for standing, this litigation presents a claim that is non-traditional. See Diamond v. Charles, 476 U.S. 54, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986) (physician lacks standing to defend State abortion law); Allen v. Wright, 468 U.S. 737, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984) (parents of black children representing nationwide class lack standing to challenge IRS policies for awarding tax-exempt charitable status to racially discriminatory private academies); Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (individuals and organization desiring strict separation between Church and State lack standing to challenge conveyance of federal property to sectarian school); Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976) (individuals and organization lack standing to challenge relaxation in indigent-care requirements applicable to hospitals desiring tax-exempt charitable status); Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975) (organizations and individuals representing a class lack standing to challenge racially discriminatory housing ordinance); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1974) (organization and individuals lack standing to challenge membership of members of Congress in armed forces Reserves).

Deciding whether an action lies within the judicial power of the United States requires the careful application of precedents construing Article III's case-or-controversy requirement. Such investigation can become a

There is no case or controversy, the reasoning has gone, when there are no adverse parties with personal interest in the matter. Surely not a linguistically inevitable conclusion, but nonetheless an accurate description of the sort of business courts had traditionally entertained, and hence of the distinctive business to which they were presumably to be limited under the Constitution.

A. Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L. Rev. 881, 882 (1983) (footnote omitted).

As explained below, appellant alleges injury to various social but only one cognizable, personal interest. Injury to his social interest in having the views of secular humanists sympathetically presented in Congress cannot satisfy Article III. Injury to the one personal interest he does assert could not have been caused by appellees because, first, he has not alleged that they had the power to inflict it and, second, an allegation that they had such power would not have been tenable if made. To believe that the two chaplains could have authorized appellant to address a non-religious statement to the United States Senate and House of Representatives during periods explicitly reserved for prayer requires a suspension of ordinary common sense that this court need not indulge.

Thus the complaint barely survives scrutiny under the first part, and thoroughly fails under the second part, of the test the Supreme Court has developed for determining Article III standing: (1) there must be concrete personal injury to the plaintiff, (2) such injury must be fairly traceable to the challenged conduct, and (3) the injury must be "likely" to be redressed if the relief sought is granted. See Diamond, 106 S. Ct. at 1707-08; Allen, 468 U.S. at 751-52; Valley Forge, 454 U.S. at 472; see also Eastern Ky. Welfare Rights Org., 426 U.S. at 41-42; Warth, 422 U.S. at 498-99. Because the second part of the test is not satisfied, it is unnecessary to estimate whether an order from this court compelling the chaplains to invite appellant to address Congress or to broaden the category of "guest speakers" to include non-believers would be "likely" to result in Kurtz being heard.

A. Article III Injury

The court must police its jurisdiction by applying its own careful analysis of the complaint, guided by precedent. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 106 S. Ct. 1326, 1331, 89 L. Ed. 2d 501 (1986). In this regard, Justice Powell reminds us that where a party's standing is challenged in a motion to dismiss, a reviewing court "must construe the complaint in favor of the complaining party." Warth, 422 U.S. at 501.

The first requirement for standing is that the plaintiff "allege a distinct and palpable injury to himself." Reasonably construed in favor of appellant, the complaint alleges three types of injury. First, the complaint alleges that "Dr. Kurtz is also a federal taxpayer." Complaint at 3, para. 5, J.A. at 10. This suggests a claim of injury in the misuse of his taxes to support unconstitutional chaplaincy practices. Second, by alleging that "the exclusion of non-theists is divisive and confers an important symbolic benefit upon religion," the complaint could be said to allege stigmatic injury to atheistic beliefs in violation of the Constitution. Complaint at 10, para. 37, J.A. at 17. Third, the complaint presents two versions of an "exclusion injury": the first is based on the claim he was "denied the opportunity to appear as a guest speaker [because] he is a non-theist and would not invoke deity in his remarks," Complaint at 9, para. 35, J.A. at 16, and the other, "the exclusion of non-theists, such as Plaintiff, from the guest speaker program . . . ." Complaint at 10, para. 38, J.A. at 17.

These allegations of injury cannot be accepted on their face without examination. The petitioners in Allen v. Wright, for example, alleged that Internal Revenue Service regulations and practices encouraged white students to attend racially segregated private academies receiving IRS tax-deductible charity status, thus resulting in a more racially segregated public education for petitioners' black children. The Court first examined petitioners' various allegations of injury, and determined that only one, the black "children's diminished ability to receive an education in a racially integrated school," Allen, 468 U.S. at 756, was judicially cognizable. Similarly, here it is necessary to examine each of appellant's alleged injuries for compliance with the requirement that they be personal and ...

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