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Fields v. Speaker of Pennsylvania House of Representatives

United States Court of Appeals, Third Circuit

August 23, 2019

BRIAN FIELDS; PAUL TUCKER; DEANA WEAVER; SCOTT RHOADES; JOSHUA E. NEIDERHISER; PENNSYLVANIA NONBELIEVERS, INC.; DILLSBURG AREA FREETHINKERS; LANCASTER FREETHOUGHT SOCIETY; REV. DR. NEAL JONES; PHILADELPHIA ETHICAL SOCIETY; RICHARD KINIRY BRIAN FIELDS; PAUL TUCKER; DEANA WEAVER; SCOTT RHOADES; JOSHUA E. NEIDERHISER; PENNSYLVANIA NONBELIEVERS, INC.; DILLSBURG AREA FREETHINKERS; LANCASTER FREETHOUGHT SOCIETY; REV. DR. NEAL JONES; PHILADELPHIA ETHICAL SOCIETY Appellants
v.
SPEAKER OF THE PENNSYLVANIA HOUSE OF REPRESENTATIVES; PARLIAMENTARIAN OF THE PENNSYLVANIA HOUSE OF REPRESENTATIVES; DIRECTOR OF SPECIAL EVENTS OF THE PENNSYLVANIA HOUSE OF REPRESENTATIVES; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 92; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 95; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 97; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 165; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 167; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 182; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 193; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 196, all solely in their official Capacities Appellants

          Argued June 17, 2019

          Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1-16-cv-01764) District Judge: Honorable Christopher C. Conner

          Jonathan F. Bloom Karl S. Myers (Argued) Spencer R. Short Kyle A. Jacobsen Stradley Ronon Stevens & Young, Mark E. Chopko Stradley Ronon Stevens & Young, Counsel for Appellant/Cross Appellee Speaker of the Pennsylvania House of Representatives

          Patrick Grubel Richard B. Katskee Alexander J. Luchenitser (Argued) Americans United for Separation of Church & State, Allen C. Warshaw, Eric O. Husby American Atheists Counsel for Appellee/Cross Appellant Brian Fields

          Randall L. Wenger Jeremy L. Samek Independence Law Center, John J. Bursch David A. Cortman Jeremy Tedesco Alliance Defending Freedom Counsel for Amicus Appellants/Cross Appellees Mike Kelly, Scott Perry, Lloyd Smucker, Glenn Thompson

          Steven W. Fitschen James A. Davids The National Legal Foundation Counsel for Amicus Appellants/ Cross Appellee Congressional Prayer Caucus Foundation, International Conference of Evangelical Chaplain Endorsers, National Legal Foundation, Veterans in Defense of Liberty

          Eric S. Baxter Chase T. Harrington Becket Fund for Religious Liberty Counsel for Proposed Amicus Aleph Institute

          Gregory E. Ostfeld Greenberg Traurig, Alan Hersh Greenberg Traurig, Vitaliy Kats Greenberg Traurig, Gregory M. Lipper Clinton & Peed, Monica L. Miller American Humanist Association, Counsel for Amicus Appellees/ Cross Appellants Anti-Defamation League, Central Conference of American Rabbis, Hindu American Foundation, Interfaith Alliance Foundation, Jewish Social Policy Action Network, Keshet, Men of Reform Judaism, National Council of Jewish Women, Asian Pacific American Advocates, People for the American Way Foundation, Truah Rabbinic Call for Human Rights, Union for Reform Judaism, Women of Reform Judaism, American Humanist Association, Jamie Raskin, Representative Jared Huffman

          Patrick C. Elliott Colin E. McNamara Freedom from Religion Foundation Counsel for Amicus Appellee Freedom from Religion Foundation

          Before: AMBRO, RESTREPO, and FISHER, Circuit Judges

          OPINION

          AMBRO, CIRCUIT JUDGE

         The Pennsylvania House of Representatives begins most legislative sessions with a prayer. The practice has two features that are challenged in this appeal. First, the House invites guest chaplains to offer the prayer, but it excludes nontheists (those who do not espouse belief in a god or gods, though not necessarily atheists) from serving as chaplains on the theory that "prayer" presupposes a higher power. Second, visitors to the House chamber pass a sign asking them to stand for the prayer, and the Speaker of the House requests that audience members "please rise" immediately before the prayer. At least once a House security guard pressured two visitors who refused to stand.

         A group of nontheists have challenged the theists-only policy under the Establishment, Free Exercise, Free Speech, [1]and Equal Protection Clauses[2] of our Constitution. As to the Establishment Clause, we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking, the basis for the Supreme Court taking as a given that prayer presumes a higher power. For the Free Exercise, Free Speech, and Equal Protection Clauses, we hold that legislative prayer is government speech not open to attack via those channels.

         The nontheists also challenge as unconstitutionally coercive the requests to "please rise" for the prayer. We hold that the single incident involving pressure from a security guard is moot. As for the sign outside the House chamber and the Speaker's introductory request that guests "please rise," we hold that these are not coercive.

         Thus we affirm in part and reverse in part the ruling of the District Court.

         Background

         A. Guest Chaplain Policy - Exclusion of Nontheists

         A member of the Pennsylvania House or a guest chaplain opens most legislative sessions with a prayer. A guest chaplain must be "a member of a regularly established church or religious organization." The House defines "opening prayer" as a chance for its members "to seek divine intervention in their work and their lives." Taken together, the House rules do not allow nontheists to give the opening prayer.

         Once a guest chaplain is selected, he or she is told to craft a prayer "respectful of all religious beliefs." Fields v. Speaker of the Pa. House of Representatives, 251 F.Supp.3d 772, 777 (M.D. Pa. 2017) (Fields I). The 203 members of the House "com[e] from a wide variety of faiths," so "efforts to deliver an inter-faith prayer are greatly appreciated." Fields v. Speaker of the Pa. House of Representatives, 327 F.Supp.3d 748, 751 (M.D. Pa. 2018) (Fields II). Still, no House member reviews the prayer ahead of time.

          From 2008 to 2016 the House prayer practice was as follows. For 678 legislative sessions, 575 began with a prayer. Of those prayers, 310 were offered by House members and 265 by guest chaplains. Among the 265 guest chaplains were 238 Christian clergy, 23 Jewish rabbis, three Muslim imams, and one monotheistic (yet otherwise unrecognizable) speaker. Fields I, 251 F.Supp.3d at 777. The House branched out in 2017 from the Abrahamic faiths with its first Sikh guest chaplain. Fields II, 327 F.Supp.3d at 752.

         The plaintiffs here wish to offer the opening prayer as well. They represent a variety of nontheist organizations, including Secular Humanists, Unitarian Universalists, and Freethinkers.[3] Most of these groups self-identify as "religious" organizations, and their practices parallel those of a church. For instance, they gather regularly to discuss their worldviews, study important texts, observe annual celebrations, and participate in community service. Fields I, 251 F.Supp.3d at 776. Their "clergy" even perform weddings and officiate at funerals. In short, they look and act like a church or synagogue in all ways but one: they do not profess belief in the existence of a higher power.

         For this reason alone, the House denied their requests to offer a prayer. Each group had proposed an uplifting secular message - a "nontheistic" prayer touching on themes such as equality, unity, decency, hope, peace, compassion, tolerance, and justice. Fields II, 327 F.Supp.3d at 750. But because their proposed invocations would not appeal to a "higher power," they were turned away. Id. at 753.

         B. Prayer Practice - Request to "Please Rise"

         Two features of the prayer practice changed in response to this lawsuit. First, the Speaker of the House had asked guests to "please rise." Id. In 2017 he elaborated that guests "please rise as able." Id. Second, a sign outside the House chamber had explained that legislative sessions begin with a prayer and the Pledge of Allegiance, and it had asked that all guests "who are physically able" rise "during this order of business." After this lawsuit, "physically" was dropped. Id. at 754. On appeal, the parties dispute only whether the pre-2017 practice was unconstitutionally coercive.

         The nontheists also challenge the coercive nature of one incident in 2012. After the Speaker's general request to "please rise," plaintiffs Brian Fields and Scott Rhoades remained seated. A House security guard singled them out and pressured them to stand. Id. at 753. However, they were not asked to leave, and no action was taken against them.

         C. Procedural History

         The leaders of several nontheist groups, along with the groups themselves, brought this suit under 42 U.S.C. § 1983 against the Speaker of the House, the House Parliamentarian, and several House members. The plaintiffs took aim at the guest chaplain policy and the practice of asking that guests "please rise" for the prayer. First, they asserted that the policy of excluding nontheists from serving as guest chaplains violated the Establishment, Free Speech, Free Exercise, and Equal Protection Clauses. Second, they claimed that asking guests to "please rise" for the prayer was unconstitutionally coercive in violation of the Establishment Clause.

         At the motion-to-dismiss stage, the District Court winnowed the claims to the alleged Establishment Clause violations. Reasoning that legislative prayer is government speech rather than speech by private citizens, the Court dismissed the claims brought under the Free Exercise, Free Speech, and Equal Protection Clauses. The Establishment Clause claims survived, however, because the Court needed a record at summary judgment to determine (1) "[w]hether history and tradition sanctify the House's line of demarcation between theistic and nontheistic chaplains," and (2) whether the Speaker's request to "please rise" for the prayer was unconstitutionally coercive. Fields I, 251 F.Supp.3d at 789.

         After discovery, both sides moved for summary judgment. The Court held that the guest chaplain policy violated the Establishment Clause and issued a permanent injunction. As for the requests to "please rise" for the opening prayer, it held that the current policy (amended in response to the lawsuit) was not coercive, but that the pre-2017 policy was.

         Both sides have appealed.

         Jurisdiction and Standard of Review

         The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction per 28 U.S.C. § 1291. We review the Court's findings of fact for clear error and its conclusions of law de novo. VICI Racing, LLC v. T-Mobile USA, Inc., 763 F.3d 273, 282-83 (3d Cir. 2014).

          Discussion

         A. Guest Chaplain Policy - Establishment Clause Challenge

         Principally before us is whether the Pennsylvania House may intentionally exclude nontheists from offering prayers to open the legislative session. Because the House's policy preferring theistic over nontheistic prayers fits squarely within the historical tradition of legislative prayer, we part with the District Court on this point and uphold the prayer policy.

         1. Pennsylvania's Policy is Consistent with Historical Practice.

         (i) Background on the Historical Framework -

         History supplies our method of analyzing cases involving legislative prayer. In Establishment Clause challenges like this, we ask "whether the prayer practice" in question "fits within the tradition long followed in Congress and the state legislatures." Town of Greece v. Galloway, 572 U.S. 565, 577 (2014). The early legislative practice of those who drafted the Establishment Clause "reveal[s] their intent" as to its scope. Marsh v. Chambers, 463 U.S. 783, 790 (1983); see also New Doe Child #1 v. United States, 901 F.3d 1015, 1020 (8th Cir. 2018) ("[H]istorical practices often reveal what the Establishment Clause was originally understood to permit."). In other words, we employ "a history and tradition test." Am. Legion v. Am. Humanist Ass'n, 139 S.Ct. 2067, 2092 (2019) (Kavanaugh, J., concurring); see also Freedom From Religion Found., Inc. v. Cty. of Lehigh, No. 17-3581, 2019 WL 3720709, - F.3d - (3d Cir. Aug. 8, 2019) (noting "the Supreme Court's more recent focus on evaluating challenges to government action in the context of historical practices and understandings," id. at *2, and explaining that "[a] practice's fit within our Nation's public traditions may confirm its constitutionality," id. at *5).

         Twice the Supreme Court has drawn on early congressional practice to uphold legislative prayer. It emphasized that Congress approved the draft of the First Amendment in the same week it established paid congressional chaplains to provide opening prayers. Marsh, 463 U.S. at 790; see also Town of Greece, 572 U.S. at 575 ("The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time."). Congress approved theistic religious expression in other ways as well; a day after proposing the First Amendment, it "urged President Washington to proclaim 'a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts, the many and signal favours of Almighty God.'" Lynch v Donnelly, 465 U.S. 668, 675 n.2 (1984) (quoting A. Stokes & L. Pfeffer, Church and State in the United States 87 (rev. 1st ed. 1964)).

         These insights - paired with the general use of history as the decisional framework - paved the way to the holdings in both Marsh and Town of Greece. The former upheld Nebraska's practice of offering legislative prayer by the same paid Presbyterian minister for 16 years. "In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society." Marsh, 463 U.S. at 792. Likewise, Town of Greece upheld sectarian (for example, invocations "in Jesus' name" for a given sect) as opposed to ecumenical (for example, nonsectarian or nondenominational invocations to a "generic God") legislative prayer by guest chaplains. Town of Greece, 572 U.S. at 572-73. The Court refused to "sweep away" a practice that "was accepted by the Framers and has withstood the critical scrutiny of time and political change." Id. at 577.

         The D.C. Circuit recently deployed this historical framework to answer the same question before us today. See Barker v. Conroy, 921 F.3d 1118 (D.C. Cir. 2019) (Tatel, J.). There it considered the U.S. House of Representatives' practice of excluding nontheists from offering legislative prayers. Following the path charted by Marsh and Town of Greece, the Court defined its task as "determin[ing] whether that practice falls within the tradition the Supreme Court has recognized as consistent with the Establishment Clause." Id. at 1130. Put another way, "does the House's decision to limit the opening prayer to religious prayer fit 'within the tradition long followed in Congress and the state legislatures'?" Id. (quoting Town of Greece, 572 U.S. at 577). The answer was "yes." Id.

         Even more recently, the Supreme Court has expanded its historical framework beyond the confines of legislative prayer. In rejecting an Establishment Clause challenge to a Christian cross commemorating World War I on state property, the Court held that the memorial "must be viewed in [its] historical context." Am. Legion, 139 S.Ct. at 2074. It also announced "a presumption of constitutionality for longstanding monuments, symbols, and practices." Id. at 2082. Indeed, our Court just reiterated the "strong presumption of constitutionality" for practices like the one before us. See Freedom From Religion Found., 2019 WL 3720709, at *3 (quoting Am. Legion, 139 S.Ct. at 2085). That presumption applies to the longstanding practice of theistic prayer in the United States; since the first congressional prayers in 1789, the U.S. House of Representatives "has never had an openly atheist or agnostic guest chaplain." Barker, 921 F.3d at 1122.

         With this background on the historical framework - and bearing in mind the thumb on the scale for the constitutionality of longstanding practices like that of Pennsylvania House, see Am. Legion, 139 S.Ct. at 2085 - we turn to two reasons why Pennsylvania's practice is historically sound. First, only theistic prayer can satisfy all the traditional purposes of legislative prayer. Second, the Supreme Court has long taken as given that prayer presumes invoking a higher power.

         (ii) Purposes of Legislative Prayer -

         Legislative prayer has historically served many purposes, both secular and religious. Because only theistic prayer can achieve them all, the historical tradition supports the House's choice to restrict prayer to theistic invocations.

         To be sure, legislative prayer achieves several secular purposes. It solemnizes the occasion by "lend[ing] gravity" to the proceedings and placing legislators in a "deliberative frame of mind." Town of Greece, 572 U.S. at 587, 570. It provides a moment of "quiet reflection" that "sets the mind to a higher purpose." Id. at 587. It unifies lawmakers by inviting them "to reflect upon shared ideals and common ends before they embark on the fractious business of ...


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