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
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
June 17, 2019
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
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
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
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
Before: AMBRO, RESTREPO, and FISHER, Circuit Judges
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.
of nontheists have challenged the theists-only policy under
the Establishment, Free Exercise, Free Speech, and Equal
Protection Clauses 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.
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.
affirm in part and reverse in part the ruling of the District
Guest Chaplain Policy - Exclusion of Nontheists
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
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.
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.
plaintiffs here wish to offer the opening prayer as well.
They represent a variety of nontheist organizations,
including Secular Humanists, Unitarian Universalists, and
Freethinkers. 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.
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.
Prayer Practice - Request to "Please Rise"
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
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.
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
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.
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
sides have appealed.
and Standard of Review
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).
Guest Chaplain Policy - Establishment Clause
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
Pennsylvania's Policy is Consistent with Historical
Background on the Historical Framework -
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).
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)).
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.
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
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.
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.
Purposes of Legislative Prayer -
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.
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 ...