In
Fields v. Speaker of the Pennsylvania House of Representatives, (3d Cir., Aug. 23, 2019), the U.S. 3rd Circuit Court of appeals, in a 2-1 decision, upheld the invocation policy of the Pennsylvania House of Representatives. The state's legislative chamber invites guest chaplains to open sessions with prayer, but excludes non-theists. It also posts a sign asking visitors to rise during the prayer. Judge Ambro, writing for the majority said in part:
A group 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.
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.
Judge Restrepo, dissenting as to the exclusion of non-theists, said in part:
[B]y virtue of the fact that the history and tradition of legislative prayer in this country is thus devoid of any history of purposeful exclusion of persons from serving as chaplains based on their religions or religious beliefs, the Pennsylvania House’s guest-chaplain policy—which purposefully excludes adherents of Plaintiffs’ religions and persons who hold Plaintiffs’ religious beliefs from serving as guest chaplains—does not fit “within the tradition long followed in Congress and the state legislatures” and therefore violates the Establishment Clause.
[Thanks to Adam Bonin for the lead.]
