Pennsylvania House Ban on Nonbelievers Giving Opening Prayer Upheld by Appeals Court

August 29, 2019 Updated: August 29, 2019

The ban on nonbelievers giving the opening prayer at sessions of the Pennsylvania House of Representatives does not violate the U.S. Constitution, a federal appeals court has ruled, declaring that “prayer presumes a higher power.”

The 2-1 ruling on Aug. 23 by the 3rd U.S. Circuit Court of Appeals upholds the policy of limiting prayers at the start of legislative sessions to guest chaplains who believe in God, in the divine, or a higher power, and to members of the House.

That policy–which is not limited to a particular religion–had been successfully challenged in a lower court last year, after a collection of atheists, agnostics, freethinkers, and humanists sued. That lower court ruling in August 2018 said that the restrictions violated constitutional prohibitions on making laws that establish a religion.

The House appealed.

In overturning that judgment, 3rd Circuit judge Judge Thomas L. Ambro said that such a prohibition–the Establishment Clause in the First Amendment–did not apply since “only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking.”

The ruling noted that the ban was on nontheists, not specifically atheists.

Attendees pray before electors cast their votes in the House of Representatives chamber of the Pennsylvania Capitol Building December 19, 2016 in Harrisburg, Pennsylvania. (Mark Makela/Getty Images)

In the ruling summary, Ambro wrote, “legislative prayer is government speech and not open to challenges under the Free Exercise, Free Speech, and Equal Protection Clauses.”

The court also dismissed the argument that the request to “please rise” for the prayer was coercive.

The three judges voted 2-1 i favor of the ruling.

Judge L. Felipe Restrepo dissented, writing, “By mandating that all guest chaplains profess a belief in a ‘higher power’ or God, the Pennsylvania House fails to stay ‘neutral in matters of religious theory.'”

After rejecting the request of a member of a member of the Dillsburg Area Free Thinkers (DAFT) to give the invocation in 2014, the Speaker of the House amended the rules to dictate that the person giving the prayer must be “a member of a regularly established church or religious organization” or a sitting member of the House.

DAFT member Deana Weaver wrote in a statement, “I remain concerned about the undue influence of religious invocations crafted for legislators preparing to vote on issues that may run contrary to scripture. Pennsylvania House invocations must now include reverence to an unspecified Supreme Being(s), reflecting not only a sanctity, but an implied governance of religion with its social expectations.”

Despite being denied the opportunity to do so in the House, Weaver has twice given an atheist invocation in the state Senate, as a guest chaplain, according to the Daily Record.

According to the paper, one of her prayers included the following: “One principle that this great experiment of American democracy has taught us is that we are so much better when we work together in a spirit of inclusion … and so we Pray. We pray for this democracy of the people, by the people and for the people. We pray for government to serve all people equally.”

Attendees and electors pray before voting in the House of Representatives chamber of the Pennsylvania Capitol Building Dec. 19, 2016 in Harrisburg, Pennsylvania. (Mark Makela/Getty Images)

But such “secular” invocations can not fulfill the meaning or purpose of prayer,  according to the 3rd Circuit ruling.

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

“As a matter of traditional practice, a petition to human wisdom and the power of science does not capture the full sense of ‘prayer’ historically understood,” he said. “At bottom, legislative prayers seek ‘divine guidance’ in lawmaking.”

The 3rd circuit ruling, which drew heavily on historical practice, noted that “the Supreme Court has long taken as given that prayer presumes invoking a higher power.”

The ruling cited the Supreme Court’s recent decision upholding the Peace Cross war memorial, and noted that Congress “urged President Washington to proclaim ‘a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts, the many and signal favors of Almighty God.’”

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