Clergy have offered daily prayer at the opening of each session of Congress since 1774, a practice challenged by plaintiff, an atheist and anti-religion activist, who sought and was denied an opportunity to offer a secular invocation as a guest chaplain.

Barker’s application to present a secular opening was denied by the House Chaplain because he is not a religious clergyman, and no longer practices the religion in which he was ordained.

Barker sued house leadership officials, the House, the United States, and the chaplain, alleging that requirements were imposed on him that were not imposed on others. Barker alleged that this alleged disparity violates the Establishment Clause, due process, and religious test clauses of the U.S. Constitution as well as the Religious Freedom Restoration Act (RFRA).

Barker wanted the court to declare that atheists cannot be barred from offering opening prayer at the U.S. House of Representatives without violating the constitution and the Religious Freedom Restoration Act, a declaration that guest chaplains cannot be required to invoke a supernatural higher power, an injunction forbidding the chaplain from selecting a guest chaplain based on religious qualifications, and an order permitting Barker to serve as a guest chaplain.

Supreme Court review of the practice of legislative prayer has observed that this practice has existed since the time the constitution was enacted, and was not criticized at the time. The court could find no real threat of establishment of religion to attach to opinion legislative meetings with prayer, nor was payment for such services a violation of the constitution. Recent review has affirmed these principles and has encouraged but not mandated inclusiveness of diverse religions in such practices. Town of Greece v. Galloway, 134 S. Ct. 1811 (2014). Offering prayer is not constitutional contingent upon content neutrality. Id. at 1821.

The chaplain was not able to grant Barker the opportunity he sought, as the chaplain is bound by the House rules and was without discretion to modify them. Circuit precedent has already precluded suit by a nontheist where there was no capacity for to grant the plaintiff’s request.

While Barker’s claim of religious discrimination — that one group ought not be preferred over another — has superficial appeal, but the Supreme Court’s conclusion that prayer is permissible does not mean that a government body must include all or fact discrimination claims. Indeed, requiring government assessment of the inclusivity of religious groups would invite entanglement problems.

The D.C. district court refused to countenance Barker’s assertion that he does not seek to

challenge the constitutionality of legislative prayer, for in substance he clearly does. A finding of discrimination, moreover, would contradict the Supreme Court’s affirmance constitutionality of opening legislative prayer.

The religious freedom restoration act (RFRA) is intended to inhibit imposition of governmental burdens on the practice of religion. Even if the act applied to the House and Barker’s atheism were a religion, there is no claim that Barker was in any way pressured to change his beliefs or that providing an invocation was required by Baker’s religion. The types of government benefits that RFRA contemplates are more concrete and general — such as workplace or government benefits laws — than guest chaplainship, which is not a government program that provides benefits.

There is no offense to the religious test clause, as that test relates to qualifications for employment or offices of public trust, but potential service as a guest chaplain is not such a position.

No cause of action can be fashioned against the chaplain individually. Congress has exclusive authority over the Chaplain. Any judicial intrusion on House self-governance — which creation of new remedy would involve — is precluded by separation of powers principles.

Barker’s complaint has been dismissed.

Barker v. Conroy (D.D.C., 2017)