Fields, et al. v. Speaker of the House of Pennsylvania Representatives, No. 18-2974 (August 23, 2019).  Mandate issued September 16, 2019.

The Pennsylvania legislature invites only theists as guest chaplains to open sessions with prayer.  The Third Circuit found no constitutional infirmity in this practice.

The federal appellate court observed that prayer presupposes a higher power and that only theistic prayer is consonant with the historic tradition of invoking divine guidance in lawmaking.  

Legislative prayer is government speech, particularly where the government is both speaker and listener, and is not susceptible to First Amendment and Equal Protection challenges.  Signage and the speaker’s request that guests stand during prayer is not coercive.

Looking to History and Tradition. Supreme Court precedent looks to historic tradition to evaluate Establishment Clause challenges, whether with respect to public prayer or public monuments.  As legislative prayer has been a traditional practice, having both religious and secular significance, it works no constitutional harm.  

Prayer Definitionally Involves Divinity. Because by its very nature prayer presupposes a divine power, only theists prayer can achieve all the purposes of legislative prayer.  To confine prayer traditions to theistic prayer does not, notwithstanding prayer’s inherently religious nature, institute religious orthodoxy.

Religious Status Not Compelling. The non-theists’ challenge is not improved because of their recognition as religions, for that status does not change the nature of the prayer’s permissibility.  

Historic Conformity, Contemporary Neutrality. Because the Pennsylvania legislature has conformed to history in its choice of chaplains, because non-theists cannot offer the sort of prayer tradition contemplates, and because the legislature does not direct the content of prayer, Pennsylvania has not impermissibly preferenced one religion over another.  

A non discriminatory and inclusive practice of selecting theistic chaplains to lead prayer is acceptable under Town of Greece v. Galloway, 512, U.S. 565 (2014) under the Third Circuit’s view that prayer invokes divine guidance and presupposes a higher power.  Pennsylvania’s invitation program lends itself to greater constitutional acceptability than is a practice of selecting a single permanent chaplain from one denomination.

Not Must, But May. The Third Circuit noted that the Pennsylvania legislature need not exclude nontheists from legislative prayer, only that it is not impermissible to exclude non theists.  

Inclusiveness Has Limits. The court continued that an unbounded focus on “non-discrimination” could wreak havoc with selections, essentially creating a “heckler’s veto” on fringe groups.  

Another Voice Raised in Dissent.  A dissenting justice questioned the congruence with history that the other two members of the panel handily found.  Even if history were satisfied, the dissent perceived that the legislature has established a religious orthodoxy that violates the Establishment Clause. 

Where Judges Fear to Tread. The dissent criticized the majority for venturing into the very areas that the Establishment Clause forbids: courts are not to address questions such as the nature of prayer, what is divine, and so forth.

Consider the Outcome, Not Its Rationale. The dissent perceived the permissible “theistic” limitation to be so much obfuscation:  the real practice of the legislature is to exclude from guest chaplaincy certain religious groups and certain religious beliefs.

Tradition As It Was, Not As It Is Imagined to Have Been. The tradition embraced by the Founders is not one of exclusion but of inclusion. Early debate on the appointment of a chaplain ended in favor of doing so, and no faith was excluded and no faith was favored.  The notion that the Framers would not understand atheism as a faith distorts the historical inclusiveness that is central to the examination of history and would preclude inclusion of all manner of established traditions.

Tradition Has Its Limits. The dissent cautioned against finding too great a constitutional comfort in history, as history offers no justification for contemporary violation of constitutional guarantees.

Guarantees Not Honored. The promises of the Establishment Clause are governmental neutrality and non-discrimination.  The Pennsylvania practice falls short of the mark, demanding that guest chaplains assert a belief in God and permitting only those who do believe to serve.

Fields v. Speaker of Pa. House of Representatives (3rd Cir., 2019)