Religious Law

Theists-only policy for legislative prayers is constitutional, 3rd Circuit rules

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The Pennsylvania House of Representatives didn’t violate the Constitution when it barred nonbelievers from delivering prayers before legislative sessions, a federal appeals court has ruled.

The Philadelphia-based 3rd U.S. Circuit Court of Appeals upheld the “theists-only” policy in a 2-1 decision on Friday. How Appealing links to the opinion and coverage by, the Associated Press and Courthouse News Service.

The panel opinion by Judge Thomas Ambro defines nontheists as “those who do not espouse belief in a god or gods, though not necessarily atheists.” The theists-only policy was challenged by representatives of a variety of groups, including Secular Humanists, Unitarian Universalists and Freethinkers.

The majority said there was no establishment clause violation because the Pennsylvania policy fits within the “historical tradition of legislative prayer.” Legislative prayer has many purposes, both secular and religious, but “only theistic prayer can achieve them all,” Ambro said in the majority opinion.

Legislative prayers seek divine guidance in lawmaking and accommodate the spiritual needs of lawmakers, and nontheistic prayer can’t serve those purposes, according to the majority.

In addition, the majority said, the U.S. Supreme Court “has long taken as given that prayer presumes a higher power.”

The notion that prayer is theistic “suffuses the opinions” in Town of Greece v. Galloway, the 3rd Circuit majority said. Galloway is the Supreme Court’s 2014 plurality decision that upheld a guest chaplain policy that resulted in predominantly Christian prayers.

Galloway and other Supreme Court precedent persuaded the U.S. Court of Appeals for the D.C. Circuit to recently rule that a similar policy by the U.S. House of Representatives did not violate the establishment clause, Ambro said.

Ambro cautioned that the 3rd Circuit decision “does not open the door to more extreme exclusions.”

“Our decision today rests on only two pillars,” Ambro wrote.

The first is that the purpose of legislative prayer is to invoke divine guidance. The second is that “prayer” presupposes a higher power.

“Neither supports excluding any group of theists,” he said.

The majority also rejected challenges to the Pennsylvania policy based on the free-exercise, free-speech and equal-protection clauses. The court reasoned that those challenges are unavilable because legislative prayer is government speech.

Dissenter Judge Luis Felipe Restrepo believed there was an establishment clause violation.

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