A federal appeals court ruling on legislative prayer has alarmed secular activists who say the decision privileges people who believe in God and treats nontheists like “second-class citizens.”
The 3rd U.S. Circuit Court of Appeals ruled Friday that it’s constitutional for the Pennsylvania House of Representatives to ban guest chaplains who don’t believe in God or a higher power from delivering opening invocations at its meetings.
A group of atheists, agnostics, freethinkers and humanists sued members of the Pennsylvania House in 2016 over its theists-only policy for guest chaplains, arguing that it violates the Constitution’s establishment clause, which prohibits the government from promoting specific religious beliefs.
Judge Thomas L. Ambro, who wrote Friday’s 2-1 majority opinion, claimed that because prayer presupposes a higher power, “only theistic invocations can achieve all the purposes of legislative prayer.”
“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,” Ambro wrote. “Because [nontheists] do not proclaim the existence of a higher power, they cannot offer religious prayer in the historical sense.”
Americans United for Separation of Church and State, an advocacy group that argued the case for the plaintiffs, called Friday’s ruling discriminatory and “disturbing.”
The majority opinion shows a preference for people who believe in God while “sending a message of exclusion and even scorn to non-theists,” said Rob Boston, a senior adviser for the group.
“It’s yet another in a problematic line of recent decisions that allow government entities to endorse and promote religion (just about always Christianity) as long as it’s being done for ‘historic’ purposes,” Boston wrote in a blog on Monday, pointing to the U.S. Supreme Court’s decision in June that allowed a 40-foot-tall cross to continue to stand on public land in Maryland.
“Certain groups of powerful people literally still get to define, in this country, whose philosophy of life gets to qualify as moral, as ethical, as worthy of endorsement by our legislative bodies.”
Between 2008 and 2016, over 85% of the Pennsylvania House’s legislative sessions began with a prayer, according to the 3rd Circuit majority opinion. About 90% of the 265 guest chaplains who delivered prayers were Christian. A few of the chaplains were Jewish, Muslim or Sikh.
The plaintiffs in the case wanted to offer their own nontheistic prayers touching on themes such as equality, unity, hope, tolerance and justice. But because they didn’t believe in a higher power, they were turned away.
Last year, a district judge sided with the plaintiffs and ruled that the House’s restrictions were unconstitutional. After that ruling, House Speaker Mike Turzai started assigning the prayers to members of the House.
The appeals court’s decision on Friday reversed the lower court’s decision.
Judge L. Felipe Restrepo, who wrote a dissenting opinion, argued that the Pennsylvania House’s policy violates the establishment clause by “instituting a religious orthodoxy” and “controlling the content” of legislative prayer. Restrepo suggested that his colleagues’ opinion that only theistic invocations fulfill the goals of legislative prayer skirted a dangerous line.
“This line of reasoning by necessity involves answering sensitive questions about what constitutes the ‘divine’ and what words must be strung together for a speech to constitute a ‘prayer,’ which, in my view, are precisely the type of questions that the Establishment Clause forbids the government—including courts—from answering,” Restrepo said.
Americans United told HuffPost it is still reviewing the court’s decision with its clients and has not yet made a decision about whether to appeal.
When most Americans think about prayer, they think of speaking to a higher power, according to the sociologist Elaine Howard Ecklund, director of the Religion and Public Life Program at Rice University, who says the court’s ruling falls in line with that.
At the same time, Ecklund suspects the government will have to grapple with how to accommodate the beliefs of the growing number of nonreligious Americans.
“As the number of non religious continues to grow, alongside those who are members of minority religious traditions as well as evangelical Christians, all of whom say they pray, we will need to continue to re configure what religious pluralism means with relationship to our nations most public religious rituals,” Ecklund told HuffPost in an email.
According to the Pew Research Center, 9 in 10 U.S. adults believe in a higher power, though an increasing number of Americans don’t identify with a specific religious tradition. About 72% of people who identify as atheist, agnostic or “nothing in particular” say they do believe in a higher power of some kind, but only 46% of them say they try to speak or pray to it.
Greg Epstein is a humanist chaplain at Harvard University and the Massachusetts Institute of Technology. Epstein said that while he hasn’t participated in legislative prayer, he has often been asked to recite invocations for large civic gatherings, including at an interfaith inauguration ceremony for Boston Mayor Martin Walsh.
Epstein said the federal court’s decision on Friday “flat-out violates my rights, as an American, to be treated equally.”
“It’s just a terrible example of religious privilege: Certain groups of powerful people literally still get to define, in this country, whose philosophy of life gets to qualify as moral, as ethical, as worthy of endorsement by our legislative bodies,” Epstein said.
Religious traditions such as legislative prayer shouldn’t deprive secular and humanist activists of their dignity, and shouldn’t be used to impose a “bigoted” standard of faith on everyone, Epstein said.
“None of this going to help religion in any way whatsoever. There is a river gushing out of American Christianity right now, and this ruling will only increase its speed and power,” he said. “It probably already has.”