Barker v. Conroy (U.S.C.A. D.C. Circuit, 2018)

Separation of Church & State
Discrimination

All Federal District Courts ,

Separation of Church & State
Discrimination

At issue in this case is the constitutionality of the U.S. House of Representatives’ guest chaplain policy. Because the policy requires guest chaplains to offer a prayer that addresses a “higher power,” as well as to be ordained clergy, it bars non-theists from the invocation opportunity. A Humanist leader challenged the policy under the Constitution’s Establishment Clause. ADL joined a coalition brief asserting that policy is unconstitutional for four reasons. First, it plainly violates the U.S. Supreme Court’s non-discrimination requirement for legislative prayer. Second, its required inquiry into a prospective guest chaplain’s prayer and ordination constitutes impermissible government entanglement with religion. Third, Supreme Court precedent prohibits history alone as a justification for violations of the Establishment Clause. Fourth, defendant’s argument that the policy is constitutional because there is no historical record of non-theists offering prayers before Congress is misinformed. There is abundant contemporaneous evidence of the Founders’ disapproval of denominational discrimination. Furthermore, there is no record of other minority faiths, including Jews, Hindus and Muslims, offering the opening Congressional prayer. So taken to its logical conclusion, this argument also would permit discrimination against such faiths.