Judge Says It’s Okay for U.S. House to Ban Atheists from Offering Invocations October 11, 2017

Judge Says It’s Okay for U.S. House to Ban Atheists from Offering Invocations

Atheist Dan Barker will not be allowed to deliver an invocation in the U.S. House of Representatives, despite meeting all the traditional requirements, after a judge dismissed his discrimination complaint earlier today.


All of this began last year, and it stems from the Supreme Court’s 2014 decision in Greece v. Galloway, in which the justices said invocations, if they’re adopted at all, must be open to people of all religious backgrounds, including people without religion. It specifically applied to city councils, but what about Congress?

That’s what Barker wanted to know. So he went through all the proper channels to deliver an invocation in the House.

He asked Rep. Mark Pocan, a Democrat from Wisconsin, to sponsor him. Check.

After being told “guest chaplains” needed to be ordained, Barker, a former Christian minister, submitted his ordination paperwork, which he still uses to perform weddings. Check.

(Did it matter that the ordination represented a religion he no longer belongs to? It shouldn’t. Other House speakers have delivered remarks despite being ordained in a different faith. Why should Congress get to decide if you’re appropriately religious? Also, the ordination requirement itself is nonsense.)

Barker even submitted a draft of his speech, which was hardly some anti-religion diatribe. But none of that seemed to matter.

Not only did Barker provide all the required documentation but he also submitted a draft of his remarks after being told he must address a “higher power.” Barker’s proposed remarks stated that there is no power higher than “We, the People of these United States.” Barker also invoked the spirit of founding patriot Thomas Paine, a non-Christian deist who promoted “Common Sense over dogma.”

[U.S. House Chaplain Patrick] Conroy, after delaying for months, officially rejected the request in January of 2016, noting in a letter to Pocan that Barker had “announced his atheism publicly” and therefore was not a true “minister of the gospel” eligible for the honor of appearing in front of Congress.

In other words, Barker was rejected from delivering an invocation to Congress because he didn’t follow one of the religions acceptable to the U.S. House.

That’s when the co-President of the Freedom From Religion Foundation filed a religious discrimination lawsuit against Conroy, his staff, and House Speaker Paul Ryan.

According to the lawsuit, not a single atheist or Agnostic has delivered an invocation before Congress in the past 15 years.

96.7% of those invocations, however, were delivered by Christians.


When you talk about followers of the Abrahamic religions as a whole, they’re responsible for 99.8% of all invocations.

Keep in mind that Barker met the requirements for being a guest chaplain — even though those requirements, the lawsuit said, were “inherently discriminatory against the nonreligious and minority religions.” He met those requirements even though not all invocation speakers in the past have had congressional sponsors or ordination paperwork. Some of the invocation speakers weren’t even practicing ministers when they spoke in front of Congress, since they were retired from the chaplaincy or had changed religions since their ordination.

When it came down to it, atheists were pretty much the only people who couldn’t take part in this practice. Because we don’t believe in God, Congress was saying we couldn’t offer words of enlightenment or encouragement to begin the work day.

Ironically, if Barker had never become an atheist, there’s a good chance he would have been invited to conduct an invocation because his Christian credentials are top-notch. The only problem here was that the House disapproved of his current opinions about God.

The complaint states that Conroy is violating Barker’s rights under the Religious Freedom Restoration Act (RFRA), the Establishment Clause of the First Amendment, and Article VI, Section III of the U.S. Constitution, which bars any religious test for office or public trust. RFRA states that the federal government shall not “substantially burden a person’s exercise of religion” unless it can demonstrate a “compelling governmental interest.”

Unfortunately, U.S. District Judge Rosemary M. Collyer dismissed his lawsuit today, in part because she said Barker was going after people who did nothing wrong.

“To decide that Mr. Barker was discriminated against and should be permitted to address the House would be to disregard the Supreme Court precedent that permits legislative prayer,” Collyer wrote. Although the court found that Barker was injured, and that the defendants did not have legislative immunity, she ruled that none of the defendants was ultimately responsible for that injury.

The judge claimed that the chaplain was powerless to allow Barker to give the invocation, due to House rules, yet also dismissed Barker’s claim against the House itself. The decision fails to identify who, if not the House chaplain and the House itself, could be sued for implementing a rule excluding nonbelievers from participation.

That’s the kicker, isn’t it? The judge admits this is discrimination… but says neither the chaplain, nor the House, or the House Speaker is responsible for that policy.

So who is? We never get an answer to that.

The judge went on:

Despite Mr. Barker’s repeated attempts to characterize his claims as not challenging the constitutionality of legislative prayer, the reality is that his request to open the House with a secular invocation, which resulted in the denial of his request to serve as a guest chaplain, was a challenge to the ability of Congress to open with a prayer. To decide that Mr. Barker was discriminated against and should be permitted to address the House would be to disregard the Supreme Court precedent that permits legislative prayer.

This Court concludes that the refusal of the House Chaplain to invite an avowed atheist to deliver the morning “prayer,” in the guise of a non-religious public exhortation as a “guest chaplain,” did not violate the Establishment Clause. For the same reasons that legislative prayer has been found consistent with the Establishment Clause, so is it consistent with the Equal Protection Clause.

FFRF isn’t buying any of that, though they haven’t said whether they will appeal the decision:

“We’re deeply dismayed that atheists and other nonbelievers are being openly treated as second-class citizens,” says FFRF Co-President Annie Laurie Gaylor. “Our government is not a theocracy, and it needs to stop acting like one.”

“Conroy’s personal biases against the nonreligious have prevented me from participating in my government,” Barker says. “The judge’s acquiescence in this inequity sends a crystal clear message that our government, founded upon our entirely secular Constitution, may discriminate with impunity against atheists and freethinkers.”

Apparently, no one is responsible for a very obvious injustice, and that means the injustice can remain unjust. It’s a bizarre system that favors religion — any religion — over a secular call for introspection.

This is systemic discrimination against atheists, and there appears to be no legal remedy for it.

(Large portions of this article were published earlier)

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