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 the D.C. Circuit Court of Appeals upheld a ruling dismissing his discrimination complaint. In the process, the Court said that the U.S. House is allowed to set the rules so that invocations have to be religious in nature.

All of this began in 2016, and it stemmed 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-religious 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 Barker, the co-president of the Freedom From Religion Foundation, filed a religious discrimination lawsuit against Conroy, his staff, and then-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 all 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 in October of 2017, 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 admitted this was discrimination… but said neither the chaplain, nor the House, nor the House Speaker was responsible for that policy.

So who is? We never got 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 didn’t buy any of that, and they soon appealed 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.”

Since that time, Conroy (the Chaplain) resigned, then rescinded his resignation. In the meantime, the appeal worked its way to the D.C. Circuit Court.

Earlier today, that court handed down its decision and it was a rather surprising one: Writing for the three judges, David S. Tatel said the earlier ruling was correct. To hell with Dan Barker and his atheist ways! The reasoning was slightly different, though. Rather than saying the discrimination against an atheist was acceptable, this Court said the decision was right because excluding non-religious prayers was okay.

How?! They basically say that the U.S. House gets to set its own rules, and if they say prayers are restricted to religious ones, then that’s the way it is.

… although the Court has warned against discriminating among religions or tolerating a pattern of prayers that proselytize or disparage certain faiths or beliefs, it has never suggested that legislatures must allow secular as well as religious prayer. In the sui generis context of legislative prayer, then, the House does not violate the Establishment Clause by limiting its opening prayer to religious prayer. … Even though we accept as true Barker’s allegation that Conroy rejected him “because he is an

atheist”… the House’s requirement that prayers must be religious nonetheless precludes Barker from doing the very thing he asks us to order Conroy to allow him to do: deliver a secular prayer. In other words, even if, as Barker alleges, he was actually excluded simply for being an atheist, he is entitled to none of the relief he seeks. We could not order Conroy to allow Barker to deliver a secular invocation because the House permissibly limits the opening prayer to religious prayer. Barker has therefore failed to state a claim for which relief can be granted.

So the U.S. House can’t discriminate against atheists, but they can write the rules to effectively ban them. How is that okay? To quote Greg Lipper, an attorney who used to work for Americans United for Separation of Church and State, “This is a huge slap in the face to tens of millions of American atheists and agnostics.”

(Are we supposed to take solace in the fact that atheist speakers can still theoretically give religious invocations?)

Lipper says that, during oral arguments, it really appeared as if two of the three judges were leaning in Barker’s direction, so this unanimous decision comes as something of a shock.

The injustice will remain unjust. Our bizarre system of invocations in the House now 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. Even worse, I suspect it won’t be long before other government officials try to use this decision to rewrite their own invocation rules to create a period of time during all meetings when everyone has to hear about God because secular invocations will be forbidden.

***Update***: Barker has responded to the decision:

“I am deeply dismayed that atheists and other nonbelievers are being openly treated as second-class citizens,” says Dan Barker, plaintiff and co-president of the Freedom From Religion Foundation. “Our government is not a theocracy, and it needs to stop acting like one.”

***Update 2***: The Center For Inquiry writes:

“It’s obvious now that our federal courts view atheists as second-class citizens who can be excluded from full participation in society because of their lack of belief in a god,” said Nick Little, CFI’s Vice President and General Counsel. “They aren’t even trying to hide it any more, or dress it up in obfuscating language.” … “If Dan Barker were still Christian, he’d be giving the invocation to the House,” continued Little. “He is being denied that opportunity because he’s an atheist. This decision takes the constitutionally guaranteed notion of equal treatment between the religious and the non-religious and rips it to shreds. It’s a disgraceful decision.” … “Even when invited by a sitting member of the House, the nonreligious are excluded from providing an invocation,” added Little. “Imagine the uproar if such practices were used against Jewish people or Muslims. Congress and its Chaplain are not permitted to categorically exclude our community; that is discrimination.” … “The nation is rapidly changing, with more and more Americans sloughing off religious faith,” said Robyn Blumner, CFI’s President and CEO. “If anything, that should make it easier for courts to recognize that everyone, including atheists, has the right to participate in all government ceremonies and functions. But rather than move in this inclusive direction, the court embraced pretzel-logic contortions to exclude the nonreligious, and reserve to believers alone the honor of opening the congressional day. It’s a sad day for nonbelievers, certainly, but it also a sad day for the foundational idea that we are all equal under the law.”

(Large portions of this article were published earlier. This article has been updated)

