The Freedom From Religion Foundation is persisting in its efforts to open up our nation’s legislative chambers to freethinkers.

The state/church watchdog filed a vigorous brief yesterday, May 14, before the U.S. Court of Appeals for the District of Columbia in its nationally watched appeal of a court decision permitting the House chaplain to censor atheist invocations.

Dan Barker, who is co-president of the Freedom From Religion Foundation, was invited by his member of Congress, Rep. Mark Pocan, D-Wis., to give an invocation, but was barred as an atheist by Father Patrick Conroy, the priest who serves as House Chaplain. Barker is suing, among others, Conroy and House Speaker Paul Ryan, who oversees the chaplain.

In October 2017, U.S. District Judge Rosemary M. Collyer, a President George W. Bush appointee, ruled against Barker in his historic challenge.



In her ruling, Collyer claimed, among other things, that neither Conroy nor Ryan could ultimately be held accountable for the discrimination against Barker.

FFRF’s appeals brief is plain-spoken: “House Chaplain Patrick Conroy intentionally denied Daniel Barker an opportunity to present an invocation to members of the House of Representatives because Barker is an atheist.” The district court should not have concluded that it is constitutional for a pluralistic program of guest chaplains to intentionally exclude atheists and other nonbelievers.

FFRF has documented that Conroy relies on many “guest chaplains,” with such guests delivering about 40 percent of invocations, or more than 800 in the past 15 years. Yet when an atheist was invited to give the opening remarks, Conroy imposed requirements that intentionally discriminated against him.

Although there are no written requirements to be a guest chaplain, and the practice is generally to permit anyone sponsored by a member of the House, the chaplain’s staff told Barker and Pocan that Barker had to be ordained and to directly address a “higher power” rather than House members. As a former minister, Barker has an ordination, and produced it. He also submitted a draft invocation addressing a “higher power” (“We the People”). More than a year and a half after Pocan invited Barker, Conroy formally disallowed him in December 2015.

The brief points out that House rules specify the sole duty of the chaplain is to pray at the commencement of each day’s sitting of the House. No requirements or written rules exist for guest chaplains. Yet an average of two guest chaplains a week deliver invocations. FFRF points out that other minorities, such as Buddhists, could be discriminated against based on Conroy’s arbitrary reasoning. Some religions do not ordain clergy and some religions do not worship or acknowledge supernatural higher powers.

“The requirements of Chaplain Conroy’s guest policy serve to exclude minority religious and nonreligious applicants from delivering invocations to the House,” FFRF contends in the brief. Moreover, Conroy has arbitrarily applied his requirements to exclude Barker, “but he has not

enforced the same requirements against other applicants.” Since 2000, Muslim imams have given eight invocations, although Islam does not have formal or ordained clergy and none of the Muslim guest chaplains were ordained. Even some Christian guest chaplains possessed no ordinations, and some guest chaplains were not “practicing” the religion in which they were ordained when they delivered opening remarks. Some ordained clergy who gave guest invocations did not invoke a supernatural “higher power” in their remarks.

Nor did Conroy require other potential guest chaplains to submit written drafts of their invocations, “as a prior restraint,” FFRF notes. All three requirements imposed on Barker by Chaplain Conroy and the House were “disparately applied” and were used “as a pretext to censor content and viewpoints with which they do not agree.”

The brief scrupulously notes this is not a challenge of legislative invocations, as the lower court mistakenly claimed, or “even a case about the gross disproportion of invocations by Christians.” This case is “simply, but disturbingly, about the intentional and purposeful exclusion of nonbelievers as invocation-givers by the Chaplain of the United States House of Representatives.”

Attorney Richard L. Bolton, the outside counsel who wrote the FFRF brief, notes: “The district court employed a flawed analysis that would preclude standing to challenge any allegedly unconstitutional law, statute, policy, or procedure against those charged with its implementation or execution.” He adds, “The district court also erred in its conclusion that intentional discrimination against nonbelievers is not actionable under the Establishment Clause. . . . Supreme Court precedent is clear that the Establishment Clause also prohibits discrimination against nonbelievers, like Barker.”

“God does not an invocation make,” Bolton writes. “Constitutionally acceptable invocations may include religious references, but religion is not essential to the solemnizing purpose of legislative invocations.”

Conroy evinced “discrimination, pretext and hostility toward Barker, based on his status as a nonbeliever,” the brief concludes.

The Freedom From Religion Foundation is determined to rectify this unfairness.