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The Freedom From Religion Foundation has filed a strong brief before an appeals court to ensure an end to the Pennsylvania House’s discrimination against nonbelievers.

After Pennsylvania House officials systematically denied freethinkers an opportunity to offer invocations before the legislative body, a number of nonreligious citizens won a resounding victory in federal court last August. The House appealed the decision to the 3rd U.S. Circuit Court of Appeals, and FFRF has submitted a friends-of-the-court (amicus) brief in support of the Pennsylvania nonbelievers.

Constitutional protections under the Establishment Clause are not limited to preferred religious groups, FFRF asserts in its brief. Both the U.S. Supreme Court and the Framers of the Constitution recognized that nonbelievers have the same constitutional protections as believers.

Purposeful discrimination by the government on the basis of religion strikes at the heart of the Establishment Clause of the First Amendment, FFRF points out.

The issue is of special interest to FFRF because it is representing FFRF Co-President Dan Barker in his historic lawsuit against the U.S. House chaplain for barring him from giving an invocation — a case currently before the D.C. appeals court.

“The rights of conscience of all, including nonbelievers, have been recognized since the founding of this country,” the FFRF brief before the 3rd Circuit contends. “The Framers understood that to deny nonbelievers the same rights as believers would set a dangerous precedent that could stifle religious liberty for all.”

The deist James Madison, primary architect of the U.S. Constitution, argued, “Whilst we assert for ourselves a freedom to embrace, to profess and to observe the religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to evidence which has convinced us.” And deist Thomas Jefferson, speaking of the protections for religious liberty in his Virginia Statute for Religious Freedom — the precursor to our First Amendment — said that “its protection of opinion was meant to be universal.”

The Pennsylvania House’s policy discriminating against nonbelievers is hence in direct violation of the Establishment Clause, FFRF maintains.

The House has discriminated precisely because of what those people believe or disbelieve on matters of religion FFRF states in its brief. “While courts have allowed legislative bodies to open with invocations, legislatures cannot exclude persons from full participation in government functions due to religious animus against their beliefs.”

Members of the House are also wrong in asserting that they have a “long-standing right to tailor their ceremonial religious observation to their own prerogatives.” Because of the Establishment Clause, governments cannot simply say or do whatever they wish on matters of religion. Many cases brought under the Establishment Clause have involved purely ceremonial or celebratory conduct. In those cases, the 3rd Circuit has recognized limits upon governmental involvement in religion because it is an abuse of power.

The invocations by the individual plaintiffs are intended to be solemnizing and inclusive. The House is excluding them from the honor and benefits of being guest chaplains because of their personal beliefs, not because of any bona fide concerns of legislators.

FFRF’s brief points out that legislatures and local government bodies around the country have opened up their invocation practices to atheists, humanists and others following the U.S. Supreme Court’s Town of Greece decision — and the sky has not fallen. FFRF urges the 3rd Circuit to make certain in its ruling that the Pennsylvania House follows the lead of these other legislative institutions and becomes truly inclusive.

FFRF’s friends-of-the-court brief was written by its Senior Counsel Patrick Elliott and Robert Ingersoll Legal Fellow Colin McNamara. Americans United for Separation of Church and State is representing the plaintiffs before the 3rd U.S. Circuit Court of Appeals.

The Freedom From Religion Foundation is a national organization dedicated to the separation of state and church, with more than 31,000 nonreligious members and several chapters all over the country, including almost 1,000 members and a chapter in Pennsylvania.