Barker v. Conroy

A tradition dating back to the nation’s founding

Since 1789, the U.S. House of Representatives has included the traditional office of chaplain. Besides offering pastoral care to the members of the House—including presiding over memorials and funerals—the chaplain opens legislative sessions with a prayer. The practice of legislative prayer can be traced back to the time of the Founding Fathers, who did not see it as a forbidden “establishment of religion” but rather as a powerful reminder of their own limited political authority: the people’s inalienable rights did not come from government or its officials, but from a divine source that superseded government. Today, members of Congress are welcome to invite others to give the opening prayer with the chaplain’s permission, and people of many diverse faiths have done so over the years, including Christians, Hindus, Jains, Jews, and Muslims.

Anti-religion activist seeks to dismantle tradition

In February 2015, Dan Barker, co-president of the Freedom From Religion Foundation (best known for his anti-religious beliefs and his Foundation’s lawsuits that ridicule religion and religious people), attempted to disrupt over 200 years of tradition and requested to open a legislative session with a “non-prayer.” FFRF is a group that seeks to scrub public life of all references to religion, and Barker is a self-avowed atheist who has worked for years to dismantle religion and its presence in the public square, frequently through ridiculing religion and religious people. When the House chaplain rejected Barker’s request, Barker sued the House in district court in May 2016 arguing that he had the right to begin a legislative session with a non-prayer under the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act (RFRA). He also claimed that the House’s practice of opening with prayer violated the Establishment Clause of the First Amendment.

The courts agree with Becket: Legislative prayer is constitutional

In May 2014, the U.S. Supreme Court ruled that legislative prayer is constitutional in Town of Greece v. Galloway, a case where Becket filed a friend-of-the-court brief defending legislative prayer. This landmark case set a precedent for lower courts, and in October 2017, the district court properly ruled against Barker. Barker then appealed the Establishment Clause claim to the U.S. Court of Appeals for the D.C. Circuit. Thomas Hungar, general counsel of the U.S. House of Representatives defended.

In July 2018, Becket filed a friend-of-the-court brief, explaining the clear constitutionality of legislative prayer as decided by the U.S. Supreme Court. The brief also explains that the Establishment Clause is not triggered every time the government acknowledges or supports religion. Religious practices—like legislative prayer—that existed at our nation’s founding and were accepted by the drafters of the Establishment Clause do not violate the Establishment Clause. The Founders were concerned about eliminating religious coercion by the state, not about stripping religion from public life. Merely being exposed to other’s religious practices does not amount to coercion. This important distinction is critical to understanding the First Amendment and the founding generation’s understanding of the special role religion plays in our history, traditions, and culture.

The D.C. Circuit heard oral argument in October 2018. On April 19, 2019, the court unanimously ruled that the House of Representatives does not violate the Establishment Clause by requiring its opening prayer to be a religious prayer. The court’s ruling reinforces that the Establishment Clause must be interpreted in line with its historical meaning and that the founders would not have considered the longstanding tradition of legislative prayer to be an establishment of religion. It also affirms the legitimate place of religion in public life.

Importance to religious liberty

• Public square: Because religious exercise is natural to human beings, it is natural to human culture. Religious expression, including legislative prayer, should not be treated as dangerous or scrubbed from our public discourse.