Last Friday, the Third U.S. Circuit Court of Appeals ruled against a group of atheists who sued the Speaker of the Pennsylvania House in federal court, claiming the Pennsylvania House violated the Establishment Clause by barring a non-religious person from offering prayer.
The court ruled 2-1 that it is constitutional for the House to restrict offering prayer in the House to people acknowledging God; Judge Thomas L. Ambro, who wrote the majority opinion, stated, "As a matter of traditional practice, a petition to human wisdom and the power of science does not capture the full sense of 'prayer,' historically understood."
Becket Law explained the background of the case:
In 2016, a group of secular atheists, many of whom publicly mock prayer and religion, requested to serve as chaplains and deliver non-religious "invocations" in the Pennsylvania State House. The Pennsylvania House speaker denied their request on the grounds that their beliefs were not religious. In August 2016, the atheists sued the Speaker of the Pennsylvania House in federal court, claiming that it violated the Establishment Clause to bar a non-religious person from offering prayer … In August 2018, the district court decided in favor of the atheists, ruling that the Pennsylvania State House legislative prayer policy violates the Constitution. The Speaker of the Pennsylvania House appealed the case to the Court of Appeals for the Third Circuit.
The Third Circuit wrote in its decision:
For the Free Exercise, Free Speech, and Equal Protection Clauses, we hold that legislative prayer is government speech not open to attack via those channels … History supplies our method of analyzing cases involving legislative prayer. In Establishment Clause challenges like this, we ask "whether the prayer practice" in question "fits within the tradition long followed in Congress and the state legislatures."
Twice the Supreme Court has drawn on early congressional practice to uphold legislative prayer. It emphasized that Congress approved the draft of the First Amendment in the same week it established paid congressional chaplains to provide opening prayers. Congress approved theistic religious expression in other ways as well; a day after proposing the First Amendment, it "urged President Washington to proclaim 'a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts, the many and signal favours of Almighty God.'"
The decision also noted the recent case in which the Supreme Court ruled that the 40-foot Peace cross could remain on state property in Maryland. The decision noted:
Even more recently, the Supreme Court has expanded its historical framework beyond the confines of legislative prayer. In rejecting an Establishment Clause challenge to a Christian cross commemorating World War I on state property, the Court held that the memorial "must be viewed in [its] historical context." It also announced "a presumption of constitutionality for longstanding monuments, symbols, and practices."
The decision even cited left-leaning Supreme Court Justice Ruth Bader Ginsburg, writing, "The assumption that prayer must be theistic apparently persuaded then-Judge Ruth Bader Ginsburg that Congress’s practice of excluding nontheists from offering opening prayers did not violate the Establishment Clause."
The decision concluded: "The House’s policy preferring theistic over nontheistic prayers does not violate the Establishment Clause because it fits squarely within the historical tradition of legislative prayer. Next, legislative prayer is government speech, so the policy is not susceptible to an attack on free-speech, free-exercise, or equal-protection grounds."