Fields v. Speaker of the Pa. House of Representatives, CIVIL ACTION NO. 1:16-CV-1764

• Citation: 327 F.Supp.3d 748
• Decision Date: 29 August 2018
• Docket Number: CIVIL ACTION NO. 1:16-CV-1764
• Parties: Brian FIELDS, et al., Plaintiffs v. SPEAKER OF the PENNSYLVANIA HOUSE OF REPRESENTATIVES, et al., Defendants
• Court: United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania

327 F.Supp.3d 748

Brian FIELDS, et al., Plaintiffs

v.SPEAKER OF the PENNSYLVANIA HOUSE OF REPRESENTATIVES, et al., Defendants

CIVIL ACTION NO. 1:16-CV-1764

United States District Court, M.D. Pennsylvania.

Signed August 29, 2018

Andrew L. Nellis, Pro Hac Vice, Alex J. Luchenitser, Richard B. Katskee, Americans United for Separation of Church and State, Washington, DC, Allen C. Warshaw, Mechanicsburg, PA, Eric O. Husby, Pro Hac Vice, Law Office of Eric O. Husby, Esq., Tampa, FL, for Plaintiffs.

Karl S. Myers, Spencer R. Short, Jonathan F. Bloom, Stradley Ronon Stevens & Young, LLP, Philadelphia, PA, Mark E. Chopko, Stradley, Ronon, Stevens & Young, Washington, DC, for Defendants.

MEMORANDUM

Christopher C. Conner, Chief Judge

We begin by delineating what the issue in this case is and what it is not. This matter concerns the constitutionality of a policy regarding who may present invocations at the commencement of a legislative session. It is not a challenge to the religious content of legislative prayer. To the contrary, it is well settled that sectarian prayers are entirely proper invocations for legislative sessions.

The Pennsylvania House of Representatives opens legislative sessions with an invocation delivered by a member of the House or a guest chaplain. The Speaker of the House maintains a guest chaplain policy that categorically excludes those who would present an uplifting message of hope, mutual respect, and peace yet—based upon their nontheistic beliefs—would fail to incorporate theistic entreaties to a divine or higher power. Each of the individual plaintiffs desires to deliver an opening invocation before the House. The Speaker has denied plaintiffs this opportunity due solely to the nontheistic nature of their beliefs. In light of the Supreme Court's decision in Town of Greece, we find that the House policy violates the Establishment Clause of the First Amendment to the United States Constitution.

I. Factual Background and Procedural History ¹

Plaintiffs Brian Fields, Paul Tucker, Deana Weaver, Scott Rhoades, Joshua Neiderhiser, Rev. Dr. Neal Jones, and Richard Kiniry are nontheist Pennsylvania residents.^{2 ,3} (Doc. 90 ¶ 16). They desire to act as guest chaplains and deliver nontheistic invocations at House sessions. (Id. ¶ 39). Plaintiffs aver that such invocations would not proselytize or disparage any faith and would be "positive, uplifting, unifying, and respectful toward all—similar to moving and inspiring invocations that have been delivered by nontheists at many governmental meetings around the country, which have invoked authorities or principles such as the Founding Fathers, the U.S. Constitution, democracy, equality, inclusion, fairness, and justice." (Id. ) Interestingly, plaintiff Weaver has given just such an invocation in the Pennsylvania Senate, invoking ideals of compassion, understanding, and tolerance. (Id. ¶ 40).

A. The Opening Invocation

The Pennsylvania House of Representatives opens most of its daily legislative sessions with an invocation delivered by either a House member or an invited guest chaplain.⁴ (Id. ¶ 1). After calling the House to order, the Speaker of the House announces the invocation presenter, and, if a guest chaplain, the name of the presenter's church or organization and the name of the sponsoring representative. (Id. ¶ 2). The Speaker then requests that everyone in the chamber rise for the invocation, after which the presenter delivers the invocation from the Speaker's position on the Speaker's rostrum. (Id. ) The Pledge of Allegiance immediately follows. (Doc. 81 ¶¶ 6, 38).

Guest chaplains, if inclined, are permitted to bring additional guests to sit in the House chamber during the invocation, and one or two of the guests may sit on the raised dais along with the invocation giver and other House leaders. (Doc. 90 ¶¶ 4-5). Before delivering the invocation, guest chaplains usually meet the Speaker, the Parliamentarian of the House, and their representative. (Id. ¶ 7). Guest chaplains also receive a commemorative gavel, a photograph with the Speaker and their representative, a thank-you letter from the Speaker, and recognition on social media by the Speaker's office. (Id. ¶ 9). Guest chaplains testified that they consider the opportunity to be an honor. (Id. ¶ 3).

B. The Guest Chaplain Policy

Beginning in 1865 and continuing largely uninterrupted until 1994, the House annually or biannually appointed a permanent chaplain to deliver the opening invocation. (Doc. 81 ¶¶ 3-4; Doc. 77-7 at 67, Expert Report and Decl. of Professor Paul Finkelman, Ph. D. ("Expert Rpt.") at 17). During the following ten years, the House invited guest chaplains occasionally in addition to using monthly rotating chaplains. (Expert Rpt. at 17). The House began frequently utilizing guest chaplains or House members to deliver the opening invocation around 2004. (Doc. 81 ¶ 5; Doc. 92 ¶ 5; Expert Rpt. at 17). By 2008, the House had established the current practice of exclusively inviting guest chaplains or having House members deliver the invocation. (Expert Rpt. at 17-18).

Representatives nominate potential guest chaplains by passing their names along to the Speaker's office. (Doc. 81 ¶ 10). Those interested in giving the invocation may also petition the Speaker's office directly. (Id. ) Additionally, House staff may recommend guest chaplains. (Doc. 92 ¶ 10; Doc. 90 ¶ 13). The Speaker's office performs "non-intrusive background research" on proposed guest chaplains "to ensure compliance with House Rules and avoid any public[-]relations issues." (Doc. 81 ¶ 12). The Speaker's office is responsible for selection of guest chaplains. (Doc. 90 ¶ 60). Selected guest chaplains receive a standard letter explaining that "[t]here are 203 members of the House coming from a wide variety of faiths," asking the guest chaplain to "craft a prayer that is respectful of all religious beliefs," and noting that "efforts to deliver an inter-faith prayer are greatly appreciated." (Doc. 81 ¶ 13; Doc. 64-2 at 2).

House Rule 17 states, in pertinent part, that "[t]he Chaplain offering the prayer shall be a member of a regularly established church or religious organization or shall be a member of the House of Representatives." GEN. OPERATING RULES OF THE PA. HOUSE OF REP. R. 17 . The House, through its interpretation of House Rule 17 and particularly the word "prayer," has established a policy that permits only guest chaplains who adhere to, or are members of a religious organization that subscribes to, a belief in "God" or a "divine" or "higher" power. (Doc. 90 ¶ 44; Doc. 77-3 at 15-28, Myer Dep. 10:15-23:11 ("Myer Dep."); Doc. 77-4 at 29-39, Turzai Dep. 15:5-25:4 ("Turzai Dep."); Doc. 77-5 at 4-20, Smith Dep. 12:13-28:25 ("Smith Dep.") ). As defendants describe the policy, "the opportunity to offer the prayer is dependent upon the prayer-giver's willingness to...provide a theistic communication to God or a higher power seeking blessing, guidance, or inspiration." (Doc. 58 at 5). The Parliamentarian plays a key role in determining whether a potential guest chaplain qualifies under this House policy. (Myer Dep. 9:6-19). The Speaker, however, is ultimately responsible for interpreting the House Rules and for deciding whether someone is qualified to serve as guest chaplain. (Turzai Dep. 10:15-16, 11:5-9).

Guest chaplains are given priority over House members in presenting the invocation, but the House does not receive enough requests to enable a guest chaplain to deliver the opening prayer before every session. (Doc. 90 ¶ 65). From January 2008 to July 2017, approximately half the House invocations were delivered by guest chaplains and half were delivered by House members. (Id. ¶¶ 10, 65). The vast majority of guest chaplains represented Christian denominations, and all represented monotheistic faiths or delivered monotheistic invocations. (Id. ¶ 10). Only two prayers over this period represented religious traditions other than Christianity, Judaism, or Islam: one delivered by a Sikh guest chaplain in 2017, and one Native American invocation delivered by a Christian House member in 2015. (Id. ¶ 11). Most guest chaplains during this time period were ordained clergy; others included prison, police, healthcare, and military chaplains; a missionary; a college chancellor; a member of a religious healthcare sisterhood; a lay president of a Jewish temple; and a person unaffiliated with a particular religious organization. (Id. ¶ 12).

C. Plaintiffs' Invocation Requests and Denials

In August 2014, Weaver emailed then-Representative Mike Regan on behalf of Dillsburg Area FreeThinkers, requesting an opportunity for someone from the organization to deliver the opening prayer. (Doc. 81 ¶ 28). Several weeks later, Carl Silverman (a non-party to this litigation) sent correspondence on Pennsylvania Nonbelievers' letterhead to then-Representative Glen Grell, copying the Speaker, the Parliamentarian, and Fields, requesting that either Silverman or Fields be permitted to deliver an opening invocation. (Id. ¶ 29). Both requests were denied. (Id. ¶ 31). In a letter dated September 25, 2014, then-Speaker Samuel Smith told Silverman that the House "would not honor" the request for a member of Pennsylvania Nonbelievers to serve as guest chaplain. (Doc. 64-5 at 3). The letter explained that the House did "not believe that governmental bodies are required to allow non-adherents or nonbelievers the opportunity to serve as chaplains." (Id. ) Representative Regan responded to Weaver's email request with a copy of the September 25, 2014 letter, explaining only that "[t]his [letter] was forwarded to all legislative offices relative to an atheist offering the opening of session." (Doc. 64-6). Thereafter, the House approved its 2015-2016 General Operating Rules, which amended House Rule 17 to require that every guest chaplain "shall be a member of a regularly established church or religious organization or shall be a member of the House of Representatives." (Doc. 90...