Kurtz v. Baker
| Decision Date | 18 September 1987 |
| Docket Number | No. 86-5660,86-5660 |
| Parties | Paul KURTZ, Dr., Appellant v. James A. BAKER, Secretary of the Treasury, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 84-2919).
Ronald A. Lindsay, Washington, D.C., for appellant.
Steven R. Ross, Washington, D.C., for appellee House Chaplain Ford.
Michael Davidson, Washington, D.C., for appellee Senate Chaplain Halverson. Ken U. Benjamin, Jr. and Morgan J. Frankel, Washington, D.C., also entered appearances for appellee Halverson.
Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Michael Jay Singer, and Jay S. Bybee, Attys., U.S. Dept. of Justice, Washington, D.C., were on the brief for appellees Secretary of the Treasury, et al.
Before RUTH BADER GINSBURG, BUCKLEY and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge BUCKLEY.
Dr. Paul Kurtz is a professor of philosophy and an advocate of "secular humanism." He challenges the refusal of chaplains of the United States Senate and House of Representatives to invite non-believers to deliver secular remarks in both houses of Congress during the period each house reserves for morning prayer. He advances claims under the establishment and free speech clauses of the First Amendment, and under the equal protection principles of the due process clause of the Fifth Amendment. Because appellant lacks standing under Article III of the Constitution, the judgment of the district court is vacated and the case is remanded with directions to dismiss the complaint for lack of subject matter jurisdiction.
The United States Senate and the United States House of Representatives have each appointed an official chaplain whose duties include the opening of daily sessions with prayer. The official chaplains of the Senate and the House occasionally invite guest chaplains of various denominations, some not ordained, to deliver the opening prayer. Dr. Kurtz asserts that these guest chaplains must be considered "guest speakers" because restricting their function to prayer would violate the Constitution. He would like to be invited as a "guest speaker" to deliver a moral but "non-theistic" invocation in the Senate and the House during what he styles their "opening ceremonies." Because denial of standing should rest on a careful assessment of all relevant circumstances, it is necessary to set out the facts in some detail.
Appellant wrote to the Reverend Richard C. Halverson, Chaplain of the Senate, and the Reverend James D. Ford, Chaplain of the House, requesting permission to address their respective houses "[o]n behalf of the Council for Democratic and Secular Humanism." Letter from Dr. Kurtz to Rev. Halverson (Feb. 13, 1984), Joint Appendix ("J.A.") at 29-30; Letter from Dr. Kurtz to Rev. Ford (Feb. 13, 1984), J.A. at 71-72. In each letter Kurtz "request[ed] the opportunity to appear as a guest speaker and to open a daily session ... with a short statement in which [he] would remind the [members of the Senate and the House] of their moral responsibilities." Letter to Rev. Halverson, J.A. at 29; Letter to Rev. Ford, J.A. at 71. He advised both chaplains that he would not utter a prayer if invited:
As a secular humanist, I would not, of course, invoke any deity during my remarks. However, my remarks would otherwise fall within the traditional format. If for some reason you believe it is necessary to open the session with the invocation of a deity, I would have no objection to sharing the podium with you. I do believe that it is important, however, for the [members of the Senate and the House] occasionally to have the opportunity to hear non-theists speak of moral responsibilities since one of the common prejudices in our country is that non-theists do not recognize any moral responsibilities.
Letter to Rev. Halverson, J.A. at 29; Letter to Rev. Ford, J.A. at 71.
On February 27, 1984, Halverson responded with thanks and the following statement: "In the three years I have been the Chaplain my policy has been to invite those who are sponsored by a Senator." Letter from Rev. Halverson to Dr. Kurtz (Feb. 27, 1984), J.A. at 31. Kurtz, a citizen of the State of New York, then wrote to Senators Moynihan, D'Amato, Goldwater, Hatfield, and Weicker requesting sponsorship, but none agreed. J.A. at 32-33 (first letter to Sen. Moynihan), 35-36 (to Sen. Weicker), 37-38 (second letter to Sen. Moynihan), 39 (to Sen. D'Amato), 40 (to Sen. Goldwater), 41 (to Sen. Hatfield). Only the chief legislative assistant to Senator Hatfield responded in writing, essentially as follows:
There is no provision or desire for lectures from whatever source. I can appreciate the convictions which you expressed in your "proposed opening." However, the intent of the time of prayer is to acknowledge our dependence upon the transcendent Creator.
... [Moreover Senator Hatfield would not] use one of his rare opportunities to present a guest pastor for someone who [sic] he does not know and who cannot out of conviction abide by the spirit of the rules of the Senate.
Letter from Thomas R. Getman, Chief Legislative Assistant to Sen. Mark O. Hatfield, to Dr. Kurtz (June 5, 1984), J.A. at 42.
After failing to attract a sponsor, Kurtz again wrote to Halverson, renewing his earlier request and stating he was not aware of the existence of a Senate rule supporting Halverson's sponsorship requirement. Letter from Dr. Kurtz to Rev. Halverson (Aug. 30, 1984), J.A. at 43. Halverson responded on September 7 by restating his earlier position, explaining that only the Senate can make an exception to the rule that only Senators may address the Senate, and that the Senate Chaplain was allowed Letter from Rev. Halverson to Dr. Kurtz (Sept. 7, 1984), J.A. at 44.
Ford responded to appellant's first letter by stating that Letter from Rev. Ford to Dr. Kurtz (Mar. 26, 1984), J.A. at 73. Kurtz then sent Ford a second letter suggesting he would speak after Ford said a prayer. Letter from Dr. Kurtz to Rev. Ford (Apr. 6, 1984), J.A. at 74-75. Ford replied that "[t]he chaplain cannot yield to another person for a statement." Letter from Rev. Ford to Dr. Kurtz (Apr. 25, 1984), J.A. at 76. Kurtz then predictably suggested that he speak before Ford or, perhaps less predictably, that they "deliver a truly joint opening by alternating the lines of our texts." Letter from Dr. Kurtz to Rev. Ford (May 23, 1984), J.A. at 77.
On September 19, 1984, appellant Kurtz filed a complaint styled an "action challenging the constitutionality of certain practices of the Chaplain of the U.S. House of Representatives ... and the Chaplain of the U.S. Senate." Complaint at 1, J.A. at 8. Kurtz names as defendants the Secretary of the Treasury and the Treasurer of the United States ("Treasury appellees"), and the Reverends Ford and Halverson. The complaint alleges two counts. Count one in part makes the following allegations concerning the chaplains:
38. The exclusion of non-theists, such as Plaintiff, from the guest speakers program on the basis of the content of their remarks violates the Free Speech, Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution.
39. To the extent that Senate and House rules require guest speakers to utter a prayer, those rules violate the Free Speech, Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution.
40. To the extent that any policy of the Senate or the Senate Chaplain to invite only those speakers sponsored by a Senator results in discrimination against speakers from unpopular minority groups, such as Plaintiff, that policy violates the Free Speech, Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution.
In regard to the Treasury appellees, count one makes only one specific assertion, namely that they "are responsible for disbursing federal funds that support the chaplaincies." Complaint at 8, J.A. at 15. Count two of the complaint alleges that Halverson routinely uses opening prayers in the Senate to disparage "the beliefs of non-theists." Complaint at 11, J.A. at 18. Count two, however, is not before us.
Kurtz requests declaratory and injunctive relief with respect to count one. He seeks declarations that (1) the exclusion of "non-theists" from the "guest speaker program" in the Senate and the House, (2) any Senate or House rule requiring "guest speakers to utter a prayer," and (3) any policy to invite only sponsored speakers to the Senate which results in discrimination against "non-theists," violate the free speech and religion clauses of the First Amendment and the due process clause of the Fifth Amendment. Id. at 19. He also requests permanent injunctions barring the exclusion of "non-theists" from the "guest speaker program[s]" of the House and the Senate, or alternatively barring the disbursement of funds from the United States Treasury for the House and Senate chaplaincies.
The defendants moved for summary judgment on all counts. The district court granted that...
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