Fields v. Speaker of Pennsylvania House of Representatives, 082319 FED3, 18-2974

Docket Nº:18-2974, 18-3167
Opinion Judge:AMBRO, CIRCUIT JUDGE
Party Name:BRIAN FIELDS; PAUL TUCKER; DEANA WEAVER; SCOTT RHOADES; JOSHUA E. NEIDERHISER; PENNSYLVANIA NONBELIEVERS, INC.; DILLSBURG AREA FREETHINKERS; LANCASTER FREETHOUGHT SOCIETY; REV. DR. NEAL JONES; PHILADELPHIA ETHICAL SOCIETY; RICHARD KINIRY BRIAN FIELDS; PAUL TUCKER; DEANA WEAVER; SCOTT RHOADES; JOSHUA E. NEIDERHISER; PENNSYLVANIA NONBELIEVERS, IN...
Attorney:Jonathan F. Bloom Karl S. Myers (Argued) Spencer R. Short Kyle A. Jacobsen Stradley Ronon Stevens & Young, Mark E. Chopko Stradley Ronon Stevens & Young, Counsel for Appellant/Cross Appellee Speaker of the Pennsylvania House of Representatives Patrick Grubel Richard B. Katskee Alexander J. Luchen...
Judge Panel:Before: AMBRO, RESTREPO, and FISHER, Circuit Judges RESTREPO, Circuit Judge
Case Date:August 23, 2019
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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BRIAN FIELDS; PAUL TUCKER; DEANA WEAVER; SCOTT RHOADES; JOSHUA E. NEIDERHISER; PENNSYLVANIA NONBELIEVERS, INC.; DILLSBURG AREA FREETHINKERS; LANCASTER FREETHOUGHT SOCIETY; REV. DR. NEAL JONES; PHILADELPHIA ETHICAL SOCIETY; RICHARD KINIRY BRIAN FIELDS; PAUL TUCKER; DEANA WEAVER; SCOTT RHOADES; JOSHUA E. NEIDERHISER; PENNSYLVANIA NONBELIEVERS, INC.; DILLSBURG AREA FREETHINKERS; LANCASTER FREETHOUGHT SOCIETY; REV. DR. NEAL JONES; PHILADELPHIA ETHICAL SOCIETY Appellants

v.

SPEAKER OF THE PENNSYLVANIA HOUSE OF REPRESENTATIVES; PARLIAMENTARIAN OF THE PENNSYLVANIA HOUSE OF REPRESENTATIVES; DIRECTOR OF SPECIAL EVENTS OF THE PENNSYLVANIA HOUSE OF REPRESENTATIVES; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 92; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 95; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 97; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 165; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 167; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 182; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 193; REPRESENTATIVE FOR PENNSYLVANIA HOUSE DISTRICT 196, all solely in their official Capacities Appellants

Nos. 18-2974, 18-3167

United States Court of Appeals, Third Circuit

August 23, 2019

Argued June 17, 2019

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1-16-cv-01764) District Judge: Honorable Christopher C. Conner

Jonathan F. Bloom Karl S. Myers (Argued) Spencer R. Short Kyle A. Jacobsen Stradley Ronon Stevens & Young, Mark E. Chopko Stradley Ronon Stevens & Young, Counsel for Appellant/Cross Appellee Speaker of the Pennsylvania House of Representatives

Patrick Grubel Richard B. Katskee Alexander J. Luchenitser (Argued) Americans United for Separation of Church & State, Allen C. Warshaw, Eric O. Husby American Atheists Counsel for Appellee/Cross Appellant Brian Fields

Randall L. Wenger Jeremy L. Samek Independence Law Center, John J. Bursch David A. Cortman Jeremy Tedesco Alliance Defending Freedom Counsel for Amicus Appellants/Cross Appellees Mike Kelly, Scott Perry, Lloyd Smucker, Glenn Thompson

Steven W. Fitschen James A. Davids The National Legal Foundation Counsel for Amicus Appellants/ Cross Appellee Congressional Prayer Caucus Foundation, International Conference of Evangelical Chaplain Endorsers, National Legal Foundation, Veterans in Defense of Liberty

Eric S. Baxter Chase T. Harrington Becket Fund for Religious Liberty Counsel for Proposed Amicus Aleph Institute

Gregory E. Ostfeld Greenberg Traurig, Alan Hersh Greenberg Traurig, Vitaliy Kats Greenberg Traurig, Gregory M. Lipper Clinton & Peed, Monica L. Miller American Humanist Association, Counsel for Amicus Appellees/ Cross Appellants Anti-Defamation League, Central Conference of American Rabbis, Hindu American Foundation, Interfaith Alliance Foundation, Jewish Social Policy Action Network, Keshet, Men of Reform Judaism, National Council of Jewish Women, Asian Pacific American Advocates, People for the American Way Foundation, Truah Rabbinic Call for Human Rights, Union for Reform Judaism, Women of Reform Judaism, American Humanist Association, Jamie Raskin, Representative Jared Huffman

Patrick C. Elliott Colin E. McNamara Freedom from Religion Foundation Counsel for Amicus Appellee Freedom from Religion Foundation

Before: AMBRO, RESTREPO, and FISHER, Circuit Judges

OPINION

AMBRO, CIRCUIT JUDGE

The Pennsylvania House of Representatives begins most legislative sessions with a prayer. The practice has two features that are challenged in this appeal. First, the House invites guest chaplains to offer the prayer, but it excludes nontheists (those who do not espouse belief in a god or gods, though not necessarily atheists) from serving as chaplains on the theory that "prayer" presupposes a higher power. Second, visitors to the House chamber pass a sign asking them to stand for the prayer, and the Speaker of the House requests that audience members "please rise" immediately before the prayer. At least once a House security guard pressured two visitors who refused to stand.

A group of nontheists have challenged the theists-only policy under the Establishment, Free Exercise, Free Speech, [1]and Equal Protection Clauses2 of our Constitution. As to the Establishment Clause, we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking, the basis for the Supreme Court taking as a given that prayer presumes a higher power. 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.

The nontheists also challenge as unconstitutionally coercive the requests to "please rise" for the prayer. We hold that the single incident involving pressure from a security guard is moot. As for the sign outside the House chamber and the Speaker's introductory request that guests "please rise," we hold that these are not coercive.

Thus we affirm in part and reverse in part the ruling of the District Court.

Background

A. Guest Chaplain Policy - Exclusion of Nontheists

A member of the Pennsylvania House or a guest chaplain opens most legislative sessions with a prayer. A guest chaplain must be "a member of a regularly established church or religious organization." The House defines "opening prayer" as a chance for its members "to seek divine intervention in their work and their lives." Taken together, the House rules do not allow nontheists to give the opening prayer.

Once a guest chaplain is selected, he or she is told to craft a prayer "respectful of all religious beliefs." Fields v. Speaker of the Pa. House of Representatives, 251 F.Supp.3d 772, 777 (M.D. Pa. 2017) (Fields I). The 203 members of the House "com[e] from a wide variety of faiths," so "efforts to deliver an inter-faith prayer are greatly appreciated." Fields v. Speaker of the Pa. House of Representatives, 327 F.Supp.3d 748, 751 (M.D. Pa. 2018) (Fields II). Still, no House member reviews the prayer ahead of time.

From 2008 to 2016 the House prayer practice was as follows. For 678 legislative sessions, 575 began with a prayer. Of those prayers, 310 were offered by House members and 265 by guest chaplains. Among the 265 guest chaplains were 238 Christian clergy, 23 Jewish rabbis, three Muslim imams, and one monotheistic (yet otherwise unrecognizable) speaker. Fields I, 251 F.Supp.3d at 777. The House branched out in 2017 from the Abrahamic faiths with its first Sikh guest chaplain. Fields II, 327 F.Supp.3d at 752.

The plaintiffs here wish to offer the opening prayer as well. They represent a variety of nontheist organizations, including Secular Humanists, Unitarian Universalists, and Freethinkers.3 Most of these groups self-identify as "religious" organizations, and their practices parallel those of a church. For instance, they gather regularly to discuss their worldviews, study important texts, observe annual celebrations, and participate in community service. Fields I, 251 F.Supp.3d at 776. Their "clergy" even perform weddings and officiate at funerals. In short, they look and act like a church or synagogue in all ways but one: they do not profess belief in the existence of a higher power.

For this reason alone, the House denied their requests to offer a prayer. Each group had proposed an uplifting secular message - a "nontheistic" prayer touching on themes such as equality, unity, decency, hope, peace, compassion, tolerance, and justice. Fields II, 327 F.Supp.3d at 750. But because their proposed invocations would not appeal to a "higher power," they were turned away. Id. at 753.

B. Prayer Practice - Request to "Please Rise"

Two features of the prayer practice changed in response to this lawsuit. First, the Speaker of the House had asked guests to "please rise." Id. In 2017 he elaborated that guests "please rise as able." Id. Second, a sign outside the House chamber had explained that legislative sessions begin with a prayer and the Pledge of Allegiance, and it had asked that all guests "who are physically able" rise "during this order of business." After this lawsuit, "physically" was dropped. Id. at 754. On appeal, the parties dispute only whether the pre-2017 practice was unconstitutionally coercive.

The nontheists also challenge the coercive nature of one incident in 2012. After the Speaker's general request to "please rise," plaintiffs Brian Fields and Scott Rhoades remained seated. A House security guard singled them out and pressured them to stand. Id. at 753. However, they were not asked to leave, and no action was taken against them.

C. Procedural History

The leaders of several nontheist groups, along with the groups themselves, brought this suit under 42 U.S.C. § 1983 against the Speaker of the House, the House Parliamentarian, and several House members. The plaintiffs took aim at the guest chaplain policy and the practice of asking that guests "please rise" for the prayer. First, they asserted that the policy of excluding nontheists from serving as guest chaplains violated the Establishment, Free Speech, Free Exercise, and Equal Protection Clauses. Second, they claimed that asking guests to "please rise" for the prayer was unconstitutionally coercive in violation of the Establishment Clause.

At the motion-to-dismiss stage, the District Court winnowed the claims to the alleged Establishment Clause violations. Reasoning that legislative prayer is government speech rather than speech by private citizens, the Court dismissed the claims brought under the Free Exercise, Free Speech, and Equal Protection Clauses. The Establishment Clause claims survived, however, because the Court needed a record at summary judgment to determine (1) "[w]hether...

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