Should Atheists Give Invocations?

Throughout the history of the United States, legislative sessions have been preceded by prayers and invocations. Since the inception of the First Amendment, this practice has been called into question many times, mostly resulting in no substantial changes to the tradition. In Pennsylvania, a new debate has been raised not only over the practice itself but also who specifically can be invited to lead the invocations. Currently the law states that “a member of a regularly established church or religious organization” must be the one leading the opening prayers. This means that atheists are not welcome to lead this practice. Multiple non-theists have filed suit against the state of Pennsylvania claiming that this is a clear example of the state favoring and establishing religious preference of those who have a belief in a God or higher power. The third circuit Court of Appeals in a two to one decision upheld the practice stating that the practice is an example of government speech and the practice is in accordance with historical legislative prayer traditions. While I do understand the logic utilized by the non-theist citizens, I am more sympathetic to the majority due to the precedent set in similar historical cases.

One of the most important factors in the justification of the practice of invocational prayers in legislative sessions is the explanation of government speech established in the Government SpeechDoctrine. In this document, government speech is defined in a way similar to that of speech of an individual citizen. The Government is permitted and entitled to say what it wants and to select the viewpoints it wants to express. Under this doctrine, the state legislature would thus be allowed to favor theistic religious groups in the prayer practice. While excluding certain groups was not the initial intent of the court, the practice would be protected under the First Amendment rights granted to the legislature under the Government Speech Doctrine. While the prayer practice does favor theists, the person giving the prayer is instructed to make the prayer generally applicable and respectful of all religious beliefs. This case is thus an example of the government attempting to be neutral to all religious groups, while utilizing its Government Speech for protection.

Although many atheists would like this practice stopped, historic cases show that the practice is likely to continue. In Marsh v. Chambers, A member of the Nebraska legislature named Ernest Chambers challenged the constitutionality of invocational prayers at the beginning of legislative sessions. The chaplain in Nebraska was being paid monthly for his time and was from a specific denomination of Protestant Christianity. In a 6-3 decision, the court held that the practice was not an infringement of the Establishment Clause and appealed to the historical importance of an opening prayer at the beginning of the legislative sessions. The majority also adopted an originalist opinion believing that because the men who wrote the first amendment tolerated the practice, there was no infringement of the traditionally interpreted establishment clause.  If the logic utilized in this case is applied directly to the Pennsylvania case, the court will clearly uphold the practice. Pennsylvania does not discriminate between religions or pay the chaplain, something that the dissent took issue with in the case of Marsh v. Chambers. The legislative prayers in Pennsylvania are less biased and have less direct influence from certain religious groups; therefore, utilizing the decision of Marsh v. Chambers, one must believe the current practice is constitutional.

Another case that may be applied to this situation is that of the Town of Greece v. Galloway. In this case, Greece, New York decided to have an invocation at the beginning of the town hall meetings. The prayers were given by local clergy members and religious leaders that were from many different religious denominations. Some citizens took issue with the practice and believed that this practice was an establishment of religion as certain religious groups were featured in the invocation more frequently than others. In a 5-4 decision, the court ruled that the practice was constitutional. The courts noted the historic importance of government invocations and the non-sectarian elements of the practice, making no clear establishment of religion. When comparing this to the case of that of the Pennsylvania state legislature, a similar conclusion will be reached. Multiple religious groups are featured in Pennsylvania and the religious leaders are never paid. Through this logic, I believe the courts should again uphold the practice and continue the disallowance of non-religious invocations as the non-religious invocation would not satisfy the traditional purposes of the prayer.

In my opinion, the third circuit court made the correct decision. Many previous rulings have noted the importance of prayer as a traditional practice that has both historical and religious value that can only be achieved through a theistic prayer. Additionally, the Government Speech Doctrine protects this practice and thus no changes should be forced upon Pennsylvania’s state legislature.