BARKER v. CONROY et al
MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 10/11/2017. (DAS)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 16-850 (RMC)
PATRICK CONROY, Chaplain, U.S.
House of Representatives, et al.,
Since the Continental Congress met in 1774, the States’ representatives to the
federal government have employed, and paid, clergy who perform as chaplains and offer a daily
prayer before each session begins. Daniel Barker, an atheist and co-President of the Freedom
from Religion Foundation, challenges the modern practice in the House of Representatives,
whereby he was denied the opportunity to be a guest chaplain and to deliver a secular invocation
in lieu of a prayer. Mr. Barker asserts that the Supreme Court’s decision in Town of Greece,
New York v. Galloway, 134 S. Ct. 1811 (2014) requires his inclusion as a guest chaplain. His
interpretation of Town of Greece is flawed. The legislative prayer practice of the House of
Representatives is consistent with the decisions of the Supreme Court and this Circuit, as well as
the Rules of the House. Mr. Barker has failed to state a claim on which he is entitled to relief.
The Court also finds that extending Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971) to this context is unwarranted. The Complaint will be dismissed.
The U.S. House of Representatives (House) commences each legislative day with
a prayer, a tradition that originated during the first Continental Congress and continues today.
See Motion of the Official Defendants to Dismiss the Complaint [Dkt. 16] at 3-5 (Official
Capacity MTD) (describing the history of legislative prayer); see also Marsh v. Chambers, 463
U.S. 783, 788 (1983). A “prayer” is required under the House Rules and is consistent with the
Establishment Clause. See U.S. Const. art. I § 5, cl. 2 (“Each House may determine the rules of
its proceedings, . . .”); see also H.R. Doc. No. 114-192, § 665, Rule II, cl. 5 (“The Chaplain shall
offer a prayer at the commencement of each day’s sitting of the House.”); H.R. Doc. No. 114192, § 869, Rule XIV, cl. 1 (finding the House’s first “order of business . . . shall be . . . Prayer
by the Chaplain”); Marsh, 463 U.S. at 791. Current House Chaplain and a Defendant in this
case, Father Patrick J. Conroy, is a Roman Catholic priest. See Compl. [Dkt. 1] ¶ 25. The House
Chaplain, an Officer of the House elected by members, typically delivers the opening prayer, but
guest chaplains have given opening prayers since 1948, although there are no written rules
instructing this practice. See id. ¶¶ 55-58; see also IDA A. BRUDNICK, Cong. Research Serv.,
R41807, HOUSE AND SENATE CHAPLAINS: AN OVERVIEW 1 (2011). Between 2000 and 2015,
39% of opening prayers were made by guest chaplains. See Compl. ¶¶ 71-72. A guest chaplain
is either invited by Fr. Conroy or sponsored by a member of the House. See id. ¶ 60.
Daniel Barker is an American atheist activist and co-President of the Freedom
From Religion Foundation (FFRF). See id. ¶¶ 13, 16. FFRF is a legal and political advocacy
group for non-theists, and a frequent Establishment Clause litigant. See id. ¶ 13; see also
Official Capacity MTD at 6. On behalf of Mr. Barker, FFRF members visited Defendants Elisa
Aglieco, Fr. Conroy’s assistant, and Karen Bronson, Chaplain’s Liaison to Staff, to inquire about
“a nonreligious citizen” delivering an “opening invocation at the House.” Compl. ¶ 34. Fr.
Conroy’s staff explained that guest chaplains are permitted to give the opening prayer if (1) they
are sponsored by a House Member, (2) they are ordained, and (3) their prayer addresses a
“higher power.” Id. ¶ 35.
Mr. Barker alleges that he satisfied these requirements. See id. ¶ 36. Mr.
Barker’s representative in the House, Mark Pocan, sponsored him by asking Fr. Conroy to grant
Mr. Barker permission to deliver the morning invocation. See id. ¶ 37. Two days later, upon
Ms. Aglieco’s request, Mr. Barker provided his contact information, biography, and ordination
certificate for review. See id. ¶ 38. Mr. Barker explained that he was ordained a Christian
minister in 1975, but “lost faith in faith,” and disavowed religious beliefs in 1994. Id. ¶¶ 14, 16.
Mr. Barker maintains his ordination, using it to perform marriages, but no longer preaches the
tenets of Christianity. See id. ¶ 20. Mr. Barker also alleges that in a draft of his proposed
invocation that he provided to Fr. Conroy, he addressed a “higher power,” though not a god or
supernatural power. Id. ¶ 105.
Fr. Conroy denied Mr. Barker’s request to conduct the opening prayer in
December 2015 because he is “ordained in a denomination in which he no longer practices” and
“is not a religious clergyman [because he had] parted with his religious beliefs.” Id. ¶¶ 111, 115;
see also Official Capacity MTD at 7.
Mr. Barker filed suit on May 5, 2016, against Fr. Conroy, Ms. Aglieco, Ms.
Bronson, Speaker of the House Paul Ryan, all in their official capacities, and the House and
United States of America. See Compl. Mr. Barker’s Complaint also includes a claim against Fr.
Conroy in his individual capacity under Bivens. See id. ¶¶ 201-06. Mr. Barker alleges that the
requirements expressed by Fr. Conroy’s staff were a pretext for excluding and discriminating
against him because the same requirements are not enforced against other potential guest
chaplains. See id. ¶¶ 118-19. Mr. Barker challenges the denial of an opportunity to deliver an
invocation as a guest chaplain and the requirements imposed on him but not others as violations
of the Establishment, Due Process, and Religious Test Clauses of the Constitution, and the
Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq. See id. ¶¶ 157200.
Mr. Barker seeks: (1) a declaration that barring atheists and nonreligious
individuals from delivering the opening prayer to the House of Representatives violates the
Constitution and the RFRA; (2) a declaration that guest chaplains cannot be required to invoke
“a supernatural higher power”; (3) injunctive relief barring Fr. Conroy from selecting a guest
chaplain on the basis of inherently religious qualifications; and (4) an order approving Mr.
Barker as guest chaplain. Id. at Section V; see also Official Capacity MTD at 8.
Defendants jointly filed a Motion to Dismiss the official capacity claims on
September 30, 2016, contending that Mr. Barker does not have Article III standing, his claim is
non-justiciable, and he has failed to state a claim.1 See Official Capacity MTD at 2. Mr. Barker
filed a Memorandum in Opposition of Defendants’ Motion to Dismiss on November 14, 2016,
see Memorandum in Opposition of the Official Defendants’ Motion to Dismiss [Dkt. 18]
(Official Capacity Opp’n), to which Defendants replied. See Reply Memorandum in Support of
the Official Defendants’ Motion to Dismiss [Dkt. 21] (Official Capacity Reply). Additionally,
Fr. Conroy filed a separate motion to dismiss the individual Bivens claim against him. See
Defendant Patrick Conroy’s Motion to Dismiss All Individual-Capacity Claims [Dkt. 14]
(Conroy MTD). Mr. Barker opposed, see Memorandum Opposing Defendant Patrick Conroy’s
Motion to Dismiss All Individual-Capacity Claims [Dkt. 19] (Conroy Opp’n), and Fr. Conroy
This Court granted Defendants’ Motion to Dismiss all claims against Ms. Aglieco on
November 15, 2016, because she is no longer employed by the House. See 11/15/16 Minute
replied. See Reply Memorandum in Support of Defendant Patrick Conroy’s Motion to Dismiss
All Individual-Capacity Claims [Dkt. 20] (Conroy Reply).
II. LEGAL STANDARD
Standing is one feature of the Constitution’s case-or-controversy limitation on
federal judicial authority. See U.S. Const. art. III, § 2 (“The judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority . . . [and] to Controversies.”); see
also Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2663 (2015).
Standing turns on whether a plaintiff “alleged such a personal stake in the
outcome of the controversy” as to meet federal court jurisdiction and justiciability requirements.
Baker v. Carr, 369 U.S. 186, 204 (1962). To have Article III standing, a plaintiff must establish
that: (1) he has “suffered an injury in fact—an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2)
the injury is fairly traceable to the defendants’ actions; and (3) it is “likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” United States v. Windsor,
133 S. Ct. 2675, 2685-86 (2013) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-62
(1992)). Plaintiff bears the burden of establishing his standing because he is the party invoking
federal jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998).
Where a party’s standing is challenged in a motion to dismiss, a reviewing court
“must construe the complaint in favor of the complaining party.” Kurtz v. Baker, 829 F.2d 1133,
1138 (D.C. Cir. 1987) (Kurtz II) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)).
B. Motion to Dismiss – Fed. R. Civ. P. 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) requires a complaint to be sufficient “to
give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint
does not need to include detailed factual allegations, a plaintiff’s obligation to provide the
grounds of his entitlement to relief “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. The facts alleged “must be
enough to raise a right to relief above the speculative level.” Id. A complaint must contain
sufficient factual matter to state a claim for relief that is “plausible on its face.” Id. at 570.
When a plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged, then the claim has facial plausibility. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. A court must treat the complaint’s factual allegations as true, “even if doubtful
in fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set
forth in a complaint. Iqbal, 556 U.S. at 678.
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as exhibits or incorporated by reference,
and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508
F.3d 1052, 1059 (D.C. Cir. 2007). Generally, when a court relies upon matters outside the
pleadings, a motion to dismiss must be treated as one for summary judgment and disposed of
pursuant to Rule 56. See Fed. R. Civ. P. 12(d). “However, where a document is referred to in
the complaint and is central to the plaintiff’s claim, such a document attached to the motion
papers may be considered without converting the motion to one for summary judgment.” Nat’l
Shopmen Pension Fund v. Disa, 583 F. Supp. 2d 95, 99 (D.D.C. 2008).
C. Precedent on Legislative Prayer
One starts with Marsh v. Chambers, 463 U.S. 783 (1983), which addressed a
challenge by a state legislator to the century-old practice of the Nebraska legislature of opening
each session with a prayer by a chaplain paid with public funds. The Supreme Court held that
the practice did not violate the Establishment Clause even though a single clergyman had offered
the prayers for many years and they were all in the Judeo-Christian tradition. See id. at 795. The
Court’s analysis is highly instructive.
The Court began its discussion noting certain historical facts:
The opening of sessions of legislative and other deliberative public
bodies with prayer is deeply embedded in the history and tradition
of this country. From colonial times through the founding of the
Republic and ever since, the practice of legislative prayer has
coexisted with the principles of disestablishment and religious
freedom. . . .
[T]he Continental Congress, beginning in 1774, adopted the
traditional procedure of opening its sessions with a prayer offered
by a paid chaplain. . . . [T]he First Congress, as one of its early items
of business, adopted the policy of selecting a chaplain to open each
session with prayer. . . .
On Sept[ember] 25, 1789, three days after Congress authorized the
appointment of paid chaplains, final agreement was reached on the
language of the Bill of Rights. Clearly the men who wrote the First
Amendment Religion Clause did not view paid legislative chaplains
and opening prayers as a violation of that Amendment, for the
practice of opening sessions with prayer has continued without
interruption ever since that early session of Congress.
Id. at 786-88 (citations omitted). “In this context, historical evidence sheds light not only on
what the draftsmen intended the Establishment Clause to mean, but also on how they thought
that Clause applied to the practice authorized by the First Congress—their actions reveal their
intent.” Id. at 790; see also Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888) (noting that
Acts adopted by the First Congress are “contemporaneous and weighty evidence of [the
Constitution’s] true meaning”).
Plaintiff Earnest Chambers, himself a Nebraska representative who was offended
by the legislative prayers, argued that opposition by some Founding Fathers significantly
undercut any reliance on early practices. The Supreme Court disagreed:
[E]vidence of opposition . . . infuses [the historical argument] with
power by demonstrating that the subject was considered carefully
and the action not taken thoughtlessly, by force of long tradition and
without regard to the problems posed by a pluralistic society.
Marsh, 463 U.S. at 791. The Court concluded its historical discussion by summarizing:
In light of the unambiguous and unbroken history of more than 200
years, there can be no doubt that the practice of opening legislative
sessions with prayer has become part of the fabric of our society.
To invoke Divine guidance on a public body entrusted with making
the laws is not, in these circumstances, an establishment of religion
or a step toward establishment; it is simply a tolerable
acknowledgment of beliefs widely held among the people of this
country. As Justice Douglas observed, “we are a religious people
whose institutions presuppose a Supreme Being.” Zorach v.
Clauson, 343 U.S. 306, 313 (1952).
Id. at 792.
Turning to the actual practices of the Nebraska legislature, the Court noted the
long tenure of its chaplain but also that “guest chaplains have officiated at the request of various
legislators and as substitutes during [Chaplain] Palmer’s absences.” Id. at 793. Without
evidence of “an impermissible motive,” the Court found no conflict with the Chaplain’s tenure
and the Establishment Clause. Id. The nature of the Chaplain’s prayers did not offend the
Constitution, nor did the use of public funds to pay the Chaplain cause the Court any pause. Id.
at 794 (“Nor is the compensation of the chaplain from public funds a reason to invalidate the
Nebraska Legislature’s chaplaincy; remuneration is grounded in historic practice . . . .”). Thus,
the Supreme Court concluded that there was no risk of the establishment of religion from the
practice of the Nebraska legislature. See id. at 795 (citing Abington School Dist. v. Schempp,
374 U.S. 203, 308 (1963) (Goldberg, J., concurring) (“[T]he measure of constitutional
adjudication is the ability and willingness to distinguish between real threat and mere
Following Marsh, the U.S. Court of Appeals for the District of Columbia Circuit
had occasion to address the same question in Kurtz v. Baker, 829 F.2d 1133, 1136 (D.C. Cir
1987), when a nontheist professor brought suit after being denied the opportunity to present
opening remarks to both the Senate and House. Mr. Kurtz challenged the exclusion of nontheists
from the ranks of guest chaplains and the requirement that the guest chaplain utter a “prayer” as
violations of the Free Speech and Religion Clauses of the First Amendment and the Due Process
Clause of the Fifth Amendment. See id. The D.C. Circuit ultimately dismissed Mr. Kurtz’s
claims for lack of standing.
Although the D.C. Circuit found that the allegation “that Kurtz has been
prevented from addressing each house of Congress . . . [satisfied] Article III’s injury requirement
because it is sufficiently personal and concrete,” id. at 1142, it ultimately held that Mr. Kurtz
failed to allege causation because Mr. Kurtz did not allege that even with the Chaplain’s assent,
there would be a “substantial probability” that he could address the House. Id. at 1142. Mr.
Kurtz did not allege that the Chaplain had discretion to grant his request and his desired secular
invocation was irreconcilable with the Court’s interpretation of prayer as required by the House
Rules. See id. The Circuit did not address the merits of Mr. Kurtz’s constitutional claims.
In 2014, the Supreme Court had another opportunity to consider the
constitutionality of legislature prayer in Town of Greece. See 134 S. Ct. 1811. Town of Greece
involved the complaint of two residents of the Town who appeared before the Town board on
various items of civic business and objected to its practice of an opening prayer by an unpaid
volunteer “chaplain for the month.” Id. at 1816. Chaplains were identified by contacting those
clergymen with congregations within Town limits and listed in the local directory, which meant
that since “nearly all of the congregations in town were Christian; . . . from 1999 to 2007, all of
the participating ministers were too.” Id. The Town allowed guest clergy to write their own
prayers which “often sounded both civic and religious themes.” Id.
Plaintiffs in Town of Greece alleged that the prayer “violated the First
Amendment’s Establishment Clause by preferring Christians over other prayer givers and by
sponsoring sectarian prayers.” Id. at 1817. Plaintiffs sought an injunction to limit the prayers to
“inclusive and ecumenical prayers that referred only to a generic God and would not associate
the government with any one faith or belief.” Id. The District Court rejected the argument that
an acceptable prayer must be nonsectarian, while finding no inherent problem with sectarian
prayer. See id. at 1818. The Second Circuit reversed, finding that the “steady drumbeat of
Christian prayer, unbroken by invocations from other faith traditions, tended to affiliate the town
with Christianity.” Id.
In reversing the Second Circuit, the Supreme Court cited Marsh v. Chambers,
which it said had “concluded that legislative prayer, while religious in nature, has long been
understood as compatible with the Establishment Clause” and as a “‘tolerable acknowledgement
of beliefs widely held.’” Id. (quoting Marsh, 463 U.S. at 792). Indeed, Marsh “supported the
conclusion that legislative invocations are compatible with the Establishment Clause.” Id.
Adding to the relevant historical record reviewed in Marsh, Town of Greece noted that in the
middle of the Nineteenth Century, the Senate and House had reviewed their practice of official
chaplaincies and “concluded that the office posed no threat of an establishment because
lawmakers were not compelled to attend the daily prayer, no faith was excluded by law, nor any
favored, and the cost . . . imposed a vanishingly small burden.” Id. at 1819. Comparing the
practices in Town of Greece to those of Congress, the Court noted approvingly that “Congress
continues to permit its appointed and visiting chaplains to express themselves in a religious
idiom. It acknowledges our growing diversity not by proscribing sectarian content but by
welcoming ministers of many creeds.” Id. at 1820-21. It further emphasized that “Marsh
nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its
content.” Id. at 1821.
The place and purpose of legislative prayers cabin their content to avoid any
constitutional offense. Prayers at the opening of a legislative session are “meant to lend gravity
to the occasion and reflect values long part of the Nation’s heritage. . . . These religious themes
provide particular means to universal ends . . . to solemnize the occasion” as long as they do not
lead to proselytizing or advancement of a particular faith or belief. Id. at 1823. Town of Greece
did not alter the permissibility of legislative prayers or hold that Congress must permit
nonsectarian or nontheist statements by guest chaplains.2
The Court has jurisdiction over Mr. Barker’s case under 28 U.S.C. § 1331 because it involves a
federal question arising under the First and Fifth Amendments of the Constitution and the
Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1(b). Political question
immunity is inapplicable and venue is proper within the District of Columbia because the actions
took place at the House of Representatives located in the District. See 28 U.S.C. § 1391.
Allegations of speculative or possible future injury are insufficient to satisfy the
Article III standing requirements. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147
(2013). When an alleged injury has not yet occurred, courts must determine whether it is
imminent. An injury is imminent if the threatened injury is “certainly impending” or if there is
substantial risk that the harm will occur. Id. “[P]laintiffs bear the burden of pleading . . .
concrete facts showing that the defendant’s actual action has caused the substantial risk of harm.
Plaintiffs cannot rely on speculation about the unfettered choices made by independent actors not
before the court.” Id. at 1150 n.5 (internal quotation and citation omitted).
Defendants argue that Mr. Barker failed to allege an injury-in-fact sufficient to
satisfy the requirements for standing under Article III because the alleged injury—the denial of
an opportunity to deliver a secular invocation—is the “loss of a speculative hope of ‘notoriety’”
and not a judicially cognizable injury. Official Capacity MTD at 12. Mr. Barker contends he
suffered three distinct injuries-in-fact, all of which are sufficient to satisfy the first requirement
for standing under Article III: (1) personal exclusion injury, (2) exclusion based on
discrimination due to religious beliefs and membership in a class, and (3) stigmatic injury. See
Official Capacity Opp’n at 19-21.
Personal Exclusion Injury
Mr. Barker first contends he suffered a personal exclusion injury because he was
barred from delivering an invocation to the House after satisfying the Chaplain’s requirements.
See id. at 19. Mr. Barker cites Kurtz II, a factually similar case involving a secular humanist who
was denied the opportunity to offer secular remarks to Congress during the time for prayer. See
829 F.2d at 1142. Mr. Barker argues that this Court should follow Kurtz II and find the injuryin-fact requirement satisfied because he alleges, as did Mr. Kurtz, and he was prevented from
addressing the House, which is “sufficiently personal and concrete.” Id. at 1142; see also
Official Capacity Opp’n at 19.
Defendants respond that Mr. Barker’s “‘exclusion from’ or ‘deprivation of’ the
ability to address the House” is a procedural exclusion injury, a type of injury the Supreme Court
has ruled insufficient to create Article III standing in the absence of some nexus to cognizable
personal harm, which Mr. Barker has not demonstrated. Official Capacity Reply at 2-3 (citing
Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)). Summers instructs that where
plaintiffs did not have an individual stake in the application of a challenged rule, or had not
personally been affected by it, they had no standing. See Summers, 555 U.S. at 496-97.
Important to the decision in Summers was that the plaintiffs had already resolved through
settlement their individual claim about the application of the challenged rule and were only
seeking to make a facial challenge to the rule. See id. at 494.
Kurtz II and the instant case are distinguishable and not decided by Summers.
Messrs. Kurtz and Barker each challenged the application of a rule to them personally, not the
rule itself. Mr. Barker’s personal exclusion from addressing the House is sufficient for an injuryin-fact for Article III standing because, just as in Kurtz II, Mr. Barker’s exclusion was concrete,
particularized, and non-speculative. See Kurtz II, 829 F.2d at 1142.
Exclusion Based on Religious Beliefs and Membership in a Class
Mr. Barker also argues that he suffered an injury-in-fact because he was excluded
from participating as guest chaplain due to discrimination because he is an atheist and is thus a
member of two classes: (1) those who do not believe in a supernatural higher power and (2)
those whose faith does not issue ordinations. See Official Capacity Opp’n at 21. Defendants
attempt to reformulate this injury to be contending classwide exclusion, which they argue that
Mr. Barker does not properly allege and is preempted by Kurtz II. See Kurtz II, 829 F.2d at
1141. The Court, however, interprets Mr. Barker’s allegations of injury, both due to personal
exclusion and exclusion based on discrimination, as allegations of the same concrete and
imminent injury, but with different causes. Mr. Barker has alleged he was excluded, which the
Court found above was sufficient for injury-in-fact; whether the exclusion came as a result of
religious discrimination or due to another action by Defendants, it is sufficient to satisfy injuryin-fact.
Mr. Barker’s last injury-in-fact claim alleges stigmatic injury, resulting in a “loss
of benefits, honors, and congressional recognition” from his exclusion by Fr. Conroy. Official
Capacity Opp’n at 21. Mr. Barker alleges that he was denied the “prestige and status” of having
served as guest chaplain. Compl. ¶ 68. Defendants counter that this “loss of an unspecified and
speculative, potential reputational enhancement” is insufficient to confer standing. Official
Capacity Reply at 4.
The Court agrees the stigmatic injury Mr. Barker alleges is not sufficiently
“concrete and particularized” to satisfy the injury-in-fact threshold for Article III standing
because the future manifestation of the benefit he describes is entirely uncertain. Lujan, 504
U.S. at 560. Standing must affirmatively appear in the record, and may not be inferred from
argument. See Advanced Mgmt. Tech., Inc. v. FAA, 211 F.3d 633, 636-37 (D.C. Cir. 2000).
It is well established that “allegations of possible future injury are not sufficient.”
Clapper, 133 S. Ct. at 1147 (emphasis in original); see also Newdow v. Eagen, 309 F. Supp. 2d
29, 37 (D.D.C. 2004) (finding a “threat of future stigmatic injury is too speculative to qualify as
an injury in fact”). Mr. Barker’s alleged future injury from an alleged loss of reputational
benefits is too speculative because Mr. Barker fails to show that his alleged stigmatic injury is
concrete or particularized, providing no examples of how or when such an injury may be likely
to occur. This “conjectural or hypothetical” alleged injury is insufficient to satisfy Article III
requirements. Lujan, 504 U.S. at 560-61.3
The second element of standing is causation, which requires “a causal connection
between the injury and the conduct complained of.” Id. at 560. The injury must be “fairly
traceable to the defendant’s conduct.” Lexmark Int’l, Inc. v. Static Control Components, Inc.,
134 S. Ct. 1377, 1391 n.6 (2014).
Ms. Bronson, Speaker Ryan, and the House of Representatives
Mr. Barker contends that his injuries are fairly traceable, not only to Fr. Conroy,
but also his assistant Ms. Bronson, Speaker Ryan, and the House itself. See Official Capacity
Opp’n at 25-26. Defendants argue that Mr. Barker failed to allege any actions by Ms. Bronson,
Speaker Ryan, or the House that are fairly traceable to his alleged injuries. See Official Capacity
Reply at 6-7. This is true—no such actions were alleged. The claims against Ms. Bronson,
Speaker Ryan, and the House must be dismissed for lack of causation because Mr. Barker has
failed to show that either individual, or the House, is the source of his injury.
As established above, Mr. Barker’s alleged injuries stem from his personal
exclusion from serving as guest chaplain. Mr. Barker fails to allege facts that link any conduct
Kurtz II found stigmatic injury did not satisfy injury-in-fact, because plaintiff did not allege a
personal benefit that had been denied. See Kurtz II, 829 F.2d at 1141.
by Ms. Bronson, Speaker Ryan, or the House to this injury. Mr. Barker alleges the “extensive
and unreasonable delay” he experienced was itself a form of discrimination which may be fairly
traceable to Ms. Bronson, but he does not allege that this delay is the source of his injury, nor
does he explain why such a delay would give rise to a cognizable injury. See Compl. ¶ 172; see
also Official Capacity Opp’n at 25-26; but see Official Capacity Reply at 6 n.3. Mr. Barker
offers no allegations that link the potential delay of his application to serve as guest chaplain, or
the act of passing along the requirements for serving as guest chaplain, to his ultimate exclusion.
There are no allegations that Ms. Bronson played any role in the ultimate determination that Mr.
Barker could not address the House.
Mr. Barker further claims that Speaker Ryan caused his injuries by failing to halt
the ongoing discrimination by Fr. Conroy, see Official Capacity Opp’n at 26, but Mr. Barker
failed to include any specific factual allegations of action or inaction by Speaker Ryan in the
Complaint. In fact, the only reference to Speaker Ryan in the Complaint is in paragraphs 28-30
describing the role of the Speaker of the House and indicating Speaker Ryan has been sued in his
official capacity. See Compl. ¶¶ 28-30. Additional claims of actions taken by Speaker Ryan
included in Mr. Barker’s opposition, but not his Complaint, will not be considered. See Arbitraje
Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.C. Cir. 2003)
(“It is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to
Finally, Mr. Barker contends that the House is “potentially” a cause of his alleged
injury because it is the only entity with the authority to change the House Rules. Official
Capacity Opp’n at 26. Causation is not satisfied where “speculative inferences” are needed to tie
an alleged injury to the challenged actions. Where Mr. Barker’s allegations are based in
speculation and rely on a significant inference, they are insufficient to provide the link for Article
III standing.4 See West v. Holder, 60 F. Supp. 3d 197, 201 (D.D.C. 2015). In sum, Mr. Barker’s
purported injuries are not fairly traceable to the alleged conduct or inaction by Ms. Bronson, Mr.
Ryan or the House and they will be dismissed as defendants.
Defendants recognize that Mr. Barker’s causation argument with respect to Fr.
Conroy is most palatable, although they contend that Kurtz II dooms Mr. Barker’s causation
claim. Defendants argue that Kurtz II found causation lacking because the denial to Mr. Kurtz of
the opportunity to address the House was compelled by the House Rules, not by the Chaplain’s
discretion. See Official Capacity MTD at 13-14. Here, too, the House Rules similarly dictate
that a guest chaplain may only recite a prayer, which precludes Mr. Barker’s desired secular
invocation. See Official Capacity Reply at 7; see also Official Capacity MTD at 13-14.
Defendants argue that Mr. Barker’s theory of causation layers speculation on speculation,
creating a chain of events too attenuated to establish causation. See Official Capacity MTD at
Mr. Barker would distinguish Kurtz II in two respects. He argues that the D.C.
Circuit found Mr. Kurtz’s injury not traceable to those defendants’ actions “because (1) there is
no allegation that the chaplains had discretion to grant appellant’s requests, and (2) such an
allegation would in any event be untenable.” Official Capacity Opp’n at 23 (quoting Kurtz, 829
F.2d at 1142). In contrast, he alleges that Fr. Conroy exercises discretion when selecting guest
chaplains and Mr. Barker satisfied the requirements to become guest chaplain. See id. Mr.
The Court also notes that, as with Speaker Ryan, the Complaint is devoid of specific allegations
of actions taken by the House with respect to Mr. Barker’s request to appear as guest chaplain.
Barker also argues that the Supreme Court in Town of Greece determined that a nonreligious
statement is permissible under a government rule for prayer.
Mr. Barker argues that Fr. Conroy admitted that the Chaplain had the discretion to
permit Mr. Barker to address the House and he satisfied the three requirements described by Fr.
Conroy’s staff, but he was still denied the opportunity to speak. He cites Fr. Conroy’s letter to
Representative Pocan. See Ex. C, Compl. [Dkt. 1-3] at 1 (Fr. Conroy letter to Rep. Pocan)
(writing “I . . . from time-to-time have exercised my discretion to invite guest chaplains”).
Although Fr. Conroy’s letter used the word “discretion,” it did not state that Fr. Conroy has
absolute discretion to permit any or all individuals to address the House. Fr. Conroy specifically
stated that he sometimes uses his “discretion to invite guest chaplains to fulfill [the chaplain’s]
responsibilities by offering a prayer at the commencement of a session of the House.” Id.
(emphasis added). Fr. Conroy added that Members can also recommend individuals to fulfill this
duty. See id. Additionally, Fr. Conroy explained to Representative Pocan why Mr. Barker failed
to satisfy the three requirements to serve as guest chaplain. See id. at 1-2. Despite Mr. Barker’s
arguments to the contrary, his request to address the House is functionally identical to the request
made by Mr. Kurtz and must fail for the same reason. Like the plaintiff in Kurtz II, Mr. Barker
has failed to allege that the chaplain “had the power to permit him to address the House . . . in the
manner he sought”—through a secular invocation. Kurtz II, 829 F.2d at 1142. Under Kurtz II,
Mr. Barker has failed to allege that Fr. Conroy caused his injury.5
Kurtz II went on to hold that even if plaintiff had alleged the chaplain had the authority to grant
floor privileges for a secular invocation, plaintiff “failed to show in any concretely demonstrable
way that but for his exclusion from the chaplains’ guest speaker programs, there is a substantial
probability he would have been able to address a non-prayer to [the House].” Kurtz II, 829 F.2d
To avoid the binding nature of Kurtz II, Mr. Barker argues that Town of Greece
expanded the definition of prayer at public events to permit secular invocations. See Official
Capacity Opp’n at 24-25. Defendants respond that Town of Greece merely upheld the Town’s
practice of prayer before its monthly board meetings, but did not expand or alter the Supreme
Court’s understanding of permissible prayers as described in Marsh and recognized in Kurtz II.
See Official Capacity Reply at 8. The Court agrees that Town of Greece did not alter the
understanding that a legislature, such as the House, may open its proceedings with a prayer.
Town of Greece did not define prayer as necessarily including invocations by atheists, but
instead found that the Town’s policy of a prayer or invocation before its monthly board
meetings—for which Town leaders indicated that a lay person, including an atheist, could
provide the invocation—did not violate the Establishment Clause. Town of Greece, 134 S. Ct. at
1816, 1828. Town of Greece does not alter this Court’s reading of Kurtz II and, therefore, as
described above, Mr. Barker’s claims must fail for the same reasons as those of the plaintiff in
Kurtz II. Mr. Barker has failed adequately to allege that Fr. Conroy caused his injury and he thus
lacks standing to sue. A close look at Mr. Barker’s individual claims fares no better.
B. Claims Against Defendants in Their Official Capacity
The history of legislative prayer and its judicial treatment are critical to
appreciating the nature of Mr. Barker’s argument and its resolution. In effect, his effort to thread
a tiny needle—an inferred change in the law—is unavailing: there is no needle.
1. Political Question
Defendants contend that Mr. Barker’s claims should be dismissed for lack of
subject matter jurisdiction under Rule 12(b)(1) because they raise non-justiciable political
questions. See Official Capacity MTD at 17-29. “The political question doctrine excludes from
judicial review those controversies which revolve around policy choices and value
determinations constitutionally committed for resolution to the halls of Congress or the confines
of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230
(1986). The underlying rationale is that “courts are fundamentally underequipped to formulate
national policies or develop standards of conduct for matters not legal in nature.” United States
ex rel. Joseph v. Cannon, 642 F.2d 1373, 1379 (D.C. Cir. 1981).
“The political question doctrine is ‘primarily a function of the separation of
powers.’” Schneider v. Kissinger, 310 F. Supp. 2d 251, 258 (D.D.C. 2004), aff’d, 412 F.3d 190
(D.C. Cir. 2005) (quoting Baker, 369 U.S. at 210). In Baker, the Supreme Court enumerated six
factors that could render a case non-justiciable:
Prominent on the surface of any case held to involve a political
question is found (1) a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or (2)
a lack of judicially discoverable and manageable standards for
resolving it; or (3) the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion; or
(4) the impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or (5) an unusual need for unquestioning adherence to
a political decision already made; or (6) the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.
Baker, 369 U.S. at 217 (numbers not in original); see also Ralls Corp. v. Comm. on Foreign Inv.,
758 F.3d 296, 313 (D.C. Cir. 2014). “Unless one of these formulations is inextricable from the
case at bar, there should be no dismissal for non-justiciability on the ground of a political
question’s presence.” Baker, 369 U.S. at 217.
Defendants argue that the House’s rulemaking function has been committed by
the Constitution to the House alone as the Rulemaking Clause grants the House the ability to
“determine the Rules of its Proceedings,” U.S. Const. art. I, § 5, cl. 2, and the Speech or Debate
Clause precludes judicial review of the implementation of House Rules, the conduct in
proceedings, and the decisions on who may address the House during a session. U.S. Const. art.
I, § 6, cl. 1 (“[F]or any Speech or Debate in either House, they shall not be questioned in any
other Place.”); see also Official Capacity MTD at 18-27. Defendants also argue that recognition
and consideration of Mr. Barker’s claims would demonstrate a lack of respect for a co-equal
branch of government. See Official Capacity MTD at 27-29. These arguments can be boiled
down to two points. First, Congress’ rule establishing legislative prayer is constitutional, see
Marsh, 463 U.S. at 794-95, and Congressional rulemaking authority is exclusively committed to
the Congress. Second, because the prayer rule does not “ignore constitutional restraints or
violate fundamental rights,” United States v. Ballin, 144 U.S. 1, 5 (1892), the political question
doctrine dictates the Court should refrain from deciding the issue. See Official Capacity MTD at
Mr. Barker retorts that the decisions of Fr. Conroy are not protected by the
Rulemaking Clause because there are no House Rules related to guest chaplains or the
procedures for approving or denying a request to give the opening prayer. Official Capacity
Opp’n at 31-33. Defendants argue that Fr. Conroy was operating under the broader Rule that
requires each session of the House to be opened with a prayer and any decision by this Court
would infringe on the House’s ability to determine the Rules of its proceedings and control who
would be admitted to the floor and gallery. See Official Capacity MTD at 18-20. The Court
agrees that Mr. Barker is not challenging a Rule under the Rulemaking Clause, but the
application of that Rule to him, and Fr. Conroy’s use of his authority to provide the opening
prayer before the House himself or through a guest chaplain. See Kurtz v. Baker, 630 F. Supp.
850, 856 (D.D.C. 1986) (Kurtz I), vac’d on other grounds 829 F.2d 1133 (“[P]laintiff does not
directly challenge House or Senate rules. He challenges the discretionary behavior of their
chosen Chaplains. The Chaplains occupy publicly-funded offices and thus their conduct in those
offices is subject to judicial scrutiny for adherence to the Constitution.”).
Additionally, Mr. Barker cites Vander Jagt v. O’Neill, 699 F.2d 1166 (D.C. Cir.
1982) for the proposition that while courts have been cautioned to treat Congress’ authorization
to make its own rules with “special care,” that “simply means that neither [the courts] nor the
Executive Branch may tell Congress what rules it must adopt,” but that “does not alter [the
courts’] judicial responsibility to say what rules Congress may not adopt because of
constitutional infirmity.” Id. at 1173. Therefore, the rulemaking authority of the House does not
permit it to enact or enforce Rules that violate the Constitution, which Mr. Barker claims has
occurred here. Thus, the Rulemaking Clause does not provide immunity from Mr. Barker’s
Mr. Barker also argues that the Speech or Debate Clause does not prevent his suit
because that Clause only protects actions that occur within the legislative sphere and the
selection of guest chaplains is not “part and parcel of the legislative process.” Gravel v. United
States, 408 U.S. 606, 626 (1972); see also Official Capacity Opp’n at 33-35. Defendants liken
Mr. Barker’s case to Consumers Union of United States, Inc. v. Periodical Correspondents’
Ass’n, 515 F.2d 1341 (1975) where the District of Columbia Circuit held that the Speech or
Debate Clause committed exclusively to Congress the power to determine who was admitted into
This analysis applies equally to Defendants’ argument that court action in this case would
demonstrate a lack of respect for a co-equal branch of government. Defendants cite a number of
cases dealing with internal disputes between members of Congress where the courts decided not
to exercise jurisdiction to show respect for the internal decision-making of the Congress. See
Official Capacity MTD at 28-29 (citing Brown v. Hansen, 973 F.2d 1118, 1119 (3rd Cir. 1992);
VanderJagt, 699 F.2d 1166; and Harrington v. Bush, 553 F.2d 190, 214 (D.C. Cir. 1977)).
Determining whether Mr. Barker has suffered discrimination at the hands of Fr. Conroy does not
interfere with the legislature’s ability to resolve internal disputes or signify a lack of respect for
the tradition of legislative prayer.
the galleries and on the floor of Congress and made non-justiciable the question of whether
Consumers Union was improperly denied accreditation and access to the press gallery. Id. at
1351; see also Official Capacity MTD at 23-25. Defendants argue that like the Correspondents’
Association, Fr. Conroy was “acting by virtue of an express delegation of authority as [an] aide
or assistant of Congress” when he denied Mr. Barker’s request to serve as guest chaplain. Id. at
1350. Had the decision been made directly by a member of Congress, Defendants posit, that
member would unquestionably be “immune from inquiry under the Speech or Debate Clause.”
Id. Therefore, they reason, so should Fr. Conroy.
The Court distinguishes Mr. Barker’s claims from Consumers Union because the
Consumers Union plaintiffs were challenging the Act of Congress that enacted the Rules which
prohibited their admittance to the press balcony. The daily prayer is not similar legislative
action. “An act is ‘legislative’ if it is ‘generally done in a session of the House by one of its
members in relation to the business before it.’” Rangel v. Boehner, 785 F.3d 19, 23 (D.C. Cir.
2015) (quoting Kilbourn v. Thompson, 103 U.S. 168, 204 (1880)). Legislative prayer is
conducted at the beginning of the session and Members are not compelled to attend. See Kurtz
II, 829 F.2d at 1146 n.2 (Ginsburg, J., concurring) (“I find no threshold blockage to Kurtz’s
claim against the chaplains and Treasury officers by reason of the Speech or Debate Clause.
While inspirational, prayer in Congress does not appear to be ‘integral to lawmaking.’”) (quoting
Walker v. Jones, 733 F.2d 923, 929 (D.C. Cir. 1984); see also Kurtz I, 630 F. Supp. at 856-57
(“The practice of legislative prayer does not provide meaningful input into legislative
decisionmaking.”); 6 C. Cannon, Precedents of the House of Representatives § 663 (1936)
(Prayer by the Chaplain “is not a matter of business, but . . . a matter of ceremony.”). Therefore
the prayer and any action taken by Fr. Conroy to designate a guest chaplain are not legislative
actions and are not protected by Speech or Debate Clause immunity.
2. Failure to State a Claim
Establishment and Equal Protection Clauses
Defendants argue that Mr. Barker’s Establishment Clause claim is barred because
Marsh upheld the constitutionality of legislative prayer and, because Marsh recognized an
exception for legislative prayer from the Establishment Clause, Mr. Barker’s Equal Protection
Clause claim must also fail. See Official Capacity MTD at 31. Mr. Barker counters that his
claim is not barred by Marsh because it is an individual claim of discrimination, not a challenge
to the constitutionality of legislative prayer as a practice. See Official Capacity Opp’n at 5.
There is logic to the argument Mr. Barker presents under the Establishment
Clause. He asserts that the Chaplain to the House cannot discriminate against the nonreligious.
He relies on Larson v. Valente, 456 U.S. 228, 244 (1982) (“The clearest command of the
Establishment Clause is that one religious denomination cannot be officially preferred over
another.”) and Wallace v. Jaffree, 472 U.S. 38, 52-53 (1985) (“[I]ndividual freedom of
conscience protected by the First Amendment embraces the right to select any religious faith or
none at all.”). He also notes that the Supreme Court has recognized that “the government may
not favor one religion over another, or religion over irreligion.” McCreary Cty. v. ACLU, 545
U.S. 844, 875-76 (2005).
Relying particularly on Town of Greece, Mr. Barker argues that the House
practice of opening prayers constitutes “a government prayer program systematically and
explicitly engineered to exclude atheists.” Official Capacity Opp’n at 7. As he interprets Town
of Greece, the Supreme Court held that prayer practices must include opportunities for prayers
from secularists. Mr. Barker stresses that the Town “maintained that a minister or layperson of
any persuasion, including an atheist, could give the invocation.” Town of Greece, 134 S. Ct. at
1816. In view of this description of the Town’s practice, Mr. Barker concludes that the Court
“conditioned its approval of the town’s policy on that point: ‘So long as the town maintains a
policy of nondiscrimination, the Constitution does not require additional efforts toward
diversity.’” Official Capacity Opp’n at 7 (quoting Town of Greece, 134 S. Ct. at 1824).
Mr. Barker’s logic is persuasive within its confines, but it is not traceable to the
opinion in Town of Greece. Mr. Barker confuses apples with oranges by connecting the facts of
the Town’s practice as described in the majority opinion early on, Town of Greece, 134 S. Ct. at
1816, and the analysis of whether those practices “reflect an aversion or bias on the part of town
leaders against minority faiths.” Id. at 1824 (emphasis added). The entire paragraph from Town
of Greece puts its point in context:
Finally, the Court disagrees with the view taken by the Court of
Appeals that the town of Greece contravened the Establishment
Clause by inviting a predominantly Christian set of ministers to lead
the prayer. The town made reasonable efforts to identify all of the
congregations located within its borders and represented that it
would welcome a prayer by any minister or layman who wished to
give one. That nearly all of the congregations in town turned out to
be Christian does not reflect an aversion or bias on the part of town
leaders against minority faiths. So long as the town maintains a
policy of nondiscrimination, the Constitution does not require it to
search beyond its borders for non-Christian prayer givers in an effort
to achieve religious balancing. The quest to promote a diversity of
religious views would require the town to make wholly
inappropriate judgments about the number of religions it should
sponsor and the relative frequency with which it should sponsor
each, a form of government entanglement with religion that is far
more troublesome than the current approach.
Id. at 1824 (internal citation omitted). Thus, contrary to Mr. Barker’s hopeful interpretation,
Town of Greece did not reference atheists—who are, by definition, nontheists who do not believe
in God or gods—but “any minister or layman who wished to give [a prayer].” Id. Town of
Greece is not an extension of the Supreme Court’s decision in Marsh, but rather an affirmance
that legislative prayer does not violate the Constitution. See id. at 1815 (concluding, “consistent
with the Court’s opinion in Marsh . . . , that no violation of the Constitution has been shown”);
id. at 1818 (explaining that Marsh held that “legislative prayer, while religious in nature, has
long been understood as compatible with the Establishment Clause”).
Despite Mr. Barker’s repeated attempts to characterize his claims as not
challenging the constitutionality of legislative prayer, the reality is that his request to open the
House with a secular invocation, which resulted in the denial of his request to serve as a guest
chaplain, was a challenge to the ability of Congress to open with a prayer. To decide that Mr.
Barker was discriminated against and should be permitted to address the House would be to
disregard the Supreme Court precedent that permits legislative prayer. Marsh definitively found
that legislative prayer does not violate the Establishment Clause. See Marsh, 463 U.S. at 791;
see also Town of Greece, 134 S. Ct. at 1819 (“Marsh stands for the proposition that it is not
necessary to define the precise boundary of the Establishment Clause where history shows that
the specific practice is permitted.”).
This Court concludes that the refusal of the House Chaplain to invite an avowed
atheist to deliver the morning “prayer,” in the guise of a non-religious public exhortation as a
“guest chaplain,” did not violate the Establishment Clause. For the same reasons that legislative
prayer has been found consistent with the Establishment Clause, so is it consistent with the Equal
Protection Clause. See Kurtz II, 829 F.2d at 1147 n.3 (“Marsh essentially affirmed that the
historic practice of an opening prayer burdens no ‘fundamental right’ of non-theists. Thus Kurtz
cannot salvage his failed First Amendment claim by cloaking it in a Fifth Amendment due
process (equal protection component) mantle.”) (citing Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 54 (1983) (concluding that the entitlement-to-access argument
that the Supreme Court rejected under the First Amendment freedom-of-speech rubric “fares no
better in equal protection garb”)).
Religious Freedom Restoration Act
Defendants move to dismiss Mr. Barker’s claim that they violated RFRA because
Mr. Barker has failed adequately to allege that preventing him from serving as guest chaplain
prevented him from following his secular practices free from government interference. See
Official Capacity MTD at 38-43. RFRA protects bona fide exercises of religion from
government interference. See 42 U.S.C. §§ 2000bb, 2000bb-1(a). It prohibits the government
from “substantially burden[ing] a person’s exercise of religion even if the burden results from a
rule of general applicability.” Id. § 2000bb-1(a). Taking as true Mr. Barker’s allegations that
atheism is his religion and assuming, but not finding, that RFRA applies to the House, the Court
finds Mr. Barker has failed adequately to allege a claim under RFRA because he fails to allege a
A substantial burden “exists when government action puts ‘substantial pressure on
an adherent to modify his behavior and to violate his beliefs.’” Kaemmerling v. Lappin, 553
F.3d 669, 678 (D.C. Cir. 2008) (quoting Thomas v. Review Bd., 450 U.S. 707, 718 (1981)). A
plaintiff can demonstrate a substantial burden by alleging that government action (1) “force[d]
[the plaintiff] to engage in conduct that [his] religion forbids,” Henderson v. Kennedy, 253 F.3d
12, 16 (D.C. Cir. 2001); (2) “prevent[ed] [him] from engaging in conduct [his] religion requires,”
id.; or (3) forced him “to choose between following the precepts of [his] religion and forfeiting
benefits.” Kaemmerling, 553 F.3d at 678. Mr. Barker alleges that he was prevented from
serving as a guest chaplain, but fails to allege that serving as a guest chaplain was required by his
religion or that Fr. Conroy or any other individual at the House forced him to engage in any
conduct contrary to his religion.
To overcome Kaemmerling, Mr. Barker argues that he was forced to choose
between following his religion by giving a secular prayer and serving as the guest chaplain,
which he describes as a benefit. See Official Capacity Opp’n at 40-41. The Complaint contains
no allegations that Mr. Barker would have been permitted to serve as guest chaplain had he
agreed to deliver a prayer inconsistent with his atheist beliefs. To the contrary, Fr. Conroy’s
letter to Representative Pocan stated that the decision was not based on the content of Mr.
Barker’s proposed invocation, but rather the inconsistency between his certificate of ordination
and his claimed religion. See Fr. Conroy letter to Rep. Pocan at 1. Additionally, the types of
benefits addressed in previous RFRA cases include distinct government benefits from “otherwise
available public programs” such as unemployment benefits, see Thomas, 450 U.S. at 718;
Sherbert v. Verner, 374 U.S. 398, 403-04 (1963); and veterans’ educational benefits. See
Johnson v. Robison, 415 U.S. 361, 385-86 (1974). The Court finds that the opportunity to serve
as a guest chaplain is not the type of benefit covered by RFRA. Selection as a guest chaplain is
more akin to an honor, not a benefit afforded to all. Accordingly, Mr. Barker’s RFRA claim will
Religious Test Clause
Finally, Defendants move to dismiss Mr. Barker’s claim under the Religious Test
Clause, which states that “no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States,” U.S. Const. art. VI, cl. 3, because the position of
guest chaplain is not an office or position of public trust. See Official Capacity MTD at 43-45.
Mr. Barker argues that the guest chaplain is an officer because he fulfills the duties of the official
Chaplain, who is a permanent employee of the House. See Official Capacity Opp’n at 14-15.
An “officer of the United States” is traditionally considered to “embrace the ideas of tenure,
duration, emolument, and duties,” which are “continuing and permanent, not occasional or
temporary.” United States v. Germaine, 99 U.S. 508, 511-12 (1878). The guest chaplain
position is therefore not an office of the United States because it is a temporary position, lasting
only as long as the prayer itself.
In the alternative, Mr. Barker argues that a guest chaplain holds a position of
public trust akin to those of jurors and notaries public, which have been found by other courts to
constitute offices of public trust. See Official Capacity Opp’n at 15; see also Torcaso v. Watkins,
367 U.S. 488, 489 (1961) (noting that a notary public is an office of trust); Soc’y of
Separationists, Inc. v. Herman, 939 F.2d 1207, 1220-21 (5th Cir. 1991) (applying the no
Religious Test Clause to witnesses and jurors). The position of guest chaplain is easily
distinguishable from that of notaries public and trial witnesses and jurors. Notaries public are
individuals authorized to swear to the validity of signatures on significant documents. The
public must trust that authorization in order to conduct business and complete legal documents.
Similarly, witnesses and jurors are in a position of public trust because they are entrusted with
assisting in the carrying out of the law and serve under oaths. Without this trust, the judicial
system would lack credibility.
In contrast, the position of guest chaplain comes with no public expectations of
trust. It is surely an honor to serve as guest chaplain and open a session of the House with
prayer, but while members of the public might recognize that opportunity as unique or
significant, there is no indication or allegation in the Complaint that guest chaplains hold a
position of public trust or special recognition. Because Mr. Barker has failed to demonstrate
with factual allegations that the guest chaplain is an office or position of public trust, his
Religious Test Clause claim will be dismissed.
C. Claim Against Fr. Conroy in his Personal Capacity
In addition to Mr. Barker’s claims that Fr. Conroy acted in his official capacity
when he prevented Mr. Barker from delivering the opening prayer to a session of the House, Mr.
Barker also argues that Fr. Conroy is liable in his personal capacity for discriminating against
Mr. Barker under the First and Fifth Amendments. See Compl. ¶¶ 201-206. Mr. Barker’s
personal capacity claims are brought under Bivens. See 403 U.S. 388. Fr. Conroy moves to
dismiss Mr. Barker’s Bivens claim, arguing Bivens has not previously been extended to cover the
facts of this case and that extension is inappropriate if the Court considers special factors such as
separation of powers. See Conroy MTD at 1.
Bivens recognized an implied right of action for damages when federal officials
violate the Fourth Amendment. See Bivens, 403 U.S. 388. The Supreme Court has only
recognized two other implied rights of action under Bivens. See Carlson v. Green, 446 U.S. 14
(1980) (recognizing a Bivens remedy under the Eighth Amendment for a prisoner against federal
prison officials); Davis v. Passman, 442 U.S. 228 (1979) (recognizing a Bivens remedy for a
claim of employment discrimination by a congressman in violation of the Fifth Amendment’s
Due Process Clause). The Supreme Court and circuit courts, including the D.C. Circuit, have
since “tread carefully before recognizing Bivens causes of actions.” Meshal v. Higgenbotham,
804 F.3d 417, 421-22 (D.C. Cir. 2015).
When determining whether or not to extend Bivens, courts take a “case-by-case
approach” rather than asking “categorically whether a Bivens action can lie.” Id. at 422. First,
courts consider whether an “alternative, existing process for protecting the interest amounts to a
convincing reason for the Judicial Branch to refrain from providing a new and freestanding
remedy in damages.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007). Second, even if no
alternative process exists, courts evaluate “any special factors counselling hesitation before
authorizing a new kind of federal litigation.” Id. A court does not extend Bivens “simply for
want of any other means for challenging a constitutional deprivation in federal court.” Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001).
Recognizing the Supreme Court’s reluctance to extend Bivens further, Mr. Barker
argues that his claims are already permitted under Davis v. Passman. See Conroy Opp’n at 2-6.
However, “[e]ven though the right and the mechanism of injury [are] the same . . . the contexts
[may still be] different.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1859 (2017). “The proper test for
determining whether a case presents a new Bivens context is as follows. If the case is different in
a meaningful way from previous Bivens cases decided by this Court, then the context is new.”
Id. For example:
A case might differ in a meaningful way because of the rank of the
officers involved; the constitutional right at issue; the generality or
specificity of the official action; the extent of judicial guidance as to
how an officer should respond to the problem or emergency to be
confronted; the statutory or other legal mandate under which the
officer was operating; the risk of disruptive intrusion by the
Judiciary into the functioning of other branches; or the presence of
potential special factors that previous Bivens cases did not consider.
Id. at 1859-60. Mr. Barker’s Bivens claims are not covered by Davis merely because he also
invokes the Fifth Amendment’s prohibition on discrimination based on protected activities. Mr.
Barker’s claim is distinct from Davis because he alleges discrimination based on an absence of
religious beliefs; the alleged discrimination was not in employment, but was related to offering a
prayer before the daily session of the House; and he was denied that opportunity by the House
Fr. Conroy concedes there is no alternative system or process for Mr. Barker to
challenge the denial of his request to open the House in prayer. Mr. Barker is not an employee
of the House and, therefore, cannot challenge the action under the Congressional Accountability
Act of 1995, § 207, 2 U.S.C.A. § 1317. Congress has not created a separate system for appealing
a denial of the opportunity to be guest chaplain. Fr. Conroy’s motion to dismiss focuses on the
“special factors” that he argues weigh against extending Bivens, including (1) separation of
powers concerns, (2) the availability of alternative remedies, (3) administrability concerns, and
(4) Congress’ activity in a particular field suggesting that its inaction here has not been
inadvertent. See Conroy MTD at 13-23.
The Supreme Court has directed lower courts to be cautious about extending
Bivens into realms already maintained by the executive or legislative branches. Separation of
powers concerns have led the Supreme Court to deny a Bivens remedy to individuals in the
military and in situations covered by the executive and legislative authority over national
defense. See Chappell v. Wallace, 462 U.S. 296, 301 (1983) (citing Rostler v. Goldberg, 453
U.S. 57, 64-65 (1981) (“[O]ver national defense and military affairs, and perhaps in no other
area[,] has the Court accorded Congress greater deference.”). Congress has exclusive authority
over its Rules and the manner in which it conducts its affairs. As such, the House has long since
deemed it appropriate and necessary to open each session with a prayer, enacted a Rule to such
affect, and hired a Chaplain to conduct the prayer or provide guest chaplains to fulfill that
responsibility. As Congress is able to design the position of Chaplain, so to may Congress
“tailor any remedy” to any abuse by its Chaplain. Wilkie, 551 U.S. at 562. The Court will not
insert itself between the House and its own rulemaking process and will not extend Bivens to
First7 or Fifth Amendment claims of discrimination against the House Chaplain based on a
decision not to permit an individual to serve as guest chaplain.
For the foregoing reasons, both motions to dismiss will be granted. A
memorializing Order accompanies this Opinion.
Date: October 11, 2017
ROSEMARY M. COLLYER
United States District Judge
The Court also notes that no other courts have extended a Bivens remedy to the First
Amendment context. See, e.g., Iqbal, 556 U.S. at 675; Reichle v. Howards, 132 S. Ct. 2088,
2093 n.4 (2012); Bush v. Lucas, 462 U.S. 367, 390 (1983); Rezaq v. Fed. Bureau of Prisons, No.
13-990, 2016 WL 97763, at *9 (S.D. Ill. Jan. 8, 2016).
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