Fields et al v. Speaker of the Pennsylvania House of Representatives et al

Filing 51

MEMORANDUM (Order to follow as separate docket entry) re: 31 MOTION to Dismiss filed by Parliamentarian of the Pennsylvania House of Representatives, Representatives For Pennsylvania House Districts 92, 95, 97, 193, and 196, Speaker of the Pennsylvania House of Representatives. (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 4/28/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRIAN FIELDS, et al.,
Plaintiffs
v.
SPEAKER OF THE
PENNSYLVANIA HOUSE OF
REPRESENTATIVES, et al.,
Defendants

:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 1:16-CV-1764
(Chief Judge Conner)

MEMORANDUM
The Pennsylvania House of Representatives commences legislative
sessions with an opening invocation delivered by either a member of the House
or a guest chaplain. Pursuant to an internal House rule, a guest chaplain must
be “a member of a regularly established church or religious organization.”1
The Speaker of the House interprets this rule to exclude “non-adherents” and
“nonbelievers” from the guest chaplain program.2 Plaintiffs are atheist, agnostic,
Secular Humanist, and freethinking individuals who have been denied the
opportunity to deliver an opening invocation due to the nontheistic nature of
their beliefs. Plaintiffs challenge the exclusionary House policy under the First
and Fourteenth Amendments to the United States Constitution.

1
2

GEN. OPERATING RULES OF THE PA. HOUSE OF REP. R. 17.
Doc. 1 ¶ 191.

I.

Background
Brian Fields, Paul Tucker, Deana Weaver, Scott Rhoades, and Joshua

Neiderhiser are nontheists who actively adhere to and practice their respective
beliefs.3 As employed herein, our nontheist designation includes atheists, agnostics,
Secular Humanists, freethinkers, and other persons who do not believe in a deity. 4
Many features of plaintiffs‟ respective ideologies parallel the practice of traditional
theistic religions: plaintiffs assemble to explore and discuss their beliefs, study texts
and films anent their belief systems, observe annual celebrations, and coordinate
service activities and community outreach.5
Plaintiffs are leaders in their belief communities. Fields is president of
Pennsylvania Nonbelievers, Tucker is founder and chief organizer of Dillsburg
Area Freethinkers, and Rhoades is founder and president of Lancaster Freethought
Society.6 These nontheist organizations and their leaders represent the functional
equivalent of traditional religious congregations in the lives of their members.7
For example, Rhoades and Neiderhiser are ordained Humanist Celebrants who
regularly perform wedding ceremonies and memorial services.8

3

Doc. 1 ¶¶ 10, 30, 41, 50, 66.
Humanism is “a progressive philosophy of life that, without theism or other
supernatural beliefs, affirms [the] ability and responsibility to lead ethical lives of personal
fulfillment that aspire to the greater good of humanity.” What is Humanism, AM. HUMANIST
ASS‟N, http://americanhumanist.org/Humanism. A “freethinker” is a person who forms
“opinions about religion based on reason, independently of established belief, tradition, or
authority.” Doc. 1 ¶ 41.
5
Id. ¶¶ 13-19, 31-34, 42-43, 52-58, 67-70; see also id. ¶¶ 79-86, 93-95, 101-104.
6
Id. ¶¶ 13, 31-32, 55.
7
Id. ¶¶ 86, 95, 104.
8
Id. ¶¶ 52-53, 67.
4

2

Each of the individual plaintiffs would like to deliver an invocation before
the House.9 Plaintiffs intend to offer uplifting and inspirational messages—to
champion such unobjectionable themes as equality, unity, and common decency;
and to demonstrate that nontheists can offer meaningful commentary on morality
and reflections valuable to public governance.10
A.

The Opening Invocation

The House convenes daily legislative sessions which are open to the public
and streamed live on the House website.11 Members of the public attending the
sessions observe proceedings from the visitor gallery located in a balcony at the
rear of the House chamber.12 Fields and Rhoades have attended daily sessions in
the past and intend to do so in the future.13
Before the opening invocation, the Speaker directs members of the House
and visitors in the gallery to rise.14 Members of the House and most visitors oblige,15
but Fields and Rhoades apparently prefer to remain seated.16 On one occasion, the
Speaker publicly singled out Fields and Rhoades and ordered them to rise for the
invocation.17 When they refused, the Speaker directed a legislative security officer
to “pressure” them to stand.18 Plaintiffs believe that the Speaker‟s direction to rise

9

Id. ¶¶ 25, 37, 46, 61, 73.
See id.
11
Id. ¶ 143.
12
Id. ¶ 147.
13
Id. ¶¶ 22-23, 60.
14
Id. ¶ 154.
15
Id. ¶¶ 158-59.
16
Id. ¶¶ 23-24, 60.
17
Id. ¶¶ 24, 60.
18
Id.
10

3

coerces them (and others) to recognize the validity of religious beliefs with which
they disagree.19
B.

The Guest Chaplain Policy

House members may nominate guest chaplains by submitting a request to
the Speaker‟s office.20 The request must identify the proposed chaplain‟s name,
house of worship or affiliated organization, and contact information.21 The Speaker
reviews and selects guest chaplains from among the submitted nominees.22 The
Speaker then sends a form letter to selected chaplains which asks them to “craft a
prayer that is respectful of all religious beliefs.”23 The Speaker does not review the
content of an opening invocation before it is delivered.24 Guest chaplains receive a
commemorative gavel and a photograph with the House member who nominated
them.25
Between January 8, 2008 and February 9, 2016, the House convened 678
daily sessions and began 575 of them with an invocation.26 Members of the House
delivered 310 of those invocations, and guest chaplains delivered the remaining 265
invocations.27 Of the guest chaplains, 238 were Christian clergy, twenty-three were
Jewish rabbis, and three were of the Muslim faith.28 Only one guest chaplain was

19

Id. ¶¶ 27, 63.
Id. ¶¶ 162-63.
21
See id.
22
Id. ¶¶ 165-66.
23
Id. ¶¶ 167-69.
24
Id. ¶ 170.
25
Id. ¶¶ 171-72.
26
Id. ¶¶ 173-75.
27
Id. ¶¶ 177, 179.
28
Id. ¶¶ 180-82.
20

4

not “recognizably affiliated” with a particular religion, but that person nonetheless
delivered a monotheistic message.29 According to the complaint, no invocation was
free of theistic content, and none had content associated with faiths other than
Christianity, Judaism, or Islam.30
On August 12, 2014, Weaver emailed a request to her House representative
on behalf of Dillsburg Area Freethinkers seeking to deliver an invocation.31 Two
weeks later, Carl Silverman, a member of Pennsylvania Nonbelievers, wrote his
House representative, requesting that either he or Fields be permitted to deliver an
invocation on behalf of their organization.32 The Speaker denied Silverman‟s
request by letter dated September 25, 2014, stating that the House is not “required
to allow non-adherents or nonbelievers the opportunity to serve as chaplains.”33
Weaver‟s representative forwarded the Silverman response to her via email on
September 26, 2014.34 Thereafter, the House amended its General Operating Rules
to include House Rule 17.35 Per the new rule: “The 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.”36
On January 9, 2015, plaintiffs‟ counsel wrote to the Speaker and House
Parliamentarian requesting that a representative of Pennsylvania Nonbelievers be

29

Id. ¶ 183.
Id. ¶¶ 184-86.
31
Id. ¶ 189; Doc. 1-4.
32
Doc. 1 ¶ 190; Doc. 1-5.
33
Doc. 1 ¶ 191; Doc. 1-6 at 2.
34
Doc. 1 ¶ 192; Doc. 1-7.
35
See Doc. 1 ¶ 194.
36
Id. ¶ 161; GEN. OPERATING RULES OF THE PA. HOUSE OF REP. R. 17.
30

5

permitted to serve as guest chaplain.37 In a response dated January 15, 2015, the
Parliamentarian denied Pennsylvania Nonbelievers‟ request, citing House Rule 17.38
On August 6, 2015, plaintiffs‟ counsel sent a final letter to all defendants requesting
that Fields, Tucker, Weaver, Rhoades, or Neiderhiser, or a representative of their
organizations, be given an opportunity to deliver an invocation.39 By separate letter
of the same date, counsel asked the Speaker and Parliamentarian to cease directing
House visitors to stand for invocations.40 The Parliamentarian denied plaintiffs‟
guest chaplaincy request by letter dated September 9, 2015.41 Plaintiffs received no
response to their letter concerning the directive to rise for opening invocations.42
C.

Procedural History

Plaintiffs commenced this action by filing a complaint on August 25, 2016.43
Plaintiffs name as defendants the Speaker of the House, the Parliamentarian of the
House, and the Representatives of Pennsylvania House Districts 92, 95, 97, 193, and
196.44 Defendants are named in their official capacities alone. Plaintiffs claim that
the House policy of preferring theistic over nontheistic religions contravenes the
First and Fourteenth Amendments. Plaintiffs request declaratory judgment as to
37

Id. ¶ 193; Doc. 1-8.
Doc. 1 ¶ 194; Doc. 1-9.
39
Doc. 1 ¶ 195; Docs. 1-10 to 1-13.
40
Doc. 1 ¶ 195; Doc. 1-14.
41
Doc. 1 ¶ 196; Doc. 1-15.
42
Doc. 1 ¶ 197.
43
Doc. 1.
44
Id. ¶¶ 109, 118, 123, 127, 131, 135, 139. As of this writing, the Speaker of the House
is the Honorable Mike Turzai, the Parliamentarian is Clancy Myer, and the Honorable
Dawn Keefer, Carol Hill-Evans, Steven Mentzer, Will Tallman, and Seth Grove serve as
representatives of House Districts 92, 95, 97, 193, and 196, respectively. See MEMBERS OF
THE HOUSE OF REPRESENTATIVES, http://www.legis.state.pa.us/cfdocs/legis/home/member
_information/pdf/addr_hse.pdf (updated Apr. 28, 2017).
38

6

the constitutionality of House Rule 17 (as interpreted by the Speaker) and the
House practices of favoring theists to nontheists and directing visitors to rise for
opening invocations.45 Plaintiffs seek injunctive relief requiring the House to
permit plaintiffs to deliver nontheistic invocations, prohibiting defendants from
discriminating against nontheistic speakers, and enjoining the Speaker from
directing visitors to rise for invocations.46
Defendants moved to dismiss plaintiffs‟ complaint in extenso,47 and the
parties thoroughly briefed defendants‟ motion.48 The court convened oral argument
on February 22, 2017,49 and the motion is ripe for disposition.
II.

Legal Standards
Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a

claim for lack of subject matter jurisdiction.50 Such jurisdictional challenges take of
one two forms: (1) parties may levy a “factual” attack, arguing that one or more of
the pleading‟s factual allegations are untrue, removing the action from the court‟s
jurisdictional ken; or (2) they may assert a “facial” challenge, which assumes the
veracity of the complaint‟s allegations but nonetheless argues that a claim is not

45

Doc. 1 ¶ 280.
Id. ¶¶ 276-78.
47
Doc. 31.
48
Docs. 33, 36, 39.
49
See Docs. 41, 43.
50
See FED. R. CIV. P. 12(b)(1).
46

7

within the court‟s jurisdiction.51 In either instance, it is the plaintiff‟s burden to
establish jurisdiction.52
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief may be granted.53
When ruling on a motion to dismiss under Rule 12(b)(6), the court must “accept all
factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.”54 In addition to reviewing the facts contained
in the complaint, the court may also consider “matters of public record, orders,
exhibits attached to the complaint and items appearing in the record of the case.”55
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”56
To test the sufficiency of the complaint, the court conducts a three-step inquiry.57 In
the first step, “the court must „tak[e] note of the elements a plaintiff must plead to
state a claim.‟”58 Next, the factual and legal elements of a claim must be separated;
51

See Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015)
(quoting CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008)); Mortensen v. First Fed.
Sav. & Loan Ass‟n, 549 F.2d 884, 891 (3d Cir. 1977).
52
See Mortensen, 549 F.2d at 891.
53
FED. R. CIV. P. 12(b)(6).
54
Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v.
Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
55
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir.
1994); see Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d
Cir. 1993).
56
Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
57
See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010).
58
Id. at 130 (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009)).

8

well-pleaded facts must be accepted as true, while mere legal conclusions may be
disregarded.59 Once the court isolates the well-pleaded factual allegations, it must
determine whether they are sufficient to show a “plausible claim for relief.”60 A
claim is facially plausible when the plaintiff pleads facts “that allow[] the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.”61
Courts should grant leave to amend before dismissing a curable pleading in
civil rights actions.62 Courts need not grant leave to amend sua sponte in dismissing
non-civil rights claims pursuant to Rule 12(b)(6),63 but leave is broadly encouraged
“when justice so requires.”64
III.

Discussion
Plaintiffs adjure that defendants‟ prescript for theistic religions offends a

quartet of constitutional provisions: first, the Establishment Clause, by favoring
theism to nontheism and excessively entangling the House in religious judgment,
and coercing House visitors to participate in theistic prayer; second, the Free
Exercise Clause, by requiring nontheists to adopt or profess theistic beliefs and
proscribing nontheistic beliefs; third, the Free Speech Clause, by denying
nontheists the opportunity to participate in government activities based on the

59

2009).

Id. at 131-32; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.

60

Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 556.
Iqbal, 556 U.S. at 678.
62
See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d
Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
63
Fletcher-Harlee Corp., 482 F.3d at 252-53.
64
FED. R. CIV. P. 15(a)(2).
61

9

perceived nonconformity of their beliefs, and censoring invocations to prohibit
reflection of those beliefs; and fourth, the Equal Protection Clause, by permitting
theists but not nontheists to serve as guest chaplains.
Defendants‟ motion tests the justiciability and the merits of all four claims.
Defendants oppugn plaintiffs‟ standing under the Establishment Clause for failure
to plead cognizable harm. Defendants contest plaintiffs‟ standing under the Free
Speech, Free Exercise, and Equal Protection Clauses for want of a legally protected
interest. Assuming standing arguendo, defendants attack the merits of plaintiffs‟
Establishment Clause claim, asserting that the House invocation policies embodied
in Rule 17 find support in Supreme Court precedent. Defendants also remonstrate
that the Free Speech, Free Exercise, and Equal Protection Clauses do not apply to
government speech. We address each argument seriatim.
A.

Justiciability

Article III of the United States Constitution limits the scope of the federal
judicial power to those cases involving actual “cases” and “controversies.”65 The
doctrine of “standing” safeguards this essential limitation by requiring a party to
have a “requisite stake in the outcome” of the lawsuit before invoking the court‟s
jurisdiction.66 At an “irreducible . . . minimum,” Article III requires plaintiffs to
establish three elements: injury in fact, causation, and redressability.67

65

U.S. CONST. art. III, § 2.
Constitution Party of Pa. v. Aichele, 757 F.3d 347, 356-57, 360 (3d Cir. 2014)
(quoting Davis v. FEC, 554 U.S. 724, 734 (2008)).
67
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).
66

10

1.

Standing of the Individual Plaintiffs

The Third Circuit has held that standing in the Establishment Clause
context “requires only direct and unwelcome personal contact with the alleged
establishment of religion.”68 This is not to say that every fleeting contact with stateestablished religious preference is justiciable. A plaintiff must plead “a concrete
grievance that is particularized to him.”69 Generalized, attenuated disagreements
will not suffice.70
The Supreme Court, recognizing the abstract nature of religious injury, has
articulated three distinct theories of Establishment Clause standing: (1) direct harm
standing; (2) denied benefit standing; and (3) taxpayer standing.71 Plaintiffs do not
invoke taxpayer standing.72 Nor do plaintiffs suggest they have been denied a

68

Freedom From Religion Found. v. New Kensington Arnold Sch. Dist., 832 F.3d
469, 476-77 (3d Cir. 2016) (citing Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1023
(8th Cir. 2012); Cooper v. USPS, 577 F.3d 479, 491 (2d Cir. 2009); Vasquez v. L.A. Cty., 487
F.3d 1246, 1253 (9th Cir. 2007); ACLU of Ohio Found. v. Ashbrook, 375 F.3d 484, 489-90 (6th
Cir. 2004); Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir. 1997); Foremaster v. City of
St. George, 882 F.2d 1485, 1490-91 (10th Cir. 1989); Saladin v. City of Milledgeville, 812 F.2d
687, 692 (11th Cir. 1987)).
69
Id. at 478 (citing Valley Forge Christian Coll. v. Am. United for Separation of
Church and State, 454 U.S. 464, 482-83 (1992)).
70
Id.
71
See Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 129-30 (2011).
72
The Supreme Court‟s first legislative prayer case relied in part on taxpayer
standing, affirming the Eighth Circuit‟s conclusion that the plaintiff, “as a member of the
Legislature and as a taxpayer whose taxes are used to fund the chaplaincy,” had standing
to sue. Marsh v. Chambers, 463 U.S. 783, 786 n.4 (1983) (emphasis added). Only one other
court has found taxpayer standing: in Pelphrey v. Cobb Cty., 547 F.3d 1263 (11th Cir. 2008),
the Eleventh Circuit concluded that municipal taxpayers had standing to pursue a First
Amendment challenge when the county “expend[ed] municipal funds, in the form of
materials and personnel time, to select, invite, and thank the invocational speakers.” Id.
at 1267, 1280-81. Plaintiffs herein offer no argument or allegation inviting a sua sponte
finding of taxpayer standing.

11

benefit as a result of defendants‟ interpretation of House Rule 17.73 Hence, we
examine plaintiffs‟ standing under a “direct harm” theory.
Defendants assert broadly that plaintiffs do not allege sufficient “personal
contact” with a state-established religious preference.74 At the outset, defendants
posit that only Fields and Rhoades have been exposed to theistic legislative prayer
because only Fields and Rhoades have attended House daily sessions.75 This
argument misapprehends plaintiffs‟ harm: plaintiffs do not claim injury from
experiencing theistic prayer, but from the House‟s refusal to include nontheistic
messages in its guest chaplain program.76 All plaintiffs have adequately pled
exposure to the alleged establishment of religion.
Defendants contend that plaintiffs‟ exposure is not sufficiently direct or
immediate to confer standing.77 We flatly reject this contention. Plaintiffs‟ harm is
hardly “attenuated.” To the contrary, each plaintiff applied for and was denied the
opportunity to present an invocation—an opportunity provided to adherents of
conventional, monotheistic religions.78 According to the complaint, the House
denied plaintiffs‟ requests as a direct and exclusive result of antipathy toward
nontheism.79 Notably, the only other federal court to address this question held
unequivocally that “exclusion from the list of those eligible to give an invocation” is
73

See Ariz. Christian Sch. Tuition Org., 563 U.S. at 130 (explaining that denied
benefit standing exists when plaintiffs “have incurred a cost or been denied a benefit on
account of their religion”).
74
See Doc. 33 at 24-29.
75
See id.
76
See Doc. 1 ¶¶ 26, 38, 47, 62, 74; Doc. 50 at 45:24-46:25.
77
See Doc. 33 at 27-29.
78
Doc. 1 ¶¶ 189-96; Docs. 1-4 to 1-15; see also Doc. 1 ¶¶ 26, 38, 47, 62, 74.
79
See Doc. 1 ¶ 191.

12

injury sufficient to satisfy Article III.80 We agree. Plaintiffs allege cognizable injury
in fact for purposes of the Establishment Clause.
With respect to plaintiffs‟ coercion claims, defendants also dispute
redressability. Defendants concede that Fields‟ and Rhoades‟ “glancing exposure to
religious expression” at House sessions “might in some instances suffice to confer
standing.”81 They rejoin that even if the court orders the House to invite nontheist
chaplains, plaintiffs will continue to experience theistic prayer in the House
chamber.82 Defendants again misapprehend the nature of the alleged constitutional
injury and requested relief—plaintiffs do not seek to eliminate all theistic content;
they challenge the practice of permitting only theistic content.83 A more inclusive
policy would directly redress plaintiffs‟ alleged injury.
Defendants also contend that plaintiffs cannot establish injury under the
Free Speech, Free Exercise, and Equal Protection Clauses because legislative
prayer is circumscribed by the Establishment Clause alone.84 Defendants are
correct that courts generally hold legislative prayer to be “government speech”85
which is not subject to review under the Free Speech, Free Exercise, and Equal

80

2005).

See Simpson v. Chesterfield Cty. Bd. of Supervisors, 404 F.3d 276, 279 n.2 (4th Cir.

81

Doc. 33 at 25.
Id. at 25-26.
83
See Doc. 50 at 45:24-46:25.
84
See Doc. 33 at 20-23.
85
See Simpson, 404 F.3d at 288; Coleman v. Hamilton Cty., 104 F. Supp. 3d 877, 89091 (E.D. Tenn. 2015).
82

13

Protection Clauses.86 The flaw in defendants‟ position is that it erroneously
conflates justiciability with merit. No case that defendants cite—and none that
research has unveiled—dismisses a legislative prayer claim brought pursuant to the
Free Speech, Free Exercise, and Equal Protection Clauses on standing grounds.87
Defendants conceded as much at oral argument.88 Per contra, several courts have
expressly resolved that plaintiffs do have standing to sue when excluded from
government speech.89
Defendants‟ position is in direct tension with recent Third Circuit precedent
holding that “[t]he indignity of being singled out [by the government] . . . on the
basis of one‟s religious calling . . . is enough to get in the courthouse door.”90 It is
undermined further by the fundamental principle that standing inquiries focus on
parties and not on issues.91 We are satisfied that plaintiffs have standing under the

86

See, e.g., Simpson, 404 F.3d at 288; Coleman, 104 F. Supp. 3d at 890-91; Atheists
of Fla., Inc. v. City of Lakeland, 779 F. Supp. 2d 1330, 1341-42 (M.D. Fla. 2011) (quoting
Simpson, 404 F.3d at 288); see also Turner v. City Council of City of Fredericksburg, 534
F.3d 352, 356 (4th Cir. 2008) (O‟Connor, J., sitting by designation) (quoting Simpson, 404
F.3d at 288).
87
For example, defendants cite Choose Life Illinois, Inc. v. White, 547 F.3d 853 (7th
Cir. 2008), for their assertion that “there can be no injury-in-fact as necessary to confer
standing” in government speech cases under the Free Speech or Free Exercise Clauses.
Doc. 33 at 21. But the court in Choose Life Illinois found that plaintiffs did have standing to
assert a Free Speech claim before ultimately rejecting the claim on the merits. Choose Life
Ill., Inc., 547 F.3d at 858-67, 858 n.3. Other cases cited by defendants reject Free Speech,
Free Exercise, and Equal Protection prayer challenges on the merits rather than for lack of
standing. See Simpson, 404 F.3d at 288; Coleman, 104 F. Supp. 3d at 890-91; Atheists of
Fla., Inc., 779 F. Supp. 2d at 1341-42.
88
See Doc. 50 at 7:23-8:10, 15:21-25.
89
See Simpson, 404 F.3d at 279 n.2; see also Choose Life Ill., Inc., 547 F.3d at 858 n.3.
90
Hassan v. City of N.Y., 804 F.3d 277, 299 (3d Cir. 2015) (first and second alterations
in original) (quoting Locke v. Davey, 540 U.S. 712, 731 (2004) (Scalia, J., dissenting)).
91
Flast v. Cohen, 392 U.S. 83, 99 (1968).

14

Free Speech, Free Exercise, and Equal Protection Clauses, and we will proceed to a
merits analysis on these claims.
2.

Standing of the Organizational Plaintiffs

Defendants contest organizational standing in a footnote.92 An organization
may establish standing in two ways: on its own behalf and on behalf of its members.
Courts measure an organization‟s standing to sue in its own right against the same
rubric outlined supra for individual standing.93 An organization may also sue in a
representative capacity when (1) its members would have standing on their own
behalf; (2) the interests sought to be defended by the lawsuit “are germane to the
organization‟s purpose”; and (3) the claims asserted and relief sought do not require
individual member participation.94 The organizational plaintiffs sub judice
articulate no basis for individual standing—their claims are purely derivative. The
court tests the organizations‟ standing in their representative capacities alone.
Organizational standing is generally not appropriate in actions for monetary
damages.95 In such cases, proof tends to be largely individualized and nuanced as
to each member, rendering representative standing impracticable.96 But “some

92

Doc. 33 at 18-19 n.5.
See Pa. Prison Soc‟y v. Cortes, 508 F.3d 156, 163 (3d Cir. 2007) (quoting Havens
Realty Corp. v. Coleman, 455 U.S. 363, 372-79 (1982); Warth v. Seldin, 422 U.S. 490, 511
(1975)).
94
Hunt v. Wash. State Apple Advert. Comm‟n, 432 U.S. 333, 343 (1977); Pa. Prison
Soc‟y, 622 F.3d at 228.
95
See Pa. Psychiatric Soc‟y v. Green Spring Health Servs., Inc., 280 F.3d 278, 284 (3d
Cir. 2002) (citing United Food & Commercial Workers Union Local 751 v. Brown Gr., Inc.,
517 U.S. 544, 546 (1996); Hunt, 432 U.S. at 343).
96
See id. (citing United Food, 517 U.S. at 546; Hunt, 432 U.S. at 343).
93

15

individual participation” does not violate this principle.97 The Supreme Court and
Third Circuit have squarely held that requests for declaratory and injunctive relief
generally “do not require participation by individual association members.”98
Plaintiffs assert uniform and systemic harms, and they seek only declaratory and
injunctive relief. The organizational plaintiffs‟ claims require no individualized
proof beyond testimony as to their members‟ respective experiences with the
House‟s legislative prayer practice. We conclude that Pennsylvania Nonbelievers,
Dillsburg Area Freethinkers, and Lancaster Freethought Society have properly
asserted organizational standing.99
B.

Constitutional Claims

Section 1983 of Title 42 of the United States Code creates a private cause of
action to redress constitutional wrongs committed by state officials.100 The statute is
not a source of substantive rights, but serves as a mechanism for vindicating rights
otherwise protected by federal law.101 To state a claim under Section 1983, plaintiffs
must show a deprivation of a “right secured by the Constitution and the laws of the

97

Id. at 283-84 (emphasis added).
Hosp. Council of W. Pa. v. City of Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991) (citing
Pennel v. City of San Jose, 485 U.S. 1, 7 n.3 (1988); UAW v. Brock, 477 U.S. 274, 287-88
(1986)).
99
Defendants raise other justiciability concerns in their Rule 12(b)(6) briefing, to wit:
legislative immunity and the political question doctrine. See Doc. 33 at 28 n.9, 38 n.11. At
oral argument, counsel confirmed that defendants are not pursuing these defenses at this
juncture. Doc. 50 at 27:23-28:14.
100
See 42 U.S.C. § 1983.
101
Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199,
1204 (3d Cir. 1996).
98

16

United States . . . by a person acting under color of state law.”102 There is no dispute
that the House defendants are state actors within the purview of Section 1983. We
must thus determine whether the House legislative prayer practice deprives
plaintiffs of rights secured by the United States Constitution. We begin with the
Establishment Clause.
1.

Establishment Clause

The First Amendment prohibits the government from making any law
“respecting an establishment of religion.”103 Courts ordinarily apply one of three
tests to evaluate government practices under the Establishment Clause: the
coercion test, the endorsement test, and the Lemon test.104 Legislative prayer,
however, occupies sui generis status in Supreme Court jurisprudence and our
nation‟s history. In its only two cases on the subject, Marsh v. Chambers, 463 U.S.
783 (1983), and Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), the Court upheld
state and municipal prayer practices without resort to traditional Establishment
Clause principles.
In its first legislative prayer case, Marsh v. Chambers, 463 U.S. 783 (1983), the
Court examined a legislature‟s practice of opening sessions with a prayer delivered
by a chaplain. The Nebraska state legislature appointed the same Presbyterian

102

Kneipp, 95 F.3d at 1204 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141
(3d Cir. 1995)).
103
U.S. CONST. amend. I.
104
See Lee v. Weisman, 505 U.S. 577 (1992) (coercion); Cty. of Allegheny v. ACLU
Greater Pittsburgh Chapter, 492 U.S. 573 (1989) (endorsement); Lemon v. Kurtzman, 403
U.S. 602 (1971).

17

minister to serve as chaplain for sixteen years.105 The chaplain was paid a monthly
salary from legislative funds.106 A member of the legislature sued, challenging the
practice as an unlawful establishment of religion.107 The district court upheld the
chaplaincy, but enjoined payment of a salary from public coffers.108 The Eighth
Circuit Court of Appeals affirmed in part and reversed in part, applying the Lemon
test to hold that the prayer practice in toto violated the Establishment Clause.109
The Supreme Court reversed. Writing for the majority, Justice Burger
chronicled the ubiquity of legislative prayer in the annals of our nation. 110 He noted
that the First Congress set about appointing and compensating legislative chaplains
the very week it drafted the Bill of Rights, suggesting the Framers did not perceive
the practice as violative of the First Amendment.111 The Court pronounced that an
“unambiguous and unbroken history of more than 200 years” of legislative prayer
had woven the ritual into the very “fabric of our society.”112 The Court concluded
that “[t]o invoke Divine guidance” before engaging in the important work of public
governance is not establishment of religion but “a tolerable acknowledgement of
beliefs widely held” among citizens.113
Turning to the particulars of Nebraska‟s practice, the Court found that no
aspect transcended the bounds of permissible legislative prayer. Absent proof of an
105

See Marsh v. Chambers, 463 U.S. 783, 784-85, 793 (1983).
Id. at 785, 793.
107
Id. at 785.
108
Chambers v. Marsh, 504 F. Supp. 585, 588-93 (D. Ne. 1980).
109
Chambers v. Marsh, 675 F.2d 228, 233-235 (8th Cir. 1982).
110
See Marsh, 463 U.S. at 786-91.
111
Id. at 787-88.
112
Id. at 792.
113
Id.
106

18

“impermissible motive,” the 16-year tenure of a minister representing a single faith
did not violate the Establishment Clause.114 Nor was the Court troubled that public
monies funded the chaplaincy, citing again the First Congress.115 As for content, the
Court jettisoned concerns with the principally Judeo-Christian nature of the
messages, resolving that content is of no moment when, as in Nebraska, “there is no
indication that the prayer opportunity has been exploited to proselytize or advance
any one, or to disparage any other, faith or belief.”116
The Supreme Court subsequently explored Marsh in County of Allegheny
v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989), a case concerning publicsponsored holiday displays. The deeply-divided Court resolved that government
display of a crèche, a uniquely Christian symbol, contravened the Establishment
Clause.117 Tasked by Justice Kennedy‟s dissent to square its result with Marsh, the
majority highlighted the content of the Nebraska chaplain‟s prayers, contrasting his
general religious references with the “specifically Christian symbol” of a crèche.118
Following County of Allegheny, some courts construed Marsh to authorize only
nonsectarian legislative prayer.119
Thirty-one years after Marsh, the Court revisited legislative prayer in
Town of Greece v. Galloway, 572 U.S. __, 134 S. Ct. 1811 (2014). In 1999, the town of

114

Id. at 793-94.
Id. at 794.
116
Id. at 794-95.
117
See Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 603
115

(1989).

118

Id. at 602-05.
See, e.g., Joyner v. Forsyth Cty., 653 F.3d 341, 349-50 (4th Cir. 2011); Wynne v.
Town of Great Falls, 376 F.3d 292, 298-302 (4th Cir. 2004).
119

19

Greece, New York, opened its monthly meetings with invocations delivered by local
clergy.120 A clerical employee would contact congregations listed in a local directory
until she found a willing clergyperson.121 Town leaders described their policy as
welcoming minsters and laypersons “of any persuasion,” including atheists.122 In
practice, nearly all invocations given from 1999 to 2007 were Christian in nature,
reflecting the principal religious disposition of the town‟s population.123
Susan Galloway and Linda Stephens attended the monthly meetings and
objected to the invocation practice on religious and philosophical grounds.124 The
town thereafter invited a Jewish layman, the chairman of a local Baha‟i temple, and
a Wiccan priestess to serve as chaplains, but soon reverted to Christian themes.125
Galloway and Stephens filed suit, asserting that the town committed a twofold
violation of the Establishment Clause, by: (1) sponsoring sectarian as opposed to
“inclusive and ecumenical” messages and (2) fostering a coercive environment
where attendees felt pressured to participate in religious observance with which
they disagreed.126 The district court rejected both claims.127 The Court of Appeals
for the Second Circuit reversed, holding that a “steady drumbeat” of exclusively

120

Town of Greece v. Galloway, 572 U.S. __, 134 S. Ct. 1811, 1816 (2014).
Id.
122
Id.
123
See id.
124
Id. at 1817.
125
Id.
126
Id. at 1817, 1819-20.
127
See Galloway v. Town of Greece, 732 F. Supp. 2d 195, 215-243 (W.D.N.Y. 2010).
121

20

Christian content effectively affiliated the town with a single religion.128 The town of
Greece appealed, and the Supreme Court granted certiorari.129
In an opinion authored by Justice Kennedy, the Court addressed plaintiffs‟
claims in two parts, with the first (Part II-A) garnering majority support. Justice
Kennedy, joined by the Chief Justice as well as Justices Thomas, Alito, and Scalia,
held that the Constitution tolerates even sectarian legislative prayer.130 According
to the majority, the Marsh result attained not because the chaplain‟s messages were
nonsectarian, but because such prayer practices had for centuries existed in quiet
equipoise with the First Amendment.131 The Court framed its inquiry as “whether
the prayer practice . . . fits within the tradition long followed in Congress and the
state legislatures,” and held that a requirement of ecumenical or nonsectarian
prayer is inconsistent with that tradition.132 In closing, the majority perceptibly
amplified Marsh, observing that a given prayer practice will not likely violate the
Constitution unless the prayers reflect a pattern of denigrating or proselytizing
content or an impermissible purpose.133 The Court forewarned, however, that
history and tradition cannot save an otherwise unconstitutional practice.134
The majority then addressed the Second Circuit‟s finding that the town
violated the Establishment Clause by inviting guest chaplains of “predominantly

128

Galloway v. Town of Greece, 681 F.3d 20, 32 (2d Cir. 2012).
Town of Greece v. Galloway, 133 S. Ct. 2388 (2013) (mem.).
130
Town of Greece, 134 S. Ct. at 1820-24.
131
Id. at 1820 (quoting Marsh, 463 U.S. at 786).
132
Id. at 1819-21.
133
Id. at 1824.
134
Id. at 1819.
129

21

Christian” faiths.135 The Court held that, “[s]o long as the town maintains a policy of
nondiscrimination,” the First Amendment does not require it to achieve religious
stasis.136 The Court found no evidence of an “aversion or bias” toward minority
faiths by the town of Greece; contrarily, the town undertook reasonable efforts to
identify all prospective guest chaplains, and its policy welcomed ministers and laity
of all creeds.137 In his concurring opinion, Justice Alito suggested that the outcome
should differ when omission of a particular religion is “intentional” rather than “at
worst careless.”138
Part II-B of the opinion was joined only by the Chief Justice and Justice Alito.
Justice Kennedy began with the “elemental” principle that “government may not
coerce its citizens „to support or participate in any religion or its exercise.‟”139 The
three-Justice plurality opined that claims of coercion must be measured in view of
both setting and audience.140 As for setting, a “brief, solemn and respectful prayer”
at the start of a meeting is consistent with “heritage and tradition” familiar to the
public.141 Attendees are presumed to understand that the purpose of the exercise is
not to proselytize but to “lend gravity” to the proceedings.142 Concerning audience,
the plurality found that the chaplain‟s messages were intended to “accommodate

135

Id. at 1824.
Id.
137
Id.
138
Id. at 1830-31 (Alito, J., concurring).
139
Id. at 1825 (plurality opinion) (quoting Cty. of Allegheny, 492 U.S. at 659).
140
Id.
141
Id.
142
Id.
136

22

the spiritual needs of lawmakers” rather than preach to the visiting public.143 These
considerations together weighed against a finding of coercion.144
In a concurring opinion, Justice Thomas took exception to the plurality‟s
coercion analysis.145 In Part I of his opinion, Justice Thomas renewed his unique
view that the Establishment Clause ought not apply to state governments or to
municipalities like the town of Greece.146 In Part II, Justice Thomas, joined by
Justice Scalia, submitted that claims of religious coercion must be viewed through
the prism of that which our Founders sought to escape: “religious orthodoxy . . . by
force of law and threat of penalty.”147 Justice Thomas proposed that only claims of
actual legal coercion violate the Establishment Clause.148 Claims of subtle pressure,
like requests to rise for prayer, would not offend this heightened standard.149
Against this framework, we consider plaintiffs‟ Establishment Clause
challenges to (a) the House‟s guest chaplain policy and (b) the House‟s opening
invocation practice.
a.

Guest Chaplain Policy

Defendants maintain that legislative prayer is presumed constitutional unless
employed to denigrate or proselytize. According to defendants, plaintiffs‟ failure to
allege an instance (much less a pattern) of proselytization or denigration is fatal to

143

Id. at 1825-26.
Id. at 1825-27.
145
Id. at 1835-38 (Thomas, J., concurring in part and concurring in the judgment).
146
Id. at 1835-37 (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45-46
(2004) (Thomas, J., concurring in the judgment)).
147
Id. at 1837 (emphasis omitted) (quoting Lee, 505 U.S. at 640).
148
Id. at 1837-38 (quoting Newdow, 542 U.S. at 52).
149
Id. at 1838.
144

23

their Establishment Clause claim.150 Defendants further contend that Marsh and
Town of Greece cloak legislators with discretion to choose what type of prayer they
would like to hear and from whom they would like to hear it.151 Defendants posit
that purposeful exclusion of nontheists is consistent with the view of legislative
prayer endorsed in Marsh and Town of Greece.152 Thus, according to defendants, it
is entirely proper for the House to welcome only those religions which embrace a
higher power and only those chaplains who will “appeal to the Almighty.”153
Plaintiffs rejoin that they claim not disparagement or proselytization but
discrimination, viz., a practice by the House of preferring theistic faiths to the total
and deliberate exclusion of nontheists.154 Plaintiffs emphasize that they do not seek
to suppress God-oriented messages from the House floor, but to include their own
messages among them.155
That the parties diverge on the contours of our inquiry is unsurprising. The
gravamen of the Supreme Court‟s legislative prayer decisions is clear: legislative
prayer of even a sectarian genre survives judicial scrutiny unless it results from an
impermissible motive. Yet there is much uncertainty in the wake. The majorities in
Marsh and Town of Greece established what does not violate the Establishment
Clause without drawing a bright line. Each case plainly raised the constitutional
bar—sanctioning first legislative prayer and then sectarian prayer, and extending

150

Doc. 33 at 33-34.
Id. at 30; see also Doc. 50 at 56:25-57:25.
152
Doc. 39 at 2, 22.
153
Doc. 50 at 56:25-57:25.
154
See Doc. 36 at 11-20.
155
Doc. 50 at 45:24-46:25.
151

24

those permissions from the state house to the town hall—but it is unclear exactly
how high.
Plaintiffs‟ claims, however, do not necessitate a constitutional sea change.
Rather, their claims present a novel set of facts to test the established principles of
Marsh and Town of Greece. These principles are threefold. First, and most
fundamentally, legislative prayer is permissible only so far as it “fits within the
tradition long followed in Congress and the state legislatures.”156 This axiom
informs any analysis under the Court‟s constituent holdings—that, second, sectarian
legislative prayer is permissible absent a pattern of denigration, proselytization, or
impermissible government purpose,157 and third, government may not intentionally
discriminate against religious minorities when selecting guest chaplains.158
Plaintiffs claim that defendants violate the third of these precepts by maintaining a
policy of discrimination against nontheists.
Defendants do not dispute that the House‟s implementation of Rule 17
prohibits nontheists from serving as chaplains.159 Indeed, defendants‟ double
down on that policy, asserting that it is the House‟s “prerogative” to determine the
content of opening invocations.160 Defendants contend the Town of Greece Court‟s
directive of nondiscrimination is case specific because the town had endeavored to

156

Town of Greece, 134 S. Ct. at 1819.
Id. at 1824; see Marsh, 463 U.S. at 794-95.
158
Town of Greece, 134 S. Ct. at 1824; see also Marsh, 463 U.S. at 793-95.
159
See Doc. 33 at 30.
160
See Doc. 33 at 1, 30; Doc. 39 at 15-26.
157

25

include a variety of creeds.161 That governments may choose to invite nontheist
chaplains, defendants suggest, does not mean that all governments must do so.162
But the Town of Greece Court did not link its nondiscrimination mandate to
the language of the town‟s policy. Per contra, Justice Kennedy tethered the
requirement to the Constitution itself: “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.”163 He
further signaled that a policy which “reflect[s] an aversion or bias . . . against
minority faiths” may violate this principle.164 The rule is a logical corollary to the
settled edict that government may not “prescrib[e] prayers” with an aim to
“promote a preferred system of belief or code of moral behavior.”165
We reject the assertion that defendants may discriminate on the basis of
religion simply because their internal operating rules do not proscribe it. Town of
Greece installs a new metric in the legislative prayer analysis: when a legislature
opens its door to guest chaplains and other prayer givers, it may not purposefully

161

Doc. 50 at 11:1-12:12, 14:7-19.
Id. at 13:10-23, 15:3-15.
163
Town of Greece, 134 S. Ct. at 1824 (emphasis added).
164
Id.
165
Id. at 1822 (citing Engle v. Vitale, 370 U.S. 421, 430 (1962)).
162

26

discriminate among them on the basis of religion.166 The complaint articulates a
plausible violation of this tenet. Plaintiffs allege that they are members of (or
represent) minority religions, and that they have been purposefully excluded from
the House‟s guest chaplain program on the basis of their beliefs. They further
allege that the House regularly opens its chamber to guest chaplains of more
conventional faiths deemed suitable by the Speaker. Plaintiffs plead a policy of
religious discrimination sufficient to state a First Amendment claim.
Whether history and tradition sanctify the House‟s line of demarcation
between theistic and nontheistic chaplains is a factual issue for a later day.
Establishment Clause issues are inherently fact-intensive, and we must resist the
academic intrigue of casting the salient inquiry too narrowly at this juncture. To
the extent the parties‟ arguments evoke more nuanced constitutional questions—
e.g., whether plaintiffs practice “religion” and are capable of “praying,” or whether
tradition dictates that legislative prayer address a “higher power”—any such
determination demands, and deserves, a fully developed record. As it stands,
plaintiffs‟ challenge to the House‟s legislative prayer policy survives Rule 12
scrutiny.

166

Id. at 1824. Only two appellate courts have explored the anti-discrimination
principle since the Supreme Court decided Town of Greece in 2014. A Fourth Circuit
panel described the “policy of nondiscrimination” language as prohibiting the government
from “favor[ing] one religious view to the exclusion of others.” Lund v. Rowan Cty., 837
F.3d 407, 423 (4th Cir. 2016) (citing Town of Greece, 134 S. Ct. at 1824; Marsh, 463 U.S. at
793). And a Sixth Circuit panel held that “[e]xcluding unwanted prayers is discrimination”
violative of the Establishment Clause. Bormuth v. Cty. of Jackson, 849 F.3d 266, 290 (6th
Cir. 2017). Both decisions have been vacated for rehearing en banc. See Bormuth v. Cty.
of Jackson, __ F.3d __, 2017 WL 744030 (6th Cir. Feb. 27, 2017); Lund v. Rowan Cty., __ F.
App‟x __, 2016 WL 6441047 (4th Cir. Oct. 31, 2016).

27

b.

Opening Invocation Practices

Resolution of plaintiffs‟ coercion claim requires us to identify the prevailing
standard from the Court‟s split opinion on the constitutionality of a request to rise
for an invocation in Town of Greece. Our goal in parsing a fragmented decision of
the Court is to distill “a single legal standard” that “produce[s] results with which a
majority of the Justices . . . would agree.”167 Courts may combine votes of dissenting
Justices with plurality and concurring votes to establish a majority consensus.168
When no one rationale enjoys majority support, courts adopt the view of the
members concurring in the judgment on the “narrowest grounds.”169 Certain cases
defy orderly classification; thus, the narrowest grounds rubric applies only when
“one opinion can be meaningfully regarded as „narrower‟ than another.”170 If no
opinion qualifies as the majority rule, lower courts are not bound by any particular
standard.171

167

Binderup v. Att‟y Gen., 836 F.3d 336, 356 (3d Cir. 2016) (first alteration in original)
(quoting United States v. Donovan, 661 F.3d 174, 182 (3d Cir. 2011)); Donovan, 661 F.3d at
182 (quoting Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 693 (3d Cir. 1991), rev‟d
on other grounds, 505 U.S. 833 (1992)).
168
Binderup, 836 F.3d at 356.
169
Id.
170
Jackson v. Danberg, 594 F.3d 210, 220 (3d Cir. 2010) (quoting Berwind Corp.
v. Comm‟r of Soc. Sec., 307 F.3d 222, 234 (3d Cir. 2002)).
171
Id.

28

The Town of Greece Court adjudged that a request to rise for an invocation
did not amount to unconstitutional coercion under the Establishment Clause. The
three-Justice plurality represents the narrowest grounds to that judgment.172 It
developed a standard which tests the facts of each coercion claim against the
barometer of historical practices.173 Justice Thomas, on the other hand, would
wholly rescript our Establishment Clause benchmarks.174 In other words, while the
plurality rejected the particular coercion claim before it as factually deficient,
Justice Thomas would reject nearly all coercion claims as legally deficient. We
adopt Justice Kennedy‟s plurality opinion as the narrowest grounds on coercion.
The Town of Greece plurality tasks courts to review the contested practice
to assess whether it is consonant with the tradition upheld in Marsh or whether
coercion is indeed likely.175 According to the plurality, coercion is a real likelihood
when the government itself (1) directs public participation in prayers, (2) critiques
dissenters, or (3) retaliates in its decisionmaking against those who choose not to
participate.176 All Justices agreed that the coercion analysis is “fact-sensitive.”177
Plaintiffs Fields and Rhoades state a plausible coercion claim against this
framework. At least two district courts have held that a public official‟s directive to

172

The Bormuth court also adopted Justice Kennedy‟s plurality opinion as the
majority rule. The court applied the Sixth Circuit‟s narrowest grounds standard, which
considers which opinion represents “the least doctrinally far-reaching-common ground”
and “the least change to the law.” Bormuth, 849 F.3d at 279-81.
173
See Town of Greece, 134 S. Ct. at 1825-27 (plurality opinion).
174
Id. at 1835-38 (Thomas, J., concurring in part and concurring in the judgment).
175
Id. at 1826-27 (plurality opinion) (Kennedy, J.).
176
Id. at 1826.
177
Id. at 1825; id. at 1838 (Breyer, J., dissenting); id. at 1851-52 (Kagan, J., dissenting);
see also id. at 1828-29 (Alito, J., concurring).

29

stand and pray is materially distinct from the requests upheld in Town of Greece,178
which were rendered not by the town board but guest chaplains “accustomed to
directing their congregations in this way.”179 Fields and Rhoades each attend House
daily sessions, and both have been exposed to the Speaker‟s directive to rise for
opening invocations.180 Moreover, both were subjected to reproach and humiliation
on at least one occasion when the Speaker publicly singled them out for opting to
remain seated.181 Defendants‟ rejoinder that plaintiffs may choose not to participate
rings hollow against a historical example of public censure for electing to do so.182
Defendants also adjure that the plurality opinion in Town of Greece must
be limited to its circumstance, viz., the intimate and interactive setting of a local
government meeting.183 Specifically, they aver that the increased risk of coercion
motivating the plurality‟s approach does not attend prayer in a state house, where
the public is isolated from the deliberative body and its activities.184 Whether the
state legislative chamber is distinct enough from town board meetings to make a
constitutional difference cannot be determined without a factual record.185 We will
deny defendants‟ motion to dismiss Fields‟ and Rhoades‟ coercion claims.

178

Lund v. Rowan Cty., 103 F. Supp. 3d 712, 733 (M.D.N.C. 2015), rev‟d, Lund, 837
F.3d 407, vacated for reh‟g en banc, 2016 WL 6441047; Hudson v. Pittsylvania Cty., 107 F.
Supp. 3d 524, 535 (W.D. Va. 2015).
179
Town of Greece, 134 S. Ct. at 1826 (plurality opinion).
180
Doc. 1 ¶¶ 22-24, 60.
181
Id. ¶¶ 23-24, 60.
182
See Doc. 39 at 47.
183
Id. at 40-45.
184
Id. at 42-43.
185
See Town of Greece, 134 S. Ct. at 1825 (plurality opinion).

30

One additional matter warrants discussion. It is not entirely clear from
the complaint whether all plaintiffs join in the coercion claim. According to the
allegata, only Fields and Rhoades have been exposed to coercive legislative prayer
practices.186 The complaint does not indicate that any other plaintiff attended a
House daily session, and counsel did not offer additional facts when asked at oral
argument to detail the alleged coercion.187 This absence of exposure is fatal to any
coercion claim. To the extent any plaintiff other than Rhoades or Fields joins the
coercion component of Count I, their claim must be dismissed. Because plaintiffs
ostensibly concede that Rhoades and Fields alone attended daily sessions, leave to
amend is unnecessary.188
3.

Free Speech, Free Exercise, and Equal Protection Clauses

As noted ante, courts generally regard legislative prayer as “government
speech.”189 Courts have thus declined to entertain legislative prayer challenges cast
under the Free Speech, Free Exercise, and Equal Protection Clauses.190 Within the
realm of “government speech,” the law is resolute that government can “say what it
wishes” subject only to the Establishment Clause and the will of “the electorate and

186

Doc. 1 ¶¶ 22-24, 60.
See Doc. 50 at 43:15-44:19.
188
See Doc. 1 ¶¶ 22-24, 60; Doc. 36 at 8-9, 31, 43-44; see also Fletcher-Harlee Corp.,
482 F.3d at 251; Grayson, 293 F.3d at 108.
189
See Lund, 837 F.3d at 413; Simpson, 404 F.3d at 287-88; Coleman, 104 F. Supp. 3d
at 890-91.
190
See, e.g., Simpson, 404 F.3d at 287-88; Coleman, 104 F. Supp. 3d at 890-91;
Atheists of Fla., Inc., 779 F. Supp. 2d at 1341-42 (quoting Simpson, 404 F.3d at 288); see also
Turner, 534 F.3d at 356 (O‟Connor, J., sitting by designation) (quoting Simpson, 404 F.3d at
288).
187

31

the political process.”191 On this basis, defendants ask the court to dismiss plaintiffs‟
legislative prayer claims pursuant to the Free Speech, Free Exercise, and Equal
Protection Clauses.
Plaintiffs reply that case law construing legislative prayer as government
speech either predates Town of Greece or fails to account for it.192 They theorize
that Town of Greece “tightly circumscribes” the permissible content of legislative
prayer such that the practice has lost its status as “government speech.”193 As we
conclude elsewhere in this opinion, Town of Greece does not reduce the standard
for legislative prayer cases—a contrario, the decision expands permissible content
by sanctioning even sectarian religious messages. History and precedent bestow
special status upon legislative prayer, and neither Marsh nor Town of Greece
diminish that status.
Nor do we agree with plaintiffs‟ assertion that legislative prayer is “hybrid
speech” subject to lesser scrutiny. Plaintiffs cite a Fourth Circuit decision, W.V.
Association of Club Owners & Fraternal Services v. Musgrave, 553 F.3d 292 (4th Cir.
2009), for its proposition that hybrid speech “has aspects of both private speech and
government speech.”194 Not only is Musgrave factually distinct (concerning statelicensed video lottery machines placed in privately-owned bars), it is authored

191

Pleasant Grove City v. Summum, 555 U.S. 460, 467-69 (2009).
See Doc. 36 at 36-40.
193
Id. at 37.
194
W.V. Ass‟n of Club Owners & Fraternal Servs. v. Musgrave, 553 F.3d 292, 298 (4th
Cir. 2009).
192

32

by the same jurist who concluded three years earlier that citizen-led legislative
invocations are “government speech „subject only to the proscriptions of the
Establishment Clause.‟”195
We join the unanimous consensus of courts before us to conclude that
legislative prayer is subject to review under the Establishment Clause alone.
Hence, we will grant defendants‟ motion to dismiss plaintiffs‟ Free Speech, Free
Exercise, and Equal Protection claims.
IV.

Conclusion
The court will grant in part and deny in part defendants‟ motion to dismiss,

as stated more fully herein. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

195

April 28, 2017

Simpson, 404 F.3d at 287-88 (emphasis added).