After an initial loss, Pennsylvania House leadership scored a win Friday, when its policy mandating that someone who believes in God deliver the chamber’s opening prayer was upheld in the federal Third Circuit Court of Appeals.
The lawsuit was filed by the Dillsburg Area Freethinkers, a York County-based group of non-believers, after former House Speaker Sam Smith denied them a chance to offer a prayer to open session in 2014.
Since the 1990s under House rules, most session days have started with a prayer from a guest chaplain. This chaplain, either a lawmaker or a guest of a lawmaker, can be of any faith, but must be part of an organized religion that believes in a god.
A federal district court last summer found the policy violates the U.S. Constitution’s Establishment Clause, which prohibits a state religion.
From 2008 until 2016, the House opened 575 of 678 sessions with a prayer. Of the 265 guest chaplains, 238 were Christian, according to the lawsuit. Twenty-three prayers were offered by Jewish rabbis, three by Muslim imams, and one by an unaffiliated person.
The ruling, written by Judge Thomas Ambro, overturned the lower court, finding that “prayer presumes a higher power.” It also upheld the House prayer policy of excluding those who don’t believe in a god “because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking.”
“As a matter of traditional practice, a petition to human wisdom and the power of science does not capture the full sense of ‘prayer,’ historically understood,” the opinion adds.
Friday’s opinion cited previous U.S. Supreme Court cases that have ruled in favor of prayers before legislative sessions, as well as a recent precedent from a 2019 U.S. Supreme Court ruling that found constitutional a 40-foot cross set up on public property to honor World War I dead.
In a dissenting opinion, Judge Luis Felipe Restrepo backed the earlier ruling that found the policy did violate separation of church and state.
“In my view, the Pennsylvania House’s policy of explicitly and purposefully excluding certain persons from serving as guest chaplains solely on the basis of their religions and religious beliefs finds no refuge in the history and tradition of legislative prayer in this country,” Restrepo wrote.
Earlier this year, a prayer offered by first year Rep. Stephanie Borowicz, R-Clinton, made national headlines. She invoked Jesus over a dozen times in under two minutes and expressed thanks to God that President Donald Trump “stands besides Israel” before the swearing-in of the first female Muslim lawmaker in chamber history.