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Theist-Only Prayer Policy at Pennsylvania Legislative Session Constitutional

Woman folding hands in prayer
By Joseph Fawbush, Esq. on August 29, 2019 5:18 PM

Believe, Pennsylvanians. At least if you want to lead prayers before the Pennsylvania House of Representatives. That was the takeaway from a U.S. Third Circuit Court of Appeals decision in Fields v. Speaker, issued in late August. In a 2-1 decision, the majority held that the Pennsylvania House’s policy of only allowing theists to lead prayers does not violate the First Amendment’s Establishment Clause.

In reaching its decision, the majority referenced the Supreme Court’s “presumption” in Town of Greece v. Galloway that prayer encompasses a belief in a higher power. While defining prayer as invoking a higher power may be “overly narrow by current standards,” the majority wrote, the real question in such cases is the historical definition of prayer. “And history tells us that only theistic invocations can achieve all the purposes of legislative prayer.”

Majority Isn’t Looking for Trouble

History and continuity were large factors in the majority opinion. “Instead of rocking the constitutional boat,” Judge Thomas Ambro wrote, the Third Circuit would follow perceived precedent in allowing the theism-only prayer policy.

The majority noted that the same week the First Amendment was enacted Congress also began employing clergy to lead opening session prayers. Theism is present in the Pledge of Allegiance, U.S. currency and other civic institutions. An alternative decision here, Judge Ambro worried, would throw doubt onto the constitutionality of the current Pledge of Allegiance, as one example.

Defining Prayer

The dissenting opinion noted that the Supreme Court has recognized that Secular Humanism, which does not believe in a higher power, is a religion for purposes of the First Amendment. Judge L. Felipe Restrepo wrote that the majority’s reasoning is essentially defining what it means to be religious, as well as certain religious terms. The Pennsylvania House of Representatives is preventing groups who believe differently from praying before a legislative session. This, Judge Restrepo reasoned, is exactly what the Establishment Clause prevents legislatures and courts from doing.

Our Oldest Question?

Judge Ambro wrote that “these questions are as old the Republic,” but that certain aspects of the Establishment Clause have been settled for just as long. Perhaps, but challenges to the Establishment Clause continue, and as this case demonstrates, there are plenty of gray areas that remain.

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