The dispute dates to February 2015, when Rep. Mark Pocan, a Wisconsin Democrat, invited one of his constituents, Dan Barker, to deliver the invocation as a Congressional guest. The office of Catholic House Chaplain Patrick Conroy informed Barker that all guest chaplains must be “ordained by a recognized body in the faith in which he/she practices” and must present a copy of their ordination certificate as proof. He also advised that the invocation must address a “higher power.”
Barker had retained his 1975 ordination as a means to officiate at weddings to bypass discriminatory laws that restrict marriage officiants to clergy. Barker submitted his ordination certificate to Conroy’s office. He said he believes there is no higher power than “we, the people of these United States.” Conroy did not respond for almost one year, until January 2016. He then informed Barker he was denying his request to give the invocation because he had publicly announced his atheism.
Mr. Barker, the co-president of the Wisconsin-based Freedom From Religion Foundation, consulted a lawyer and sued the Chaplain, and Speaker Paul Ryan, in May 2016. He claimed his exercise of religion rights under the Religious Freedom Restoration Act were violated. Judge Collyer concluded this argument fails: "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 substantial burden". She went on to explain that a substantial burden “exists when government action puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’”
Government authorities demand that Mr. Barker modify his belief based behavior as a condition for qualifying to participate in a government sponsored activity is a substantial demand. But the "pressure" was insubstantial in the sense that not participating in this activity is relatively easy, much easier than changing beliefs and related behaviors. This reflects the fact that the activity at issue, Congressional sponsored invocation, is itself unnecessary. Congress can perform all of its functions, and lawmakers can voluntarily pray before each session begins, without an opening prayer ritual or a paid chaplain.
Barker also cited the U.S. Supreme Court’s 2014 ruling in Town of Greece v. Galloway, which declared that governments cannot discriminate between different beliefs when selecting who gives government sponsored invocations, to support his legal challenge. Collyer, oddly, declared that the ruling didn’t apply to Barker because the justices did not cite atheists in that particular decision. “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,” the judge said.
Judge Collyer is singling out atheists for the negative purpose of refusing to apply an otherwise generally applicable civil rights protection that the Supreme Court recently reasserted. She is inserting a 'discriminate against atheists' clause into the law. Atheists lack generally applicable civil rights protections unless the Supreme Court explicitly says otherwise, according to Collyer.
Insofar as it is true that government sponsored legislative invocation is, by default, for theists only, as Collyer dubiously claims, it follows that the practice of legislative invocation itself violates the constitution for favoring theism over atheism and discriminating against atheist citizens. But legislative invocation was initiated during the first congress and declaring it unconstitutional would be difficult. Therefore, judges who are committed to the constitution and its civic equality protections should be defining legislative invocation as open to people of all beliefs, include those who believe that there is no deity to speak to. This would be easy to do and, contrary to what Collyer says, would not conflict with Supreme Court rulings.
Congress is a place where people occasionally say something that others who are present and listening disagree with, so what is the problem? An opening Congressional invocation by Dan Barker that does not cite deity is not going to infringe on anyone else's rights. Barker, not surprisingly, said he is disappointed with the ruling, complaining that it allowed the House chaplain’s ”personal biases against the nonreligious” to block him from fully participating in our government. I agree.