OBERDORFER, District Judge.
Plaintiff, Dr. Paul Kurtz, is a professor of philosophy and a secular humanist. Defendants are the Secretary of the Treasury, the Treasurer of the United States, the Chaplain of the House and the Chaplain of the Senate.
Plaintiff brings this suit requesting a permanent injunction to restrain all present and future chaplains of the United States Senate and House of Representatives, while acting in their official capacity, from disparaging the beliefs of nontheists, and a declaration that the making of such remarks by a Senate or House chaplain is unconstitutional. In the alternative, plaintiff seeks the termination of federal funding of the chaplaincies.
This case, now before this Court a second time, is in a somewhat unusual posture. To understand its posture, it is necessary to review the events leading to the present. The controversy began in February 1984, when plaintiff wrote to the Senate and House Chaplains, requesting permission to participate in the informal "guest chaplain program," whereby speakers were occasionally invited to stand in for the chaplain and give the opening remarks and prayer before members of Congress. Plaintiff stated in his application letters that his remarks would not invoke a deity. Both Chaplains rejected plaintiff's request, stating as one of their reasons that plaintiff would not offer a prayer during his remarks. That summer, plaintiff also had occasion to review some of the prayers of the Senate Chaplain. Plaintiff discovered several prayers in which the Senate Chaplain had, in his opening prayers before the Senate, allegedly disparaged the beliefs of nontheists.
Complaining about his exclusion from the guest chaplain program, and the content of some of the Senate Chaplain's prayers, plaintiff filed suit on September 19, 1984. Count I alleged that the guest chaplain program discriminatorily excludes nontheists in violation of the Free Speech, Free Exercise, and Establishment Clauses of the First Amendment, and the Due Process Clause of the Fifth Amendment, of the United States Constitution. Plaintiff sought to enjoin the allegedly discriminatory practice and a declaration that the practice is unconstitutional. In the alternative, plaintiff sought termination of federal funding of the House and Senate chaplaincies. Count I was dismissed by Order filed March 11, 1986. Kurtz v. Baker, 630 F. Supp. 850 (D.D.C.1986).
In Count II, plaintiff raised the claim now at issue. Plaintiff alleged that the Senate Chaplain "has routinely used his opening remarks as a vehicle for disparaging the beliefs of non-theists . . ." Complaint at para. 44 (filed Sept. 19, 1984). Plaintiff alleged that the Senate Chaplain's remarks violate the Establishment Clause of the First Amendment, and sought the same relief requested in Count I.
In turn, defendants challenged plaintiff's right to bring the suit, arguing that plaintiff lacked standing to raise his claims, that his challenges presented nonjusticiable political questions, and that his action was barred by the Speech and Debate Clause of the Constitution, U.S. Const. Art. I, § 6, cl. 1. Each of these jurisdictional challenges was rejected for reasons stated fully in 630 F. Supp. 850. Defendants also moved for summary judgment on Count I, contending that the Supreme Court opinion in Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983), foreclosed further judicial inquiry into the constitutionality of the guest chaplain program, and compelled a decision in defendants' favor.
Defendants' motion for summary judgment on Count I was granted. Resolution of Count II, however, in which plaintiff challenged the allegedly disparaging prayers of the Senate Chaplain, was postponed to permit further briefing. While Marsh v. Chambers spoke broadly to the constitutionality of the legislative chaplaincy, the Supreme Court failed to address what limits, if any, the Constitution places on the content of the chaplain's prayers. But the Court's opinion, generally upholding the constitutionality of legislative chaplaincies, does contain a caveat from which one might fairly infer that the Senate Chaplain may not use his official government position to disparage the beliefs of nontheists and that judges would have concern and jurisdiction in such a case. That caveat states:
The content of the prayer is not of concern to judges where, as here, 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. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.
463 U.S. at 794-95, 103 S. Ct. at 3337-38.
To demonstrate the extent and nature of the Senate Chaplain's disparagement, plaintiff attached as exhibits several excerpts from prayers spoken by the Chaplain. These excerpts are more fully set out in this Court's earlier opinion, 630 F. Supp. at 860. Three examples follow:
Awaken us to the reality that to govern without God is to be a godless government and a godless government soon loses its concern for human rights, minorities and all people.