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Barker v. Conroy

United States District Court, District of Columbia

October 11, 2017

PATRICK CONROY, Chaplain, U.S. House of Representatives, et al., Defendants.



         Since the Continental Congress met in 1774, the States' representatives to the federal government have employed, and paid, clergy who perform as chaplains and offer a daily prayer before each session begins. Daniel Barker, an atheist and co-President of the Freedom from Religion Foundation, challenges the modern practice in the House of Representatives, whereby he was denied the opportunity to be a guest chaplain and to deliver a secular invocation in lieu of a prayer. Mr. Barker asserts that the Supreme Court's decision in Town of Greece, New York v. Galloway, 134 S.Ct. 1811 (2014) requires his inclusion as a guest chaplain. His interpretation of Town of Greece is flawed. The legislative prayer practice of the House of Representatives is consistent with the decisions of the Supreme Court and this Circuit, as well as the Rules of the House. Mr. Barker has failed to state a claim on which he is entitled to relief. The Court also finds that extending Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) to this context is unwarranted. The Complaint will be dismissed.

         I. BACKGROUND

         The U.S. House of Representatives (House) commences each legislative day with a prayer, a tradition that originated during the first Continental Congress and continues today. See Motion of the Official Defendants to Dismiss the Complaint [Dkt. 16] at 3-5 (Official Capacity MTD) (describing the history of legislative prayer); see also Marsh v. Chambers, 463 U.S. 783, 788 (1983). A “prayer” is required under the House Rules and is consistent with the Establishment Clause. See U.S. Const. art. I § 5, cl. 2 (“Each House may determine the rules of its proceedings, . . .”); see also H.R. Doc. No. 114-192, § 665, Rule II, cl. 5 (“The Chaplain shall offer a prayer at the commencement of each day's sitting of the House.”); H.R. Doc. No. 114-192, § 869, Rule XIV, cl. 1 (finding the House's first “order of business . . . shall be . . . Prayer by the Chaplain”); Marsh, 463 U.S. at 791. Current House Chaplain and a Defendant in this case, Father Patrick J. Conroy, is a Roman Catholic priest. See Compl. [Dkt. 1] ¶ 25. The House Chaplain, an Officer of the House elected by members, typically delivers the opening prayer, but guest chaplains have given opening prayers since 1948, although there are no written rules instructing this practice. See id. ¶¶ 55-58; see also Ida A. Brudnick, Cong. Research Serv., R41807, House and Senate Chaplains: An Overview 1 (2011). Between 2000 and 2015, 39% of opening prayers were made by guest chaplains. See Compl. ¶¶ 71-72. A guest chaplain is either invited by Fr. Conroy or sponsored by a member of the House. See id. ¶ 60.

         Daniel Barker is an American atheist activist and co-President of the Freedom From Religion Foundation (FFRF). See id. ¶¶ 13, 16. FFRF is a legal and political advocacy group for non-theists, and a frequent Establishment Clause litigant. See id. ¶ 13; see also Official Capacity MTD at 6. On behalf of Mr. Barker, FFRF members visited Defendants Elisa Aglieco, Fr. Conroy's assistant, and Karen Bronson, Chaplain's Liaison to Staff, to inquire about “a nonreligious citizen” delivering an “opening invocation at the House.” Compl. ¶ 34. Fr. Conroy's staff explained that guest chaplains are permitted to give the opening prayer if (1) they are sponsored by a House Member, (2) they are ordained, and (3) their prayer addresses a “higher power.” Id. ¶ 35.

         Mr. Barker alleges that he satisfied these requirements. See id. ¶ 36. Mr. Barker's representative in the House, Mark Pocan, sponsored him by asking Fr. Conroy to grant Mr. Barker permission to deliver the morning invocation. See id. ¶ 37. Two days later, upon Ms. Aglieco's request, Mr. Barker provided his contact information, biography, and ordination certificate for review. See id. ¶ 38. Mr. Barker explained that he was ordained a Christian minister in 1975, but “lost faith in faith, ” and disavowed religious beliefs in 1994. Id. ¶¶ 14, 16. Mr. Barker maintains his ordination, using it to perform marriages, but no longer preaches the tenets of Christianity. See id. ¶ 20. Mr. Barker also alleges that in a draft of his proposed invocation that he provided to Fr. Conroy, he addressed a “higher power, ” though not a god or supernatural power. Id. ¶ 105.

         Fr. Conroy denied Mr. Barker's request to conduct the opening prayer in December 2015 because he is “ordained in a denomination in which he no longer practices” and “is not a religious clergyman [because he had] parted with his religious beliefs.” Id. ¶¶ 111, 115; see also Official Capacity MTD at 7.

         Mr. Barker filed suit on May 5, 2016, against Fr. Conroy, Ms. Aglieco, Ms. Bronson, Speaker of the House Paul Ryan, all in their official capacities, and the House and United States of America. See Compl. Mr. Barker's Complaint also includes a claim against Fr. Conroy in his individual capacity under Bivens. See id. ¶¶ 201-06. Mr. Barker alleges that the requirements expressed by Fr. Conroy's staff were a pretext for excluding and discriminating against him because the same requirements are not enforced against other potential guest chaplains. See id. ¶¶ 118-19. Mr. Barker challenges the denial of an opportunity to deliver an invocation as a guest chaplain and the requirements imposed on him but not others as violations of the Establishment, Due Process, and Religious Test Clauses of the Constitution, and the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq. See id. ¶¶ 157-200.

         Mr. Barker seeks: (1) a declaration that barring atheists and nonreligious individuals from delivering the opening prayer to the House of Representatives violates the Constitution and the RFRA; (2) a declaration that guest chaplains cannot be required to invoke “a supernatural higher power”; (3) injunctive relief barring Fr. Conroy from selecting a guest chaplain on the basis of inherently religious qualifications; and (4) an order approving Mr. Barker as guest chaplain. Id. at Section V; see also Official Capacity MTD at 8.

         Defendants jointly filed a Motion to Dismiss the official capacity claims on September 30, 2016, contending that Mr. Barker does not have Article III standing, his claim is non-justiciable, and he has failed to state a claim.[1] See Official Capacity MTD at 2. Mr. Barker filed a Memorandum in Opposition of Defendants' Motion to Dismiss on November 14, 2016, see Memorandum in Opposition of the Official Defendants' Motion to Dismiss [Dkt. 18] (Official Capacity Opp'n), to which Defendants replied. See Reply Memorandum in Support of the Official Defendants' Motion to Dismiss [Dkt. 21] (Official Capacity Reply). Additionally, Fr. Conroy filed a separate motion to dismiss the individual Bivens claim against him. See Defendant Patrick Conroy's Motion to Dismiss All Individual-Capacity Claims [Dkt. 14] (Conroy MTD). Mr. Barker opposed, see Memorandum Opposing Defendant Patrick Conroy's Motion to Dismiss All Individual-Capacity Claims [Dkt. 19] (Conroy Opp'n), and Fr. Conroy replied. See Reply Memorandum in Support of Defendant Patrick Conroy's Motion to Dismiss All Individual-Capacity Claims [Dkt. 20] (Conroy Reply).


         A. Standing

         Standing is one feature of the Constitution's case-or-controversy limitation on federal judicial authority. See U.S. Const. art. III, § 2 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . [and] to Controversies.”); see also Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 135 S.Ct. 2652, 2663 (2015).

         Standing turns on whether a plaintiff “alleged such a personal stake in the outcome of the controversy” as to meet federal court jurisdiction and justiciability requirements. Baker v. Carr, 369 U.S. 186, 204 (1962). To have Article III standing, a plaintiff must establish that: (1) he has “suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) the injury is fairly traceable to the defendants' actions; and (3) it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” United States v. Windsor, 133 S.Ct. 2675, 2685-86 (2013) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-62 (1992)). Plaintiff bears the burden of establishing his standing because he is the party invoking federal jurisdiction. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998).

         Where a party's standing is challenged in a motion to dismiss, a reviewing court “must construe the complaint in favor of the complaining party.” Kurtz v. Baker, 829 F.2d 1133, 1138 (D.C. Cir. 1987) (Kurtz II) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)).

         B. Motion to Dismiss - Fed.R.Civ.P. 12(b)(6)

         Federal Rule of Civil Procedure 12(b)(6) requires a complaint to be sufficient “to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint does not need to include detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. The facts alleged “must be enough to raise a right to relief above the speculative level.” Id. A complaint must contain sufficient factual matter to state a claim for relief that is “plausible on its face.” Id. at 570. When a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, then the claim has facial plausibility. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A court must treat the complaint's factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth in a complaint. Iqbal, 556 U.S. at 678.

         In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). Generally, when a court relies upon matters outside the pleadings, a motion to dismiss must be treated as one for summary judgment and disposed of pursuant to Rule 56. See Fed. R. Civ. P. 12(d). “However, where a document is referred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment.” Nat'l Shopmen Pension Fund v. Disa, 583 F.Supp.2d 95, 99 (D.D.C. 2008).

         C. Precedent on Legislative Prayer

         One starts with Marsh v. Chambers, 463 U.S. 783 (1983), which addressed a challenge by a state legislator to the century-old practice of the Nebraska legislature of opening each session with a prayer by a chaplain paid with public funds. The Supreme Court held that the practice did not violate the Establishment Clause even though a single clergyman had offered the prayers for many years and they were all in the Judeo-Christian tradition. See id. at 795. The Court's analysis is highly instructive.

         The Court began its discussion noting certain historical facts:

The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. . . .
[T]he Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain. . . . [T]he First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer. . . .
On Sept[ember] 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights. Clearly the men who wrote the First Amendment Religion Clause did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.

Id. at 786-88 (citations omitted). “In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress-their actions reveal their intent.” Id. at 790; see also Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888) (noting that Acts adopted by the First Congress are “contemporaneous and weighty evidence of [the Constitution's] true meaning”).

         Plaintiff Earnest Chambers, himself a Nebraska representative who was offended by the legislative prayers, argued that opposition by some Founding Fathers significantly undercut any reliance on early practices. The Supreme Court disagreed:

[E]vidence of opposition . . . infuses [the historical argument] with power by demonstrating that the subject was considered carefully and the action not taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic society.

Marsh, 463 U.S. at 791. The Court concluded its historical discussion by summarizing:

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, “we are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952).

Id. at 792.

         Turning to the actual practices of the Nebraska legislature, the Court noted the long tenure of its chaplain but also that “guest chaplains have officiated at the request of various legislators and as substitutes during [Chaplain] Palmer's absences.” Id. at 793. Without evidence of “an impermissible motive, ” the Court found no conflict with the Chaplain's tenure and the Establishment Clause. Id. The nature of the Chaplain's prayers did not offend the Constitution, nor did the use of public funds to pay the Chaplain cause the Court any pause. Id. at 794 (“Nor is the compensation of the chaplain from public funds a reason to invalidate the Nebraska Legislature's chaplaincy; remuneration is grounded in historic practice . . . .”). Thus, the Supreme Court concluded that there was no risk of the establishment of religion from the practice of the Nebraska legislature. See id. at 795 (citing Abington School Dist. v. Schempp, 374 U.S. 203, 308 (1963) (Goldberg, J., concurring) (“[T]he measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.”)).

         Following Marsh, the U.S. Court of Appeals for the District of Columbia Circuit had occasion to address the same question in Kurtz v. Baker, 829 F.2d 1133, 1136 (D.C. Cir 1987), when a nontheist professor brought suit after being denied the opportunity to present opening remarks to both the Senate and House. Mr. Kurtz challenged the exclusion of nontheists from the ranks of guest chaplains and the requirement that the guest chaplain utter a “prayer” as violations of the Free Speech and Religion Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment. See id. The D.C. Circuit ultimately dismissed Mr. Kurtz's claims for lack of standing.

         Although the D.C. Circuit found that the allegation “that Kurtz has been prevented from addressing each house of Congress . . . [satisfied] Article III's injury requirement because it is sufficiently personal and concrete, ” id. at 1142, it ultimately held that Mr. Kurtz failed to allege causation because Mr. Kurtz did not allege that even with the Chaplain's assent, there would be a “substantial probability” that he could address the House. Id. at 1142. Mr. Kurtz did not allege that the Chaplain had discretion to grant his request and his desired secular invocation was irreconcilable with the Court's interpretation of prayer as required by the House Rules. See id. The Circuit did not address the merits of Mr. Kurtz's constitutional claims.

         In 2014, the Supreme Court had another opportunity to consider the constitutionality of legislature prayer in Town of Greece. See134 S.Ct. 1811. Town of Greece involved the complaint of two residents of the Town who appeared before the Town board on various items of civic business and objected to its practice of an opening prayer by an unpaid volunteer “chaplain for the month.” Id. at 1816. Chaplains were identified by contacting those clergymen with congregations within Town limits and listed in the local directory, which meant that since “nearly all of the congregations in town were Christian; . . . from 1999 to 2007, all of ...

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