United States District Court, District of Columbia
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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. ¶¶
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.
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. 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).
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).
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).
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)).
Motion to Dismiss - Fed.R.Civ.P. 12(b)(6)
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.
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).
Precedent on Legislative Prayer
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.
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
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.
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.”)).
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.
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.
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 ...