[00:00:02] Speaker 00:
Case number 17-5278, Daniel Barker, Appellant, Mrs. Patrick Conroy, Chaplain at L, Mrs. Seidel for the Appellant, Mr. Humphar for the Appellees.

[00:00:52] Speaker 04:
Your honors, may it please the court, Andrew Seidel representing the appellant, Dan Barker.

[00:00:56] Speaker 04:
Dan Barker was invited by his representative to do something hundreds of other individuals have done, deliver a prayer at the U.S.

[00:01:06] Speaker 04:
House of Representatives.

[00:01:07] Speaker 04:
In his prayer, Barker wanted to invoke unifying and solemn themes and, quote, rejoice in the inalienable liberty of conscience our forefathers and foremothers risked their lives to protect.

[00:01:20] Speaker 04:
In this way, Barker's prayer would have been no different than other prayers delivered before the House.

[00:01:25] Speaker 04:
His would not have been the first non-theistic prayer.

[00:01:29] Speaker 04:
The chaplain denied him that opportunity because of who he is, an atheist.

[00:01:34] Speaker 04:
Now, the Supreme Court laid out the two rules that govern the outcome of this case in Town of Greece versus Galloway and Marsh versus Chambers.

[00:01:40] Speaker 01:
Before you get to that, I just have a preliminary question about Kurtz.

[00:01:45] Speaker 01:
The government says this case isn't any different from Kurtz.

[00:01:50] Speaker 04:
I think this case differs from Kurtz in two major respects.

[00:01:55] Speaker 04:
First, Kurtz was seeking special treatment.

[00:01:58] Speaker 04:
Barker is seeking equal treatment.

[00:02:00] Speaker 04:
So Kurtz was seeking an opportunity that was rare and only extended to heads of state.

[00:02:06] Speaker 04:
He wanted to address Congress.

[00:02:08] Speaker 04:
He specifically said that he would not say a prayer if he were invited.

[00:02:12] Speaker 04:
On the other hand, Barker has said he will say a prayer if he's invited.

[00:02:15] Speaker 04:
He's not seeking to address Congress.

[00:02:17] Speaker 04:
And in fact, he actually cannot address Congress.

[00:02:20] Speaker 04:
That's part of the rule, as we understand it, in the prayers, something the district court got wrong.

[00:02:26] Speaker 04:
And he's seeking to do something that hundreds of other individuals have done.

[00:02:32] Speaker 01:
You said two distinctions.

[00:02:35] Speaker 01:
Before you get to your second point, when you first stood up, you said that Mr. Barker

[00:02:41] Speaker 01:
wants to deliver a prayer, which distinguishes this from curds.

[00:02:47] Speaker 01:
But throughout the complaint, he calls it a invocation.

[00:02:54] Speaker 01:
Is that the same as a prayer?

[00:02:56] Speaker 04:
Yes, Your Honor.

[00:02:57] Speaker 01:
Is there any reason why?

[00:02:58] Speaker 01:
I'm just curious, why did he use the word invocation throughout the complaint instead of prayer?

[00:03:01] Speaker 04:
Just consistency, Your Honor.

[00:03:03] Speaker 04:
I mean, the Supreme Court used prayer and invocation.

[00:03:05] Speaker 04:
So there's no significance to that?

[00:03:07] Speaker 01:
No, Your Honor.

[00:03:08] Speaker 01:
So one difference here is, in currents, the plaintiff did not want to deliver a prayer.

[00:03:15] Speaker 01:
He wanted to give a speech.

[00:03:16] Speaker 01:
Correct.

[00:03:16] Speaker 01:
And Mr. Barker wants to give a prayer.

[00:03:19] Speaker 01:
Correct.

[00:03:19] Speaker 01:
So did you say there was a second distinction?

[00:03:22] Speaker 04:
Yes.

[00:03:23] Speaker 04:
In Kurtz, the injury was not fairly traceable to the chaplain's actions.

[00:03:27] Speaker 04:
Here it is.

[00:03:29] Speaker 04:
Part of that is because in Kurtz, Paul Kurtz was seeking a special opportunity to address Congress, which the chaplain doesn't have the power to do.

[00:03:38] Speaker 04:
And we know that the chaplain has the power to approve guest chaplains.

[00:03:41] Speaker 01:
All right.

[00:03:42] Speaker 01:
We'll go on back to the merits of your argument.

[00:03:45] Speaker 01:
Go ahead.

[00:03:45] Speaker 04:
So I think the Supreme Court laid out the two rules that govern the outcome of this case.

[00:03:50] Speaker 04:
First is that when the government invites guest chaplains in, as they are doing here, remember 40% of the prayers are delivered by guest chaplains.

[00:03:58] Speaker 04:
When they invite guest chaplains in, they must maintain a policy of non-discrimination.

[00:04:03] Speaker 04:
They can't exclude certain creeds.

[00:04:06] Speaker 04:
Second, when the government invites those guest chaplains in, those guest chaplains must be allowed to deliver their prayers as their conscience dictates, not in the manner the federal government dictates.

[00:04:18] Speaker 05:
Are you arguing that a client was foreclosed

[00:04:28] Speaker 05:
from speaking, giving the invocation because he's an atheist?

[00:04:33] Speaker 05:
Is that what you think?

[00:04:33] Speaker 05:
Yes, Your Honor.

[00:04:34] Speaker 05:
Because there is a policy against it, or because in his case, he was discriminated, which I, when I read the complaint, I'm not sure what you're saying.

[00:04:44] Speaker 05:
You think that there is a rule the chaplain follows?

[00:04:49] Speaker 04:
No, there are.

[00:04:49] Speaker 05:
From a time that atheists will not be allowed to give the invocation?

[00:04:54] Speaker 05:
And if so, how does your complaint support that suggestion?

[00:04:58] Speaker 05:
And if not, then what is your complaint?

[00:05:01] Speaker 04:
Our complaint is that as applied to Barker, the chaplain discriminated against him because he's an atheist.

[00:05:06] Speaker 05:
So you're saying in this case, without regard to what the rules are, I'm not sure you're telling, without regard to what the rules are.

[00:05:14] Speaker 05:
Sure.

[00:05:16] Speaker 05:
As I hear you now, you're saying it doesn't matter.

[00:05:18] Speaker 05:
You're saying in this case, my client was discriminated against because he was an atheist.

[00:05:25] Speaker 04:
That's correct, Your Honor.

[00:05:26] Speaker 05:
Now, is that what the chaplain's letter says?

[00:05:31] Speaker 05:
The chaplain's... Chaplain's letter said he was denying the request because his certificate of ordination is not current or legitimate for purposes of my considering.

[00:05:43] Speaker 04:
So we're arguing that he was discriminated against because he's an atheist, in part because we have shown that the reasons the chaplain gave don't hold up.

[00:05:51] Speaker 04:
There are other prayer-givers who did not address atheistic higher power in their prayers, and the chaplain allowed those individuals to come in and give prayers.

[00:06:01] Speaker 05:
On May 5, 2015... Wait, the reason the chaplain gave, what you just said doesn't show that the reason given was a pretext.

[00:06:09] Speaker 05:
The reason given was that

[00:06:12] Speaker 05:
giving him the best read.

[00:06:15] Speaker 04:
There are other individuals who were also not ordained and who were not practicing in the faith in which they were ordained.

[00:06:22] Speaker 04:
And we laid those facts out in the complaint.

[00:06:26] Speaker 04:
That's at app 5051 and 5152.

[00:06:28] Speaker 04:
So there were eight Muslims, several Hindu, and two Christian guest chaplains that we identified that were not ordained at all that were approved by the chaplain.

[00:06:37] Speaker 04:
So clearly, the ordination requirement was only a pretextual requirement that applied to Barker to exclude him.

[00:06:43] Speaker 04:
We believe because he is an atheist.

[00:06:45] Speaker 04:
Okay.

[00:06:46] Speaker 05:
But again, you're not asserting that there is a standard rule that's always applied against atheists.

[00:06:53] Speaker 04:
To our knowledge, Your Honor, Mr. Barker is the first atheist you request to give an invocation or prayer before Congress.

[00:06:59] Speaker 04:
All right.

[00:07:00] Speaker 05:
So your answer is you don't know.

[00:07:01] Speaker 04:
You're just saying in this case, as far as you're concerned... Correct.

[00:07:05] Speaker 04:
We're still at the motion to dismiss stage.

[00:07:06] Speaker 04:
We haven't had the benefit of discovery or anything like that.

[00:07:08] Speaker 04:
So as far as we know, yes, this is the first instance of discrimination against an atheist.

[00:07:13] Speaker 04:
The ordination rule is itself inherently discriminatory and would discriminate if it were applied equally to, for instance, Buddhists.

[00:07:22] Speaker 04:
But we know Buddhist guest chaplains have also delivered prayers.

[00:07:24] Speaker 04:
So.

[00:07:25] Speaker 01:
So I have a question about Marsh.

[00:07:32] Speaker 01:
So Marsh is really clear.

[00:07:35] Speaker 01:
The court in Marsh says that.

[00:07:42] Speaker 01:
And the court understood that prayer at that time was clearly religious.

[00:07:49] Speaker 01:
It says, quote, to invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of religion, right?

[00:08:01] Speaker 01:
Correct.

[00:08:02] Speaker 01:
So the prayer program that Congress found did not violate the establishment clause was a religious program.

[00:08:11] Speaker 01:
So explain to me how

[00:08:17] Speaker 01:
How does adopting a guest chaplain program change that?

[00:08:22] Speaker 01:
In other words, how are we free to say, well, the Supreme Court has already said that the chaplain program, the prayer program in Congress is religious.

[00:08:34] Speaker 01:
It's existed from the time of the framing.

[00:08:36] Speaker 01:
It's not an establishment clause.

[00:08:38] Speaker 01:
But having opened it up to others, what allows us to rule that Congress has, by doing that,

[00:08:48] Speaker 01:
allowed a change in the nature of the program.

[00:08:53] Speaker 04:
The town of Greece versus Galilee.

[00:08:55] Speaker 04:
So in March and in Greece, the legislative prayer itself was being challenged.

[00:09:02] Speaker 04:
That is not what we are challenging here.

[00:09:04] Speaker 04:
We are challenging the exclusion of an individual on the basis of their creed.

[00:09:08] Speaker 04:
under that program once it's established.

[00:09:11] Speaker 04:
And I think the court in town of Greece made it clear.

[00:09:15] Speaker 04:
Justice Kennedy wrote that once the government invites prayer into the public sphere, the government must permit a prayer giver to address that prayer.

[00:09:25] Speaker 01:
In that case, the plaintiff in that case was seeking to order the city council to have only nonsectarian prayer.

[00:09:33] Speaker 01:
Correct.

[00:09:34] Speaker 01:
That's what that was about.

[00:09:35] Speaker 01:
And the court said that in determining whether any prayer practice violates the establishment clause, courts must ask whether it fits within the tradition long followed in Congress and the state legislatures.

[00:09:48] Speaker 01:
There is no tradition law and file within the Congress and state legislatures of offering atheist prayers.

[00:09:57] Speaker 04:
We would say non-theistic prayers.

[00:09:59] Speaker 01:
Non-theistic prayers that are not directed at a God.

[00:10:01] Speaker 01:
Non-theistic prayers, right.

[00:10:03] Speaker 04:
So the point that the court was making there, and again, the challenge there was not directed

[00:10:10] Speaker 04:
at an individual who was excluded, which I think is a significant difference.

[00:10:13] Speaker 04:
And Justice Alito in his concurrence said that it would present a very different case if there were evidence or if this had been a deliberate exclusion.

[00:10:23] Speaker 04:
And so you have that history, but it doesn't justify

[00:10:28] Speaker 04:
turning it against minority creeds and excluding them.

[00:10:32] Speaker 04:
And I think that non-discrimination principle runs very clearly throughout Greece.

[00:10:37] Speaker 04:
And they actually even look at the history of prayers in the US Congress, and they point out that no faith was excluded by law, nor any favored on 1819, and that Congress acknowledges our growing diversity not by prescribing sectarian content, but by welcoming ministers of many creeds.

[00:10:54] Speaker 04:
And just as Congress can't

[00:10:58] Speaker 04:
or any legislative body can't declare that prayers must be sectarian or non-sectarian.

[00:11:03] Speaker 04:
They can't declare that prayers must be theistic or non-theistic, Your Honor.

[00:11:08] Speaker 01:
Could, suppose Mr. Barker had applied to be the House chaplain and the House had said no because you're an atheist.

[00:11:18] Speaker 01:
Sure.

[00:11:19] Speaker 01:
Different case, right?

[00:11:20] Speaker 04:
I think that is a different case.

[00:11:22] Speaker 04:
I think it's a harder case.

[00:11:24] Speaker 01:
What's hard about that case given Marsh?

[00:11:27] Speaker 04:
I think Marsh allows the government to choose the chaplain of its choice.

[00:11:32] Speaker 01:
And to choose a religious chaplain over a non-religious chaplain.

[00:11:36] Speaker 04:
Yes, Your Honor.

[00:11:36] Speaker 01:
You agree with that?

[00:11:37] Speaker 01:
I do agree with that.

[00:11:37] Speaker 01:
But your point is this case is different because he's not applying to be the house chaplain.

[00:11:42] Speaker 01:
He's applying under a guest program that's open to all religions, right?

[00:11:46] Speaker 04:
Correct.

[00:11:46] Speaker 04:
And because motive matters.

[00:11:48] Speaker 04:
And because what?

[00:11:49] Speaker 04:
motive matters.

[00:11:50] Speaker 04:
In both Marsh and in Greece, the court spoke of impermissible purposes and motives behind the prayer practices.

[00:11:56] Speaker 04:
And we would argue that discriminating against an individual and excluding minority creeds is an impermissible purpose.

[00:12:03] Speaker 01:
And once it's... Yeah, I was going to ask you about that.

[00:12:05] Speaker 01:
You say in your brief several times that this unconstitutionally discriminates against

[00:12:12] Speaker 01:
minority religions and non-religions, right?

[00:12:15] Speaker 01:
You've got both in there.

[00:12:17] Speaker 01:
Yes.

[00:12:17] Speaker 01:
Okay, so Mr. Barker says in his complaint he's not religious.

[00:12:21] Speaker 04:
Correct.

[00:12:21] Speaker 04:
He's an atheist.

[00:12:22] Speaker 01:
He's an atheist.

[00:12:23] Speaker 01:
So in terms of standing or whatever, you don't really... The only issue your client, Mr. Barker, can raise

[00:12:31] Speaker 01:
is alleged discrimination between religious and non-religious, not between religions, because he says he's not religious, right?

[00:12:40] Speaker 04:
He doesn't have standing to argue that?

[00:12:43] Speaker 04:
Yes, that's correct.

[00:12:44] Speaker 04:
However, we do point out that the rules that the chaplain, these unwritten rules that we argue are pretextual that the chaplain has established would, if they were applied equally and uniformly, would exclude certain minority creeds other than atheists and non-religious individuals.

[00:13:05] Speaker 05:
So the chaplain, again, has... Is there any language that you think you can point to in Marsh?

[00:13:10] Speaker 05:
You have the Aledo concurrence in town of Greece, which clearly asserts, in his view, that you can't exclude nonbelievers.

[00:13:21] Speaker 05:
Is there any such language that you're relying on in Marsh that says the rule can't be exploited to proselytize or advance anyone or to disparage

[00:13:33] Speaker 05:
any other faith or belief.

[00:13:35] Speaker 05:
I'm not sure they're exactly the same thing.

[00:13:38] Speaker 05:
Is there anything else in Marsh that comes close to the Alito language?

[00:13:41] Speaker 04:
Well, not precisely on part in the decision in Marsh because, again, that wasn't the issue before the court, but in the oral argument, Justice O'Connor did ask the Nebraska State Legislators' Attorney

[00:13:52] Speaker 04:
whether or not guest chaplains had been excluded on the basis of faith, and the answer was no.

[00:13:59] Speaker 04:
And he even pointed out that no request for a guest chaplain had ever been denied.

[00:14:02] Speaker 04:
That's 10 minutes and 10 seconds into the oral argument on the OIA's website.

[00:14:06] Speaker 04:
It was cited in the three members of Congress who briefed this case.

[00:14:11] Speaker 05:
So your answer to my question is there's nothing explicitly in the Marsh decision that embraces what Justice Alito says in concurrence

[00:14:19] Speaker 05:
in the town of Greece.

[00:14:21] Speaker 04:
Not in the Marsh decision, but there is language in the majority in town of Greece as well.

[00:14:26] Speaker 04:
For instance, so long as the court was looking at the imbalance between how many Christian chaplains, guest chaplains there were and others, and the court said that that was acceptable and not a violation of the Establishing Clause.

[00:14:38] Speaker 04:
So long as the town maintained a policy of non-discrimination, that's at 1824, if the policy had, quote, reflected an aversion or bias against minority faiths, then that would have been different.

[00:14:49] Speaker 05:
minority faith isn't quite the same thing.

[00:14:51] Speaker 05:
Does anyone pick up, and I'm not saying you're wrong, I'm just saying I'm curious as to whether there's any language you're pointing to that picks up the non-believer.

[00:15:01] Speaker 05:
Your claim here is there's discrimination against non-believers, at least as to your client.

[00:15:06] Speaker 05:
We don't know whether this is a practice, but at least as to your client.

[00:15:10] Speaker 05:
Is there any non-believer language in

[00:15:13] Speaker 05:
The majority opinions in either Marsh or in-town agrees?

[00:15:18] Speaker 04:
No, it's a non-discrimination principle more broadly.

[00:15:20] Speaker 04:
And if that issue had been before them, I think that would have been applied uniformly.

[00:15:24] Speaker 04:
And there are other courts that have looked at those cases.

[00:15:29] Speaker 04:
We cited the Field v. Pennsylvania House case, the Williamson v. Brevard County case.

[00:15:33] Speaker 04:
which have applied those to nonbelievers, but not the Supreme Court itself, Your Honor.

[00:15:38] Speaker 05:
And you really want, and I think the other side does not want us to look more broadly to the First Amendment body of law, which would embrace the nonbeliever point that you are raising here.

[00:15:52] Speaker 04:
Correct, your honor.

[00:15:53] Speaker 04:
Once there's an impermissible purpose or motive discriminating against minority creeds, then it shifts from that protection.

[00:15:58] Speaker 01:
It's not minority creeds.

[00:16:00] Speaker 05:
You don't mean minority creeds.

[00:16:01] Speaker 05:
That's how you keep shifting.

[00:16:02] Speaker 05:
That's not your complaint.

[00:16:04] Speaker 05:
Your complaint is discrimination, at least the only thing you can reasonably assert here.

[00:16:08] Speaker 05:
discrimination against a non-believer.

[00:16:11] Speaker 05:
That's your complaint.

[00:16:13] Speaker 04:
And once there is that impermissible purpose or motive, Your Honor, it shifts to the Torcaso v. Watkins, the Larson v. Valente, the Epperson v. Arkansas, where the government cannot be drawing lines between religion and non-religion and between religion and other religions.

[00:16:28] Speaker 01:
As a subject, I take it to what we were talking about earlier, namely that Mr. Barker wants to deliver a prayer, correct?

[00:16:37] Speaker 04:
Yes, Your Honor.

[00:16:38] Speaker 01:
Just not a theistic prayer.

[00:16:40] Speaker 04:
Correct, Your Honor.

[00:16:41] Speaker 04:
Again, and he's not challenging the House rule.

[00:16:43] Speaker 04:
He's not challenging legislative prayer.

[00:16:44] Speaker 04:
He's just challenging his exclusion under it.

[00:16:46] Speaker 05:
Now, are you saying on a motion to dismiss on the pretext that you have pled enough on pretext for it to go forward?

[00:16:57] Speaker 05:
or they're undisputed.

[00:16:59] Speaker 05:
Well, you can't really have undisputed facts.

[00:17:02] Speaker 04:
I don't know that they're going to suggest that.

[00:17:04] Speaker 04:
I do think they are undisputed, Your Honor.

[00:17:06] Speaker 04:
I mean, the factual record is fairly substantial for a complaint here.

[00:17:11] Speaker 04:
And we've pointed to, in every instance, or for every rationale that the chaplain gave to exclude Barker, we have pointed to.

[00:17:18] Speaker 05:
Well, I don't know how you can do it in light of what they've written.

[00:17:20] Speaker 05:
Clearly, with aid of law and counsel, I would guess, because it's

[00:17:24] Speaker 05:
of carefully crafted to kind of dance around some of the points here.

[00:17:29] Speaker 05:
The reason given was

[00:17:32] Speaker 05:
You know, the ordination, its lapse, you're not really true to any of that.

[00:17:36] Speaker 04:
That's the explanation that the chaplain gave when he rejected the... And even under that explanation, we've pointed to other guest chaplains who were not ordained, other guest chaplains whose ordination is... They are no longer practicing in the faith in which they were ordained.

[00:17:52] Speaker 05:
And that itself is... So I think your answer is you think, in terms of pleading requirements, you've pled enough for this

[00:17:59] Speaker 05:
to avoid dismissal on the motion.

[00:18:03] Speaker 05:
Absolutely, Your Honor.

[00:18:05] Speaker 05:
On the pretext question.

[00:18:07] Speaker 05:
Yes, Your Honor.

[00:18:10] Speaker 04:
Thank you.

[00:18:17] Speaker 01:
Thank you.

[00:18:19] Speaker 03:
Thank you, Your Honor, and may it please the court.

[00:18:22] Speaker 03:
Four decades of binding precedent from this court and the Supreme Court compel affirmance of the judgment below.

[00:18:29] Speaker 03:
First, this court's decision in Kurtz against Baker holds on functionally identical facts, as the district court correctly held, that an atheist lacks standing to sue congressional chaplains for excluding him from the prayer opportunity.

[00:18:47] Speaker 01:
Well, what about the argument that in that case

[00:18:50] Speaker 01:
Kurtz wanted to address the house, whereas Barker wants to give a prayer.

[00:18:57] Speaker 01:
In other words, in Kurtz, this court said that the chaplain had no authority to allow someone to speak to the house, because the rule says prayer.

[00:19:11] Speaker 01:
And Barker wants to give a prayer.

[00:19:14] Speaker 03:
Well, Your Honor, until today Barker has never said he wants to give a prayer.

[00:19:18] Speaker 01:
Well, he said he wants to give a invocation, a secular invocation.

[00:19:23] Speaker 01:
Yes, Your Honor.

[00:19:24] Speaker 01:
And an invocation is defined by the dictionaries as including a prayer, right?

[00:19:29] Speaker 01:
Well, yes.

[00:19:30] Speaker 01:
He wants to quote invoke.

[00:19:32] Speaker 01:
Yes.

[00:19:33] Speaker 01:
He wants to invoke something.

[00:19:35] Speaker 01:
A secular invocation.

[00:19:36] Speaker 01:
He doesn't want to just address the members of Congress.

[00:19:38] Speaker 01:
He wants to invoke something, in his case, other than a divine authority.

[00:19:46] Speaker 03:
And precisely the same was true in Kurtz.

[00:19:49] Speaker 03:
This court said in Kurtz that what the plaintiff there wanted to do was present a, quote, moral but non-theistic invocation, close quote.

[00:19:58] Speaker 03:
Indeed, the plaintiff's letter to the chaplain's requesting permission said that while he would not invoke a deity, his, quote, remarks would otherwise fall within the traditional format, close quotes.

[00:20:11] Speaker 03:
So Kurtz is factually indistinguishable on this point.

[00:20:15] Speaker 03:
And that's correct.

[00:20:16] Speaker 03:
Indeed, in this case, the request letter to the chaplain expressly says that he intends to deliver a secular invocation.

[00:20:25] Speaker 03:
A secular invocation is not a prayer.

[00:20:27] Speaker 03:
No chaplain, guest chaplain, or elected chaplain has ever been permitted to deliver a secular invocation.

[00:20:33] Speaker 03:
And that is why the chaplain had no authority to grant this request.

[00:20:40] Speaker 05:
Well, I mean, the problem with Kurtz really is quite different.

[00:20:44] Speaker 05:
I would assume you have more to say than just Kurtz.

[00:20:47] Speaker 05:
It's different in part because standing law has grown up over the years.

[00:20:54] Speaker 05:
So it's dubious on the causation disposition.

[00:21:00] Speaker 05:
And there is more than enough in the complaint here to suggest that the chaplain has

[00:21:06] Speaker 05:
discretion to be exercised.

[00:21:08] Speaker 05:
And indeed, in one of the chapter's written responses, he talks about his discretion.

[00:21:14] Speaker 05:
Kurtz is just, my view, you do what you want, your time.

[00:21:19] Speaker 05:
Kurtz is a lightweight argument, respectfully.

[00:21:23] Speaker 05:
And there are other things I think you want to get to.

[00:21:26] Speaker 03:
Well, in respect to Your Honor, Kurtz is a precedent of this Court, a binding precedent, and to the extent standing doctrine has changed, I submit it as... You're bound by the Supreme Court.

[00:21:34] Speaker 05:
Yes, Your Honor.

[00:21:34] Speaker 05:
So Kurtz is not a Supreme Court decision, and a lot has grown up around the causation notion.

[00:21:40] Speaker 05:
I mean, push it all you want if you want to, but you're wasting time.

[00:21:44] Speaker 05:
I think we know what your argument is.

[00:21:46] Speaker 05:
I'm curious to hear some of your other arguments.

[00:21:49] Speaker 03:
I'll just note that the Supreme Court in Reims, which is post-Kurtz, emphasized the importance of applying standing principles with special rigor in the separation of powers context where we're talking about judicial intrusion into legislative activities.

[00:22:02] Speaker 03:
But in addition to Kurtz, of course, there is the separate non-justiciability problem here, illustrated by this court's decision in Consumer's Union, which holds that

[00:22:13] Speaker 03:
that a claim challenging the exercise of delegated House authority to determine access to the House floor and galleries during a legislative session is non-justiciable, even though it was a constitutional claim there as well, because of the feature debate clause and the allocation of exclusive rulemaking authority in the Constitution to the House.

[00:22:37] Speaker 01:
I'd like to ask you to go right to what at least I think the heart of this case is, which is Mr. Parker's argument that yes, you rely very heavily on Marsh and you're absolutely right.

[00:22:50] Speaker 01:
Marsh recognizes that the morning prayers in the house are religious.

[00:22:59] Speaker 01:
But his argument is that that's not what this is about.

[00:23:03] Speaker 01:
This is about the guest chaplain program, where the house has opened up the prayer opportunity to people other than the house chaplain.

[00:23:15] Speaker 01:
And that invokes a different set of constitutional issues, namely the non-discrimination standard, the non-discrimination requirement of the town of Greece.

[00:23:28] Speaker 01:
What's the answer to that?

[00:23:30] Speaker 03:
Well, there are at least two answers, Your Honor.

[00:23:32] Speaker 03:
First of all, the Supreme Court in town of Greece unanimously, both the five justices in the majority and the four justices in dissent, said that the dispositive question on the merits in the legislative prayer case

[00:23:45] Speaker 03:
whether the prayer practice falls within the traditions practiced in Congress.

[00:23:50] Speaker 03:
This prayer practice clearly does, by definition, fall within the traditions long practiced in Congress, and that should, if the Court were to reach the merits... Well, but Congress hasn't had a long practice of a guest chaplain program.

[00:24:02] Speaker 03:
It has, Your Honor.

[00:24:03] Speaker 01:
The guest chaplain program's relatively new.

[00:24:05] Speaker 03:
No, Your Honor.

[00:24:06] Speaker 03:
It's Heinz precedence, which we cite in our brief, refers to the practice in the guest chaplain practice in the 19th century, indeed, as we note in our brief.

[00:24:16] Speaker 01:
But not at the time of the framing.

[00:24:19] Speaker 01:
I mean, Marsh relied very heavily on the proposition that, look, the same people who brought us the Bill of Rights and everything else

[00:24:29] Speaker 01:
were happy with morning prayer.

[00:24:30] Speaker 01:
Couldn't possibly be unconstitutional to have a religious prayer in the house.

[00:24:35] Speaker 01:
But there wasn't a guest chapel program then.

[00:24:38] Speaker 03:
The brief also notes that as early as the 1850s, the House had a period in which they didn't even have a chaplain.

[00:24:44] Speaker 03:
They exclusively invited guest chaplains to pray, and they were exclusively clergy.

[00:24:48] Speaker 01:
1850s is very different than 1789.

[00:24:50] Speaker 03:
Well, Your Honor, Town of Greece certainly does not stand for the proposition that unless you can prove something happened in 1789, it's unconstitutional, because there was no comparable evidence of a

[00:24:59] Speaker 03:
had a comparable practice back in the 1790s being conducted by local government bodies.

[00:25:09] Speaker 03:
The point is it was comparable in its impact on establishment clause considerations to the conduct that Congress has been engaged in for 230 years, which is exclusively religious prayers.

[00:25:21] Speaker 03:
The idea that somehow broadening the identity of the prayer givers to include a range of clergy members

[00:25:28] Speaker 03:
rather than one single clergy member to deliver an exclusively religious prayer somehow makes the practice more constitutionally suspect and all of a sudden at that point it's no longer permissible to limit the prayer opportunity to those who are willing to make religious prayers, I submit is nonsensical.

[00:25:47] Speaker 05:
Is there some house rule prohibiting a guest chaplain who is an atheist?

[00:25:53] Speaker 05:
I can't find it.

[00:25:55] Speaker 03:
The House rule requires a prayer, so the House rule prohibits a guest chaplain who would deliver a secular invocation, whether that person is an atheist or not is beside the point.

[00:26:05] Speaker 01:
Well, could an ordained minister, suppose an ordained minister who's practicing in his faith says, applies and wants to deliver a non-theistic prayer.

[00:26:15] Speaker 03:
It would be denied.

[00:26:16] Speaker 03:
Indeed, Kurt recognizes the chaplain himself has no authority and would not be permitted to deliver a secular invocation, a non-religious prayer.

[00:26:25] Speaker 01:
But according to the allegations of the complaint, the chaplain has allowed non-theistic prayer.

[00:26:30] Speaker 03:
Well, so theistic and religious are two different things.

[00:26:35] Speaker 03:
And I prefer to talk about religion because the point is what the House has always required is a religious prayer.

[00:26:41] Speaker 03:
whether a non-theist religious person like a Buddhist.

[00:26:47] Speaker 03:
I see your point.

[00:26:50] Speaker 03:
And the allegations of the complaint, I mean the people that deliver the three prayers addressed in the complaint are all ordained pastors and they're all prayers, they're all invoking

[00:27:02] Speaker 03:
a spirit some higher power and asking blessing and ending with amen in the traditional idiom of prayer.

[00:27:09] Speaker 03:
They're not secular invocations.

[00:27:11] Speaker 03:
They don't happen to name recognized deities, but there's no requirement that a prayer giver name a recognized deity.

[00:27:18] Speaker 03:
They have to deliver a prayer to a higher power invoking blessing and so forth in the idiom of prayer.

[00:27:23] Speaker 03:
That's the only requirement.

[00:27:24] Speaker 03:
And the problem is plaintiff is unwilling to do that as he made clear in the request and in his complaint.

[00:27:32] Speaker 01:
Let me ask you this, since you mentioned the complaint.

[00:27:37] Speaker 01:
So in the letter that the chaplain wrote, he said setting aside the question of whether a non-theistic prayer could be a prayer.

[00:27:55] Speaker 01:
he, Mr. Barker, fails a more fundamental requirement, which is that he be practicing in the field in which he, not practicing, that he be

[00:28:11] Speaker 01:
Yeah, practicing in the field in which he was ordained, right?

[00:28:15] Speaker 01:
That's what he says.

[00:28:17] Speaker 01:
Yes, Your Honor.

[00:28:18] Speaker 01:
But when Mr. Barker met with the representative, he alleges that when he met earlier with representatives of the chaplain, that was not one of the requirements.

[00:28:30] Speaker 01:
The only requirement was that he be ordained.

[00:28:33] Speaker 01:
In other words, at the time he had his first meeting with representatives of the chaplain, he met all three standards.

[00:28:40] Speaker 01:
He was ordained.

[00:28:41] Speaker 01:
He wanted to give a prayer, and he said he wouldn't address, he didn't want to address the, he didn't want to address the house.

[00:28:53] Speaker 01:
He alleges that in his complaint, paragraphs 34 to 35.

[00:28:55] Speaker 01:
Yes, Your Honor.

[00:29:01] Speaker ?:
Yeah.

[00:29:01] Speaker 01:
So what I'm getting at is, given his allegation that the reason the chaplain gave him this letter was basically pretext for discriminating against a non-religious person, the issue before us is that now, correct?

[00:29:16] Speaker 01:
Do you agree with that?

[00:29:17] Speaker 01:
No, Your Honor.

[00:29:17] Speaker 01:
The question right before us now in his complaint is, has he stated a claim for relief based on the argument that the chaplain is discriminating against him because he's not religious?

[00:29:30] Speaker 03:
Well, I would put it slightly differently.

[00:29:32] Speaker 03:
I mean, so the question of the ordination requirement is not something that we've relied on in our briefing in this case, because they allege it's a pretext.

[00:29:42] Speaker 03:
And ultimately, it's just part of the mechanism for getting at the ultimate question, which is,

[00:29:48] Speaker 03:
The rule requires a prayer.

[00:29:49] Speaker 03:
Congress has always understood that to be a religious prayer and has always limited that opportunity to those who will deliver a religious prayer.

[00:29:56] Speaker 03:
And is that constitutional if you get to the merits?

[00:29:58] Speaker 03:
And the answer to that is clearly yes.

[00:30:00] Speaker 01:
So regardless of... Okay, good.

[00:30:02] Speaker 01:
No, that's very helpful.

[00:30:03] Speaker 01:
So you accept this.

[00:30:05] Speaker 01:
What you said is very helpful.

[00:30:06] Speaker 01:
That is the issue, right?

[00:30:08] Speaker 01:
Yes.

[00:30:08] Speaker 01:
Given that this is a motion to dismiss, we have to accept the pleadings in the light most favorable to him, right?

[00:30:14] Speaker 01:
Yes, Your Honor.

[00:30:15] Speaker 01:
And his allegation of pretext is enough at this stage.

[00:30:20] Speaker 01:
So we're back to the core issue that you just stated, correct?

[00:30:23] Speaker 03:
Again, obviously, we don't agree that it's a pretext.

[00:30:25] Speaker 01:
I know you don't.

[00:30:26] Speaker 01:
We haven't disputed that for pleading purposes.

[00:30:27] Speaker 01:
I totally get it.

[00:30:28] Speaker 01:
But at this stage, right?

[00:30:29] Speaker 01:
OK.

[00:30:39] Speaker 05:
Did you have any other questions?

[00:30:42] Speaker 05:
Yeah.

[00:30:43] Speaker 05:
Are you assuming a prayer cannot be given by an atheist?

[00:30:51] Speaker 03:
I don't think a prayer could sincerely be given by an atheist.

[00:30:54] Speaker 03:
By definition, Plaintiff concedes he's non-religious, and he's a non-believer, and he's unwilling to invoke a higher power, that is, a power higher than man, which is what religion is talking about.

[00:31:06] Speaker 03:
And so I don't think an atheist could sincerely give a religious prayer.

[00:31:11] Speaker 03:
Again, if someone who meets the criteria and claims to be willing to deliver a religious prayer, then- Well, a religious prayer is not what's in the House rule.

[00:31:20] Speaker 05:
Just as prayer.

[00:31:22] Speaker 03:
Well, and that has always been construed to be religious.

[00:31:24] Speaker 03:
And the Supreme Court has said, Justice Ginsburg in her dissent in Kurtz said, that the prayer practice in Congress is a religious one.

[00:31:35] Speaker 03:
It is religious prayer.

[00:31:36] Speaker 03:
It has always been exclusively religious.

[00:31:38] Speaker 03:
That is how the House construes its rule.

[00:31:40] Speaker 03:
That is how the House has always construed its rule.

[00:31:42] Speaker 03:
And that is why

[00:31:43] Speaker 03:
someone who seeks to deliver a secular invocation isn't entitled to do so, can't be permitted to do so, even if the chaplain were ordered to permit such a person to do so, the chaplain would have no ability to do so because that person, the chaplain's discretion is limited to praying.

[00:31:59] Speaker 03:
The chaplain himself has no authority to deliver a secular invocation from the House floor, as this Court said correctly in Kurtz.

[00:32:08] Speaker 01:
Could the chaplain allow a Buddhist to give a prayer?

[00:32:17] Speaker 03:
Yes, Your Honor.

[00:32:18] Speaker 03:
I don't know that a Buddhist has delivered the house prayer, but I know the Dalai Lama delivered the prayer at the Senate.

[00:32:27] Speaker 01:
But that's a non-theistic.

[00:32:30] Speaker 01:
Your point is your distinction that that's a non-theistic religion, whereas

[00:32:35] Speaker 03:
Mr. Barker says he's not religious is that Yes, although I mean, I'm not an expert in Buddhism and my understanding is that there are very various Approaches in the in the Buddhists in the large umbrella of Buddhist faith So for instance the Dalai Lama when he prayed delivered the opening prayer of the Senate prayed to the Buddha and all other gods What about secular?

[00:32:57] Speaker 01:
What about a secular humanist?

[00:33:00] Speaker 03:
Well, that's what the plaintiff in Kurtz was.

[00:33:03] Speaker 03:
And again.

[00:33:04] Speaker 01:
I mean, Torcasso lists that as a non-theistic religion.

[00:33:10] Speaker 03:
Well, yes.

[00:33:10] Speaker 03:
And as Justice Kennedy pointed out in his opinion in the County of Allegheny case, which the Supreme Court in town of Greece validated as correctly stating the law, those sorts of statements have to be

[00:33:20] Speaker 03:
taken with a grain of salt because they depend on context and the fact of the matter is there are... We don't take statements from the Supreme Court with a grain of salt here.

[00:33:29] Speaker 03:
Well the problem is there are statements to the contrary so you have to reconcile them and the fact of the matter is the fact that you can't discriminate against non-religionists in certain

[00:33:39] Speaker 03:
context where you're providing secular benefits does not mean that you can't discriminate against non-religionists when the benefit at issue is a religious one, that is, a religious activity, the delivery of a prayer to open the legislature.

[00:33:51] Speaker 01:
And say once more for me, if you would, once more why

[00:33:54] Speaker 01:
So I totally understand your argument.

[00:33:57] Speaker 01:
Because I get your argument about Marsh and that this is a religious program, but say once again why it is that opening it up to guest chaplains doesn't change the analysis.

[00:34:12] Speaker 01:
Is that it's not

[00:34:14] Speaker 01:
Well, you give me the answer.

[00:34:17] Speaker 01:
Just say again your clear statement of why that doesn't change the analysis, because that's Mr. Barker's argument, right?

[00:34:27] Speaker 03:
It doesn't change the analysis, at least for a couple reasons.

[00:34:30] Speaker 03:
Number one, as I said, the test that the town of Greece court articulated looks to the long-standing traditions of the House.

[00:34:38] Speaker 03:
The long-standing traditions of the House include

[00:34:41] Speaker 03:
inviting guest chaplains going at least as far back as the 1850s and probably much longer, although the records are unclear when you go back further than that.

[00:34:49] Speaker 03:
So that's reason number one.

[00:34:51] Speaker 03:
Reason number two is the Supreme Court and this Court have repeatedly emphasized that the prayer practice at the House that is constitutional, that is the model for determining the constitutionality of legislative prayer practices, is a religious practice.

[00:35:04] Speaker 03:
And therefore, by definition, the House is entitled to insist that those who are going to be given that opportunity will fulfill its requirements, namely deliver a religious invocation, that is, a prayer.

[00:35:16] Speaker 05:
And where is the House insisted on that?

[00:35:18] Speaker 05:
You're saying...

[00:35:21] Speaker 05:
It's not in the rules, so where are you saying they're insisting?

[00:35:24] Speaker 05:
It is in the rules, Your Honor, because that's what... The rule says prayer.

[00:35:27] Speaker 03:
Yes, a prayer, not an indication.

[00:35:29] Speaker 03:
It doesn't say religious prayer.

[00:35:31] Speaker 05:
You're assuming only religious believers can pray?

[00:35:34] Speaker 05:
I mean, we're getting into an area where I'm not sure where you're getting the support for your assertion.

[00:35:41] Speaker 05:
You're asserting it.

[00:35:43] Speaker 05:
And the thing that's bothering me is,

[00:35:46] Speaker 05:
Apart from Justice Alito, which is a very clear statement of his understanding of what the court was doing, you can read Marsh and Town of Reese and subsequent understandings of those cases to suggest that the court, whatever they said in hearkening back to history, they did not mean to run over established First Amendment principles, which is you can't discriminate against nonbelievers.

[00:36:15] Speaker 05:
There's one member of the court, and the court doesn't take issue with them in town of Greece, a fairly strong statement.

[00:36:21] Speaker 05:
And there are other statements and other opinions as well that are saying, wait, don't read that history in excess because we have some overarching First Amendment notions here.

[00:36:32] Speaker 05:
You can't discriminate against a person because they're a non-believer.

[00:36:37] Speaker 05:
And I don't, unless your position is non-believers can't pray, and I don't know where that's coming from.

[00:36:47] Speaker 05:
Well, so again, maybe we just have different life experiences.

[00:36:52] Speaker 05:
And I guess you could say, here's my philosophical understanding of it.

[00:36:57] Speaker 05:
And I would say, you know, that's not mine.

[00:36:58] Speaker 05:
But do you have some authority to support it?

[00:37:01] Speaker 05:
Because the rule doesn't say religious prayer.

[00:37:04] Speaker 03:
The question whether a non-believer could deliver a prayer is slightly different from the question in this case.

[00:37:09] Speaker 03:
The question in this case is whether a non-believer.

[00:37:13] Speaker 05:
Whether you can discriminate against non-believers

[00:37:17] Speaker 05:
in the guest chaplain program.

[00:37:19] Speaker 05:
That's the issue for us.

[00:37:20] Speaker 03:
No, Your Honor.

[00:37:20] Speaker 03:
The question is whether the House can constitutionally, again, if we get to the merits, whether the House can constitutionally exclude people who seek to be guest chaplains but admit that they will not deliver a religious invocation but instead desire to deliver a secular invocation.

[00:37:38] Speaker 05:
I think you're assuming things that we don't have here yet.

[00:37:40] Speaker 05:
The claim is, the only thing that's facially there is,

[00:37:44] Speaker 05:
enough to get it past the motion to dismiss, can you discriminate against a non-believer in the guest chaplain program?

[00:37:54] Speaker 05:
Now, the additional factors that may come out that tip the scales one way or another would come out when you get to the merits.

[00:38:01] Speaker 05:
But that's all we have here.

[00:38:03] Speaker 05:
And I hear you saying, I think, that absolutely, and I don't think the House has done it.

[00:38:10] Speaker 05:
I think the chaplain has done it, which is yet another question.

[00:38:14] Speaker 05:
You're saying absolutely the House can have a rule based on Marsh and Tana Greece that says we can discriminate in a guest chaplain program against non-believers, period.

[00:38:26] Speaker 05:
That's the end of this case.

[00:38:27] Speaker 05:
That's what I'm hearing you say.

[00:38:28] Speaker 05:
And I'm like, wow, I'm not sure I'm getting that from the case law.

[00:38:32] Speaker 03:
What I'm saying, Your Honor, and what the House is saying and has authorized me to say, I'm standing here as General Counsel of the House authorized by the Bipartisan Legal Advisory Group, which speaks for the House in litigation matters and states the position of the House in litigation matters.

[00:38:45] Speaker 03:
And the position of the House is, as explained in our briefs below and in this Court,

[00:38:49] Speaker 03:
that persons who desire to deliver a secular invocation in lieu of a prayer as the House interprets its prayer rule and has consistently applied it for 225 years are not entitled to do so because they are not qualified, they don't meet the requirements for the very limited exception to the normal rule of the House, which is that only members of the House, in accordance with House rules, can address the House during a legislative session.

[00:39:14] Speaker 05:
Does his complaint

[00:39:16] Speaker 05:
acknowledge the point you're trying to make now that I want to give a secular invocation in lieu of a prayer.

[00:39:23] Speaker 05:
Your honor, that just I don't remember.

[00:39:25] Speaker 03:
Yes, your honor.

[00:39:26] Speaker 03:
The complaint attaches the request letter that was sent by Representative Pocan on behalf of plaintiff to the chaplain, and it expressly says that he intends to deliver a secular invocation in lieu of a prayer.

[00:39:41] Speaker 05:
That's the critical thing for me, because you and I may have a different understanding of prayer.

[00:39:46] Speaker 03:
Your Honor, the House is entitled to interpret its own rules.

[00:39:50] Speaker 05:
We don't have anything from the House, at least not here.

[00:39:54] Speaker 05:
I'm looking at what the House has said.

[00:39:57] Speaker 05:
It doesn't answer the question about prayer.

[00:40:01] Speaker 05:
that I'm raising with you.

[00:40:02] Speaker 05:
And I understand that you may have a different view than I tend to have.

[00:40:06] Speaker 05:
And I'm not saying that my view is dispositive.

[00:40:09] Speaker 05:
I'm saying that your view is not one that's uniformly held by everyone in this world.

[00:40:14] Speaker 03:
This is exhibit A to the complaint.

[00:40:16] Speaker 03:
Here's what the request letter said, that plaintiff, quote, intends for his invocation to be secular, close quote.

[00:40:25] Speaker 03:
And in terms of the House's position, the Supreme Court.

[00:40:30] Speaker 05:
Secular, as opposed to what?

[00:40:31] Speaker 03:
Well, secular by definition is opposed to religious.

[00:40:35] Speaker 03:
The Supreme Court has said that the House's prayer tradition is religious.

[00:40:40] Speaker 03:
Justice Ginsburg in her opinion in Kurtz said that the Congressional prayer practice is exclusively religious.

[00:40:47] Speaker 05:
So it's secular not as opposed to prayer.

[00:40:51] Speaker 03:
Well, a secular invocation is, by definition, not a religious invocation.

[00:40:55] Speaker 03:
And therefore, it is not a prayer as the House interprets it.

[00:40:57] Speaker 03:
And this Court's decision in Rostenkowski precludes this Court from taking issue with that interpretation.

[00:41:04] Speaker 03:
Because unless the Court could say, which it could not plausibly say, that prayer unambiguously, that the House's prayer rule unambiguously requires the House to permit secular invocations, contrary to 225 years of history,

[00:41:18] Speaker 03:
then at worst, it is ambiguous.

[00:41:22] Speaker 03:
And under Rossinkowski, this court cannot second-guess the House's entry potential.

[00:41:25] Speaker 05:
Let me play this out a little bit more, because Conroy's letter, and it's the reason I'm probing this, because Conroy, I think, was being advised.

[00:41:36] Speaker 05:
He said, leaving aside questions of whether the secular invocation that your February 18 letter indicated Mr. Barck proposed to deliver would constitute a prayer.

[00:41:48] Speaker 05:
That's what he says, and that's exactly the point I'm raising.

[00:41:53] Speaker 05:
And you're asserting with great force as if it's clear beyond a doubt.

[00:41:57] Speaker 05:
If it's clear beyond a doubt, I wouldn't have expected Conroy to respond the way he did.

[00:42:01] Speaker 05:
Conroy says, I don't want to touch that, probably for the reasons that I'm feeling.

[00:42:05] Speaker 05:
It's not as clear as you're saying.

[00:42:07] Speaker 05:
And if it was so clear on the House rules, Conroy would not have responded the way he did.

[00:42:14] Speaker 05:
He would have said, this is all very clear.

[00:42:17] Speaker 05:
Prayer only has one meaning, and you're trying to tread.

[00:42:21] Speaker 05:
You say, no, I don't want to get into that.

[00:42:23] Speaker 05:
Secular invocation is or is not a prayer.

[00:42:25] Speaker 03:
Well, what the chaplain's letter says is that he has these threshold requirements that he applies, one of which is the ordination requirement.

[00:42:32] Speaker 03:
Now, again, this is going beyond the complaint.

[00:42:35] Speaker 03:
The reality is the ordination requirement is applied in a flexible manner to avoid excluding religions that don't have a traditional ordination practice but have some other mechanism for identifying

[00:42:44] Speaker 03:
religious leaders clergy of whatever faith they may happen to practice which is what the house has always required for the for the persons who will be delivering prayers but but since the plaintiff alleges that this is pretextual and it gets into factual matters we have for purposes of briefing the case address the underlying question but certainly if the case were to recede which it clearly should not there would be

[00:43:08] Speaker 03:
opportunities to get into the factual matters there as well.

[00:43:10] Speaker 03:
So the chaplain, the fact that the chaplain relied on his threshold requirements for implementing the prayer requirement does not mean that the chaplain somehow doesn't agree with the position that we've stated in this brief on his behalf as authorized by the House of Representatives, which is that the congressional prayer practice is exclusively religious and a person who refuses to deliver a religious invocation is not qualified for the opportunity.

[00:43:33] Speaker 01:
Right, so we're back to where you and I were 10 minutes ago, which is that the question before us in his complaint is, has he stated a claim that the House's rejection of him because a secular invocation is not a prayer?

[00:43:58] Speaker 01:
That's the question, right?

[00:44:03] Speaker 01:
You agree with that?

[00:44:04] Speaker 01:
That is, you're saying, no, that's not unconstitutional, correct?

[00:44:09] Speaker 01:
It's not unconstitutional for the House to take the position that a non, that a secular invocation is not a prayer?

[00:44:17] Speaker 03:
Within the meaning of the House practice and tradition?

[00:44:19] Speaker 03:
Yes.

[00:44:19] Speaker 03:
Yes, that's correct.

[00:44:20] Speaker 01:
OK.

[00:44:21] Speaker 01:
All right.

[00:44:23] Speaker 01:
So setting aside what the chaplain said in the letter, namely that he wasn't addressing that question,

[00:44:34] Speaker 01:
We are to take your brief stating that it is the position of the house.

[00:44:40] Speaker 01:
that a secular invocation is not a prayer, and that's constitutional, right?

[00:44:51] Speaker 03:
That's correct.

[00:44:52] Speaker 01:
And just to repeat, his arguments, you're not challenging his claims that he's arguing that the reliance on the ordination rule was pretext.

[00:45:07] Speaker 01:
So we're back to the core issue, right?

[00:45:09] Speaker 03:
Yes, sir.

[00:45:11] Speaker 01:
All right.

[00:45:11] Speaker 01:
Okay.

[00:45:13] Speaker 01:
Okay.

[00:45:13] Speaker 01:
Great.

[00:45:13] Speaker 05:
And in answer to Judge Taylor, I know we'd be maybe going around a little bit again, but I want to make sure I understand your critical premises of prayer can only be given by a religious person.

[00:45:28] Speaker 03:
No, Your Honor.

[00:45:29] Speaker 03:
The critical premise is that a prayer is what's required, and a person who refuses to deliver a prayer, as the House has always interpreted that term, and as the Supreme Court has said that term is to be interpreted, that is, the prayer practice, what the Supreme Court said in the time of Greece, the prayer practice upheld in Marsh was, quote, religious in nature, close quote.

[00:45:49] Speaker 03:
That is the nature of the practice we're talking about.

[00:45:51] Speaker 03:
Legislative prayer is constitutional.

[00:45:53] Speaker 03:
Legislative prayer, as upheld in Marsh, is religious in nature.

[00:45:57] Speaker 03:
And legislative bodies are entitled to continue practicing that practice, which is religious in nature.

[00:46:02] Speaker 03:
So therefore, by definition, a legislative body can exclude people who are not willing to deliver a religious invocation, because that's not the practice that they are entitled to engage in.

[00:46:10] Speaker 05:
The problem for you is that, as strong as Marsh is, it doesn't really address the question that we're talking about, the way you're now making your argument.

[00:46:18] Speaker 05:
That is, can you exclude nonbelievers?

[00:46:22] Speaker 05:
Unless, again, your definition of prayer, and you keep dancing around this, and I keep pushing you because I'm really trying to understand what you're saying.

[00:46:32] Speaker 05:
Can a prayer be given by someone who's not religious?

[00:46:36] Speaker 05:
And maybe we have different views on it, but you don't want to, you know, and I'm not sure what you're saying.

[00:46:40] Speaker 05:
Marsh just doesn't answer the question about nonbelievers being excluded.

[00:46:46] Speaker 02:
If I understand your point, it's that perhaps anyone could give a prayer, a religious invocation, but the plaintiff here has said he doesn't want to do that.

[00:46:59] Speaker 02:
That is certainly correct.

[00:47:01] Speaker 02:
Does not propose to do that.

[00:47:03] Speaker 03:
He might be able to.

[00:47:05] Speaker 02:
Perhaps anyone could.

[00:47:06] Speaker 02:
That's not before us.

[00:47:09] Speaker 02:
He doesn't propose to do that.

[00:47:10] Speaker 01:
So if you're right.

[00:47:11] Speaker 01:
But he says he's not religious, but he will appeal to a higher being, just not a god.

[00:47:17] Speaker 05:
What do you think he's saying he's not proposing to do?

[00:47:20] Speaker 05:
I'm missing it.

[00:47:20] Speaker 05:
What he is proposing... Again, so I understand your argument.

[00:47:24] Speaker 05:
What is he not proposing to do?

[00:47:25] Speaker 03:
The proposal was, on the face of the complaint and the exhibits, to deliver a secular invocation.

[00:47:32] Speaker 03:
A secular invocation is not a religious invocation, and the House's tradition, as construed by the Supreme Court, requires a religious invocation, a prayer, as construed by the House.

[00:47:44] Speaker 05:
And therefore he is not willing... You're conflating.

[00:47:47] Speaker 05:
All right, we're going around.

[00:47:49] Speaker 01:
And what about his argument that the Salomon Clause prohibits discrimination against non-religions?

[00:47:57] Speaker 03:
Well, that is not a blanket requirement.

[00:47:59] Speaker 01:
That doesn't apply in the Marsh situation.

[00:48:01] Speaker 01:
Is that your point?

[00:48:02] Speaker 03:
Yes, Your Honor.

[00:48:03] Speaker 03:
It doesn't apply in the Marsh situation and in other situations.

[00:48:05] Speaker 03:
There are all sorts of, I mean, as Justice Kennedy has pointed out,

[00:48:10] Speaker 03:
There are all sorts of situations in which government accommodates or benefits religion in some fashion that obviously accommodates religion and not non-religion.

[00:48:19] Speaker 03:
So it's simply not true that as a categorical matter, government can never distinguish between religion and non-religion.

[00:48:26] Speaker 03:
And this is one of the contexts in which it clearly can, because the very nature of the activity that the government is authorized to engage in, legislative prayer, is one that necessarily

[00:48:36] Speaker 03:
discriminates, if you will, between religion and non-religion because it's a religious activity.

[00:48:42] Speaker 01:
Thank you.

[00:48:43] Speaker 01:
You can take three minutes.

[00:48:50] Speaker 04:
Thank you, Your Honor.

[00:48:53] Speaker 04:
I think the purposes of legislative prayer would be useful here.

[00:48:57] Speaker 04:
To put legislators in a solemn or deliberate frame of mind, to lend gravity to public business, to remind lawmakers to transcend petty differences in pursuit of a higher purpose, to set their mind to a higher purpose and thereby ease the task of governing, and to express a common aspiration to adjust in peaceful society.

[00:49:14] Speaker 04:
That's what the courts have said.

[00:49:16] Speaker 04:
Nothing in those purposes requires the prayer be directed to a god or that the prayer be religious.

[00:49:24] Speaker 04:
And just in closing, I would ask that Your Honors read Barker's proposed prayer on page 64 of the appendix.

[00:49:31] Speaker 04:
Barker wished to invoke the same higher power that's recognized in our Constitution, we the people.

[00:49:37] Speaker 04:
He wanted to invoke the spirit of some of our most influential founders, Thomas Paine, Thomas Jefferson, James Madison, Elizabeth Cady Stanton, and Frederick Douglass.

[00:49:46] Speaker 04:
I think it would be bizarre if a tradition that dates to the founding was used to exclude an invocation of the very founders who started that tradition.

[00:49:56] Speaker 05:
Are you saying that his proposed secular invocation was a prayer?

[00:50:01] Speaker 04:
Yes.

[00:50:03] Speaker 04:
As I stated at the beginning, Barker wishes to give a prayer.

[00:50:07] Speaker 04:
He was invited to give a prayer.

[00:50:09] Speaker 04:
And we chose the phrase invocation just and stuck with it as uniform.

[00:50:15] Speaker 04:
There's no difference.

[00:50:16] Speaker 01:
A non-religious, in your view, a non-religious person can give a prayer.

[00:50:21] Speaker 04:
Yes, Your Honor.

[00:50:21] Speaker 01:
He's praying to a higher authority.

[00:50:23] Speaker 04:
He is, Your Honor.

[00:50:24] Speaker 04:
It's just not a god.

[00:50:26] Speaker 02:
What do you say to Council for the House reference to Rostinkowski and more particularly to the deference we owe House rules?

[00:50:42] Speaker 02:
Pardon me, House interpretations of its own rules.

[00:50:44] Speaker 04:
This is the chaplain and I think

[00:50:48] Speaker 02:
Well, the chaplain is the correspondent and the speaker in the record.

[00:50:54] Speaker 02:
We now have a brief taking a position approved by the leadership of the House.

[00:51:00] Speaker 04:
Correct, Your Honor.

[00:51:00] Speaker 04:
But the goalposts have moved throughout.

[00:51:02] Speaker 04:
The chaplain first sat on Barker's request for more than 10 months.

[00:51:07] Speaker 04:
Then he said that he believed it was not genuine, even though he had a letter from two attorneys.

[00:51:11] Speaker 04:
He, at that point, wished to see Barker's draft invocation, and then he has these, what we allege are pretextual rules that he applies disparately.

[00:51:23] Speaker 02:
Now the House leadership comes in, so none of that matters because of prayer, what he's proposing is not a prayer.

[00:51:30] Speaker 04:
Yeah, I mean the House rule is

[00:51:33] Speaker 04:
The only real issue here is does this fit under the house rule of prayer?

[00:51:38] Speaker 04:
And we think it absolutely does.

[00:51:40] Speaker 04:
We've pointed to other prayers.

[00:51:42] Speaker 04:
Not only other prayers, but one individual, Andrew Walton, gave that prayer on May 5th to the spirit that unites all people.

[00:51:49] Speaker 04:
And then the chaplain approved him to give another prayer four months later where no higher power was invoked at all.

[00:51:55] Speaker 04:
He just said, we give thanks.

[00:51:57] Speaker 04:
And so it's not just that the chaplain is allowing individuals to give non-theistic prayers.

[00:52:02] Speaker 04:
He's then re-approving them to do so again.

[00:52:05] Speaker 04:
He just excluded Barker because Barker's an atheist.

[00:52:10] Speaker 01:
Do you think, I have a question about, given Marsh, what the authority of this lower court is.

[00:52:19] Speaker 01:
Okay, so

[00:52:21] Speaker 01:
Marsh is, it's very clear, as everybody agrees, Marsh understood that the prayer practice in the house was a religious practice, right?

[00:52:30] Speaker 01:
I mean, that's what it was.

[00:52:34] Speaker 01:
And given that, and given that the court was so clear that it was not applying a limit at all, is this court free to go beyond that just because it's opened it up to guests

[00:52:51] Speaker 01:
chaplains again your honor how do we do that we're completely bound by marsh it's told us that lemon doesn't apply

[00:52:59] Speaker 01:
It's told us it's a religious event.

[00:53:02] Speaker 01:
It's a religious practice.

[00:53:05] Speaker 01:
So how do we go beyond that?

[00:53:09] Speaker 04:
Because the town of Greece has laid out that non-discrimination principle.

[00:53:12] Speaker 04:
And both Marsh and Greece talk about having an impermissible motive underlying the legislative prayer practice.

[00:53:19] Speaker 01:
And the impermissible motive here is excluding

[00:53:25] Speaker 04:
Correct.

[00:53:25] Speaker 01:
Excluding non-religious persons.

[00:53:28] Speaker 04:
From delivering the prayer.

[00:53:29] Speaker 04:
Yes, Your Honor.

[00:53:31] Speaker 01:
Well, so then go back to my question that I asked you earlier.

[00:53:35] Speaker 01:
Suppose Mr. Barger applied to be the chaplain.

[00:53:39] Speaker 01:
I thought you said that would, it sounds to me like you say they couldn't deny it to him because he's an atheist.

[00:53:45] Speaker 04:
I think motive matters, Your Honor.

[00:53:46] Speaker 04:
And if the rule were a categorical exclusion of a certain class or beliefs, if the rule were no Jews need apply, then yes, I think that would be problematic.

[00:53:58] Speaker 01:
Yeah, but that's because Jews are religious.

[00:54:02] Speaker 01:
He says he's not religious.

[00:54:05] Speaker 01:
You can't, I thought we established when you were standing up before, this is a question about not discrimination between religions, but discrimination against non-religious people, against atheists, correct?

[00:54:18] Speaker 01:
That's what this case is about.

[00:54:19] Speaker 04:
Against Mr. Barker, yes, Your Honor.

[00:54:20] Speaker 04:
Yeah, so.

[00:54:23] Speaker 04:
As I said, I think the permanent hiring of a chaplain presents a different case, and I think.

[00:54:30] Speaker 04:
It does, I agree.

[00:54:31] Speaker 04:
Once there's this guest chaplain program, that the... And what about counsel's argument?

[00:54:38] Speaker 01:
Well, look, this guest chaplain program goes all the way back to the 19th century.

[00:54:42] Speaker 01:
It's established.

[00:54:43] Speaker 01:
That's the question I asked you earlier about town of Greece.

[00:54:46] Speaker 01:
It says, you know, when looking at whether a particular practice is constitutional or not, we look at tradition and history, and he said this thing's gone back at least to the middle of the 19th century.

[00:54:57] Speaker 04:
And it also says that there must be a policy, the town must maintain a policy of non-discrimination, that the policy can't reflect an aversion or bias.

[00:55:06] Speaker 04:
And we absolutely have that here.

[00:55:08] Speaker 04:
And in addition, we have these other prayers that are nearly identical to the prayer that Mr. Barker wishes to give.

[00:55:16] Speaker 04:
It's just a question of who he is, an atheist.

[00:55:18] Speaker 04:
And that's why he was denied.

[00:55:21] Speaker 01:
So in other words, your point is they would have allowed this prayer to be offered by a religious person, just not an atheist.

[00:55:29] Speaker 04:
I think that is true, Your Honor.

[00:55:31] Speaker 01:
OK.

[00:55:32] Speaker 01:
Anything else, Tom?

[00:55:35] Speaker 01:
Thank you both.

[00:55:36] Speaker 01:
Thank you.

[00:55:36] Speaker 01:
Case is submitted.

[00:55:39] Speaker 00:
Stand, please.