Daniel Barker v. Patrick Conroy

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2018 Decided April 19, 2019

No. 17-5278

DANIEL BARKER,

APPELLANT

v.

PATRICK CONROY, CHAPLAIN, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-00850)

Andrew Seidel argued the cause for appellant. On the

briefs was Richard L. Bolton. Anita T. Gallucci entered an

appearance.

Alison Gill was on the brief for amici curiae The Center

for Inquiry and American Atheists in support of appellant.

Gregory M. Lipper was on the brief for amici curiae

Representatives Mark Pocan, Jared Huffman, and Jamie

Raskin in support of appellant and reversal.

Richard B. Katskee, Alex J. Luchenitser, and Jeffrey I.

Pasek were on the brief for amici curiae Americans United for

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Separation of Church and State, et al. supporting appellant and

reversal.

Monica L. Miller was on the brief for amicus curiae The

American Humanist Association in support of appellant.

Thomas G. Hungar, General Counsel, U.S. House of

Representatives, argued the cause and filed the brief for

appellees. Matthew M. Collette and Lowell V. Sturgill Jr.,

Attorneys, U.S. Department of Justice, entered appearances.

Mike Hunter, Attorney General, Office of the Attorney

General for the State of Oklahoma, Mithun Mansinghani,

Solicitor General, Steve Marshall, Attorney General, Office of

the Attorney General for the State of Alabama, Leslie Rutledge,

Attorney General, Office of the Attorney General for the State

of Arkansas, Mark Brnovich, Attorney General, Office of the

Attorney General for the State of Arizona, Cynthia H. Coffman,

Attorney General, Office of the Attorney General for the State

of Colorado, Christopher M. Carr, Attorney General, Office of

the Attorney General for the State of Georgia, Doug Peterson,

Attorney General, Office of the Attorney General for the State

of Nebraska, Michael DeWine, Attorney General, Office of the

Attorney General for the State of Ohio, Alan Wilson, Attorney

General, Office of the Attorney General for the State of South

Carolina, Ken Paxton, Attorney General, Office of the

Attorney General for the State of Texas, Sean D. Reyes,

Attorney General, Office of the Attorney General for the State

of Utah, Patrick Morrisey, Attorney General, Office of the

Attorney General for the State of West Virginia, Brad Schimel,

Attorney General, Office of the Attorney General for the State

of Wisconsin, Lawrence G. Wasden, Attorney General, Office

of the Attorney General for the State of Idaho, Curtis T. Hill,

Jr., Attorney General, Office of the Attorney General for the

State of Indiana, Derek Schmidt, Attorney General, Office of

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the Attorney General for the State of Kansas, Jeff Landry,

Attorney General, Office of the Attorney General for the State

of Louisiana, and Tim Fox, Attorney General, Office of the

Attorney General for the State of Montana, were on the brief

for amici curiae The States of Oklahoma, et al. in support of

appellees.

Eric S. Baxter was on the brief for amici curiae Aleph

Institute, et al. in support of defendants-appellees and

affirmance.

Jonathan A. Scruggs, Kristen K. Waggoner, David A.

Cortman, and Nathaniel P. Bruno were on the brief for amici

curiae 48 Members of Congress in support of appellees and

affirmance.

Steffen N. Johnson, John W.H. Harding, Paul N. Harold,

and Stephanie A. Maloney were on the brief for amici curiae

Jewish Coalition for Religious Liberty, et al. supporting

appellees and affirmance.

Before: TATEL, Circuit Judge, and EDWARDS and

GINSBURG, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Since 1789, the House of

Representatives has begun each legislative day with a prayer, a

practice the Supreme Court has found compatible with the

Establishment Clause. See generally Marsh v. Chambers, 463

U.S. 783 (1983). Although a House-appointed chaplain has

traditionally delivered the opening prayer, at some time in the

past the House began allowing members to nominate other

individuals to give a prayer as “guest chaplain.” This case arose

when a member of the House asked the Chaplain, Father

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Patrick J. Conroy, to invite Daniel Barker—a former Christian

minister turned atheist—to serve as guest chaplain and deliver

a secular invocation. Conroy denied the request, and Barker

sued, alleging that Conroy unconstitutionally excluded him

from the guest chaplain program because he is an atheist. The

district court dismissed Barker’s Establishment Clause claim

for lack of Article III standing and for failure to state a claim.

Although we find that Barker has standing to challenge his

exclusion from the program, we affirm the district court’s

dismissal because he has failed to state a claim upon which

relief can be granted.

I.

Because this case comes to us on appeal from the district

court’s grant of a motion to dismiss, “we must accept as true

all material allegations of the complaint, drawing all reasonable

inferences from those allegations in” Barker’s favor. LaRoque

v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011) (internal

quotation marks omitted). Viewed through that lens, the

complaint relates the following.

House of Representatives Rule II, clause 5 provides that

“[t]he Chaplain shall offer a prayer at the commencement of

each day’s sitting of the House.” H.R. Doc. No. 114-192, Rule

II, cl. 5 (2017). The House also allows guest chaplains to

deliver the opening prayer, although the chamber’s rules make

no provision for that practice. In the last fifteen years, guest

chaplains have delivered approximately forty percent of all

invocations. The House’s Office of the Chaplain approves

guest chaplains and coordinates their visits. Between 2000 and

2015, although the vast majority of individuals allowed to

deliver opening prayers were Christian, the House also

welcomed guest chaplains of the Muslim, Jewish, and Hindu

faiths. The House has never had an openly atheist or agnostic

guest chaplain.

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In 2014, Daniel Barker sought to be the first self-professed

atheist to serve as guest chaplain. Barker is co-president of the

Freedom From Religion Foundation, “a non-profit that

promotes non-belief and works to keep state and church

separate.” Complaint for Declaratory and Injunctive Relief

(“Compl.”) ¶ 13. Ordained to the Christian ministry in the mid-

1970s, Barker spent nearly twenty years as a pastor and

missionary before he “‘lost faith in faith’ and became an

atheist.” Id. ¶ 16. Although “nonreligious,” id. ¶ 4, Barker

“views the opportunity to give an invocation [before the

House] . . . as a great honor and an opportunity to participate in

solemnizing the venerable work of the U.S. government,” id.

¶ 67.

When the Freedom From Religion Foundation first

inquired about the possibility of Barker delivering an

invocation, the House Chaplain’s Office explained that,

although the program has no written rules, guest chaplains are

permitted to give invocations only if they meet three

requirements: “(1) they are sponsored by a member of the

House, (2) they are ordained, and (3) they do not directly

address House members and instead address a ‘higher power.’”

Id. ¶ 35. Barker easily satisfied the first two requirements: his

congressman, Representative Mark Pocan, agreed to sponsor

him, and Barker provided the Chaplain’s Office with his

ordination certificate. Demonstrating that he could also satisfy

the third requirement, Barker sent the Chaplain’s Office a copy

of his draft secular invocation, which invoked “the ‘higher

power’ of human wisdom,” but no God or other religious

higher power. Compl., Ex. B.

Four months passed without word from the Chaplain’s

Office. Asked about the delay, a Chaplain’s Office employee

responded that the Office “did not think [Barker’s] requests

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were ‘genuine.’” Id. ¶ 46. Then, in December 2015, the

Chaplain’s Office formally rejected Barker’s application

because he “was ordained in a denomination in which he no

longer practices.” Id. ¶ 111 (internal quotation marks omitted).

Conroy repeated this explanation in a January 2016 letter to

Representative Pocan, which he began by “[l]eaving aside” two

questions: “(i) whether the ‘secular invocation’ that . . . Mr.

Barker proposed to deliver would constitute a ‘prayer’ within

the meaning of the House Rules, and (ii) if not, whether

[Conroy] could permit Mr. Barker to deliver such an invocation

consistent with [his] responsibilities under the House Rules.”

Compl., Ex. C at 1. Conroy went on to explain that he was

“unable to accede to [Pocan’s] recommendation for a more

basic, threshold reason”: as a “‘Minister Turned Atheist’” and

“author of several books that concern his parting with his

religious beliefs,” Barker did not meet the “long-standing

requirement” that all guest chaplains “be ordained by a

recognized body in the faith in which [they] practice[].” Id.

at 1–2.

Barker sued Conroy and several others, including the

House of Representatives and then-Speaker Paul Ryan,

alleging violations of the First Amendment’s Establishment

Clause, among other claims. In his complaint, he presented

several different, albeit related, theories as to how Conroy’s

actions violated the Establishment Clause. Barker first alleged

that Conroy’s unwritten requirements that guest chaplains be

ordained and address a higher power create a preference for

religion over nonreligion and “discriminate against those

whose religious beliefs do not include a belief in a supernatural

higher power [and] those who practice a religion that does not

have ordinations.” Compl. ¶ 160. Next, Barker contended that

Conroy unevenly enforces those requirements “in a manner

that excludes atheists and other minority religions.” Id. ¶ 161.

Specifically, Barker asserted that the Chaplain’s Office “has

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not enforced the same requirements against other, religious

applicants” for the guest chaplain program. Id. ¶ 119. Finally,

Barker alleged that Conroy’s reasons for excluding him from

the program were pretextual and that Conroy actually denied

him the opportunity to serve as guest chaplain simply because

he is an atheist. Barker sought broad declaratory and injunctive

relief as well as a writ of mandamus requiring Conroy to allow

him to deliver an invocation “as soon as possible.” Id. at 28.

Conroy moved to dismiss on the grounds that Barker

lacked Article III standing and that the case was nonjusticiable

under the political question doctrine and the Speech or Debate

Clause of the U.S. Constitution. On the merits, Conroy argued

that Barker failed to state a claim for which relief could be

granted under the Establishment Clause.

The district court granted the motion to dismiss. Although

it found Barker’s suit barred by neither the political question

doctrine nor the Speech or Debate Clause, it concluded that

Barker lacked Article III standing to pursue his Establishment

Clause claim. Specifically, the district court determined that

Barker failed to establish that Conroy caused his claimed

injuries because Barker never alleged that the House Chaplain

had authority to permit him to deliver a secular invocation

during the time reserved for prayer. In the alternative, the

district court concluded that Barker failed to state an

Establishment Clause claim because his suit was effectively “a

challenge to the ability of Congress to open with a prayer.”

Barker v. Conroy, 282 F. Supp. 3d 346, 364 (D.D.C. 2017).

Such a challenge, the court explained, was foreclosed by the

Supreme Court’s endorsement of legislative prayer in both

Marsh v. Chambers and Town of Greece v. Galloway, 572 U.S.

565, 570 (2014) (holding that the practice of opening town

board meetings with a sectarian prayer that was often Christian

did not violate the Establishment Clause).

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On appeal, Barker pursues only his Establishment Clause

claim against Conroy in his official capacity. Our review is de

novo. See Washington Alliance of Technology Workers v. U.S.

Department of Homeland Security, 892 F.3d 332, 339 (D.C.

Cir. 2018) (“We review the district court’s dismissal of a

complaint for lack of standing or for failure to state a claim de

novo.”).

Before we proceed to that review, however, a final note is

in order. The record regarding the undisputed facts in this case

is somewhat unusual given that, since Barker filed his

complaint, Conroy has clarified that the House interprets its

rules to require a religious prayer. As explained above, when

Conroy rejected Barker’s application to serve as guest

chaplain, he expressly “le[ft] aside the question[] of . . .

whether the ‘secular invocation’ that . . . Mr. Barker proposed

to deliver would constitute a ‘prayer’ within the meaning of the

House Rules.” Compl., Ex. C at 1. Instead, Conroy told

Representative Pocan, Barker was disqualified for the “more

basic, threshold reason” that he is not “ordained by a

recognized body in the faith in which he[] practices.” Id. at 1–

2.

But during the course of this litigation, Conroy has taken

a different position: that Barker could not serve as guest

chaplain because he sought to give a secular prayer. More

important, the House of Representatives itself, through House

counsel, has now ratified that position. Both in briefing and at

oral argument, House counsel represented to this court that the

House interprets its rules to require “a religious invocation.”

Appellees’ Br. 39. “What I’m saying,” counsel explained at

oral argument, “and what the House is saying, and has

authorized me to say . . . is, as explained in our briefs below

and in this court, that persons who desire to deliver a secular

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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.” Oral Arg. Rec. 38:32–39:01. Barker, who

seeks to deliver a nonreligious prayer, counters that legislative

prayer need not be religious, but he nowhere disputes House

counsel’s representation that the House interprets its rules to

require a religious prayer. See Reply Br. 5 (“Father Conroy . . .

argue[s] that legislative invocations necessarily must be

religious in substance and purpose.”). As we shall explain

below, although House counsel’s representation is irrelevant to

Barker’s Article III standing, it is critical to the merits of this

case.

II.

As “the party invoking federal jurisdiction,” Barker “bears

the burden of establishing” Article III standing. Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1547 (2016). To satisfy that burden,

Barker must allege facts demonstrating that he “(1) suffered an

injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed

by a favorable judicial decision.” Id. At the pleading stage—

the situation here—the plaintiff is “required only to ‘state a

plausible claim’ that each of the standing elements” existed at

the time the complaint was filed. Attias v. Carefirst, Inc., 865

F.3d 620, 625 (D.C. Cir. 2017) (quoting Food & Water Watch,

Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015)); see also

Wheaton College v. Sebelius, 703 F.3d 551, 552 (D.C. Cir.

2012) (“[S]tanding is assessed at the time of filing . . . .”). For

purposes of the standing inquiry, we assume Barker would

succeed on the merits of his claim. See Schnitzler v. United

States, 761 F.3d 33, 40 (D.C. Cir. 2014) (“[I]n reviewing the

standing question, the court must . . . assume that on the merits

the plaintiffs would be successful in their claims.” (internal

quotation marks omitted)).

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In concluding that Barker lacked Article III standing based

on a failure to plausibly allege causation, the district court

relied on this court’s decision in Kurtz v. Baker, which

addressed a challenge to the House and Senate Chaplains’

refusal to allow a secular humanist to deliver nonreligious

remarks as a “guest speaker” during the period reserved for

morning prayer. 829 F.2d 1133, 1134 (D.C. Cir. 1987). We

concluded that the plaintiff’s claimed exclusion injury—his

inability to address the House or Senate—was not fairly

traceable to the chaplains’ refusal to allow him to deliver

secular remarks during the time set aside for prayer “because

(1) there [was] no allegation that the chaplains had discretion

to grant [his] requests, and (2) such an allegation would in any

event [have been] untenable.” Id. at 1142.

This case is very different. In Kurtz, the plaintiff had no

intention of delivering a prayer, seeking instead to “address

[the House and Senate] ‘[o]n behalf of the Council for

Democratic and Secular Humanism.’” Id. at 1135 (second

alteration in original) (quoting Letter from Dr. Kurtz to Rev.

Halverson (Feb. 13, 1984); Letter from Dr. Kurtz to Rev. Ford

(Feb. 13, 1984)). Kurtz “‘request[ed] the opportunity to appear

as a guest speaker and to open a daily session . . . with a short

statement in which [he] would remind the [members of the

Senate and the House] of their moral responsibilities.’” Id.

(alterations in original) (quoting Letter from Dr. Kurtz to Rev.

Halverson; Letter from Dr. Kurtz to Rev. Ford). He “advised

both chaplains that he would not utter a prayer if invited.” Id.

By contrast, Barker has never said that he is unwilling to utter

a prayer, saying instead that the invocation he wishes to give is

“secular.” See, e.g., Compl., Ex. A (“[Barker] intends for his

invocation to be secular . . . .”); see also Invocation, Merriam-

Webster’s Collegiate Dictionary (10th ed. 1997) (defining

“invocation” as “a prayer of entreaty (as at the beginning of a

service of worship)”); Oral Arg. Rec. 0:58–1:12 (Barker’s

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counsel: “Dan Barker was invited by his representative to do

something hundreds of other individuals have done: deliver a

prayer at the U.S. House of Representatives. In his prayer,

Barker wanted to invoke unifying and solemn themes . . . .”

(emphases added)).

Although, historically, prayers delivered in the House have

been religious, the rules themselves refer only to “prayer”; they

make no distinction between religious and secular prayer. See

H.R. Doc. No. 114-192, Rule II, cl. 5 (“The Chaplain shall offer

a prayer at the commencement of each day’s sitting of the

House.”); id. Rule XIV, cl. 1 (listing “[p]rayer by the Chaplain”

as the first order of business). And, as a matter of ordinary

usage, it is at least plausible that the word “prayer”

encompasses a secular invocation. See Prayer, Webster’s Third

New International Dictionary (2002) (defining “prayers” as

“earnest good wishes”); Prayer, Thomas Dyche & William

Pardon, A New General English Dictionary: Peculiarly

Calculated for the Use and Improvement of Such as Are

Unacquainted with the Learned Languages (14th ed. 1771)

(defining “prayer” as “an earnest request, desire, or petition put

up to God, or some other person or persons” (emphasis

added)). To be sure, through House counsel, Conroy now

insists that a “prayer,” as contemplated by the House rules,

must be religious. But Conroy offered that interpretation only

after Barker filed his complaint and, as noted above, standing

is assessed at the time of filing. See supra at 9. Indeed, when

Conroy rejected Barker’s application, he expressly “le[ft] aside

the question[] of . . . whether the ‘secular invocation’ that . . .

Mr. Barker proposed to deliver would constitute a ‘prayer’

within the meaning of the House Rules.” Compl., Ex. C at 1.

Instead, he explained, he was unable to allow Barker to serve

as guest chaplain “for a more basic, threshold reason.” Id.

Moreover, in contrast to Kurtz, where “there [was] no

allegation that the chaplains had discretion to grant [the

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plaintiff’s] requests,” 829 F.2d at 1142, Barker’s complaint

contains factual allegations that Conroy, apparently without

objection from members of the House, has allowed certain

guest chaplains to deliver prayers that did not invoke a divine

power. See Compl. ¶¶ 146–151. Accepting Barker’s well-

pleaded factual allegations as true and drawing “all reasonable

inferences” in Barker’s favor, LaRoque, 650 F.3d at 785, we

therefore conclude it was at least plausible at the time Barker

filed his complaint that Conroy had discretion and authority

under the House rules to grant his request to deliver a secular

invocation.

Barker easily satisfies the other requirements for Article

III standing. His inability to deliver a secular prayer before the

House as a result of his exclusion from the guest chaplain

program qualifies as a cognizable injury in fact, see Kurtz, 829

F.2d at 1142, and that injury would be redressed by a decision

declaring the current practice unconstitutional and ordering

Conroy to “schedule Barker to give an invocation as soon as

possible,” Compl. at 28. That said, to the extent Barker seeks

relief untethered to his particular injury—he challenges other,

more general aspects of the guest chaplain program, such as

“the requirement that guest chaplains be ordained and

practicing in the religion in which they were ordained,” id.

¶ 157, and the alleged exclusion of all “atheists and other

nonreligious individuals from the position of guest chaplain,”

id. at 27—he has standing to request such relief only on behalf

of himself and those who, like him, desire to deliver a secular

prayer. See, e.g., Lewis v. Continental Bank Corp., 494 U.S.

472, 477 (1990) (“Article III denies federal courts the power

‘to decide questions that cannot affect the rights of litigants in

the case before them.’” (quoting North Carolina v. Rice, 404

U.S. 244, 246 (1971) (per curiam))).

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Nor does Barker’s Establishment Clause claim present a

nonjusticiable political question. A claim raises such a question

if it involves “a textually demonstrable constitutional

commitment of the issue to a coordinate political department.”

Baker v. Carr, 369 U.S. 186, 217 (1962). Conroy argues that

Barker’s claim does just that, as it “involves the textually

demonstrable constitutional commitment of exclusive

authority to the House to ‘determine the Rules of its

Proceedings.’” Appellees’ Br. 29 (quoting U.S. Const. art. I,

§ 5, cl. 2). But even accepting the belated contention that the

House defines “prayer” as religious prayer—a qualification

that, once again, appears nowhere in the text of the House

rules—Barker’s Establishment Clause claim remains

justiciable. As the Supreme Court has long held, although “the

[C]onstitution empowers each house to determine its rules of

proceedings,” Congress “may not by its rules ignore

constitutional restraints or violate fundamental rights.” United

States v. Ballin, 144 U.S. 1, 5 (1892); see also Vander Jagt v.

O’Neill, 699 F.2d 1166, 1173 (D.C. Cir. 1983) (“Article I does

not alter our judicial responsibility to say what rules Congress

may not adopt because of constitutional infirmity.”). In this

case, rather than challenging the House rules themselves,

Barker argues that any interpretation or application of the rules

that prevents atheists from serving as guest chaplains violates

the Establishment Clause. But just as the Rulemaking Clause

gives Congress no license to adopt unconstitutional rules, it

provides no cover for the House to unconstitutionally interpret

or apply its rules.

The Speech or Debate Clause likewise poses no bar to

Barker’s claim, even assuming legislative immunity could ever

extend to the House Chaplain. Declaring that “Senators and

Representatives . . . for any Speech or Debate in either

House . . . shall not be questioned in any other Place,” U.S.

Const. art. I, § 6, cl. 1, that clause immunizes both legislators

14

and their aides from criminal and civil suits arising out of

“legislative acts,” Rangel v. Boehner, 785 F.3d 19, 23 (D.C.

Cir. 2015) (internal quotation marks omitted); see also Gravel

v. United States, 408 U.S. 606, 618 (1972) (“[T]he Speech or

Debate Clause applies not only to a Member but also to his

aides insofar as the conduct of the latter would be a protected

legislative act if performed by the Member himself.”). In order

to ensure “that the legislative function the Constitution

allocates to Congress may be performed independently,”

Eastland v. United States Servicemen’s Fund, 421 U.S. 491,

502 (1975), we “have extended the privilege to matters beyond

pure speech or debate in either House, but only when necessary

to prevent indirect impairment of such deliberations,” Gravel,

408 U.S. at 625 (internal quotation marks omitted).

Accordingly, the Clause’s protections extend to acts that are

“an integral part of the deliberative and communicative

processes by which Members participate in committee and

House proceedings with respect to the consideration and

passage or rejection of proposed legislation or with respect to

other matters which the Constitution places within the

jurisdiction of either House.” Id.

Unlike acts protected by the Speech or Debate Clause—

such as voting and other committee activities like “authorizing

an investigation, holding hearings, preparing a report, and

authorizing the publication and distribution of that report,”

United States v. Rose, 28 F.3d 181, 187–88 (D.C. Cir. 1994)

(internal quotation marks omitted)—legislative prayer is not

“an integral part of the deliberative and communicative

process[],” Gravel, 408 U.S. at 625; see also Kurtz, 829 F.2d

at 1146 n.2 (Ginsburg, R.B., J., dissenting) (“While

inspirational, prayer in Congress does not appear to be integral

to lawmaking.” (internal quotation marks omitted)). Although

the Supreme Court has instructed us to “read the Speech or

Debate Clause broadly to effectuate its purposes,” Eastland,

15

421 U.S. at 501, the Clause’s “shield does not extend beyond

what is necessary to preserve the integrity of the legislative

process,” United States v. Brewster, 408 U.S. 501, 517 (1972).

Because Barker’s challenge to Conroy’s administration of the

guest chaplain program presents no apparent threat to

lawmakers’ independence, the Speech or Debate Clause offers

Conroy no immunity from Barker’s Establishment Clause

challenge. See Gravel, 408 U.S. at 618 (describing the

“fundamental purpose” of the Clause as “freeing the legislator

from executive and judicial oversight that realistically

threatens to control his conduct as a legislator”).

Nothing in Consumers Union of United States, Inc. v.

Periodical Correspondents’ Ass’n, 515 F.2d 1341 (D.C. Cir.

1975), requires a different result. There we rejected as

nonjusticiable an organization’s challenge to the denial of its

application for admission to the House and Senate press

galleries because the denial fell “within the spheres of

legislative power committed to the Congress and the legislative

immunity granted by the Constitution.” Id. at 1351. We first

observed that the entity responsible for denying the

organization’s application, the Executive Committee of the

Periodical Correspondents’ Association (the “Association”),

had acted pursuant to internal congressional rules governing

admission to the galleries. Id. at 1347, 1350. Because the

Constitution expressly reserves to the legislative branch the

power to make its own internal rules, we explained, Congress’s

“power over [its] internal proceedings . . . in itself would

appear to establish the nonjusticiability of this cause were it not

for the contention that” the rule at issue—and the Association’s

interpretation of it—“infringed upon [the organization’s]

constitutional rights.” Id. at 1347–48; see also Ballin, 144 U.S.

at 5 (Congress “may not by its rules ignore constitutional

restraints or violate fundamental rights”). We then “turn[ed] to

the effect of the Speech or Debate Clause to settle whether

16

despite the claim of constitutional violation . . . [the] case [was]

yet nonjusticiable,” Consumers Union, 515 F.2d at 1348,

ultimately concluding that the Association’s denial of the

organization’s application “fell within the sphere of legislative

activity” protected by the Clause, id. at 1350 (internal quotation

marks omitted). Essential to that determination was the fact that

Congress itself had developed the press gallery rules to protect

legislators’ independence: Congress designed the rules to

ensure that the galleries would “be used by bona fide reporters

who [would] not abuse the privilege of accreditation by

importuning Members on behalf of private interests or causes.”

Id. at 1347. As we explained in a later case, because the

Association’s denial of the organization’s application involved

“regulation of the very atmosphere in which lawmaking

deliberations occur,” the Speech or Debate Clause barred us

from hearing the suit. Walker v. Jones, 733 F.2d 923, 930 (D.C.

Cir. 1984) (emphasis added).

Unlike the plaintiff organization in Consumers Union,

Barker does not mount a facial challenge to the House’s rules

and, even if he did, the political question doctrine would pose

no bar to such a suit. See supra at 13. Moreover, any rules

pertaining to the opening prayer—an event that occurs at the

very beginning of the legislative session before any

deliberating whatsoever—could not similarly be said to

regulate “the very atmosphere in which lawmaking

deliberations occur.” Walker, 733 F.2d at 930. The Supreme

Court itself has described legislative prayer not as a part of the

legislative process, but rather as a “symbolic expression” that

simply “lends gravity to public business, reminds lawmakers to

transcend petty differences in pursuit of a higher purpose, and

expresses a common aspiration to a just and peaceful society.”

Town of Greece, 572 U.S. at 575. By contrast to the conduct

challenged in Consumers Union, then, Conroy’s administration

of the guest chaplain program is not “an integral part of the

17

[House’s] deliberative and communicative processes.” 515

F.2d at 1349 (quoting Gravel, 408 U.S. at 625). Judicial review

of Conroy’s conduct thus poses no threat to “the integrity of the

legislative process.” Brewster, 408 U.S. at 517.

III.

Barker contends that the Establishment Clause’s general

requirement that the government be “neutral in its relations

with groups of religious believers and non-believers,” Everson

v. Board of Education of Ewing Township, 330 U.S. 1, 18

(1947), and the Supreme Court’s decision in Town of Greece v.

Galloway prohibit Conroy from excluding atheists like him

from the guest chaplain program. For his part, Conroy argues

that Barker’s suit amounts to “an attack on the practice of

legislative prayer itself” and that the district court was therefore

correct that Barker failed to state a plausible Establishment

Clause claim under the Supreme Court’s legislative prayer

precedents. Appellees’ Br. 39.

The starting point for our analysis is Marsh v. Chambers,

which involved an Establishment Clause challenge to the

Nebraska Legislature’s practice of opening legislative sessions

with a Judeo-Christian prayer given by a taxpayer-funded

chaplain. See 463 U.S. at 784–85. Eschewing reliance on the

three-part Lemon test typically used to assess alleged

Establishment Clause violations, the Court instead looked to

the history of legislative prayer. See id. at 786–92. That history,

the Court explained, “sheds light not only on what the

draftsmen intended the Establishment Clause to mean, but also

on how they thought that Clause applied.” Id. at 790. The Court

thought it especially significant that the very same Congress

that passed the Bill of Rights also authorized the appointment

of paid chaplains, whose duties included delivering an opening

prayer. See id. at 788. “It can hardly be thought that in the same

week Members of the First Congress voted to appoint and to

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pay a Chaplain . . . and also voted to approve the draft of the

First Amendment . . . , they intended the Establishment

Clause . . . to forbid what they had just declared acceptable.”

Id. at 790; see also id. at 788 (“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.”). Given its “unique history,” the Court

concluded, legislative prayer did not run afoul of the

Establishment Clause. Id. at 791.

Observing that the Nebraska Legislature’s particular

prayer practice was “similar” to that of the First Congress, id.,

the Court went on to consider whether it nonetheless violated

the Establishment Clause because (1) the same Presbyterian

clergyman had served as the legislature’s chaplain and primary

prayer-giver for sixteen years, (2) the chaplain was “paid at

public expense,” and (3) the prayers he gave were “in the

Judeo-Christian tradition,” id. at 793. Weighing these features

“against the historical background” of legislative prayer, the

Court upheld the constitutionality of Nebraska’s practice. Id.

The Court indicated, however, that it might have reached a

different conclusion if there had been “proof that the chaplain’s

reappointment stemmed from an impermissible motive” rather

than from satisfaction with his performance and personal

qualities, id., or any “indication that the prayer opportunity

ha[d] been exploited to proselytize or advance any one, or to

disparage any other, faith or belief,” id. at 794–95.

The Supreme Court revisited legislative prayer and

elaborated on the principles underlying Marsh in Town of

Greece v. Galloway. That case involved an Establishment

Clause challenge to a town’s practice of inviting volunteers

from religious congregations to deliver an opening prayer at the

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town’s monthly board meetings. See 572 U.S. at 569–72. In its

recitation of the facts the Court emphasized that “[t]he town at

no point excluded or denied an opportunity to a would-be

prayer giver. Its leaders maintained that a minister or layperson

of any persuasion, including an atheist, could give the

invocation.” Id. at 571. The challengers nonetheless contended

that the town’s prayer program violated the Establishment

Clause because the town allowed sectarian prayers that were,

in practice, primarily Christian. See id. at 572. The Court began

with Marsh, describing it as “stand[ing] for the proposition that

it is not necessary to define the precise boundary of the

Establishment Clause where history shows that the specific

practice is permitted.” Id. at 577. Using the legislative-prayer

tradition described by Marsh as its measuring stick, the Court

proceeded to evaluate whether any aspect of the town’s prayer

practice fell outside the bounds of that tradition. Finding that

neither the sectarian content of the town’s prayers nor their

predominantly Christian character was inconsistent with “the

tradition long followed in Congress and the state legislatures,”

id., the Court concluded that the prayer practice was

constitutional, “[s]o long as the town maintains a policy of

nondiscrimination,” id. at 585.

Together, Marsh and Town of Greece establish a two-step

process for assessing the constitutionality of a particular

legislative-prayer practice: identify the essential characteristics

of the practice and then determine whether that practice falls

within the tradition the Supreme Court has recognized as

consistent with the Establishment Clause.

As to the first inquiry, although at the time Barker filed his

complaint it was plausible that the rules allowed for delivery of

a secular invocation, see supra at 10–12, the House has since

definitively ruled out that possibility. Timing matters. When

determining whether a complaint states a claim, we are not

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confined by the circumstances existing “at the time of filing,”

as we are when assessing Article III standing. Wheaton

College, 703 F.3d at 552. To be sure, given that “Rule 12(b)(6)

is not a device for testing the truth of what is asserted,” ACLU

Foundation of Southern California v. Barr, 952 F.2d 457, 467

(D.C. Cir. 1991), we would normally be disinclined to accept a

defendant’s post-complaint representation that contradicts a

factual assertion made in the complaint.

But this is no ordinary case. We deal here with Congress’s

interpretation of its rules—something no court can lightly

disregard. See United States v. Smith, 286 U.S. 6, 33 (1932)

(“[T]he Court must give great weight to [Congress’s] . . .

construction of its own rules . . . .”). The Rulemaking Clause

of Article I, Section 5 of the Constitution “clearly reserves to

each House of the Congress the authority to make its own

rules,” and as we have explained, interpreting a congressional

rule “differently than would the Congress itself” is tantamount

to “making the Rules—a power that the Rulemaking Clause

reserves to each House alone.” United States v. Rostenkowski,

59 F.3d 1291, 1306–07 (D.C. Cir. 1995) (emphasis added).

Accordingly, we accept the House’s interpretation of its own

rules as requiring a religious prayer, thus eliminating any risk

of running afoul of either the Rulemaking Clause or separation-

of-powers principles. See Boehner v. McDermott, 484 F.3d

573, 580 (D.C. Cir. 2007) (en banc) (“We . . . accept the Ethics

Committee’s interpretation of the rules as applied to this case,

and thereby eliminate the concerns mentioned in

Rostenkowski.”). Barker suffers no prejudice as a result of our

acceptance of the House’s position because, as explained

above, rather than disputing that the House interprets its rules

as requiring a religious prayer, he simply argues that the rules

themselves compel no such interpretation. See Appellant’s Br.

23–24 (“Dismissal at this stage was . . . improper because the

court could conclude that the House Rule do[es] not, in fact,

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preclude a nonreligious prayer . . . .”); Reply Br. 7

(acknowledging the existence of “a supposed House

requirement that ‘prayer’ necessarily must implicate a religious

deity” but arguing that prayer can and should be defined more

broadly).

The question, then, is this: does the House’s decision to

limit the opening prayer to religious prayer fit “within the

tradition long followed in Congress and the state legislatures”?

Town of Greece, 572 U.S. at 577. The answer is yes.

In Marsh, the Supreme Court took as a given the religious

nature of legislative prayer. In holding that opening the

legislative day with a prayer amounted not to an establishment

of religion but rather to “a tolerable acknowledgment of beliefs

widely held among the people of this country,” the Court

explained that “‘[w]e are a religious people whose institutions

presuppose a Supreme Being.’” 463 U.S. at 792 (alteration in

original) (quoting Zorach v. Clauson, 343 U.S. 306, 313

(1952)); see also id. (“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 . . . .”). Over the dissent’s objection that “prayer

is fundamentally and necessarily religious,” and thus has no

place in the halls of Congress, id. at 810 (Brennan, J.,

dissenting), the Court upheld the practice, describing it as

having “coexisted with the principles of disestablishment and

religious freedom” “[f]rom colonial times through the founding

of the Republic and ever since,” id. at 786.

The prayer practice at issue in Town of Greece was, at least

in theory, significantly more inclusive than the one in Marsh.

See Town of Greece, 572 U.S. at 571 (“The town at no point

excluded or denied an opportunity to a would-be prayer giver.

Its leaders maintained that a minister or layperson of any

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persuasion, including an atheist, could give the invocation.”).

Yet in that case, too, the Supreme Court recognized legislative

prayer’s religious roots. The Court described Marsh as

“conclud[ing] that legislative prayer, while religious in nature,

has long been understood as compatible with the Establishment

Clause.” Id. at 575 (emphasis added); see also id. at 576 (“That

the First Congress provided for the appointment of chaplains

only days after approving language for the First Amendment

demonstrates that the Framers considered legislative prayer a

benign acknowledgment of religion’s role in society.”

(emphasis added)).

Marsh and Town of Greece leave no doubt that the

Supreme Court understands our nation’s longstanding

legislative-prayer tradition as one that, because of its “unique

history,” can be both religious and consistent with the

Establishment Clause. Marsh, 463 U.S. at 791. And although

the Court has warned against discriminating among religions

or tolerating a pattern of prayers that proselytize or disparage

certain faiths or beliefs, it has never suggested that legislatures

must allow secular as well as religious prayer. In the sui generis

context of legislative prayer, then, the House does not violate

the Establishment Clause by limiting its opening prayer to

religious prayer.

If Barker’s complaint rested solely on the contention that

a religious prayer requirement is unconstitutional, we could

stop here. But Barker alleges—and we must accept as true at

this stage of the case—that Conroy excluded him not because

he proposed to give a secular prayer but “because [Barker] is

an atheist.” Compl. ¶ 110. According to Barker, the other

reasons Conroy cited for his exclusion—that Barker no longer

practices the faith in which he was ordained and, more recently,

Barker’s unwillingness to give a religious prayer—are merely

“pretextual.” Id. ¶ 109. Had he not “part[ed] with his religious

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beliefs,” Barker alleges, “he would have been approved to

deliver an invocation, but as a nonreligious officiant with a

valid ordination, he was denied.” Id. ¶ 117 (alterations in

original) (internal quotation marks omitted); see also Oral Arg.

Rec. 55:09–19 (Barker’s counsel: “We have these other prayers

that are nearly identical to the prayer that Mr. Barker wishes to

give. It’s just a question of who he is, an atheist, and that’s why

he was denied.”).

To resolve this case, however, we need not decide whether

there is a constitutional difference between excluding a would-

be prayer-giver from the guest chaplain program because he is

an atheist and excluding him because he has expressed a desire

to deliver a nonreligious prayer. Even though we accept as true

Barker’s allegation that Conroy rejected him “because he is an

atheist,” Compl. ¶ 110, the House’s requirement that prayers

must be religious nonetheless precludes Barker from doing the

very thing he asks us to order Conroy to allow him to do:

deliver a secular prayer. In other words, even if, as Barker

alleges, he was actually excluded simply for being an atheist,

he is entitled to none of the relief he seeks. We could not order

Conroy to allow Barker to deliver a secular invocation because

the House permissibly limits the opening prayer to religious

prayer. Barker has therefore failed to state a claim for which

relief can be granted.

IV.

For the foregoing reasons, we affirm the district court’s

dismissal of Barker’s Establishment Clause claim.

So ordered.