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United States Court of Appeals for the DISTRICT of COLUMBIA CIRCUIT No. 17-5278 IN THE United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT DAN BARKER, Appellant, v. PATRICK CONROY, CHAPLAIN, ET AL, Appellees. On Appeal from the United States District Court for the District of Columbia (Washington, D.C.), Civil Docket for Case #: No. 1-16-cv-00850-RMC The Honorable Judge Barbara B. Crabb BRIEF OF THE CENTER FOR INQUIRY AND AMERICAN ATHEISTS, INC. AS AMICI CURIAE IN SUPPORT OF APPELLANT ALISON GILL Counsel of Record AMERICAN ATHEISTS, INC. 1220 L St. NW Suite 100-313 Washington, DC 20005 (908) 276-7300 [email protected] May 21, 2018 Attorney for Amici Curiae CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici. Except for the following, all parties, intervenors, and amici appearing before this court are listed in the Brief for Appellant: American Atheists; and Center for Inquiry. B. Ruling Under Review. An accurate reference to the ruling at issue appears in Plaintiff-Appellant’s brief. C. Related Cases. The only related case of which amici are aware is identified in Plaintiff-Appellant’s brief. ii CORPORATE DISCLOSURE STATEMENT Both the Center for Inquiry and American Atheists are non-profit corporations, and have been granted 501(c)(3) status by the IRS. Neither has a parent company nor have they issued stock. American Atheists is a national educational, nonpolitical, non-profit corporation with members, offices, and meeting locations nationwide. American Atheists is a membership organization dedicated to advancing and promoting, in all lawful ways, the complete and absolute separation of religion and government, and to preserving equal rights under the law for atheists. American Atheists promotes the stimulation and freedom of thought and inquiry regarding religious belief, creeds, dogmas, tenets, rituals, and practices. American Atheists encourages the development and public acceptance of a humane, ethical system that stresses the mutual sympathy, understanding, and interdependence of all people and the corresponding responsibility of each individual in relation to society. Center for Inquiry is a non-profit educational organization dedicated to promoting and defending reason, science, and freedom of inquiry. Through education, research, publishing, social services, and other activities, including litigation, CFI encourages evidence-based inquiry into science, pseudoscience, medicine and health, religion, and ethics. CFI believes that the separation of church iii and state is vital to the maintenance of a free society that allows for a reasoned exchange of ideas about public policy. iv STATEMENT REGARDING CONSENT TO FILE AND SEPARATE BRIEFING All parties have consented to the filing of this brief. Pursuant to Fed. R. App. P. 29(a)(4)(E), no counsel for a party authored this brief in whole or in part, and no person other than the amici curiae, their members, or their counsel contributed money that was intended to fund the preparation or submission of this brief. Pursuant to Circuit Rule 29(d), American Atheists and the Center for Inquiry certify that a separate brief is necessary to emphasize the importance of a strict interpretation of the Establishment Clause. As atheists and secular humanists, amici do not seek constitutional protection as another in a list of religions, but instead note that the First Amendment exists to protect the non-religious, including those who actively reject all religious dogma, as much as it protects any individual religion. Secular humanists and atheists are protected without having to claim their views as a religion; any government action which preferences belief in one or more deities over non-belief privileges religion over non-religion, and thereby violates the Constitution. v TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............ ii CORPORATE DISCLOSURE STATEMENT ...................................................... iii STATEMENT REGARDING CONSENT TO FILE AND SEPARATE BRIEFING ....................................................................................................... v TABLE OF CONTENTS .......................................................................................... vi TABLE OF AUTHORITIES ................................................................................. viii INTERESTS OF AMICI ............................................................................................ 1 SUMMARY OF ARGUMENT ................................................................................. 1 ARGUMENT ............................................................................................................. 2 A. The House Rules Exclude a Large and Rapidly Growing Segment of the US Population ............................................................................................. 2 B. The United States was Founded on the Separation of Religion and Government ................................................................................................ 4 C. The House of Representatives’ Rules for Selection of Guests to Deliver Invocations Violate the Constitution .......................................................... 6 D. The Policy Cannot be Saved by the Supreme Court’s Precedent Regarding Legislative Prayer ...................................................................11 E. The House Rules and Chaplain Conroy’s Guest Chaplain Policy Caused Mr. Barker’s Injury by Creating a Limited or Non-public Forum from Which Mr. Barker was Excluded for No Other Reason Than His Religious Viewpoint. ................................................................................13 1. The Guest Chaplain Program constitutes a limited public forum in which viewpoint discrimination is constitutionally prohibited. ..........13 2. If the Guest Chaplain Program constitutes a non-public forum, viewpoint discrimination in nonetheless unconstitutional. .................15 vi F. Mr. Barker has Standing to Bring Suit Against Chaplain Conroy and the U.S. House of Representatives .................................................................16 1. Mr. Barker alleged facts sufficient to conclude that the actions of the U.S. House of Representatives were the cause of his injury...............18 2. Mr. Barker alleged facts sufficient to conclude that Chaplain Conroy’s discriminatory application of his guest chaplain policy to Mr. Barker was the cause of his injury. .................................................................20 CONCLUSION ........................................................................................................22 CERTIFICATE OF COMPLIANCE ....................................................................... 23 CERTIFICATE OF SERVICE ................................................................................ 24 vii TABLE OF AUTHORITIES CASES Epperson v. Ark., 393 U.S. 97 (1968)................................................................................. 7, 8, 12 Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985)......................................................................................... 9 Everson v. Bd. of Educ., 330 U.S. 1 (1947) ......................................................................................... 3, 7 Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003) ....................................................................... 9 Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987) ..................................................................... 17 Kurtz v. Baker, (Kurtz II) 829 F.2d 1133 (D.C. Cir. 1987) ............................................................... 20, 21 Larson v. Valente, 456 U.S. 228 (1982 ......................................................................................... 7 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992 ........................................................................................ 17 Marsh v. Chambers, 463 U.S. 783 (1983 ........................................................................................ 11 Muir v. Navy Fed. Credit Union, 529 F.3d 1100 (D.C. Cir. 2008) ..................................................................... 17 Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010) ......................................................................... 9 Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37 (1983)............................................................................. 13, 14, 15 viii Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) ............................................................................................. 9 Theriault v. Silber, 547 F.2d 1279 (5th Cir. 1977) ....................................................................... 10 Torcaso v. Watkins, 367 U.S. 488 (1961)................................................................................. 10, 12 Town of Greece v. Galloway, ___ U.S. ___, 134 S. Ct. 1811 (2014) ..................................................... 11, 12 STATUTES U.S. Const. art VI § 3 ................................................................................................. 6 OTHER AUTHORITIES James Madison, James Madison to Edward Livingston, July 10, 1822 . Includes note to John Livingston dated July 11, 1822., Library of Congress (July 10, 1822), https://cdn.loc.gov/service/mss/mjm/20/20_0132_0135.pdf ............... 4 Thomas Jefferson, Jefferson’s Letter to the Danbury Baptists, Library of Congress (Jan. 1, 1802), https://www.loc.gov/loc/lcib/9806/danpre.html ...................... 5 James Madison, To the Honorable the
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