to his prayer marker 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 in this way barker's prayer would have been no differs from person to major respect you know the first kurtz was seeking special treatment barker is seeking equal treatment so kurtz was seeking an opportunity that was rare and only extended to heads of state he wanted to address congress he specifically said that he would not say a prayer if he were invited on the other hand barbour has said he will say a prayer if he's invited he's not seeking to address congress and in fact he actually tend not address congress that's part of when you first it up he said that mr parker was to deliver a prayer yes which distinguishes this from curds but throughout the complaint he calls it he calls it a in in curt's the injury was not fairly traceable to the chaplain's actions here it is part of that is because in kurt's the he paul kurtz was seeking the special opportunity to address congress which the chaplain doesn't have the power to invites guest chaplains in as they are here remember forty percent of the prayers are delivered by gesture happens when they invite guests happen then they must maintain a policy of nondiscrimination they can't exclude certain creeds 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  case without regard to what the rules are i'm not sure what i want without regard to what the rules are short is i you're not you're saying it doesn't matter you saying in this case my client was because we have shown that the reasons the chaplain gave don't hold up 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 on may fifth twenty also not ordained and who were not practicing in the faith in which they were ordained and we lay those we laid those facts out in the complaint at that set up to fifty one and fifty one fifty two so there were eight muslim several hindu and two just saying in this case it's for your concern correct we're still in the motion to dismiss stage we haven't had the benefit of discovery or anything like that so as far as we know yes this is the first instance of discrimination against any of us the ordination rule is itself inherently the exclusion of an individual on the basis of their creed under that program once it's established and i think the court in town agrees made it clear justice kennedy wrote that once every government invites prayer into the public sphere the present a very different taste if there were if there were evidence or if this had been a deliberate exclusion and so you have you have that history but it doesn't justify turning turning it against minority creeds and excluding them and i think that nondiscrimination principle runs very clearly throughout greece and it they actually even look at the the history of prayers in the u s congress and they point out that no faith was excluded by any favored on eighteen nineteen and that congress acknowledges our growing diversity not by prescribing sectarian content but by welcoming ministers and many creeds and just as congress can't or any legislative body can't correct and because motive matters and because what motive matters in both marsh and in greece the court spoke of impermissible purposes and motives behind a prayer practices and we would argue that discriminating against an individual and excluding so the chaplain again has or any language that you think you can point to and more you have the alito concurrence in town agrees which clearly asserts his view that you can't exclude of the faith or belief i'm not sure they're exactly the same thing is there anything else and more that comes close to the alito language well not precisely on point in my in the decision in march because again that wasn't the issue before the court but in the oral argument concurrence in town agrees not in the market decision but there is language in the majority and how agrees as well for instance so long as the that the court was looking at the imbalance between how many christian chapel at a desk happens there were no others and th the court said that that was acceptable and not a violation of these housing costs so long as the town maintained a policy of nondiscrimination that's at eight hundred twenty four if the policy had reflected in aversion or bias against minority faiths then that would have been county case which have applied those to nonbelievers but not the supreme court itself here i am and and you really want i think the other side does not want to look to look more broadly to the first amendment body of law which would embrace the chaplain gave to exclude barker we have a point well i don't know how you can do in light of what the grid is clearly aid of war council i would guess because it's it's kind of carefully crafted to kind of dance around some of the points here  reason given was you know the ordination and it's live should not really true to any of that that's the explanation of the shop and gave when he rejected it and even under that explanation we pointed to other guest happens who were not ordained other desk chaplains whose ordination is they are no longer practicing in the faith in which they were ordained and that itself is why i think your answer is you think in terms of pleading requirements you pledge enough with this thank you thank you your honor if i may please the court for decades of binding precedent from this court and the supreme court compel affirm and of the judgment below first of this court's decision in curt's against baker holds on functionally identical facts as the district court correctly help that atheists lack standing to sue congressional chaplains for excluding him the from the prayer opportunity what about the argument that in that case kurtz wanted to address the house for his parker wants to give a prayer in other words in the kurds this court  said that the chaplain had no authority to allow someone to speak to the house because the rule says prayer and he barker wants to give a prayer well your honor and still today barker has never said he wants to give a requesting permission said that while he would not invoke a deity he would hit his quote remarks would otherwise fall within the traditional format close quote so that kurtz is factually indistinguishable on this point and that's correct ind in this case there were at the request a letter to the chaplain expressly says that he would deliver again he intends to deliver a secular invocation a secular invocation is not a prayer no chaplain guest chaplain or elected chaplain has ever been permitted to deliver a secular invitation and that is why the chaplain had no authority to to grant this request because i mean the problem with kirk earth really is quite different i would assume you have more to say than just kurds it's different in part because standing water has grown up over the years so it's dubious on the causation of disposition  are more than them often the complaint here ensued just that the child one has discretion to be exercise and indeed in one of the chapters written responses he talks about his discretion curse is just my which your argument is i'm curious that you're somebody road warriors i just know that district court in raines which is postcards emphasized the importance of applying standing principles with special rigor in the separation of powers context where we're talking about judicial intrusion into the challenging the exercise of delegated house authority to determine access to the house floor and galleries during a legislative session is not just disheveled even though it's a constitutional claim as well because of the but his argument is that that that's not what this is about this is about the guest chapel program where the house is opened up the prayer opportunity to people other than the house chaplain and that in it it invokes just a different set of constitutional issues namely the nondiscrimination standard the nondiscrimination core in the to greece what what's the answer to that while there at least two answers your honor from first of all the supreme court in front of greece unanimously both of the five justices in the majority and the four justices in the senate said that the dispositive question on the merits case is whether the prayer practice falls within the tradition this practice in congress this prayer practice correctly really does by definition fall within the traditions of long practiced in congress and that should if the court considerations to the conduct that congress has that engaged in for two hundred thirty years which is exclusively religious prayers that the idea that somehow broadening the identity of the prayer givers to include a range of clear members rather than one single clergy member to deliver an explicitly religious prayer is somehow 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 is there some house rule prohibiting a guest chaplain who was an atheist i can't find the house rule requires a prayer so the house rule prohibits a guest chaplain who would deliver a secular invocation whether that person is a atheist or not is beside the point well couldn't ordained minister was an ordained minister who's practicing his faith says applies and wants to all ordained pastors in their office there are prayers there all invoking a spirit some higher power and asking a blessing and ending with a man in the in the traditional idiom of prayer they're not secular in vocations they don't happen to name representative the chaplain that was not one of the parts the only requirement was that he be ordained in other words if that time he had his first meeting with representatives of the chaplain he met all three standards he was ordained  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 he alleges that in his complaint paragraphs three four three five why i would put it slightly differently i mean so the question of the ordination requirement is not something that we've relied on in our brief right everything in this case because they allege is a pretext and ultimately it's just part of the mechanism for getting out the ultimate question which is that is the rule requires a prayer congress has always understood that to be a religious prayer it has always limited that opportunity to those who are deliver a religious prayer and is that constitutional if you get to the merits and the answer to that is clearly yes so because you're assuming or are you assuming a prayer cannot be given by  a religious one it is religious prayer it is always been exclusively religious that is how the house construes its rule that is how the house is always construed as rule and that is why someone who seeks to deliver a secular invocation isn't entitled to do so can't be permitted to do so mr barker says he's not religious is that yes although i mean i think i'm not an expert in buddhism and my understanding is that there are very various approaches in the in the buddhists and in the large umbrella of buddhist  against non religion ists in certain contexts where you're providing secular benefits does not mean that you can't discriminate against non religious when the when the benefit issue is a religious one that is a religious activity the delivery of a prayer to open  the opening opening it up to guest chaplains does it change you now so is it it's not part of the will you give me just say again you're clear statement of why that doesn't change the longstanding traditions of the house the longstanding tradition of the house include inviting guest chaplains going up at least as far back as eight hundred fifty s and probably much longer although the records are unclear when you go back further than that so that's reason number one 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 and therefore by definition the house is entitle to insist that those who are going to be given an opportunity will fulfill its requirements namely deliver a religious invocation that is a prayer and where was the house insisted on not you're saying it's not i mean we're getting into an area where i'm not sure where you're getting support for your assertion you're asserting it and that and the thing is bothering me is apart from justice alito which is a very clear statement of his understanding what court was doing you can read more harsh and town of race and subsequent understanding's of those cases to suggest that the court whatever they said in hearkening back to history they did not mean to run over a stylish first amendment principles which is you can't discriminate against nonbelievers now there's one member of the court the court doesn't take issue with them and come on agrees fairly strong statement and there are other statements and other opinions as wow that are saying a wink don't read that history in excess because we have some overarching first amendment notions here you can't discriminate against the person because you're a nonbeliever  and i don't you know less your position is nonbelievers can't pray and i or know where that's coming from well so again you know you maybe we just have different life experiences and i guess you could say here's my philosophical understanding of it and i would say you know that's not mine but i bet you have some of farting supported because the rule doesn't say religious prayer that the question whether a nonbeliever can deliver a prayer slightly different from the question in this case the question in this case is whether a nonbeliever this is a good whether you can discriminate against nonbelievers in the guest chaplain program that's the issue the shelf or not or out of the question is whether we get whether the house can constitutionally again if we get to the merits whether the house can constitutionally exclude people who seek to be guest chaplain as but it meant that they will not deliver a religious invocation but instead desire to deliver  in the guest chaplain program now the additional factors that may come out took the scales one way or another would come out when you get to the merits but that's all we have here and i hear you saying i think that absolutely and i don't think the house has done it i think the chaplain has done it would you have another question you're saying absolutely the house can have a rule based on more shit and town agrees that says we can discriminate against chaplain program against mom believers period that's the end of this case that's what i'm hearing you saying i'm like wow that's my sure i'm getting that from the case for 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 invocation in lieu of a prayer as the house interprets its prayer rule and has consistently applied it for two hundred twenty five 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 those whose complete knowledge the point you're trying to make of that i want to give a circular invocation in not here you have literally what the house is said it doesn't answer the question about prayer you have that i'm raising with you and i understand that you may have a different view than i tend to have and i'm not saying that my invocation is by definition not a religious indication and therefore it is not a prayer as the house interpreted and this court's decision in rastan koski precludes this court from from taking issue with that interpretation because unless the court could say which it could not that's what he says and that's exactly the point i'm raising and you're asserting with great forces if it's clear beyond a doubt if it's clear we hunted down i wouldn't expect a common word to respond the way you did concourses i don't want to touch that problem for the reasons i'm feeling it's not as clear you cite and if it was so clear on the house rules conroe i would not have responded the way he did he would have said this is all very clear prayer only has one meaning and you're trying to train you say no i don't want to get into that secular invocation is or is not a prayer well what the chaplains letter says is that that he has the threshold requirements that he applies one of which is the ordination requirement now again this is going to have a complaint that 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 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 point of alleges that this is pretextual and it gets into factual matters we have for purposes of breaching the case address the underlying question but certainly if if the case for proceed which it clearly should not there would be opportunities to get to the factual matters there as well so the chaplain the fact of 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 at the congressional prayer practice is exclusively religious and a person who refuses to deliver a religious invitation is not qualified for the opportunity right so we're back to where you and i were ten minutes ago which is that the question before us in his complaint is has he stated a claim that that the house is rejection of him because a secular invocation is not prayer that's the way that's the question right that and right and that's correct and and and just to repeat his arguments you're not you're not challenging his his claims that his that his  i understand your critical promises of prayer can only be given by religious person no your honor the critical premises that a prayer is what's required and a person who that is that that is the nature of the practice we're talking about legislative prayer is constitutional legislative prayer as i felt in march is religious in nature and legislative bodies are entitled to continue practicing that practice which is religious in nature so therefore by definition a legislative body can nominate people who are not willing to deliver a religious invocation of because that's not the practice that they have are entitled to engage in a problem for you is the strongest more shoes of the really address or show we're talking about where you are now making your arm that is can you exclude all nonbelievers or just as he left out on the last again your definition of prayer and keep dancing around this and i keep pushing because i'm really trying to understand what you're saying in periphery given by someone who would do this and we do we have different views on what you don't want to you know and i'm not sure what you say marsh just doesn't answer the question about nonbelievers being excluded i think if i if i understand sixteen might be able to perhaps anyone could that's not before us he doesn't propose to do so if you're right but he says he says he's not religious but he will appeal to a higher position one god what do you think he's saying he's not the marsh it's written and another situation of there are all sorts of i mean that's justice kennedy has pointed out that there are all sorts of situations in which government accommodates or benefits religion in some fashion that obviously accommodates religion and not not religion so it's simply not true that as a categorical matter government can never distinguish between religion and not religion and this is one of the contexts in which it clearly can because the very nature of the activity that the government is authorized  you your honor you know i think the purposes of legislative prayer would be useful here 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 a just and peaceful society that's what the courts have said nothing in those purposes invoke the same higher power that's recognized in our constitution we the people he wanted to invoke the skirt of some of our most influential founders thomas paine thomas jefferson james madison elizabeth cady stanton and frederick douglass i think would be bizarre if a tradition that dates to the founding was used to exclude in vocation of the very founders who started that tradition being that his proposed secular invitation was a prayer yes as i stated the beginning barker barber wishes to give a prayer he was invited to give a prayer and we chose we chose the phrase in vocation just stuck with it as uniform have moved throughout you know the chaplain first sat on parker's request for more than ten months then he said that he believed it was not genuine even though he had a letter from two attorneys he at that point wished to see parker's draft prayer on may fifth to the spirit that unites all people and then the chaplain approved him to give another prayer four months later where no higher power was invoked at all he just said we defects and so it's not just that the chaplain is allowing go beyond that just because it's opened up to cast chaplains again or how do we do it we're completely bound by marsh it's told us that lemon doesn't apply it's told us it's a re impermissible motive underlying the legislative prayer practice and even from a simple motive here it is excluding schooling atheists correct excluding non religious persons from delivering the prayer yes  the town must maintain a policy of nondiscrimination that they gave their policy can't reflect an aversion or bias and we absolutely have it here and in addition we have these other prayers that are nearly identical to the prayers that the prayer that