Barker v. Conroy
Civil Action No. 2016-0850
| D.D.C. | Oct 11, 2017Background
- Daniel Barker, an avowed atheist and FFRF co‑president, requested to serve as a guest chaplain to deliver a secular invocation at the House; Representative Pocan sponsored him and Barker provided ordination documents and a draft invocation.
- House Chaplain Father Patrick Conroy (and staff) required guest chaplains be (1) sponsored by a Member, (2) ordained, and (3) deliver a prayer addressing a “higher power”; Conroy denied Barker because he no longer practiced in the denomination that ordained him and had disavowed religious belief.
- Barker sued Conroy and House officials in their official capacities and Conroy in his individual capacity, alleging violations of the Establishment Clause, Due Process/Equal Protection, the Religious Test Clause, RFRA, and seeking declaratory and injunctive relief; he also asserted a Bivens claim against Conroy.
- Defendants moved to dismiss for lack of Article III standing, non‑justiciability (political question / Speech or Debate), and failure to state a claim; Conroy separately moved to dismiss the Bivens claim.
- The court treated precedent on legislative prayer (Marsh; Town of Greece; Kurtz) as controlling and analyzed standing, causation, political‑question and Speech or Debate concerns, statutory RFRA standards, and whether to extend Bivens.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (injury‑in‑fact / causation) | Barker was personally excluded from addressing the House after meeting chaplain requirements; this is a concrete injury traceable to Conroy | Denial was speculative or compelled by House rules; no causal link to Speaker, Bronson, or the House; Kurtz forecloses causation | Barker has personal exclusion injury but failed to show causation as to Speaker, Bronson, or the House; his claim against Conroy likewise fails under Kurtz because chaplain lacked authority to permit a secular invocation |
| Establishment / Equal Protection (challenge to denial to speak) | Excluding atheists from guest chaplain slots discriminates and conflicts with Town of Greece’s nondiscrimination emphasis | Legislative prayer is historically permissible (Marsh/Town of Greece); allowing secular invocations would conflict with that tradition and is not required | Denial did not violate the Establishment Clause or Equal Protection; legislative prayer remains valid and Marsh/Town of Greece control |
| RFRA and Religious Test Clause | Atheism qualifies as religion and the denial substantially burdened Barker; guest chaplain is akin to a public office | RFRA protects religious exercise from substantial burdens; serving as guest chaplain is an honor, not a covered governmental benefit; guest chaplain is not a public office or position of trust | RFRA claim dismissed for failure to allege a substantial burden; Religious Test Clause dismissed because guest chaplain is not an office or public trust |
| Bivens / Individual‑capacity claim against Conroy | Bivens should be extended to permit damages for constitutional discrimination by a federal official | Bivens should not be extended; separation‑of‑powers and special factors counseled against creating a new Bivens remedy here | Bivens extension declined; separation of powers and appropriateness of Congressional remedies foreclosed a new damages remedy |
Key Cases Cited
- Marsh v. Chambers, 463 U.S. 783 (1983) (legislative prayer grounded in historical practice and consistent with the Establishment Clause)
- Town of Greece v. Galloway, 134 S. Ct. 1811 (2014) (upholding legislative prayer practice; nondiscrimination in selection of chaplains does not require affirmative religious balancing)
- Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987) (dismissal for lack of standing/causation where chaplain lacked authority to permit secular invocation)
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (recognized implied damages remedy for Fourth Amendment violations; courts are cautious in extending Bivens)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requires concrete, particularized, and imminent injury)
- Davis v. Passman, 442 U.S. 228 (1979) (recognized a Bivens‑like remedy under Fifth Amendment employment discrimination; not controlling here)
- Wilkie v. Robbins, 551 U.S. 537 (2007) (courts must consider alternative remedies and special factors before creating new causes of action)