Third Circuit rejects challenge to legislative prayer, grants en banc rehearing in Amazon third-party-vendors case

Fields v. Speaker of the Pa. House of Representatives—civil / First Amendment—partial affirmance—Ambro

The Pennsylvania House of Representatives opens legislative sessions with a prayer by a guest chaplain, but it bars nontheists from giving these prayers. Today, the Third Circuit rejected several constitutional challenges to the theistic-prayer-only policy. “As to the Establishment Clause, we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking, the basis for the Supreme Court taking as a given that prayer presumes a higher power.” The court also held that the House’s request that visitors rise for the prayer was constitutional because it was not coercive.

[Disclosure: I provided some minor consulting assistance on appeal to counsel for the challengers.]

Joining Ambro was Fisher. Restrepo dissented in part, arguing that the House policy violates the establishment clause because it “purposefully excludes adherents of certain religions and persons who hold certain religious beliefs from serving as guest chaplains.” Arguing counsel were Karl Myers of Stradley Ronon for the House Speaker and Alexander Luchenitser of Americans United for Separation of Church & State for the challengers.

 

Also today, the court granted rehearing en banc in Oberdorf v. Amazon.com. In Oberdorfer, a divided panel had held that, under Pennsylvania law, Amazon was a seller in third-party-vendor sales and thus strictly liable for defective products sold by other vendors on its website. The now-vacated panel opinion is here, my blog post is here.