Thread by @gabrielmalor

3d Cir., 2-1, holds that it does not violate the establishment clause for the Pennsylvania House of Representatives to exclude nontheists as chaplains to offer prayer at the start of sessions. www2.ca3.uscourts.gov/opinarch/18297…

The maj. op. holds that nontheists can be excluded as chaplains because historically the purpose of legislative prayer is to invoke divine guidance and "prayer" presupposes a higher power.

Dissenting Judge Restrepo argues that nontheist religions are still religions protected by the establishment clause, and that it therefore violates the clause to exclude chaplains from those religions based on their religions belief that there is no God or gods.

The dueling opinions in this legislative prayer case are well worth reading, particularly because they demonstrate that framing is everything.

Approach the question one way: easy answer. Approach it another way: also an easy answer, but a different one.

And I'm especially not wild about the dissent's footnote 4, which suggests the constitutional outcome depends in part on whether Justice Ginsburg has changed her mind about something she wrote thirty-two years ago as a circuit judge.