The House of Representatives didn’t violate the First Amendment by refusing to let the leader of an atheist group open a legislative session with a secular invocation.

The custom of starting with a prayer dates to the Congress that ratified the First Amendment. Consequently, House rules requiring invocations to be religious in nature aren’t subject to ordinary scrutiny under the establishment clause, a federal appeals court ruled April 19.

The U.S. Supreme Court has twice upheld legislative prayer based on the tacit congressional approval it has enjoyed for as long as the establishment clause has existed, the U.S. Court of Appeals for the D.C. Circuit said.

“Although the court has warned against discriminating among religions or tolerating a pattern of prayers that proselytize or disparage certain faiths or beliefs, it has never suggested that legislatures must allow secular as well as religious prayer,” Judge David S. Tatel wrote for the court.

The ruling hands a defeat to Daniel Barker, leader of the Freedom From Religion Foundation, an organization of atheists and agnostics that promotes the separation of church and state.

Barker, who was an ordained minister before he became an atheist, sued the House, then-Speaker Paul Ryan (R-Wis.), and Chaplain Patrick Conroy after the chaplain rejected a request by Barker’s congressman to let him serve as “guest chaplain.” That honor has been conferred on Christians, Muslims, Jews, and Hindus, but never on an atheist or agnostic.

Conroy justified his refusal by citing three requirements for a guest chaplain: sponsorship by a House member, religious ordination, and a proposed invocation that addresses a “higher power” rather than members of Congress directly.

Although the House doesn’t require its invocations to be religious in nature, Barker didn’t count as ordained because he was no longer a member of the faith that ordained him, Conroy said at the time.

But, over the course of the litigation, the House changed its position, saying Barker couldn’t serve as guest chaplain because the House requires its opening prayers to be religious, not for the technical reasons Conroy initially gave.

“In the sui generis context of legislative prayer,” that restriction doesn’t violate the Constitution, Tatel wrote for the D.C. Circuit.

Judges Harry T. Edwards and Douglas H. Ginsburg joined the ruling.

Barker was represented by Boardman & Clark. Conroy was represented by government attorneys.

The case is Barker v. Conroy, D.C. Cir., No. 17-5278, 4/19/19.