B.    Plaintiffs Article VI Religious Test Claim Raises a Non-Justiciable Political Question16
"The political question doctrine emerges out of Article in's case or controversy requirement and has its roots in separation of powers concerns." Made in the USA Foundation v. United States, 242 F.3d 1300,1312 (11th Cir.) (citingBakerv. Carr, 369 U.S. 186,210 (1962)), cert. denied, 122 S. Ct. 613 (2001). Claims that raise political questions are not justiciable and therefore must be dismissed.
The Supreme Court in Baker v. Carr identified six factors, the existence of any of which indicates a political question.n See United States v. Rostenkowski, 59 F.3d 1291,1304 (D.C. Cir.
16 Congressional Defendants raise the political question doctrine and Speech or Debate Clause immunity (next section) only against plaintiffs religious test claim because that claim challenges the selection of Chaplains by the Senate and House. While the district court in Kurtz, 630 F. Supp. at 855-56, rejected the application of the political question doctrine and Speech or Debate immunity to a challenge to the actions of the Senate and House Chaplains concerning guest chaplains, the decision was vacated as to one claim by the district court in a subsequent order, Kurtz, 644 F. Supp. at 620-21, and as to the other, remaining claim by the D.C. Circuit. Kurtz, 829 F.2d at 1145. Moreover, the district court's decision is not applicable to the political question and Speech or Debate issues implicated by plaintiffs religious test claim. Moreover, the Speech or Debate and political question issues in Kurtz concerned "the discretionary behavior of [the Senate and House] Chaplains" and the content of the Chaplains' prayers, Kurtz, 630 F. Supp. at 856; here, those justiciability arguments are raised only as to plaintiffs religious test claim, which implicates the selection of legislative officers by Members of the House and Senate - a matter that was not at issue in Kurtz.
17 The Supreme Court set forth the six factors as follows:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality
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