School Board Votes To End Appeals of Board Prayer Policy Decision

As previously reported, last month the U.S. 9th Circuit Court of Appeals, over a number of dissenting views, denied en banc review in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education. In the case, a 3-judge panel applied the Lemon test to strike down a California school board's prayer policy for board meetings. Now, according to the Chino Champion, on Thursday with two new board members voting, the Board voted 3-2 to end all appeals of the decision. One of the new Board members voting with the majority works as a 1st Amendment lawyer.

9th Circuit Denies En Banc Review In School Board Prayer Case

Yesterday, the U.S. 9th Circuit Court of Appeals denied en banc review in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (9th Cir., Dec. 26, 2018). In the case, a 3-judge panel applied the Lemon test to strike down a California school board's prayer policy for board meetings. (See prior posting.)  Seven active judges plus one judge holding senior status who is technically unable to vote on the rehearing petition disagreed with the denial of en banc review.  An opinion by Senior Judge O'Scannlan argued that the case should be governed by the legislative prayer precedents rather than by the Lemon test. An opinion by Judge Nelson argued that even it the Lemon test applies, no Establishment Clause violation was present. The seven dissenting active judges joined all or part of both opinions. San Francisco Chronicle reports on the denial of review.

Alaska Borough's Invocation Policy Held Unconstitutional

KBBI News reports that an Alaska state trial court judge yesterday in Hunt v. Kenai Peninsula Borough (complaint) held that the Kenai Peninsula Borough's invocation policy violates the Establishment Clause of the Alaska Constitution.  The Borough implemented a policy that allows only representatives of pre-approved religious organizations to offer invocations at meetings of the Kenai Peninsula Borough Assembly. The move came after a member of the Satanic Temple offered an invocation that ended with "Hail Satan."

Excluding Non-Theists As Legislative Guest Chaplains Violates Establishment Clause

In Fields v. Speaker of the Pennsylvania House of Representatives, (MD PA, Aug. 29, 2018), a Pennsylvania federal district court held that the guest chaplain policy of Pennsylvania's House of Representatives violates the Establishment Clause.  The legislative chamber's policy allows invocations to be given only by  individuals who adhere to, or are members of a religious organization that subscribes to, a belief in “God” or a “divine” or “higher” power. The House Speaker and Parliamentarian refused to permit a non-theist to serve as a guest chaplain to deliver an invocation. The court said in part:

That history has tolerated the natural prevalence of theistic legislative prayer is hardly evidence that the Framers would abide deliberate and categorical exclusion of nontheists. Accordingly, the House’s prayer practice finds no refuge in history and tradition....

In light of this nation’s vastly diverse religious tapestry, there is no justification to sanction government’s establishment of a category of favored religions—like monotheistic or theistic faiths—through legislative prayer.

The court also held:

The House’s pre-2017 opening invocation practice, which coerces visitors to stand during the opening prayer and thereby participate in a religious exercise, likewise offends the Establishment Clause.

Americans United issued a press release announcing the decision.

Suit Challenges City Council Opening Meetings With Lord's Prayer

The Freedom From Religion Foundation filed a lawsuit this week in a West Virginia federal district court to stop the Parkersburg, West Virginia City Council from regularly opening its meetings with the recitation of the Lord's Prayer.  The complaint (full text) in Cobranchi v. The City of Parkersburg, (D WV, filed 7/30/2018), seeks declaratory and injunctive relief, contending that the prayer practice violates plaintiffs' 1st and 14th Amendment rights. FFRF issued a press release announcing the filing of the lawsuit.

9th Circuit: School Board Invocations Violate Establishment Clause

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (9th Cir., July 25, 2018), the U.S. 9th Circuit Court of Appeals agreed with the district court that a California school board's prayer policy at board meetings violates the Establishment Clause. The court said in part:

The invocations to start the open portions of Board meetings are not within the legislative prayer tradition that allows certain types of prayer to open legislative sessions. This is not the sort of solemnizing and unifying prayer, directed at lawmakers themselves and conducted before an audience of mature adults free from coercive pressures to participate, that the legislative-prayer tradition contemplates.... Instead, these prayers typically take place before groups of schoolchildren whose attendance is not truly voluntary and whose relationship to school district officials, including the Board, is not one of full parity.....

Instead of the legislative-prayer analysis, we apply the three-pronged Establishment Clause test articulated in Lemon v. Kurtzman.... The Chino Valley Board’s prayer policy and practice fails the Lemon test and is therefore unconstitutional.

Los Angeles Times reports on the decision.

Cert. Denied In Michigan Legislative Prayer Case

Last week the U.S. Supreme Court denied certiorari in Bormuth v. Jackson County, Michigan, (Docket No. 17-7220, cert. denied June 28, 2018). (Order List).  In the case, the 6th Circuit sitting en banc in a 9-6 decision upheld the invocation practices of the Jackson County Board of Commissioners.  At issue was whether the Establishment Clause is violated when invocations-- virtually all of them Christian-- are offered by elected Commissioners themselves rather than by a chaplain or invited clergy. (See prior posting.)  The denial of review came on the same day that the Supreme Court (as previously reported) also denied certiorari in a 4th Circuit legislative prayer case-- Rowan County, North Carolina v. Lund which took a contrary view in a similar situation. In the Rowan County case, Justice Thomas, joined by Justice Gorsuch, filed an opinion dissenting from the denial of certiorari, saying in part::

[T]he Sixth and Fourth Circuits are now split on the legality of legislator-led prayer. State and local lawmakers can lead prayers in Tennessee, Kentucky, Ohio, and Michigan, but not in South Carolina, North Carolina, Virginia, Maryland, or West Virginia. This Court should have stepped in to resolve this conflict.

[Thanks to Blog From the Capital for the lead on Bormuth.]

Cert. Denied, Over 2 Dissents, In Legislative Prayer Case

The U.S. Supreme Court yesterday denied review in Rowan County, North Carolina v. Lund, (cert. denied 6/28/2018), but with Justice Thomas, joined by Justice Gorsuch, filing an opinion dissenting from the denial of certiorari. (Full text).  In the case,  the U.S. 4th Circuit Court of Appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners, in which commissioners themselves deliver invocations, violate the Establishment Clause. (See prior posting.) Charlotte Observer reports on the denial of certiorari and reactions to it.

Satanic Temple Sues City Over Invocation Policy

The Satanic Temple last week filed a federal lawsuit against the city of Scottsdale, AZ, challenging on federal and state constitutional grounds the invocation practices of the city.  The complaint (full text) in The Satanic Temple v. City of Scottsdale, Arizona, (D AZ, filed 2/23/2018), alleges that City Council meetings are regularly opened by prayers delivered only by members of Judeo-Christian faiths. An invocation originally scheduled to be given by a member of the Satanic Temple was cancelled, using the allegedly pretextual reason of connection to the community. Subsequently the mayor touted stopping the Satanists in an election pamphlet. The Scottsdale Independent reports on the lawsuit.

Supreme Court Denies Review In School Board Prayer and Funeral Picketing Cases

Today the U.S. Supreme Court denied certiorari in American Humanist Association v. Birdville Independent School District, (Docket No. 17-178, cert. denied 11/27/2017). (Order List).  In the case, the 5th Circuit upheld a school board's practice of opening its meetings with presentations from students, which often involve a prayer.  It held that legislative prayer cases, not the decisions regarding school prayer, govern this situation. (See prior posting.)

The Supreme Court today also denied review in Phelps-Roper v. Ricketts, (Docket No. 17-427, cert. denied 11/27/2017). (Order List).  In the case the 8th Circuit upheld Nebraska's Funeral Picketing Law against both facial and as-applied challenges brought by members of the Westboro Baptist Church. (See prior posting.)

9th Circuit Hears Oral Arguments In School Board Invocation Case

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in Freedom From Religion foundation v. Chino Unified School District. In the case, a California federal district court held that invocations at school board meetings are governed by case law relating to school prayer, not by the line of cases on legislative prayer.  Courthouse News Service reports on the oral arguments.

Cert Petitions Filed In Two Religious Liberty Cases

Last week, petitions for certiorari were filed with the U.S. Supreme Court in two cases of interest. On Oct. 10, a cert. petition (full text) was filed in Barber v. Bryant.  In the case, the U.S. 5th Circuit Court of Appeals dismissed for lack of standing two suits challenging Mississippi's HB 1523 which protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions on three topics.  The protected beliefs are that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth.  (See prior posting). An en banc rehearing was denied by a vote of 12-2. (See prior posting.) Washington Blade reports on the petition for review.

On Oct. 12, a petition for certiorari (full text) was filed in Rowan County, North Carolina v. Lund.  In the case,  the U.S. 4th Circuit Court of appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners, in which commissioners themselves deliver invocations, violate the Establishment Clause. (See prior posting.)  WBTV reports on the filing of the cert. petition.

House of Representatives Ban On Secular Invocations Is Constitutional

In Barker v. Conroy, (D DC, Oct. 11, 2017), the D.C. federal district court rejected challenges to rules of the U.S. House of Representatives which do not allow an atheist to deliver a secular invocation as a guest chaplain. Plaintiff who is co-president of the Freedom From Religion Foundation challenged the practice after his request for inclusion as a guest chaplain was denied.  The court rejected plaintiff's Establishment Clause, Equal Protection Clause and RFRA  claims, saying in part:

Despite Mr. Barker’s repeated attempts to characterize his claims as not challenging the constitutionality of legislative prayer, the reality is that his request to open the House with a secular invocation, which resulted in the denial of his request to serve as a guest chaplain, was a challenge to the ability of Congress to open with a prayer...

The court also rejected a claim that the policy violates the constitutional prohibition on religious tests for any "office or public trust under the United States," concluding that the position of guest chaplain is not an office or position of public trust.

Invocation Policy That Excludes Non-Theists Is Unconstitutional

In Williamson v. Brevard County, (MD FL, Sept. 30, 2017), a Florida federal district court held that the invocation practices of the Brevard (FL) Board of County Commissioners violate the Establishment Clause as well as free speech, free exercise, equal protection and various state constitutional provisions.  County Commissioners take turns inviting clergy or others to deliver an invocation at the beginning of each board meeting.  Commissioners, however, will only invite representatives of the faith-based community.  Non-theists may not deliver invocations, though they may speak during the public comment portion of a Board meeting.  The court, in a 69-page opinion, held:

Although the County contends that its invocation practice passes constitutional muster under Town of Greece, the Supreme Court's opinion in that case cannot be read to condone the deliberate exclusion of citizens who do not believe in a traditional monotheistic religion from eligibility to give opening invocations at County Board meetings. Neither Town of Greece nor any other binding precedent supports the County's arguments, and none of the County's asserted justifications for its practice holds water....

For a governmental entity to require, or attempt to require, "religious" content in invocations is, in effect (or, at best, but a step removed from) that entity composing prayers for public consumption or censoring the content of prayer....

Americans United issued a press release announcing the decision.

6th Circuit En Banc Upholds Invocations Offered By County Commissioners

In Bormuth v. County of  Jackson, (6th Cir., Sept. 6, 2017),  the U.S. 6th Circuit Court of Appeals sitting en banc in a 9-6 decision upheld the invocation practices of the Jackson County, Michigan Board of Commissioners.  At issue was whether the Establishment Clause is violated when invocations-- virtually all of them Christian-- are offered by elected Commissioners themselves rather than by a chaplain or invited clergy.  Judge Griffin's majority opinion reasoned:

There is no support for [plaintiff's] granular view of legislative prayer. In this regard, neither Marsh nor Town of Greece restricts who may give prayers in order to be consistent with historical practice....

That the prayers reflect the individual Commissioners’ religious beliefs does not mean the Jackson County Board of Commissioners is “endorsing” a particular religion, Christianity or otherwise. For one, while all the Commissioners presumably believe in Jesus Christ, the faiths of Christianity are diverse, not monolithic. The Reformation of the Sixteenth Century spawned an explosion of Christian faiths. Many of those practicing these new Christian faiths sought religious freedom in America and found refuge from the tyranny inflicted by sectarian governments....

We do not know the religious faiths of the 2013-2014 Jackson County Commissioners. The nine “Christian” Commissioners may have included Roman Catholics, Southern Baptists, Mormons, Quakers, Episcopalians, Lutherans, Methodists, and others.

Judges Rogers and Sutton wrote concurring opinions.

Judge Moore's dissent argued:

In the case before us today, the majority is dangerously close to permitting exactly what Justice Alito said Town of Greece obviously does not permit—government officials instructing citizens to participate in sectarian prayer before commencing government proceedings. There is no daylight between polling place workers asking individuals to pray before casting their ballots, as in Justice Alito’s example, and county commissioners asking individuals to pray before participating in local government meetings, as actually happens in Jackson County. This similarity underscores why a tradition that protects the Town of Greece’s right to open its meetings with solemn and respectful prayers, which was targeted at legislators and offered by clergy or volunteers from a variety of faith traditions, does not protect Jackson County’s policy to restrict its legislative prayer practice to government officials themselves asking the public to participate in exclusively Christian prayer.

Judge White wrote a separate dissenting opinion. Courthouse News Service reports on the decision.

Cert. Petition Filed In School Board Prayer Case

A petition for certiorari (full text) was filed with the U.S. Supreme Court today in American Humanist Association v. Birdville Independent School District, (filed 7/31/2017).  In the case (sub. nom. American Humanist Association v. McCarty) the U.S. 5th Circuit Court of Appeals upheld a school board's practice of opening its meetings with presentations from students, which often involve a prayer.  The 5th Circuit held that this should be covered by the legislative prayer cases, not the decisions regarding school prayer. (See prior posting.)  the American Humanist Association issued a press release announcing the filing of the petition for review.

4th Circuit En Banc: Rowan County's Invocation Practice Violates Establishment Clause

In Lund v. Rowan County, North Carolina, (4th Cir., July 14, 2017), the U.S. 4th Circuit Court of appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners violates the Establishment Clause. Judge Wilkinson’s 42-page majority opinion reads in part:

We conclude that the Constitution does not allow what happened in Rowan County. The prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion. And because the commissioners were the exclusive prayer-givers, Rowan County’s invocation practice falls well outside the more inclusive, minister-oriented practice of legislative prayer described in Town of Greece. Indeed, if elected representatives invite their constituents to participate in prayers invoking a single faith for meeting upon meeting, year after year, it is difficult to imagine constitutional limits to sectarian prayer practice.

The great promise of the Establishment Clause is that religion will not operate as an instrument of division in our nation. Consistent with this principle, there is a time- honored tradition of legislative prayer that reflects the respect of each faith for other faiths and the aspiration, common to so many creeds, of finding higher meaning and deeper purpose in these fleeting moments each of us spends upon this earth. Instead of drawing on this tradition, Rowan County elevated one religion above all others and aligned itself with that faith. It need not be so. As the history of legislative invocations demonstrates, the desire of this good county for prayer at the opening of its public sessions can be realized in many ways that further both religious exercise and religious tolerance.

Judge Motz, joined by Judges Keenan and Harris, filed a concurring opinion emphasizing that the majority’s holding is consistent with Supreme Court precedent in Marsh and Town of Greece cases.

Judge Niemeyer, joined by Judge Shedd, filed a dissenting opinion arguing that the majority opinion “actively undermines the appropriate role of prayer in American civic life.”  Judge Agee also filed a dissenting opinion which was joined by Judges Niemeyer, Traxler, Shedd, and Diaz, arguing that the majority opinion is “irreconcilable” with Marsh and Town of Greece.  Charlotte Observer reports on the decision.

6th Circuit En Banc Hears Legislative Prayer Case

The U.S. 6th Circuit Court of Appeals sitting en banc yesterday heard oral arguments in Bormuth v County of Jackson (Docket No. 15-1869). (Audio of full oral arguments.)  In the case, a 3-judge panel of the 6th Circuit in a 2-1 decision held that the manner in which the Jackson County, Michigan Board of Commissioners opens its meetings with prayer violates the Establishment Clause.  (See prior posting.)

Challenge To Pennsylvania Legislative Prayer Practices Survives Motion To Dismiss

In Fields v. Speaker of  the Pennsylvania House of Representatives, (MD PA, April 28, 2017), a Pennsylvania federal district court in a 33-page opinion refused to dismiss on the pleadings an Establishment Clause challenge to the Pennsylvania House of Representatives invocation policy.  House members may nominate "guest chaplains" to deliver an invocation at the beginning of a House session.  However House rules, as administered by the Speaker, do not permit non-theists to serve as guest chaplains. Plaintiffs are atheists, agnostics, secular humanists and freethinkers who have been denied the opportunity to deliver an invocation.  According to the court:

Plaintiffs plead a policy of religious discrimination sufficient to state a First Amendment claim.

Whether history and tradition sanctify the House‟s line of demarcation between theistic and nontheistic chaplains is a factual issue for a later day. Establishment Clause issues are inherently fact-intensive, and we must resist the academic intrigue of casting the salient inquiry too narrowly at this juncture. To the extent the parties‟ arguments evoke more nuanced constitutional questions— e.g., whether plaintiffs practice “religion” and are capable of “praying,” or whether tradition dictates that legislative prayer address a “higher power”—any such determination demands, and deserves, a fully developed record. As it stands, plaintiffs‟ challenge to the House‟s legislative prayer policy survives Rule 12 scrutiny.

The court also permitted two of the plaintiffs to move ahead with their challenge to the requirement that members of the public in attendance stand during the invocation.  On one occasion the Speaker publicly singled out plaintiffs for remaining seated.

The Court dismissed Free Exercise, Free Speech and Equal Protection challenges to the prayer policy, finding that legislative prayer is "government speech."

5th Circuit Upholds Student Invocations At School Board Meetings

In American Humanist Association v. McCarty, (5th Cir., March 20, 2017), the U.S. 5th Circuit Court of Appeals upheld a school board's practice of opening its meetings with presentations from students, which often involves a prayer.  As described by the court:

Since 1997, two students have opened each session—with one leading the Pledge of Allegiance and the Texas pledge and the other delivering some sort of statement, which can include an invocation. Those student presenters, typically either elementary- or middle-school students, are given one minute. [School board] officials do not direct them on what to say but tell them to make sure their statements are relevant to school-board meetings and not obscene or otherwise inappropriate. At a number of meetings, the student speakers have presented poems or read secular statements. But ... they are usually an invocation in the form of a prayer, with speakers frequently referencing “Jesus” or “Christ.”

Upholding the practice, the court said that the  in part:

The key question ... is whether this case is essentially more a legislative-prayer case or a school-prayer matter....We agree with the district court that “a school board is more like a legislature than a school classroom or event.” The BISD board is a deliberative body, charged with overseeing the district’s public schools, adopting budgets, collecting taxes, conducting elections, issuing bonds, and other tasks that are undeniably legislative....

In a press release, the American Humanist Association indicates that it will file a petition to seek an en banc rehearing in the case.