How Local Government Waste Is Justified

I live in an inland desert city of California. Its politics are dominated, as a practical matter, by an alliance between a group of land developers and four large more or less evangelical Christian churches. Mostly, those civic leaders have delivered good government — the zoning makes sense, city services are adequately supported and of good quality. In the objective, day-to-day, nuts-and-bolts kinds of things the city does, I’ve no problem with our municipal leadership. Why they feel the need to use hot-button wedge issues to drive out their voter  based when municipal elections have less than twelve percent turnout anyway is totally beyond me. But they do, and they chose a wedge issue that drives me away from offering the support I would otherwise be gravitationally attracted to giving.

Since the churches are such substantial civic organizations around here, the otherwise competent-to-unobjectionable civic leaders of my lovely city in the desert chose to adopt, then codify, and now defend in court, a municipal policy of sectarian invocations at the beginning of meetings of the city council. This was used as a wedge issue in the most recent round of municipal elections, abetted in a perverse way by political and legal activists (I am not among their number although a matter of principle, I believe them to be in the right) who decided to sue the city for this invocation policy.

And the city’s leaders proclaimed the deep importance of defending the policy and why not? Intellectually, they must know that they have an uphill battle at best. There is state law precedent, if nothing else, directly on point, in the case of Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194. But they have the city’s money — my money — to defend it with and personal immunity from liability. And doing so pleases them and their political base, in an era when the Establishment Clause is held in open contempt by prominent political leaders who otherwise treat the Constitution as a fetish and when judges overtly favor religious litigants to non-religious litigants.

So this is a case of lighting public money on fire for a questionable short-term political gain of a political elite who would probably have won re-election anyway even if they hadn’t directed the city to engage in an effort that, if successful, will subvert the Constitution. It makes me a little bit upset.

It didn’t take very much looking into the issue for me to find that the policy was written by an advocacy group and to infer that the advocacy group considers the litigation challenging my city’s policy to part of a broader effort to promulgate these policies to cities across the country. The masterminds of this policy intentionally modelled it to conform to a legal standard announced in an Eleventh Circuit Court of Appeals decision, Pelphrey v. Cobb County (11th Cir. 2008) 547 F.3d 1263.

Unfortunately for the leaders of my city and fortunately for the activists, another Federal court in the Eleventh Circuit has just shown the way for an Establishment Clause standard to stand against even the generous countours outlined by Pelphrey. In Atheists of Florida, Inc. v. City of Lakeland (M.D. Fla. 8:10-cv-1538), the City of Lakeland a functionally identical policy, similarly-drafted by the same advocacy group and molded to conform to Pelphrey, was adopted by that city’s council. The District Court denied Lakeland’s 12(b)(6) motion to dismiss:

…the dispositive issue at this juncture is whether Plaintiffs allege sufficient facts such that it is plausible to believe that the City of Lakeland exploited a prayer practice to proselytize or advance any one, or to disparage any other, faith or belief. Given the sheer number of Christian prayers (and the timing of the only non-Christian speaker), and the potential that Plaintiffs might demonstrate either categorical exclusion of non-Christians or or an impermissible motive in the City’s selection process, the Court reluctantly concludes that Plaintiffs have alleged facts that could plausibly give rise to an entitlement to relief. (Slip op. at 16, internal citations and quotation marks omitted.)

I will not miss the opportunity to call the Court on the carpet for its use of the word “reluctantly” in the final sentence. The policy either violates the Establishment Clause or it does not. This motion asked her whether there was a colorable claim that this policy violates the Constitution and there obviously is such a claim. But for some reason, U.S. District Judge Elizabeth A. Kovachevich evidently felt some pressure to not reach this conclusion, and instead let slip in her opinion a signal that she would have preferred to have validated the policy rather than call out a constitutional vulnerability in it. The judge has a lifetime appointment and Secret Service protection so she should feel no pressure at all to reach a potentially unpopular result in a case like this. That’s the reason we give judges lifetime appointments. And in light of that, she should not be “reluctant” to enforce the Constitution and limit the power of the local government. Looking deeper into the nuts and bolts of the case only confirms this.

The selection process under the model policy is for the city to direct a staffer to compile list of all “houses of worship” or “religious institutions” located within the city limits. The staffer then sends out an invitation letter to these houses of worship and asks if they would like to be included on the list of potential invocation speakers. Those who respond “yes” are put on the list. Then, the staffer randomly selects someone from the list and invites them to speak, and they are told they may speak and pray as they see fit, including sectarian invocations (e.g., “…and this we pray in the name of Jesus Christ.”).

In practice, in both Lakeland and in my own city, there are lots and lots of Christian churches and virtually no non-Christian “houses of worship” within the city’s territorial limits. The actual speakers are overwhelmingly Christian of one sort or another. The question is whether the demarcation for the endorsement is within broad religious groups (Christians, Jews, Muslims, etc.) or whether it is at the denominational level (Baptists, Presbyterians, Catholics, etc.); the Atheists of Florida court chose to apply the broader categorization — which makes sense, because from an endorsement perspective, the difference between a Roman Catholic priest and a Lutheran minister an a Church of Christ pastor is relatively negligible — all of them say, more or less, that Jesus was the son of God and should be worshiped as the incarnation of God and was resurrected as proof of his divinity.

In the case of my city, every speaker since the policy was first implemented more than two years ago — including the time before it was submitted to the voters as a wedge issue — has been a Christian cleric of some kind or other. The lone exception was an eight-year-old Girl Scout whom the mayor put on the spot, who tentatively (and adorably) asked an unnamed entity to do some nice things. I’ve updated my analysis and found that the religion of the speakers invited by the city to deliver invocations is as follows:

  • Ba’hai:  0
  • Buddhists (Zen, Soto, Maya, and others):  0
  • Christians (including Mormons and Catholics):  48
  • Confucians:  0
  • Jews (Hasidic, Conservative, Orthodox, and Reform):  0
  • Native American: 0
  • Muslims (Shia and Sunni):  0
  • Non-denominational Girl Scouts:  1
  • Hindus:  0
  • Pagans:  0
  • Scientologists:  0
  • Shinto:  0
  • Sikh (there is a substantial Sikh community in my city):  0
  • Taoist:  0
  • Universal Unitarian:  0
  • Wiccans: 0
  • Zoroastrians:  0

The “houses of worship” as being within the city limits as set forth in one version of the local telephone book are two Jewish temples, one mosque, one Sikh temple, one U.U. meeting house, and about 125 Christian churches. Since I am not involved in the litigation, I have not been privy to discovery to learn how many of those houses of worship responded to the solicitation letter. Not that it would matter — the universe of potential speakers is such that the city can honestly use random sampling from the result of that selection criteria and be assured that functionally all of the invocation speakers will be some sort of Christians.

So we see a civic choice, whether intentional at the outset or practical in the implementation, to favor Christianity over other kinds of religion. This is, I trust, not too difficult to see for even those who might want to favor the policy (because they see no Constitutional no difficulty with the idea of sectarian invocations). It’s rather simple to see the Lakeland Court, even applying the generous Pelphrey standard that allows some sectarian invocations, casting this as an Establishment Clause violation.

What a lot of people don’t see, though, is that this policy favors religion over non-religion. There is no such thing, and conceptually could not be such a thing, as an atheist “house of worship.” By definition, atheists don’t worship anything, so even if there were to be an established building in which nonbelievers regularly congregated, it wouldn’t be a place where worship occurred. Thus, religion in a general sense is favored over non-religion, in violation of the Constitution.

Given that the Lakeland Court finds only “reluctantly” that there is a possibility of an Establishment Clause violation, I suspect that the judge in that case will have to be led carefully to this conclusion because she perceives political risk to herself down this road.

When I first wrote about this issue about a year ago, I received an oblique comment that consisted of nothing more than quoting the First Amendment, with emphasis on the Free Exercise Clause. It seems obvious to me that the Free Exercise Clause does not close the book in favor of sectarian invocations by public entities. If a cleric wants to pray freely, he has a church in which he may do so. If a member of the city council wishes to pray freely, they may do so on their own time. When they are conducting city business, they are not on their own time and they are not free to do as they please. They are on government time, they are speaking for the government, and that means they have to be careful about what they say. Which even the model policy is clear on — they may not proselytize their own religion nor disparage any other religion, which is something that the “free exercise” of religion would seem to require that they be given latitude to do.

As a matter of best practices, the ideal compromise policy would seem to be a moment of silence. Those who wish to pray, may pray, and there is an official nod to the fact that there are those who wish to do so. Those who do not, may reflect on whatever they choose to. There is a moment of calm before deliberation of sometimes-contentious civic issues, which is of at least minimal public benefit. Religion is accommodated without being endorsed. No one is excluded.

But because the Supreme Court was two votes away from the principled and logical result in Marsh v. Chambers back in 1982 — and Chief Justice Burger, Justice Blackmun, and Justice O’Connor, at least, had to have been uncomfortable with their votes — we now get to wrestle with this issue today. And otherwise-able local governments launch crusades to fritter away tens if not hundreds of thousands of taxpayer dollars to defend the marginal constitutionality of policies which are useless and unwise in the first place.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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