Let’s put to rest the trope that the Ninth Circuit is a court where out-of-control liberal activist judges run amok on all that is legal, just, and true. That notion is simply false. A case from the Ninth Circuit yesterday upheld the power of a city near where I live to hold sectarian invocations before City Council meetings. I break it all down for you after the jump.
The applicable part of the First Amendment is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…” These clauses have been “incorporated” through the Fourteenth Amendment to apply state-level governmental decisions. See Gitlow v. New York, 268 U.S. 652 (1925) (free speech clause); Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise clause); Everson v. Board of Education, 330 U.S. 1 (1947) (establishment clause).
The three-prong test in Lemon v. Kurtzman, 403 U.S. 602 (1971), requires a law, policy or practice of a state or governmental entity to meet a three-part test. If it fails any of these three layers of analysis, it is an Establishment of religion in violation of the First Amendment. “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.'” Lemon, supra, at 612-613. What is an “excessive government entanglement with religion,” you ask? Good question. That requires a case-by-case analysis.
In the case of Marsh v. Chambers, 463 U.S. 783 (1983), a state legislator in Nebraska challenged the legislature’s practice of opening its sessions with a non-sectarian prayer. Eschewing analysis of the Lemon test, the Court instead reasoned that since the First Congress both passed what became the First Amendment, and hired clergy to deliver invocations. So since they must have known what they were doing, since they couldn’t possibly have suffered from any cognitive dissonance. Therefore, Nebraska legislature’s practice of delivering invocations didn’t violate the Establishment clause. A big factor was that the chaplain did not specifically reference a specific deity.
Finally, in County of Allegheny v. ACLU, 492 U.S. 573 (1989) there was a challenge to a county’s display of a crèche, a Christmas tree, and a menorah on public space in downtown Pittsburgh during the holiday season. The crèche violated the Establishment clause, but the menorah and tree display did not, because the crèche failed the Lemon test by having the primary effect or intent of advancing religion but the display in its “particular physical setting” merely commemorated the arrival of the holiday season.
The Invocation Policy, on Paper and in Practice
The City of Lancaster, California, had long had an informal practice of delivery of invocations before meetings of the city council. Someone would call a local cleric and invite (almost always) him to deliver an invocation. Some invocations explicitly referred to divine entities by name (almost always to Jesus Christ) and others did not. I’ve no statistics. No one kept any lists. For a time, the mayor was a minister himself, and he delivered his own invocations during and after his term.
Under that mayor’s successor, a more formal invocation policy was adopted at the urging of a religious-rights advocacy group. At the same time the formal policy was adopted, the mayor had passed a resolution adopting “IN GOD WE TRUST” as the city’s motto, and then bought with his own money some foot-high lettering to place behind the dias where the council sits, reading “IN GOD WE TRUST” prominently and in all capital letters.
The policy directs the city clerk to annually scour the phone book for the addresses of houses of worship in the city limits. Every address thus generated is sent a form letter, inviting the leader of that congregation to indicate their interest in participating. From among those who respond, a list is generated. A name from that list is randomly selected and invited to deliver the invocation. The visiting minister is told that he (it’s still almost always a “he”) can pray however he chooses, including invoking the names of specific divine entities should he so choose, but he is encouraged to not evangelize nor disparage other religions. The speakers are not paid anything.
When it was first formally implemented in August of 2009, only a few churches participated, including one church thought to be politically aligned with the control group on the Council. So for a couple of months there were only ministers from four or five local churches delivering invocations. The policy was amended to limit the number of times any one church could be represented to three per year. After a few missteps and false starts in the first few months of the formal policy, it now seems to be in practice what is stated on paper.
All but two of the invocations ever given have been by Christian religious leaders. The three times non-Christian invocations were given in the history of this practice, one was given by a Girl Scout who was put on the spot by the mayor and who simply failed to mention any deity at all, and the others were given by a Sikh Granthi who was invited from out of the city specially to deliver the invocation after an informal challenge to the policy was made but before the lawsuit was filed; the second time was shortly after a city council member said something very, very inappropriate about Muslims, so the mayor reached out to a local mosque and invited it to send a representative to deliver a Muslim invocation. One of the few female pastors to speak more than once in the two-year period of time between August 2009 and August 2011 that I studied appears to me to be much more new agey than Christian.
On a few occasions, there has been no cleric available either because the invited cleric didn’t make it for whatever reason or there was no eligible cleric on call. When that happens, the Mayor either delivers the invocation himself, or invites someone else to do so. With the exception of the Girl Scout, every spontaneously-designated invocation has been explicit about invoking the name of Jesus. As far as I can tell, only on one occasion since 2009 has the invocation been skipped entirely, and that was for an emergency meeting called on short notice.
Anything Odd About The Actual Lawyers?
I notice that the only amicus briefs filed before the Ninth Circuit were filed by religious rights advocacy groups. No church-state separation advocacy groups filed amicus briefs. Groups like the Freedom From Religion Foundation and the ACLU did not participate, even as amici. To explain why that is the case would require speculation on my part.
If you want to hear directly from the actual lawyer who did argue against this policy in this case, he was interviewed on a local political talk radio station, in opposition to Matt Staver from yet another social conservative advocacy group. Mr. Diamond, the plaintiff’s counsel, comes across rather well in my opinion (bear in mind, the host is favorable to him, and I’m biased in favor the position he’s arguing for).
The Ninth Circuit Panel Decision
So the panel’s analysis of the case law resolved, at its core, in this sentence:
…though Allegheny, commented on Marsh, it did not—because, in dicta, it could not—supplant Marsh or restrict its scope.
There’s ample case law supporting that statement. Principled or not, Marsh is the law. I’m not sure I’d call the applicable text of Allegheny quite so easily dismissed as mere “dicta,” though:
Whether the key word is “endorsement,” “favoritism,” or “promotion,” the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from “making adherence to a religion relevant in any way to a person’s standing in the political community.” Lynch v. Donnelly, 465 U.S. at 687 (O’CONNOR, J., concurring). Allegheny, at 593-594.
This does not look like dicta to me. It is a restatement of existing law, which commanded a majority of votes and therefore is binding precedent. It is true, however, that it does not explicitly overrule the previous precedent of Marsh v. Chambers. And this, along with another passage in a case called Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), lead me to concude that twice, a majority of the Supreme Court has restated the test for violation of the Establishment clause as the “endorsement test” from Lynch referred to in the section of Allegheny quoted above. Some scholars agree with this conclusion and others disagree with it; including active jurists at every level of the judiciary.
I don’t see how you get around a sectarian minister being invited by a legislative body, and put on that legislative body’s official agenda, and in the case of Congress (or Nebraska) being paid by the legislature, for the sole purpose of delivering prayers, and don’t conclude that there is at least some degree of approval of the religious message the legislative body has gone out of its way to put before the public.
To say “Well, it’s just a tradition, it doesn’t really mean we’re endorsing the religious content,” is to say that you would be perfectly happy without it. And a policy structured as circuitously and carefully as the city of Lancaster’s is clearly intended to create a “safe space” for religious content in the City Council’s agenda. Which on its face is contrary to Epperson v. Arkansas, 393 U.S. 97, 103-14 (1968):
Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion, and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.
It’s largely in reaction to this holding that the policy goes to some length to try and conceal the City from agency about who delivers the invocations and what is said within them. It just happens that only Christian ministers choose to participate in the program, so it just happens that functionally all the invocations are Christian. And it just happens that functionally all of those invocations recite the name of Jesus, sometimes identified as Jesus Christ, and sometimes Jesus identified as the Son of God or God Himself.
The Ninth Circuit panel decision does not see a problem with this — the panel indicates, in the face of no contrary evidence, that this is reflective of the demographics of the community and the self-selection process. More about that in a moment.
So how do you get around the seemingly blindingly obvious fact that legislative prayer flunks the Lemon test? Special pleading. No, really.
To be sure, had Marsh applied Lemon, then the question whether Nebraska had advanced Christianity would have depended on the prayers’ effects and the reasonable observer’s perceptions. And indeed, the Court might well have determined, as had the Eighth Circuit, that “[t]hose who have observed or participated in Nebraska’s legislative process over the last sixteen years would have to conclude that the legislature has an official view on religion which is expressed by its minister and promoted with the use of state funds.” Chambers v. Marsh, 675 F.2d 228, 235 (8th Cir. 1982),rev’d, 463 U.S. 783 (1983). Instead, the Court left Lemon on the shelf, upholding Nebraska’s practice solely on the basis of original intent, tradition, and the absence of evidence suggesting a state-led effort to proselytize, advance, or disparage any one religion. (slip op. at 21-22, some internal citations omitted.)
The only times any explicitly non-Christian has ever delivered the invocation since the policy was implemented, it was by explicit deviation from the policy at the direction of the mayor, in response to political pressure. This is not addressed at all. I may have to give the panel a pass on that — after all, if a fact is not discussed in the trial court record, then the appellate court can’t review it, and that fact was not discussed at any length at all at the trial court.
A Neutral Policy?
As it happens that virtually every house of worship in the city is Christian (if Mormons are included in the definition of Christianity, a topic which is quietly and politely, but firmly, debated amongst some folks in these parts who find that particular topic to be of great importance). The three major phone books list about a hundred and fifty Christian churches, and only five operating houses of worship from non-Christian religions within the ZIP codes assigned to the city of Lancaster. This has been the case for a long time.
So although the policy looks neutral on its face — all houses of worship in and near the city are extended invitations — the neutral-looking criterion for inclusion is really not all that neutral, and someone with knowledge of the area would not expect it to be.
What’s more, because the policy focuses on houses of worship established enough to have entries in the phone book, this will exclude startup congregations, informal congregations, and other groups who aren’t well-established enough to have a permanent building on a plot of land they can call their own.
I know for a fact that there’s a thriving pagan/Wiccan community in these parts, from having run across some of that community’s leaders from time to time. They meet informally in one anothers’ homes, conduct worship services in wilderness settings, and the closest thing to a physical building for congregation that they have is a retail shop that sells crystals and herbs and beads and books. This retail shop is not a “house of worship,” it’s a for-profit store.
I know for a fact that there’s a thriving Sikh community around here, too. They’ve been trying in fits and starts to complete a worship and community center, interestingly right next to the Catholic high school that I attended as a teenager. The construction on this community center is not done yet, and the building is not operational. When it is, it’ll be in the city limits, but for now, there is no formal Sikh house of worship in operation here, that I know of.
I have friends who are Jains. Many other Jains are in the area. No house of worship. There’s two different kinds of Buddhists (Zen and Mahayana) but their houses of worship are in a neighboring city and would not be included in the “to invite” list. Same thing for the mosques; there are two in the area and both are near where the cities meet, but the second one is technically in the other city.
And then there’s my own community, of skeptics, freethinkers, and other variants from the “nonbeliever” camp. Even if we were to be well-organized and well-financed enough to do more than meet once a month to talk about social and cultural topics in a mediocre restaurant, which we’re not, we’re still a long way away from having the equivalent of a church, and it wouldn’t be a house of worship even if we had one — it would be a house of non-worship. Maybe they’d include us anyway but as I argue in the last section below, I’d resist the notion that even were we to be considered for inclusion in the invocations list, I’d urge that we not participate.
So the policy appears neutral but may not actually be. In this city, pretty much only Chrisitans have houses of worship. So a policy that uses “houses of worship in the city” as its standard is casting a net to a pool of about 150 Christian churches, two Jewish temples and/or synagogues, and one mosque. From there, they have to respond and opt in. An author of the policy who knew a thing to two about the demographics in the community (or, hell, one who took ten minutes to do a little research in the phone book the way I did) would realize that such a policy would produce a pool consisting almost exclusively of Christian speakers.
Do Demographics Matter?
The next question is, was the Ninth Circuit panel right that the dominance of Christians on the speaker list is reflective of the local demographics? I think it is; it’s hard to argue with the notion that Christianity is an overwhelmingly popular religion in this nation.
But I question if it is even relevant. Under the endorsement standard I describe above, the community could be 99.995% Christian and it’s still irrelevant — the city, as a governmental entity, must not “appear  to take a position on questions of religious belief” or “mak[e] adherence to a religion relevant in any way to a person’s standing in the political community.” When every meeting of the council is begun with a Christian prayer that the members of the council have gone out of their way to make sure they can hear, and the mayor is standing there in front of foot-high letters reading “IN GOD WE TRUST” that he paid for himself,* it’s a little hard for me to believe that were I to go before that council and announce my nonbelief, I wouldn’t be thought of as a peg or two lower on the pecking order than everyone else.
Besides, under either the endorsement test or the Lemon test, the popularity of a prevailing religion is completely irrelevant. The problem with the display of official religion becomes easier to see if the Established religion is an unpopular one, like Islam, or is “nonreligion” like my skepticism, which the government can’t favor any more than it can favor religion. If I were the Mayor and I had foot-high letters posted behind the City Council reading “NO EVIDENCE FOR GOD” a Christian might feel a little bit off-balance when coming before her government, in a way she ought not to have to.
The Law Is The Law Even If You Don’t Like It
So the panel decision boils down to:
Hey, Marsh v. Chambers is still good law; Allegheny v. ACLU didn’t overrule it. And Marsh is a special case, so forty-five years of precedent from Lemon v. Kurtzman on just don’t apply in this case. Because we said so, that’s why. That means the City Council can choose to have invocations if it wants to. And no one can tell a cleric how to pray. Sure, it’s worked out to be all Christian prayers in Lancaster, but that’s because everyone there, or at least everyone there who chooses to participate in this program, is Christian. Ergo, no Establishment Clause violation. It sucks to be you, plaintiffs.
It seems likely there will be a request for a hearing before the Ninth Circuit en banc, which would be before a panel of eleven judges instead of three. Or a petition for certiorari directly to the U.S. Supreme Court. Until then, though, the law of the case is that there is no Constitutional impediment to the city having invocations before it meets to govern itself.
But consider this: just because the City can have these invocations doesn’t mean that it should.
Sure, it’s only a minute or two. Not a lot of time taken away from the city’s ability to govern itself, which for the most part it does reasonably well to quite well. But it’s obviously important to a lot of people that this time be taken, and that it be taken in this way, or they wouldn’t have gone to all the trouble of writing so circuitous a policy as this, and the political leaders of the city wouldn’t have seen advantage to themselves in spending so much taxpayer money defending it through two years of legal challenges.
It’s not a question of religious freedom, and it never was. If the invocations were taken away, either by the city reversing its policy voluntarily, the voters overruling it by initiative, or a court enjoining it, there would still be nothing at all to prevent anyone from praying. The mayor and his co-religionists could pray before the meeting all they wanted. There’s no order preventing anyone from going to a church. It would only mean there wouldn’t be a prayer on the city council’s agenda and occurring during its meetings.
It’s not a question of freedom of speech, and it never was. There’s public comment time available to anyone at the start of the city council meetings, and no one would have a gripe with an individual citizen using that public comment time to pray if they chose. There would not be any indication that the city wanted prayer, that the city invited prayer, if that’s what was going on.
It’s a question of inclusiveness and appropriateness. The government should be inclusive. City Hall is not a church. The government is not a religious institution. Nor are religious institutions governments. Maybe the Constitution doesn’t require so sharp and strong a line of separation between church and state as I would prefer. But there should still be such a line drawn. A church is for believers, a community of people who share a faith and a creed. Prayer is appropriate in a church, or in a home. It’s not appropriate in a governmental institution. Not everyone is a believer. The government should be for everyone.
* EDIT: After publishing the post, I came across the above picture of the mayor and two council members during an actual invocation. This is what it looks like at the start of basically every City Council meeting. That’s the mayor in the middle of the picture, the guy with the white beard. In his day job, he’s a very accomplished personal injury attorney, a fact which some people find very interesting when considering his political actions.