Polk Law Blog

A group called the Atheists of Florida announced that they have filed suit in U.S. District Court in Tampa against the City of Lakeland challenging the City’s current practice of having invocations before the start of its city commission meetings. The group posted a copy of the complaint on their website, but it is not signed and does not include the exhibits. I attempted to obtain a complete, signed copy from the court’s electronic filing system, but it has not been scanned and indexed yet. As soon as I can get a full copy, I will post it.

In the meantime, the draft provided by the Atheists of Florida will have to suffice. I am going to give you my initial take on it.

UPDATE 7/13/2010: I got a copy of the final version of the complaint from the court’s electronic filing system. The typographical errors I noted were fixed prior to filing, although they were “fixed” in a way that might cause them a problem later – a detail not all that important right now. If you would like to review the final complaint and exhibits, here it is:

• Complaint
• Exhibit A – letter from Atheists of Fla to Gow Fields
• Exhibit B – letter from Gow Fields to Atheists of Fla

Background

I encourage you to read my two previous posts on this topic. In them, I explain the current state of the law concerning prayer at public meetings here in Florida:

Legal Status of Prayer At School Board Meetings – Part I
Legal Status of Prayer at School Board (and Lakeland City Commission) Meetings – Part II

The Lakeland City Commission has prayers led by rotating clergy members. For quite some time, the prayers have been specifically Christian in nature. Here in Florida, we live under the jurisdiction of the Eleventh Circuit Court of Appeals based in Atlanta. The key Eleventh Circuit case is Pelphrey v. Cobb County, Georgia,547 F. 3d 1263 (11th Cir., 2008). In Pelphrey, the 11th Circuit said that prayers at public meetings are permissible as long as particular faiths are not “categorically excluded.” Applying this reasoning to the practice of the Lakeland City Commission, I came to this conclusion:

Under Pelphrey, I think the Lakeland City Commission is probably OK, with a caveat. If the atheist group is correct that all the prayers have been Christian lately, it certainly raises the question of how the chaplains were selected. If it could be proven that there was some sort of  categorical exclusion of non-Christian religious leaders to deliver the invocations, then Lakeland may have a problem. If, however,  it just happens due to circumstances beyond the City’s control that no non-Christians have delivered the invocations lately, with no motivation to “exploit” the prayer to “promote or disparage a particular religious viewpoint,” then it’s hard to see how the City Commission can be faulted under Pelphrey. In other federal circuits (like the Fourth) they might have a problem, but I don’t think they have one here, based on what I know. (Legal Status of Prayer at School Board (and Lakeland City Commission) Meetings – Part II)

At the moment, I still stand by that analysis. Hopefully, learned and well reasoned arguments from counsel in this lawsuit will help me refine my understanding of this case so I can make a more complete assessment.

Note that the law here in the Eleventh Circuit is not the same as it is in other parts of the country. In some areas, the law is more restrictive. Here, courts are more concerned with how the prayer-givers are selected than in the content of the prayers themselves. In some circuits, the courts will actually look at the specific language of the prayer. If the prayer is deemed to be too sectarian (such as, for example, explicitly invoking an appeal to Jesus), it is deemed unconstitutional.

With all this in mind, let’s dive in to the lawsuit and see what it says.

A Few Initial Observations

In my opinion, the lawsuit is too long and overly wordy. There is a lot of extraneous stuff in there that is unnecessary. For example, in the first section, the lawsuit discusses asking for a moment of silence in lieu of the invocations currently offered at public meetings. That’s really not appropriate in a lawsuit like this.

You can ask the court to stop an an unlawful practice but you can’t ask a court to compel a particular practice that is not required by law. If successful, this lawsuit would result in the court striking down Lakeland’s current prayer policy. But the court would not require Lakeland to have moments of silence in its place. It would be up to the City of Lakeland to design a new policy that complies with the court’s decision. It seems to me that these allegations are designed to make a point to the press and the public, not to the court, that a moment of silence would be one way out of this problem.

Later, in the lawsuit’s prayers for relief (“prayers” being used in the legal sense here), the moments of silence are not mentioned. So despite what they allege initially, the plaintiffs are not asking the court to impose a moment of silence, even though the first part of the complaint says they are. This either confirms my suspicion or indicates a drafting error.

Also, and I hate to even say this, there are a couple of silly typos in the lawsuit. Each count of the suit reincorporates the previous allegations, which is the standard practice. But when those allegations are identified, the wrong paragraph numbers are cited. That’s a silly error that the plaintiffs’ lawyer should have caught. It happens. It’s not that big of a deal, really. I’ve made the same error myself. I don’t begrudge people for their typos – but still, you don’t want mistakes like this in a case that will get this much public scrutiny.

The Causes of Action

A lawsuit typically has several “causes of action” or “counts.” A “cause of action” is simply a description of what you are suing somebody for and why. This lawsuit has four counts. Each one of them alleges a different cause of action. Here they are, briefly described:

Count I – Establishment Clause of the U.S. Constitution

This is what you might call the primary cause of action. The establishment clause is a portion of the First Amendment to the U.S. Constitution. It reads: “Congress shall make no law respecting an establishment of religion…” The lawsuit alleges that, by only having Protestant, Christian prayer givers, the Lakeland City Commission is recognizing an establishment of religion. This is the strongest cause of action in the suit.

Although not explicitly stated in the suit, I think the plaintiffs are trying to accomplish two goals. First of all, they want the court to find that the prayers are unconstitutional under the standard described in the Pelfrey case, discussed above. They are making the point that certain religious groups were excluded from the list when it came time to pick the people to give the invocations.

I suspect that they also want to have the Eleventh Circuit go beyond the Pelfry case and require local governments in this part of the country to avoid sectarian references in their invocations. As currently written, Count I gives them enough leeway to make both, or either argument.

Count II – Establishment Clause of the Florida Constitution

A lot of people forget that there are two constitutions we live under around here, the U.S. Constitution and the Constitution of the State of Florida. The Florida Constitution contains an establishment clause as well:

There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution. Fla. Const. Art. I Sec. 3.

A lot of state constitutions have rights that are worded almost identically to their federal counterparts. In many, if not most cases, the rights guaranteed by the state constitution are interpreted to be exactly the same as the rights guaranteed by the federal Constitution. Sometimes, the state constitution ends up being interpreted to be more restrictive of the government’s powers than the federal constitution. It doesn’t work the other way – a state constitution can never successfully give a state a power that the U.S. Constitution prohibits it from having.

In Count II, the Plaintiffs say basically the same thing they say in Count I, except in Count II they allege that the actions of the Lakeland City Commission violate the Florida Constitution. Usually you make an argument like this as sort of a safety – if you lose your federal Constitutional argument, there is always a chance that the court will interpret the state constitution more favorably.

I have not done a single bit of research on the state constitutional issues here, but the Plaintiffs have laid the groundwork to make this argument.

Count III – Equal protection clause

Count three alleges that the policy of the Lakeland City Commission violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. The equal protection clause says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (emphasis added).

The equal protection clause is the legal concept being invoked whenever a law is struck down because it discriminates against some group of people. Without getting into the details, the equal protection clause basically means that the government can’t treat a particular class of people differently from another class of people without a good reason. Everyone has to be treated the same way.

The Plaintiffs assert that, because they are forced to participate in a religious observance that is contrary to their own, and because the government actively endorses Protestants and Christians over others, non-believers and non-Christians are denied equal protection of the laws.

In its article posted Monday evening, the Ledger refers to this legal theory as “novel.” It’s not the first argument one thinks of – that honor goes to the Establishment Clause – but equal protection is definitely the second argument most lawyers would assert in a case like this. I think the (otherwise excellent) Ledger reporter may have gotten it mixed up, because Count IV is pretty “novel.” I’ll even go so far as to call it “creative.”

Count IV – Freedom of Speech

OK, bear with me for a second. The First Amendment to the U.S. Constitution enumerates five rights. One of them is freedom of religion, of which the establishment clause, described above, is a part. Another is freedom of speech: “Congress shall make no law… abridging the freedom of speech.”

Normally, the freedom of speech described in the First Amendment is used to challenge a government policy that restricts speech. For example, if I want to put up a website that criticizes a government official, attempts by the government to silence me might be subject to a first amendment challenge. Here, the plaintiffs are challenging a government policy that requires them to speak when they would prefer to remain quiet. This is sort of like turning the freedom of speech on its head. Let me give you an example.

Let’s say that the Lakeland City Commission establishes a new policy. Right after the pledge of allegiance, the commission invites everyone in the room who voted for Gow Fields in the last election to rise and be recognized. Some people would gladly remain seated to express their displeasure, but others would feel profoundly uncomfortable by this, especially someone who is about to ask the the government to do something.

Normally, attending a government meeting does not require you to identify yourself as a supporter of the government or a member of any particular group. You have the right as a citizen to show up, observe, or speak your mind as you see fit. You have the ability not to disclose your political opinions if you do not want to.

The Plaintiffs are making the same argument about religion. They are saying that the current practice requires them to publicly express – by their participation or non-participation in the invocation – their religious beliefs. They assert that the current practice compels them to say something when they would prefer not to have to.

Off the top of my head, I have no idea if the freedom of speech clause of the First Amendment has ever been interpreted to prohibit a government from requiring someone to speak, as opposed to a restraint on speech. (Note that an accused’s right to remain silent has nothing whatsoever to do with this. That comes from the Fifth Amendment, not the First.)

I may take another look at this as things progress. I do think that this argument will have some problems. For example, these particular Plaintiffs have demonstrated no qualms about identifying themselves as atheists. I think it will be tough for them to argue that they have been aggrieved by being compelled to identify themselves as atheists by remaining seated during the prayers. I don’t want to make a prediction either way, though, until I have done or seen the research.

What happens next?

Assuming the complaint actually was filed like the Plaintiffs say it was, they will need to formally serve the City of Lakeland and Mayor Gow Fields with process. This is nothing more than a friendly neighborhood process server or sheriff’s deputy handing them a copy of the lawsuit.  It could take a day or two or as long as a few weeks. That service will start a 20 day clock ticking during which the City and Mayor Fields must officially respond to the Complaint. They may ask for (and will probably receive if they do) additional time to respond – probably somewhere between 20 and 60 extra days.

When Lakeland and Mayor Fields eventually do answer, they have basically two choices, they can either formally answer the allegations by responding whether they “admit” or “deny” them, or they can file a motion to dismiss or strike portions of the complaint on technical grounds. (There are other possibilities, but these are the two most likely here.)

I expect them to file a motion to dismiss. A constitutional complaint directed to a local government is fraught with peril. I didn’t address any of these ancillary issues in this post, frankly because it’s not something I deal with very often, but there are lots off little things that can go wrong. For example, the Defendants could claim that some aspects of the complaint violate the Eleventh Amendment or that one of the two Plaintiffs lacks standing. There are some really important federal statutes involved here (such as 42 U.S.C. 1983) that need to be invoked just so. The chances that there are some pleading deficiencies that the City can make an issue of are high.

Also, unless I am mistaken about my First Amendment knowledge (no promises on that), the peculiarities of Count IV will get a very close look by the City before they decide what to do next.

Once a motion to dismiss is filed, the Plaintiffs have 10 days to assert their counter-arguments, but they will probably ask for and receive more time. After the motion and response are filed, the court will rule on whether to dismiss the complaint. It could take the court days, weeks, or even months to issue an order – it all depends on the judge.

If the case is dismissed, the press will probably report it as if it is some huge big deal – but it isn’t. The Plaintiffs will fix the problems and refile it. If the case is not dismissed, the defendants will then have to formally answer the allegations with “admit” or “deny” for each paragraph.

Some miscellaneous remarks.

There are a couple of other little things that I need to point out. First, you may be interested to know that one of the Plaintiffs, EllenBeth Wachs, commented on Part I of my original post on prayer at pubic meetings.

Second, in the interest of full disclosure, I have given a few employment law (my day job) seminars with one of the members of the Lakeland City Commission, Don Selvage, who is a human resources consultant, and we interact socially about once a month. I consider him a friend in the professional sense. To date, Commissioner Selvage and I have never discussed this issue. Also, although I have never represented the City of Lakeland on anything, my firm and some attorneys in it have worked for them.

ANOTHER UPDATE 7/13/2010 – fixed some typos of my own