Polk Law Blog

Welcome to Part II!

For the lazy, here’s the summary: The law is different here in Florida than in other places, the school board was on questionable legal grounds, the Lakeland City Commission is probably OK but could use some improvement, and we have definitely not seen the last legal development on this issue.

Since I posted Part I of this article, there have been a couple of new developments. First of all, the school board changed its policy regarding prayers. Formerly, school board member delivered prayers themselves before each meeting. Now, the school board is going to put together a rotating list of religious leaders to offer prayers before each meeting.

Second of all, a group of atheists led by a commenter on Part I has been showing up at Lakeland City Commission meetings contesting the pre-meeting prayers there. The Lakeland City Commission uses rotating clergy, but the prayers are, apparently, predominantly Christian.  You can view the meetings yourself, including the prayers and the statements made by the atheist speakers, at the Lakeland City Commission’s web site. So I am going to address the topic as applied to both the school board and the Lakeland City Comission.

Full disclosure: One of the Lakeland City Commissioners, Don Selvage, is a professional associate of mine. To date, he and I have never discussed this particular issue and I don’t know how he feels about it. Also, my firm has represented various city and county government bodies from time to time on various issues, but not related to this. I am speaking on my own behalf, not on behalf of my firm or any clients of my firm, etc…

A brief review of Part I.

In Part I, I gave the text of the religion-related clauses of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

I then raised four issues that seem to be implicated when attempting to apply this language to prayers before local government meetings:

Issue One: The Constitution seems to prohibit “Congress” from doing something. This is a local school board, not Congress! The clause does not apply!

Issue Two: This isn’t a “law” – it’s just a prayer! The First Amendment only prohibits “laws!”

Issue Three: The Constitution prohibits “respecting an establishment of religion.” Simple prayers before getting down to business don’t “establish” anything!

Issue Four: The Constitution expressly authorizes the “free exercise” of religion. Aren’t school board members allowed to exercise their own religion before meetings?

Part I explained issues one and two by showing how, for our purposes, the phrase “Congress shall make no law…” can be effectively replaced with “Government shall take no action…” This interpretation is based on how the Fourteenth Amendment has been interpreted by the Supreme Court since it was enacted after the Civil War. The Fourteenth Amendment 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.

Now, in Part II, we’ll look at Issue Three and Issue Four, and wrap it up by looking at the actual practices of the School Board of Polk County and the Lakeland City Commission.

On the fourth day… “respecting an establishment of religion” was defined.

Figuring out what types of acts “respect an establishment of religion” and what types of acts don’t is not easy. After lots of cases and considerable work by the Supreme Court, the difficulty was summarized in Committee for Public Education v. Nyquist, a Supreme Court case from 1973:

It is enough to note that it is now firmly established that a law may be one “respecting an establishment of religion” even though its consequence is not to promote a “state religion,” and even though it does not aid one religions more than another but merely benefits all religions alike. It is equally well established, however, that not every law that confers an “indirect,” “remote,” or “incidental” benefit upon religious institutions is, for that reason alone, constitutionally invalid. What our cases require is careful examination of any law challenged on establishment grounds with a view to ascertaining whether it furthers any of the evils against which that Clause protects. Primary among those evils have been “sponsorship, financial support, and active involvement of the sovereign in religious activity.” 413 U.S. 756, 770, citations omitted.

There are several “tests” that the Supreme Court has used to determine if something violates the establishment clause. Three of the most important were summarized in a 1971 Supreme Court opinion, Lemon v. Kurtzman:

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.”403 U.S. 602, citations omitted.

Now that we have some “tests” of what constitutes “recognizing an establishment of religion,” it’s time to try to apply it to pre-meeting prayer.

On the fifth day… there was Marsh v. Chambers.

The Supreme Court case on pre-meeting prayers is the 1983 case of Marsh v. Chambers, 463 U.S. 783. By “The,“ I mean that it is both the seminal case on point, as well as the only Supreme Court case directly on point. You really should read it, the whole thing, including the two dissents filed by justices who disagreed with the majority opinion.

In Marsh, a Nebraska state legislator sued the legislative chaplain and the state treasurer. Before each legislative session, the chaplain or someone selected by him would deliver a prayer. The chaplain was paid from public funds. Here is that the Court had to say:

We turn then to the question of whether any features of the Nebraska practice violate the Establishment Clause. Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination — Presbyterian — has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo-Christian tradition. Weighed against the historical background, these factors do not serve to invalidate Nebraska’s practice.

The Court of Appeals was concerned that Palmer’s [the chaplain] long tenure has the effect of giving preference to his religious views. We cannot, any more than Members of the Congresses of this century, perceive any suggestion that choosing a clergyman of one denomination advances the beliefs of a particular church. To the contrary, the evidence indicates that Palmer was reappointed because his performance and personal qualities were acceptable to the body appointing him. Palmer was not the only clergyman heard by the legislature; guest chaplains have officiated at the request of various legislators and as substitutes during Palmer’s absences. Absent proof that the chaplain’s reappointment stemmed from an impermissible motive, we conclude that his long tenure does not in itself conflict with the Establishment Clause.

Nor is the compensation of the chaplain from public funds a reason to invalidate the Nebraska Legislature’s chaplaincy; remuneration is grounded in historic practice initiated, as we noted earlier, supra at 788, by the same Congress that drafted the Establishment Clause of the First Amendment. The Continental Congress paid its chaplain, as did some of the states. Currently, many state legislatures and the United States Congress provide compensation for their chaplains. Nebraska has paid its chaplain for well over a century. The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer

The Court dealt squarely with two issues that have been raised by the group protesting Lakeland’s prayers: that they are uniquely Christian, and that they have been consistently uniquely Christian for quite some time. The Court didn’t seem to make much of those concerns. It upheld Nebraska’s practice. The opinion itself does not go into a lot of detail of the legal standards involved, and instead focuses on the long-standing historical practice of prayers prior to legislative meetings. Very importantly, the Court did not even bother to apply the Lemon test described above.

But the story doesn’t end there. Because the Court conducted a primarily historical analysis, instead of a legal analysis, it has been difficult for lower courts to figure out how to apply the decision. Also, the dissenting judges in Marsh made pretty good legal arguments as to why Nebraska’s prayers were unconstitutional in light of the Lemon test.

To figure out what to make of Marsh, we have to look at how appellate courts have applied the decision to similar situations since 1983, and then compare local practices to those decisions. More particularly, we should look at decisions from within the Eleventh Circuit Court of Appeals, which covers Florida, Georgia, and Alabama.

Note that other circuit courts of appeal read Marsh differently. So this analysis does not apply outside of Florida, Georgia, and Alabama.

On the sixth day… the Eleventh Circuit spoke.

The key Eleventh Circuit case on point is Pelphrey v. Cobb County, Georgia,547 F. 3d 1263 (11th Cir., 2008). In Pelphrey, the Eleventh Circuit Court of Appeals considered two distinct circumstances, the actions of the Cobb County Commission and the Cobb County Planning Commission. It found that the Cobb County Commission’s prayers were constitutional under Marsh, and that the Planning Comission’s prayers were unconstitutional under Marsh. What was the difference?

The court was most interested in how the prayer-givers were selected. For the County Commission (Constitutional):

Beverly Martin, the administrative specialist of the County Commission, compiles a list of religious organizations in Cobb County from several sources, including the Yellow Pages, the internet, and business cards. The list is organized by denomination or faith and then by individual congregations. A majority of the congregations on the list are Christian. Martin randomly selects the speaker and avoids having speakers from the same religious group at consecutive meetings. Several congregations are in Martin’s files, but are not included on the list. Other congregations are not included in Martin’s files, but these congregations do not appear in the Yellow Pages. Martin testified that she does not take into account the beliefs held by a religious group when deciding whom to include on her list. Id. at 1267.

And for the Planning Commission (unconstitutional):

Sandra Richardson served as the deputy clerk of the Planning Commission and applied a different method for selection of clergy that relied primarily on her copy of the Yellow Pages. She has also relied on clergy who volunteer as part of the chaplain program for the police and fire departments. A copy of the phone book used by Richardson during 2003-2004 shows a dark, continuous line drawn through the categories surrounding the “Churches” category in the Yellow Pages. The line crosses through the “Chiropractors,” “Church Furnishings,” and “Church Supplies” categories, among others. There is a similar, lighter line drawn through several subcategories of churches: “Churches-Islamic,” “Churches-Jehovah’s Witnesses,” “Churches-Jewish,” and “Churches-Latter Day Saints.” No clergy from those subcategories were asked to provide the invocation during 2003-2004. Id at 1267-8.

The method of selection was, in the court’s view, the key issue. In finding the Planning Commission’s prayers unconstitutional the court said:

The central concern of Marsh is whether the prayers have been exploited to create an affiliation between the government and a particular belief or faith. The Marsh Court weighed all of the factors that comprised the practice, including the nature of the prayers, the identity of the speaker, and the selection of the clergy…  The record supports the finding that Richardson “categorically excluded” certain faiths from the list of potential invocational speakers for meetings of the Planning Commission… [T]he categorical exclusion of certain faiths based on their beliefs is unconstitutional.

Because the County Commission had not excluded any faiths, the court found their practice to be Constitutional.

So where does that leave us here in Polk County?

I’m getting there, but first I want you to ask me a different question, that you probably didn’t think to ask:

What arguments did the 11th Circuit consider and reject in looking at the Cobb County Commission’s prayers?

Great question! I’m glad you asked. There are numerous arguments which have been (or could be) offered to oppose the School Board or Lakeland City Commission prayers that were considered and rejected (or would have been rejected) by the 11th Circuit Court of Appeals.

Argument: The prayers have no secular purpose, the principal effect of the prayers advances religion, and the prayers represent an excessive government entanglement with religion.

This argument references the three-pronged test from Lemon, described above. In Marsh, the Supreme Court did not apply the Lemon test to legislative prayers. It focused on the history of prayer before legislative sessions. In rejecting the argument, the 11th Circuit said:

Our “delicate and fact-sensitive” inquiry is evident in the area of legislative prayer, which the Supreme Court, in Marsh, excepted from the traditional analysis under the Establishment Clause… The Supreme Court… without applying Lemon, upheld the Nebraska legislative prayer practice as an act that was “deeply embedded in the history and tradition of this country” that had not “been exploited to proselytize[,] … advance[,]… or … disparage any … faith or belief.” Id. at 1269, citations omitted.

In other words, the very unique historical nature of legislative prayer warrants a unique analysis, different from the Lemon test. When dealing with legislative prayer, the Eleventh Circuit reads the test to be as set forth explicitly in Marsh: whether “the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Marsh, at 794-5. No proof of exploitation to proselytize? No problem.

Argument: But if you look at the actual prayers themselves, they are sectarian in nature. “Jesus Christ” is mentioned explicitly in almost all of them.

The Eleventh Circuit was quite adamant that it did not want to get into reading the prayers themselves, and did not want to place constraints on what the content of the prayers should be:

The taxpayers [Ed: the people challenging the prayers in Pelphrey are the "taxpayers."] argue that Marsh permits only “nonsectarian” prayers for commission meetings, but their reading is contrary to the command of Marsh that courts are not to evaluate the content of the prayers absent evidence of exploitation. The taxpayers rely on the acknowledgment by the Supreme Court in Marsh that the chaplain had “removed all references to Christ” after 1980 and offered “nonsectarian” prayers at the time of the challenge. The Court provided these descriptions of the prayers in a footnote, but the Court never held that the prayers in Marsh were constitutional because they were “nonsectarian.” Nor did the Court define that term. To read Marsh as allowing only nonsectarian prayers is at odds with the clear directive by the Court that the content of a legislative prayer “is not of concern to judges where … there is no indication that the prayer opportunity has been exploited to proselytize or advance any one… faith or belief.” Pelphrey, at 1271, citations omitted.

The 11th Circuit also noted that, in Marsh, the vast majority of prayers had been delivered by a Christian chaplain who had served for many years, and the Supreme Court was not troubled by this. In a lengthy passage, the 11th Circuit was pretty clear that it did not want to get into the business of defining what was “sectarian” and what wasn’t. It was more interested in looking for the exploitative motive to “proselytize or advance any one, or to disparage any other, faith or belief.”

Argument: But what about cases like the very recent Joyner case from North Carolina.

This case was brought to my attention by a commenter to Part I of this post. In it, a federal district court magistrate judge in North Carolina finds prayers similar to those used by the Lakeland City Commission to be unconstitutional, partly because of sectarian references to the Christian religion. The opinion is lengthy and well reasoned. However, North Carolina is in the Fourth Circuit. It reads Marsh differently than the Eleventh Circuit reads it. In fact, the Joyner opinion explicitly acknowledges that the law is different here in the Eleventh Circuit:

This Court therefore rejects Defendant’s argument to follow the reasoning of cases from other circuits such as Pelphrey… This Court considers that Pelphrey is not consistent with Fourth Circuit cases to the extent that it declines to consider the content of legislative prayer to determine whether the prayer advances on faith of belief. Joyner v. Forsyth County, North Carolina, Recommended Order in Case No: 1:07CV243 (M.D.N.C., Nov. 11, 2009), at 13 n.3.

So, whatever the Joyner case stands for, it’s not binding here. Plus, it’s a federal district (trial) court order, not even a decision from an appeals court. Any local court is going to look at Pelphrey and probably ignore Joyner and similar decisions from other circuits. If the Fourth and Eleventh circuits (and other circuits) continue to acknowledge that they are in disagreement with each other, the Supreme Court may very well take on the issue at some point in the future. But for now, here in the Eleventh Circuit, Pelphrey is the law.

I think that covers Issue Three, from way up there at the top. Clear as mud, right?

OK, so where does that leave us here in Polk County?

Now we cross the line into more speculative grounds, but my personal opinion  is that the School Board’s former practices (which have recently changed) would be likely to be found unconstitutional, for two reasons.

First of all, as Pelphrey acknowledges, Marsh only applies to “legislative bodies” because of the unique historical nature of legislative prayer. Other types of government functions are subject to more rigorous requirements. The most rigorous levels of scrutiny are applied to activities in public schools, like classroom and graduation prayers.

Pelphrey makes it clear that county commissions are “legislative bodies” within the meaning of Marsh because they have the power to tax, spend, and make rules that govern the citizens of the county. A school board, while it has some of those abilities, would have a harder time meeting the definition of “legislative body,” and may be considered a “school-based activity” because of it’s education function. I don’t think the question of whether a school board is a “legislative body” or a “school-based activity” has been addressed by the Eleventh Circuit, so a local court would look to other circuits for guidance. I don’t know what else might be out there, but I know that in the Sixth Circuit, school boards are deemed to be “school-based activities”, and Marsh does not apply. See Coles v. Cleveland Board of Education, 171 F.3d at 377 (6th Cir. 1999).

If Marsh is not applicable to the school board, then the school board would be stuck with the Lemon test, and would have a really tough time of it. It’s a toss-up, though, and a court could go either way.

Second of all, however, given that all the school board members are Christian, and only members of the board were invited to give prayers, the school board may very well fail Pelphrey‘s requirement that no religion be excluded based on its particular faith. This is the stronger of the two arguments, and I think it would be persuasive.

But what about the school board’s member’s rights to free exercise of religion and free speech? Don’t they have the right to pray as they see fit?

No. This is Issue Four, above. The issue is whether the speech is “private speech” or “government speech.” Private speech is governed by the free exercise clause and the first amendment, while government speech is governed by the establishment clause. When a speaker is speaking on behalf of the government in an official government capacity, the establishment clause obligation trumps the free exercise clause right. For example, see Rosenberger v. Rector and Visitors of Univ. of Va., 515 US 819, 833 (Sup. Ct., 1995) (“[W]e have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message.”) See also Santa Fe Independent School Dist. v. Doe, 530 US 290 ( Supreme Court, 2000)

OK, what about the Lakeland City Commission?

Under Pelphrey, I think the Lakeland City Commission is probably OK, with a caveat. If the athiest 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.

What should the Lakeland City Commission and the Polk County School Board do?

Assuming both groups want to keep the practice, if they:

1. actively manage and invite a diverse group of religious (broadly defined) leaders without regard to their particular beliefs, and

2. instruct the prayer givers not to “proselytize” or “advance any one, or to disparage any other, faith or belief” without otherwise policing the content of the prayers,

…they’ll probably remain on reasonably solid legal ground, unless and until the law in the Eleventh Circuit changes. Because the Eleventh Circuit reads Marsh differently than other circuits, there will almost certainly be other legal developments in the future. Whatever policies are adopted should be revisited from time to time.

With that said, if either group is tempted by the moment of silence option, I think it would be hard for anyone to argue that that would be unconstitutional.

Anything else?

There may be other issues implicated here that I have completely ignored, including most notably the question of whether the Constitution of the State of Florida requires anything more strict. I doubt it does, but I have not done an iota of research on that issue, other than to read the provision, which is similar to, but not the same as, the First Amendment.