Written by Don Byrd
The 9th Circuit Court of Appeals today upheld the constitutionality of Lancaster, California’s City Council prayer policy against charges that it violates the separation of church and state. In so doing, the 9th Circuit seems to have taken a different approach than the 4th Circuit, which recently held unconstitutional a policy that resulted in consistently sectarian Christian prayer to open meetings of North Carolina’s Forsyth County Commissioners, citing the Supreme Court’s decisions in Marsh and Allegheny.
Here, the court emphasized that because Lancaster’s policy takes great pains to avoid favoritism in determining who will give the prayer, the fact that the policy does not require nonsectarian invocations is unconcerning (pdf).
[S]o long as legislative prayer—whether sectarian or not—does not proselytize, advance, or disparage one religion (Marsh’s language) or affiliate government with a particular faith (Allegheny’s reiteration), it withstands scrutiny. … For these reasons, we join several of our sister circuits in concluding that neither Marsh nor Allegheny categorically forbids sectarian references in legislative prayer.
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Indeed, if “what matters under Marsh is whether the prayer to be offered fits within the genre of legislative invocational prayer that has become part of the fabric of our society,” then surely, as a general matter, sectarian and nonsectarian legislative prayer stand on equal footing.
Without the effort to assure nonsectarian prayer to solemnize such meetings, the careful balance enabling that longstanding church-state compromise is lost. As the Baptist Joint Committee wrote, in urging the 4th Circuit to reject the Forsyth County prayer practice,
The fact that the body may endorse a different sect each time it meets is irrelevant under the Establishment Clause. For the citizen who attends a single town council meeting, [a] diverse selection process … offers little comfort. That citizen is exposed to a single sectarian prayer, which may or may not invoke a deity in which she believes, and because the prayer is given as part of the council meeting, she receives the message that the council endorses that prayer and that deity. If she has never attended another council meeting, she may reasonably believe that the town council promotes this particular religion exclusively. She might also think that the price of doing business before the town council is participation in that prayer, or worse, adherence to the particular faith advanced in that prayer.
There are some differences between the Forsyth County situation and Lancaster’s policy. In Forsyth, evidence showed the prayers were consistently, almost exclusively, Christian. Lancaster’s prayers have been sectarian, but somewhat a mix of faiths. But should the openness of Lancaster’s policy and practices be enough to overcome the situation the BJC brief describes, in which a citizen attends just one meeting and finds what appears to be an institutional embrace of a distinctly Christian message? The 9th Circuit says that is the wrong test.
[T]he question in this case is not simply whether, given the frequency of Christian invocations, the reasonable observer of Lancaster’s city-council meetings would infer favoritism toward Christianity. Rather, it is whether the City itself has taken steps to affiliate itself with Christianity. (page 22)
Despite the differences in factual context, these 2 approaches between the 4th and 9th Circuits seem at odds. Will this impact how future courts determine legislative prayer disputes? Or whether the Supreme Court decides to further clarify the law in this area?
[UPDATE: The 11th Circuit also released a legislative prayer opinion today, upholding the Lakeland, Florida Commission’s newly revised policy, which is somewhat similar to Lancaster’s, while dismissing as moot the challenge to Lakeland’s previous policy.]
