Written by Don Byrd

Via Religion Clause, last week federal appeals courts in two church-state cases declined to revisit panel decisions, leaving those rulings intact and setting up potential appeals to the U.S. Supreme Court.

In Archdiocese of Washington v. Washington Metropolitan Transit Authority, D.C. Circuit Court of Appeals declined 7-2 to rehear en banc a case challenging as religious discrimination policies prohibiting issue-based advertising on buses. An appeals panel previously upheld the ban, noting that the buses are not a public forum available to all, and that the policy “prohibits religious and anti-religious ads in clear, broad categories.” Thus, city officials are not placed in a position to have to review or potentially censor offensive messages. The judges who would have taken up the case argued in dissent that the policy discriminates against religious viewpoints.

Meanwhile, in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, the 9th Circuit Court of Appeals narrowly rejected a request to rehear en banc a case involving a school board’s policy of opening meetings with prayer. Because the board includes a student representative who is present at every meeting, the court ruled, and because of “religious preaching” that takes place at some meetings, the Chino Valley practice does not rest within the historical tradition of permissible legislative prayer.

Perhaps most controversially, the panel’s ruling determined that the case falls under Supreme Court precedent related to school prayer, and thus applied the Lemon test and not precedent involving legislative prayer. Judges dissenting from the decision not to rehear the case wrote in dissent that Lemon is not the proper test and the Supreme Court’s line of legislative prayer decisions should have controlled.