The City of Lancaster, California, has not affiliated itself with Christianity by maintaining a policy of inviting local clergy to offer prayers at the opening of city council meetings, according to a March 26 ruling by the United States Court of Appeals for the Ninth Circuit. The appellate judges affirmed a decision by the United States District Court for the Central District of California.
Among the considerations weighed by the three-judge panel, were the fact that the City did not choose the content of the prayers, nor choose the denomination of those giving the prayers. The fact that most of the invocations had been Christian the court attributed to local demographics, and the choice of religious leaders who responded to the City’s invitation for volunteers.
Lancaster is generally best known for the space shuttle Columbia being built in the area, and for the shuttle’s landing at nearby Edwards Air Force Base. Among the more famous graduates of the local Antelope Valley High School is Frank Zappa, singer with the 1960’s band, The Mothers of Invention.
The City of Lancaster developed a detailed formal policy after receiving a letter from the American Civil Liberties Union in 2009, demanding that the city cease an desist from its long-standing informal practice of opening meetings with voluntary prayer. Rather than drop the practice entirely, the city adopted a written procedure, which it believed would withstand any challenge in court.
This policy was challenged in court by Shelley Rubin, and Maureen Feller, two residents of the city who are respectively of the Jewish and Christian faiths. They particularly objected to an invocation delivered April 27, 2012 by Bishop Henry Hearns, which closed “in the precious, holy and righteous and matchless name of Jesus.”
The federal district court ruled that unless the prayers delivered before a legislative meeting proselytize, advance, or disparage a particular faith, they do not violate the First Amendment. It emphasized that the city did not regulate the content of the prayers, although it requested that volunteers not use the forum to proselytize or disparage any one faith. It also found that the mention of Jesus in a particular invocation was not in itself unconstitutional.
Both sides argued that the U.S. Supreme Court’s decision in Marsh v. Chambers, a 1983 decision, supported their position. This decision allowed to stand the practice of the Nebraska legislature in opening each legislative session with a prayer delivered by a state-employed chaplain.
The Marsh decision acknowledged that many of the delegates to the Continental Congress and the first congress under the new Constitution of 1787 had opposed legislative prayer, because the delegates had different religious affiliations endorsing mutually exclusive creeds. But it cited Samuel Adams observation that he was no bigot, and could hear a prayer from a gentleman of piety and virtue who was at the same time a friend to his country, a view which ultimately prevailed.
Rubin and Feller argued that the Court’s opinion, and its later ruling in County of Allegheny v. American Civil Liberties Union, explicitly established that to make a specific reference in a prayer, such as to Jesus, violated the First Amendment prohibition on establishment of religion. The Ninth Circuit found no basis in either Supreme Court ruling to agree, and referred to several other circuits that arrived at the same conclusion.
However, the three judges considering the Lancaster case declined to follow the analysis of the Fourth Circuit (with jurisdiction in North and South Carolina, Virginia, and West Virginia). Rather than count whether any one faith was statistically over-represented in the delivery of prayers, they quoted approvingly from a Fourth Circuit dissenting opinion, “In determining what it means to ‘advance’ one religion or faith over others, the touchstone of the analysis should be whether the government has placed its imprimatur, deliberately or by implication, on any one faith or religion.”
Far from placing its official seal of approval on Christianity, the court concluded, the City of Lancaster “has instead taken every feasible precaution—short of the extra step (itself fraught with constitutional peril) of requiring volunteers to refrain altogether from referencing sectarian figures—to ensure its own evenhandedness.”
If the court were to “order the City to review as a matter of course the text of every proposed prayer, approving for delivery only those drafts rid of all references to saints, disciples, prophets, deities, and the like,” that would create a very real entanglement of government and religion, the Ninth Circuit panel noted. “It would assign to the government the task of coauthoring prayers.” The Supreme Court very definitely ruled in the landmark Engel v. Vitale case in 1962 – banning public schools from sponsoring prayers in class – “it is no part of the business of government to compose official prayers.”
It is the city’s stated policy to “acknowledge and express the city Council’s respect for [Lancaster’s] diversity of religious denominations and faiths,” as well as to “solemnize proceedings” of the council, the court found. The policy states that it “is not intended, and shall not be implemented or construed in any way, to affiliate the City Council with, nor express . . . preference for, any faith or religious denomination.”