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Click here for the full text of this decision FACTS:In October 2003, John Doe, a resident of Tangipahoa Parish, La., filed this action against the Tangipahoa Parish School Board, including on behalf of his two minor sons. Doe challenged several prayer events permitted by the school system, including the school board’s practice of opening its meetings with a prayer (prayer practice). Doe and the board resolved all but the challenge to the board’s prayer practice by a consent judgment in August 2004. The judgment enjoined the other prayer events, except for prayers given by students at graduation ceremonies to the extent permitted by the 5th Circuit’s 1992 opinion in Jones v. Clear Creek Independent School District, which permitted student-initiated prayers at graduation ceremonies, so long as they did not have a coercive effect. Regarding the board’s prayer practice, the parties in September 2004 entered into the following joint stipulations, including that: 1. The board is a deliberative body that acts in the public interest; 2. It is responsible for operating and governing the school system’s 35 schools, including the high school attended by Doe’s two sons; 3. The board meets twice each month in the school system’s central office; 4. The board’s president normally presides at board meetings but the vice president presides in his absence; and the meetings are open to the public, and students may attend. Each meeting begins with a prayer, followed by a recitation of the Pledge of Allegiance. This board has followed this prayer practice since at least 1973; board members, the board president, the assistant superintendent, teachers, students and ministers have offered prayers. An individual may present a prayer only if a board member selects him or her to do so. In a sampling of prayers delivered between January 2002 and August 2004, 10 were by board members, nine by students or former students, four by principals or assistant principals, three each by teachers and the assistant superintendent, and one each by the Board president and a minister. The stipulations contained four of the prayers given; each contained a reference to Jesus Christ, God or Lord. The stipulations did not state that the four prayers were representative or typical of those offered at board meetings. Each prayer in the stipulations is Christian in tenor, if not in fact. On Aug. 3, 2004, approximately 10 months after Doe filed his suit and only approximately one month before the consent judgment and joint stipulations, the board considered but unanimously rejected a written policy that would have permitted only board members to begin meetings with “a brief non-sectarian, non-proselytizing invocation to solemnize the occasion.” Accordingly, the board’s unwritten practice of selecting speakers who give prayers of their own unrestricted choosing remained in effect. The plaintiff sought injunctive and declaratory relief. The district court held that the prayers fall outside the legislative-prayer context permitted by Marsh v. Chambers, 463 U.S. 783 (1983) and otherwise violate the First Amendment’s establishment clause pursuant to the traditional analysis under Lemon v. Kurtzman, 403 U.S. 602 (1971), which requires a challenged practice t 1. have a secular legislative purpose; 2. have a principal or primary effect that neither advances nor inhibits religion; and 3. not foster an excessive government entanglement with religion. The district court permanently enjoined the board from opening its meetings with any prayer, holding that the board’s practice of opening each meeting with a religious invocation violated Doe’s rights under the establishment clause of the First Amendment. HOLDING:Affirmed in part, and vacated and remanded in part for entry of an injunction consistent with the 5th U.S. Circuit Court of Appeals’ opinion. In its plurality opinion, the 5th Circuit reviewed the district court’s injunction for abuse of discretion. Such an abuse occurs if the district court relies on erroneous conclusions of law, the court stated. The board, the court stated, defended its prayer practice solely under Marsh and conceded that its prayer practice does not survive the Lemon test. The 5th Circuit looked to the Marsh legislative-prayer exception in determining whether the board’s prayer practice violates the Establishment Clause. For the board’s prayers, the court stated, to fall outside those permitted by Marsh, a reviewing court must conclude either: 1. The board, although stipulated to be a deliberative body, does not fit within Marsh’s description of legislative and other deliberative public bodies; or 2. The prayers are not nonsectarian and non-proselytizing, in violation of Marsh and subsequent guidance from the U.S. Supreme Court. The plurality opinion assumed arguendo that the board is a legislative or other deliberative public body that falls under the Marsh exception to Lemon. Citing another U.S. circuit court, the court stated that Marsh does not permit legislators to engage, as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe. In allowing such explicit references to Jesus Christ, in selecting other persons to offer prayers who also referred exclusively to the Christian deity and in demonstrating an unwillingness to adopt a policy that would have forbidden such references, the board violated Marsh. In so holding, the court found too broad the district court’s injunction, which enjoined prayer at all school board meetings. The court stated that its opinion took no position on whether another form of prayer would be permissible at board meetings. Instead, the court held that only that prayers of the type included in the stipulations do not pass constitutional muster. OPINION:Barksdale, J. CONCURRENCES AND DISSENTS:Stewart, J. “I am not convinced that Marsh applies to the situation before us; therefore, I believe the correct course is to affirm the district court’s ruling, especially in light of the fact that the school board stipulated that its practice would fail under Lemon . . . My belief that Marsh is inapplicable to this situation is supported by the language of Marsh, subsequent Supreme Court precedent, and other Circuits’ applications of Marsh.” Clement, J. “I would hold that Marsh . . . rather than Lemon . . . applies to this deliberative body. I disagree with the conclusion that the four stipulated prayers violate Marsh. As to the question of how to apply Marsh, I read Marsh as prohibiting exploitation of prayer opportunities to advance one religion over another. Therefore, the injunction should be vacated in full because Doe failed to demonstrate that the Board exploited the prayer opportunity either”to proselytize or advance any one, or to disparage any other, faith or belief.’ . . . The conclusion in Judge Barksdale’s opinion that the Board demonstrated a clear preference for Christianity suffers from a lack of evidence in the record and an erroneously shifted burden of proof that requires the Board to prove it did not violate Marsh.”

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