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A federal appeals court, splitting with two sister circuits, has ruled that a city’s policy of allowing members of the public to say a prayer before city council meetings is constitutional. 

The U.S. Court of Appeals for the Ninth Circuit also rejected claims by two council meeting attendees — one Jewish and one Christian — that Lancaster, Calif., had implemented an unconstitutional establishment of religion by allowing a minister to name Jesus during his invocation on April 27, 2010.

"The panel, focusing on the policy’s neutrality and the principle of private choice, not on the number of volunteers from a particular sect, saw nothing in the record or in the prayer policy to indicate that the City had affiliated itself with Christianity," Judge Diarmuid O’Scannlain wrote on March 26. "The panel stated that the City did not choose the content of the prayers or the denomination of the prayer-givers and the fact that most of the invocations had been Christian was merely a function of local demographics and the choice of religious leaders who responded to the City’s invitation for volunteers."

Roger Jon Diamond, a solo practitioner in Santa Monica, Calif., represents the citizens who challenged the prayers — Shelley Rubin, who is Jewish, and Maureen Feller, a Christian. He said the ruling reinforces a growing circuit split regarding prayers at legislative meetings. "We will be seeking rehearing en banc," Diamond said. "If that doesn’t work, we’ll go to the U.S. Supreme Court."

Lancaster’s city attorney, David McEwen, a shareholder at Stradling Yocca Carlson & Rauth in Newport Beach, Calif., agreed that the legal issue is ripe for review by the U.S. Supreme Court. But he insisted the Ninth Circuit got it right.

"We think it’s the correct decision and it’s a well reasoned opinion by Justice O’Scannlain," he said. "We’re very happy with it."

Lancaster, a suburb of Los Angeles, solicits volunteers from the area’s faith congregations to lead prayers before council meetings. In 2009, the city formalized the practice via a ballot initiative passed by voters.

Diamond said he sued Lancaster after winning a ruling by California’s Second District Court of Appeals in 2002 in a case brought by Rubin’s late husband, Irv Rubin, against the city of Burbank, Calif.

"Years later, after Irv Rubin passed away, the city of Lancaster started doing the same thing," Diamond said. During the first prayer under the policy, he said, the former mayor, who also is a pastor, "prayed in the name of Jesus."

"That was a violation identical to the case in Burbank," Diamond said.

He sued in Los Angeles County, Calif., Superior Court, alleging violations of the First Amendment and the California Constitution’s prohibition on the establishment of religion. Lancaster successfully removed the case to federal court.

The Ninth Circuit upheld U.S. District Judge Dale Fischer in Los Angeles, who found that a sectarian prayer during the council meeting did not violate the First Amendment because the speaker hadn’t proselytized or disparaged a particular faith. On appeal, the city drew support from five amicus organizations: The National Center for Law & Policy; WallBuilders Inc.; Independence Law Center; Justice and Freedom Fund; and the Alliance Defense Fund.

The Ninth Circuit cited the U.S. Supreme Court’s 1983 decision in Marsh v. Chambers, concluding that sectarian references during legislative prayers are permitted so long as they do not "proselytize, advance, or disparage one religion or affiliate government with a particular faith." Merely mentioning Jesus in a prayer did not run afoul of the establishment clause, O’Scannlain wrote.

In the Marsh case, the U.S. Supreme Court found that the Nebraska Legislature’s practice of paying a chaplain to lead prayers did not constitute an unconstitutional establishment of religion.

Diamond, citing a footnote in Marsh, had argued that Supreme Court’s opinion was limited to a period in which the chaplain had stopped referencing Jesus in prayers once the complaint was filed.

The Ninth Circuit disagreed.

"Rubin and Feller misread Marsh," O’Scannlain wrote. "Marsh nowhere confines its review of Nebraska’s practice solely to the short period in which [the chaplain] delivered only nonsectarian prayers. Rather, the Court trained its analysis on Nebraska’s practice over time."

The Ninth Circuit also rejected claims that Lancaster had violated the First Amendment by placing its "official seal of approval" on Christianity, since most of the prayers had been Christian.

"Far from it," O’Scannlain wrote. For instance, no one is required to participate in the prayer, no one is paid to pray, no city official may review or be involved in the content of a prayer, and the city clerk is not to remove a congregation’s name from the potential list of volunteers, he wrote. And the city clerk must make every effort to reach out to a variety of congregations and limit each speaker to conducting prayers at no more than three meetings per year.

The Ninth Circuit’s ruling aligned with the Eleventh Circuit’s Pelphrey v. Cobb County in 2008. In both cases, the opinions interpreted Marsh in a similar way, McEwen said, because they "applied a historical test, which recognized that from the very beginning the founding fathers endorsed legislative prayer at the first meeting of Congress. And, following that historical perspective, they concluded that legislative prayer that doesn’t proselytize or disparage other religions would be OK, even if it did have a mention of a particular deity."

But it conflicts with the Second Circuit’s decision last year in Galloway v. Town of Greece and the Fourth Circuit’s Joyner v. Forsyth in 2011, which found legislative prayers unconstitutional endorsements of Christianity. "That case in the Fourth Circuit supports our position," Diamond said. O’Scannlain, he said, "makes it sounds in his opinion like there’s no circuit split."

The U.S. Supreme Court has so far refused to take up the controversy.

Contact Amanda Bronstad at abronstad@alm.com.

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