HomeMy WebLinkAboutAgenda Report - September 30, 2009 B-01 SMAGENDA ITEM 8"01
CITY OF LODI
. ' COUNCIL COMMUNICATION
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AGENDA TITLE: Review Policy Regarding Invocations at Council Meetings
MEETING DATE: September 30,2009
SUBMITTED BY: City Attorney
RECOMMENDED ACTION: Review Policy Regarding Invocations at Council Meetings and
Consider Changes to the Council Protocol Manual.
BACKGROUND INFORMATION: The City of Lodi has agendized Invocations at its Council
Meetings since at least 1975. In March of 2006, in response to
a California Appellate Decision, Rubin v Burbank, (2006)101
Cal. App.41h 1194, Council adopted as part of the Council Protocol Manual a policy requiring that prayers
before the Council be non-sectarian. Since that time, invitations have been sent to all listed religious
organizations in the phone book inviting them to give a non-sectarian invocation. However, that policy
has not been followed by all of the individualswho have responded to the City's invitation.
On behalf of its Lodi members, the Freedom From Religion Foundation objected to the respondents'
departures from the City's policy. The Foundation requests that the City follow the policy adopted as part
of the Council Protocol Manual requiring that all prayers before the Council be non-sectarian, meaning
that the prayer must not include words or references that reflect a particular religious belief. Council
adopted this policy on the advice of the City Attorney's office, based on a California Appellate Court case,
Rubin v Burbank. In Rubin, the City of Burbank argued that its prayers did not violate the Constitution
because only twenty percent of the prayers referenced a particular religious belief. The Appellate Court
disagreed stating that "any legislative prayer that proselytizes or advances one religious belief or faith or
disparages any other violates the Establishment Clause [of the United States Constitution]." (Id. at 1204)
The California Supreme Court declined to consider Burbank's appeal.
Notwithstanding the clarity of the California Rubin decision, the law on legislative invocations is highly
unsettled. Although the Rubin Court based its decision on the Federal Constitution, California also has
an "Establishment Clause" in its constitution. Nevertheless, California Courts often defer to Federal
Courts on constitutional interpretations; therefore, California's establishment clause could be interpreted
more broadly by California courts. At the federal level, opponents and proponents of invocations can and
do vociferously point to federal appellate court cases in different jurisdictions that support their preferred
outcome. The Marsh v. Chambers (1983) 463 U.S. 783, case is the only US Supreme Court case
directly on point. In Marsh, the Supreme Court upheld a state legislature's practice of paying a Christian
pastor to say a non-sectarian prayer before legislative sessions, but held that Invocations cannot be used
to proselytize.
The issue of prayer before legislative sessions becomes muddier when you add the question of whether
the prayers can be sectarian. The question is whether a prayer that simply references a particular
religious tradition (i.e. is sectarian) without exhorting conversion or demeaning other faith traditions can
APPROVED:
Blai i , City Manager
be considered proselytizing under Marsh. Some courts see legislative prayer as government speech
(Rubin, the California Appellate Court Case) that can and must be censored of all sectarian references.
Others see it as private speech that should not be censored as long as the opportunity to pray is open to
all. Which view, or whether a third and different view may ultimately prevail is unknown and
unknowable.
As for Congress, they have no prayer rules or policy. According to the Senate Office of the Chaplain, they
let all pastors pray according to their own conscience and have never been challenged. They are open
to guest chaplains of all faiths though all appointed chaplains have been "Christian."
Given the fractured state of the law on the issue of Invocations, below is a continuum of possible
Invocation policies:
�) Remove Invocations from the Council Agenda. (The City could not censor or prohibit prayers
from being said during Public Comment as long as they were directed at items within the
jurisdiction of the City Council).
2) Prayers said privately for the benefit of individual or multiple Council Members prior to the
meeting.
3) Continue Invocations subject to the City's existing Policy. (Prayer proponents could challenge
this practice as censorship of their free speech rights though at least one federal appellate case
(Turner v. City Council of the City of Fredericksburg (4th Cir. 2008) 534 F.3d 352),
authored by retired Justice Sandra Day O'Connor rejected such a challenge finding that an
agendized prayer was government not private speech.)
4) Allow uncensored Invocations with one or a number of the following measures to avoid any
inferencethat one religion is favored over another:
a. Require Invocationsto be given before the meeting is called to order.
b. Continue to actively encourage all religious traditions within Lodi to give Invocations before
the Council.
C. Open the opportunity to give an Invocation to leaders of religious faiths that reside in Lodi
but must travel outside of Lodi to find a house of worship (those of the Sikh, Jewish and
other faiths).
d. Open the opportunity to give a Call to Civic Responsibilityto non -religious groups.
e. Add a disclaimer to the Agenda that the Invocation is offered as an acknowledgement of the
diverse religious traditions within Lodi and not as an endorsement of any particular religion
or religious belief.
Prohibit Invocations that directly seek to convert or demean a particular religious belief or
the lack thereof.
In addition to the options discussed above, the Alliance Defense Fund (ADF) offered their own model
prayer policy along the lines of option 4 above and submitted an agreement under which ADF would
provide a defense to the City to defend their model policy. As set forth below, accepting the offer from
ADF as currently constructed is not advisable. First, Council must adopt ADF's policy verbatim. Second
ADF's offer is only for defense, not indemnity(i.e. if the City were to lose in a litigation action and suffer
an attorney fee award, it would be the City's liability to pay the award.) This concern is exacerbated by
the requirement that Council must give ADF discretion regarding litigation strategy. As such, Council
could find itself in the untenable position of paying for a judgment where it had no say in the direction of
the litigation. Finally, ADF only commits to defending the case through trial. Public interest litigation of
this sort rarely if ever settles at the trial level. For the above reasons, ADF's current offer does not
provide any meaningful financial support if the Council chose to adopt ADF's proposed policy.
FUNDING: N/A
FISCAL IMPACT: Potential Litigation Costs.
iep _.en, chw aur ;
City Attorney -1
POLICY REGARDING OPENING INVOCATIONS
BEFORE MEETINGS OF THE LODI CITY COUNCIL
WHEREAS, the Lodi City Council ("the Council") is an elected legislative and
deliberative public body, serving the citizens of Lodi, California; and
WHEREAS, the Council wishes to maintain a tradition of solemnizing its proceedings
by allowing for an opening prayer before each meeting, for the benefit and blessing of the
Council; and
WHEREAS, the Council now desires to adopt this formal, written policy to clarify and
codify its invocation practices; and
WHEREAS, our country's Founders recognized that we possess certain rights that
cannot be awarded, surrendered, nor corrupted by human power, and the Founders explicitly
attributed the origin of these, our inalienable rights, to a Creator. These rights ultimately ensure
the self-government manifest in our Council, upon which we desire to invoke divine guidance
and blessing; and
WHEREAS, such prayer before deliberative public bodies has been consistently upheld
as constitutional by American courts, including the United States Supreme Court; and
WHEREAS, in Marsh v. Chambers, 463 U.S. 783 (1983), the United States Supreme
Court rejected a challenge to the Nebraska Legislature's practice of opening each day of its
sessions with a prayer by a chaplain paid with taxpayer dollars, and specifically concluded, "The
opening of sessions of legislative and other deliberative public bodies with prayer is deeply
embedded in the history and tradition of this country. From colonial times through the founding
of the Republic and ever since, the practice of legislative prayer has coexisted with the principles
of disestablishment and religious freedom." Id., at 786; and
WHEREAS, the Council desires to avail itself of the Supreme Court's recognition that it
is constitutionally permissible for a public body to "invoke divine guidance" on its work. Id., at
792. Such invocation "is not, in these circumstances, an `establishment' of religion or a step
toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the
people of this country." Id.; and
WHEREAS, the Supreme Court affirmed in Lynch v. Donnelly, 465 U.S. 668 (1984),
"Our history is replete with official references to the value and invocation of Divine guidance in
deliberations and pronouncements of the Founding Fathers and contemporary leaders." Id., at
675; and
WHEREAS, the Supreme Court further stated, that "government acknowledgments of
religion serve, in the only ways reasonably possible in our culture, the legitimate secular
purposes of solemnizing public occasions, expressing confidence in the future, and encouraging
Page 1 of 6
the recognition of what is worthy of appreciation in society. For that reason, and because of their
history and ubiquity, those practices are not understood as conveying government approval of
particular religious beliefs." Id., at 693 (O'Connor, J., concurring); and
WHEREAS, the Supreme Court also famously observed in Zorach v. Clauson, 343 U.S.
306, (1952), "We are a religious people whose institutions presuppose a Supreme Being." Id., at
313-14; and
WHEREAS, the Supreme Court acknowledged in Holy Trinity Church v. United States,
143 U.S. 457 (1892), that the American people have long followed a "custom of opening
sessions of all deliberative bodies and most conventions with prayer...," Id., at 471; and
WHEREAS, the Supreme Court has determined, "The content of [such] prayer is not of
concern to judges where ... there is no indication that the prayer opportunity has been exploited
to proselytize or advance any one, or to disparage any other, faith or belief." Marsh, 463 U.S. at
794-795; and
WHEREAS, the Supreme Court also proclaimed that it should not be the job of the
courts or deliberative public bodies "to embark on a sensitive evaluation or to parse the content
of a particular prayer" offered before a deliberative public body. Id.; and
WHEREAS, the Supreme Court has counseled against the efforts of government
officials to affirmatively screen, censor, prescribe and/or proscribe the specific content of public
prayers offered by private speakers, as such government efforts would violate the First
Amendment rights of those speakers. See, e.g., Lee v. Weisman, 505 U.S. 577, 588-589 (1992);
and
WHEREAS, in Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276 (4th
Cir. 2004), cert. denied, the United States Court of Appeals for the Fourth Circuit recently
reviewed and specifically approved as constitutional the prayer policy of a county board, and
made a number of key findings about said policy; and
WHEREAS, the Council is not bound by decisions of the Fourth Circuit, but hereby
acknowledges the general guidance provided by the most important of that court's findings in
Simpson, including the facts that the policy there:
(1) Allowed for invocations for the benefit of the legislative body itself "rather than
for the individual leading the invocation or for those who might also be present," Id., at 284; and
(2) Established a practice in which various clergy in the county's religious community
were invited on a rotating basis to present invocations before meetings of the board, Id., at 279;
and
(3) Thus, "made plain that [the county board] was not affiliated with any one specific
faith" by allowing different persons from different religious convictions and backgrounds to
offer the invocations. Id., at 286; and
Page 2 of 6
WHEREAS, the Fourth Circuit showed little concern that the prayers before board
meetings in Simpson were "traditionally made to a divinity that is consistent with the Judeo-
Christian tradition," Id., at 280, because "Marsh also considered, and found constitutionally
acceptable, the fact that the prayers in question fit broadly within `the Judeo-Christian
tradition."' Id., at 283 (quoting Marsh, 463 U.S. at 793); and
WHEREAS, the Fourth Circuit's ruling in Simpson can be distinguished from its earlier
decision in Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2002), cert. denied, where a
town council "improperly `exploited' a `prayer opportunity' to `advance' one religion over
others." Id., at 298 (quoting Marsh, 463 U.S. at 794); and
WHEREAS, the Council intends to avoid all of the unique circumstances that rendered
the practices at issue in Wynne unconstitutional, including the facts that:
(1) The Town Council's resolution declared its intent that "the Town's prayers are not
just for the Council members but for all of the Town's citizens," and thus prayers were "directed
at" the citizenry, Wynne, 376 F.3d at 301, n.7; and
(2) The Town Council "steadfastly refused" to invoke any "deity associated with any
specific faith other than Christianity," Id., at 300, n.5; and
(3) The Town Council "advance[d] its own religious views in preference to all
others," Id., at 302; and
(4) Town Council members publicly chided and "ostracized" those who refused to
participate in their prayers, Id., at 298; and
WHEREAS, the Council intends, and has intended in past practice, to adopt a policy that
does not proselytize or advance any faith, or show any purposeful preference of one religious
view to the exclusion of others; and
WHEREAS, the Council recognizes its constitutional duty to interpret, construe, and
amend its policies and ordinances to comply with constitutional requirements as they are
announced; and
WHEREAS, the Council accepts as binding the applicability of general principles of law
and all the rights and obligations afforded under the United States Constitution.
NOW, THEREFORE, BE IT RESOLVED by the Lodi City Council that the Council
hereby adopts the following written policy regarding opening invocations before meetings of the
Council, to wit:
1. In order to solemnize proceedings of the Council, it is the policy of the Council to
allow for an invocation or prayer to be offered before its meetings for the benefit of the Council.
Page 3 of 6
2. The prayer shall not be listed or recognized as an agenda item for the meeting or
as part of the public business.
3. No member or employee of the Council or any other person in attendance at the
meeting shall be required to participate in any prayer that is offered.
4. The prayer or invocation shall be voluntarily delivered by an eligible member of
the clergy in the City of Lodi. To ensure that such person (the "invocation speaker") is selected
from among a wide pool of Lodi's clergy, on a rotating basis, the invocation speaker shall be
selected according to the following procedure:
a. The Clerk to the Council (the "Clerk") shall compile and maintain a
database (the "Congregations List") of the religious congregations with an
established presence in the local community of Lodi_
b. The Congregations List shall be compiled by referencing the listing for
"churches," "congregations," or other religious assemblies in the annual Yellow
Pages phone book(s) published for Lodi, research from the Internet, and
consultation with local chambers of commerce. All religious congregations with
an established presence in the local community of Lodi are eligible to be included
in the Congregations List. Any such congregation not otherwise identified for
participation may request its inclusion by specific written communication to the
Clerk.
C. This policy is intended to be and shall be applied in a way that is all-
inclusive of every diverse religious congregation in the community of Lodi. The
Congregations List is compiled and used for purposes of logistics, efficiency and
equal opportunity for all of the community's religious leaders, who may
themselves choose whether to respond to the Council's invitation and participate.
Should a question arise as to the authenticity of a religious congregation, the
Clerk shall refer to criteria used by the Internal Revenue Service in its
determination of those religious organizations that would legitimately qualify for
Section 501(c)(3) tax-exempt status.
d. The Congregations List shall also include the name and contact
information of any chaplain who may serve one or more of the fire departments or
law enforcement agencies of Lodi.
e. The Congregations List shall be updated annually, by reasonable efforts of
the Clerk.
£ Within thirty (30) days of the effective date of this policy, and annually
each calendar year thereafter, the Clerk shall mail an invitation addressed to the
"religious leader" of each congregation listed on the Congregations List, as well
as to the individual chaplains included on the Congregations List.
Page 4 of 6
g. The invitation shall be dated at the top of the page, signed by the Clerk at
the bottom of the page, and read as follows:
Dear religious leader,
The Lodi City Council makes it a policy to invite members of the
clergy in Lodi to voluntarily offer a prayer before the beginning of
its meetings, for the benefit and blessing of the Council. As the
leader of one of the religious congregations with an established
presence in the local community, or in your capacity as a chaplain
for one of the local fire departments or law enforcement agencies,
you are eligible to offer this important service at an upcoming
meeting of the Council.
If you are willing to assist the Council in this regard, please send a
written reply at your earliest convenience to the Clerk to the
Council at the address included on this letterhead. Clergy are
scheduled on a first-come, first -serve basis. The dates of the
Council's scheduled meetings for the upcoming year are listed on
the following, attached page. If you have a preference among the
dates, please state that request in your written reply.
This opportunity is voluntary, and you are free to offer the
invocation according to the dictates of your own conscience. To
maintain a spirit of respect and ecumenism, the Council requests
only that the prayer opportunity not be exploited as an effort to
convert others to the particular faith of the invocation speaker, nor
to disparage any faith or belief different than that of the invocation
speaker.
On behalf of the Lodi City Council, I thank you in advance for
considering this invitation.
Sincerely,
Lodi City Clerk
h. As the invitation letter indicates, the respondents to the invitation shall be
scheduled on a first-come, first -serve basis to deliver the prayers.
5. No invocation speaker shall receive compensation for his or her service.
6. The Clerk shall make every reasonable effort to ensure that the eligible invocation
speakers that are scheduled for the Council meetings represent a variety of faiths and that the
Clerk strive to invite all available faiths from the community. In any event, no invocation
speaker shall be scheduled to offer a prayer at consecutive meetings of the Council, or at more
than three (3) Council meetings in any calendar year.
Page 5 of 6
7. Neither the Council nor the Clerk shall engage in any prior inquiry, review of, or
involvement in, the content of any prayer to be offered by an invocation speaker.
8. Shortly before the opening gavel that officially begins the meeting and the
agenda/business of the public, the President of the Council shall introduce the invocation speaker
and the person selected to recite the Pledge of Allegiance following the invocation, and invite
only those who wish to do so to stand for those observances of and for the Council.
9. In the event that the invocation speaker does not or cannot appear as scheduled, or
in the event that no invocation speaker has volunteered or been scheduled for a particular
meeting, shortly before the opening gavel that officially begins the meeting and the
agenda/business of the public, the President of the Council shall: introduce the person selected to
recite the Pledge of Allegiance; announce that the Pledge will be delivered after a moment of
silence for individual prayer or reflection; and invite only those who wish to do so to stand for
those observances of and for the Council.
10. This policy in not intended, and shall not be implemented or construed in any
way, to affiliate the Council with, nor express the Council's preference for or against, any faith
or religious denomination. Rather, this policy is intended to acknowledge and express the
Council's respect for the diversity of religious denominations and faiths represented and
practiced among the citizens of Lodi.
11. To clarify the Council's intentions, as stated herein above, the following
disclaimer shall be included in at least 10 point font at the bottom of any printed Council meeting
agenda: "Any invocation that may be offered before the official start of the Council meeting
shall be the voluntary offering of a private citizen, to and for the benefit of the Council. The
views or beliefs expressed by the invocation speaker have not been previously reviewed or
approved by the Council, and federal law does not allow the Council to endorse the religious
beliefs or views of this, or any other speaker."
NOW, THEREFORE, BE IT FURTHER RESOLVED that this policy shall become
effective immediately upon adoption by the Council.
THUS INTRODUCED at the regular meeting of the Lodi Council, on
, 2009.
For: _
Against:
THUS ADOPTED at the regular meeting of the Lodi Council, on
, 2009.
CLERK
Page 6 of 6
COUNCIL PRESIDENT
THE ALLIANCE DEFENSE FUND
ATTORNEY-CLIENT AGREEMENT
1. This Agreement is entered into between The Alliance Defense Fund (hereinafter
referred to as "ADF"), and:
City of Lodi; Lodi City Council Members Susan Hitchcock, Larry Hansen, Bob
Johnson, Phil Katzakian and Joanne Mounce in their official capacities as
members of the Lodi City Council and Larry Hansen in his official capacity as
Mayor of the City of Lodi,
(hereinafter referred to collectively as "the Client"), and concerns the legal representation of the
Client by ADF in the defense of ADF's model invocation policy adopted by the City of Lodi
including any litigation filed against the City of Lodi seeking to declare Lodi's invocation policy
based upon ADF's model policy unconstitutional.
2. ADF will supply legal representation at no charge and cover all costs of such
representation in the above -referenced case. The Client agrees to cooperate fully with attorney J.
Michael Johnson as lead counsel, and its other participating attorneys, including but not limited
to Mark C. Bowman and further agrees that said attorneys will collectively have authority to
make strategy decisions in matters concerning the legal representation of the Client in such case.
ADF shall consult with Client through its City Attorney and keep Client fully apprised of the
case progress. No settlement of any nature shall be made without Client's complete approval.
3. If at any point in the litigation of the case ADF and its participating attorneys
believe, in their sole judgment, that the Client is not cooperating fully in the case, the Client
agrees that ADF and its participating attorneys may withdraw from the case in accordance with
applicable canons of professional conduct.
4. It is further agreed that in the event that client should prevail, ADF may collect
CityofLodi.AD FFeeAgreement
and retain any award of fees from the opposing parry representing litigation costs and attorney's
fees to the extent permitted by law.
5. The Client further agrees not to make any statements to the news media regarding
the case without prior approval from and discussion with their attorneys in this matter.
6. It is further agreed that any responsibility ADF has assumed under the terms of
this agreement applies only to the period of time that the case referenced above remains in
litigation in the trial court. ADF has no obligation by this agreement to represent the Client on
further appeal or litigation of this matter, but will reevaluate the case at such time and offer its
continued representation on appeal as ADF deems appropriate.
The foregoing Agreement is understood, accepted and agreed to this day of
2009.
THE ALLIANCE DEFENSE FUND
By:
J. Michael Johnson, Senior Legal Counsel
0
CLIENT
City of Lodi; Lodi City Council Members Susan
Hitchcock, Larry Hansen, Bob Johnson, Phil Katzakian and
Joanne Mounce in their official capacities as members of
the Lodi City Council and Larry Hansen in his official
capacity as Mayor of the City of Lodi
Title:
dun. 3. ZM MUM hur No. jjgj r. I
IAIF
ALLIMCE DEFENSE FUND
Defending our Fina# Liberty.
Fax
Date: June 3, 2009
From: J. Mcbael Johnson, Esq.
Senior Legal Counsel
LoU19lIA1t1A REGIONAL SERVIcE CIE ust
P.O. Box 52954
Shreveport, LA 71135
Tel. (318) 603-1435
Fax (318) 603-1437
miohnson ah*11ADF.org
To: Mr. Ken Owen
209-368-0990
Pages (including cover): 17
Message: Policies concerning legislative prayer
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any action in reliance upon the contcnts ofthis information is strictly prohibited. Ifyou have received this transmittal in error,
please notify us by telephone immediately to arrange forremrn ofthe document..
Jun. 3, ivvy w u uim Aur NO. jjq] r. i
I b ich 1 jobMa
Senio!'''
ALUMCE DEFENSEFUNA
Dejtnd!»y Our fIrar Lab"
June 2,2009
Holl. Larry D. Hansen, Mayor
Hon. Phil Katzakian, Mayor Pro Tempore
Hon. Susan Hitchcock, City Council Member
Hon. Bob iUmsa , City Council Member
Hon. Joanne Mounce, City Council Member
Municipal Offices
221 W. Pine Street
Lodi, CA 95340
RE: Law regarding public invocations
Dear Mayor Hansen and Council Members,
T h is kdEr is being submitted to you by the Alliance Defense Eland ("ADF") to express
our support and encouragement of the Lodi City Council's participation in the important
American tradition of opening its sessions with a prayer. Recently, elected officials m a number
of American cities and counties have received threatening convspondence from groups such as
the Freedom from Religion Foundation These groups have made extraordinary demands for
public h omUms to be censored or altogether prohibited. Tib know the Lodi City Council is
now facing a similar threat, and me Wiile to assure you that stall drastic measures are
unnecessary and inadvisable.
EY way of introduction, ADF is a not-for-profit legal alliance of more than 1,200
attorneys and like-minded organizations defending the right of people to freely live out their
faith. Our organization exists to educate the public and the government about important
constitutional rights, particularly the freedom of religious expression. We frequently defend
these important freedoms in the courts, and through our offices across the country, ADF has been
called upon th assist and successfully defend many public officialsand legislative bodies on this
and a variety of related issues.
I. LEGAL ANALYSIS
There is simply no question that a legislative body may open its sessions with an
invocation. Public prayer has been an essential part of our heritage since the time of this nation's
founding, and our Constitution has always protected the activity. Contrary to some recent
P.O. BOX 529% - SHREVEPORT, IA 71735 • mon 318.603.1435 rnx 318.603.1437 wen W W W.TELIADF.ORG
Jun. 3. ZM IMINM AUt No. JJgJ r. i
June 2, 2009
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claims, such prayer can also include sectarian references without running afod of the First
Amendment's Establishment Clause.
A. T h e Legality of Public Invocations is Beyond Dispute.
The United states Supreme Court has acknowledged that official proclamations of
thanksgiving and prayer, and imomtiazs before the start of government meetings, are an
essential part of our culture and in no way a violation of the Constitution. This has been a
consistent principle in First Amendmentjurisprudence.
The central case on this subject is Marsh v Chambers, 463 U.S. 783 (1983), where the
Court invalidated a challenge to the Nebraska Ieciislab Is practice of opening each day of its
sessions with a prayer by a chaplain paid with taxpayer dollars. Marsh has been repeatedly
mischaracterized by sane advocacy groups in recent months, but its holding is clear. In the
opinion, Qrief Justice Burger concluded:
The opening of sessions of legislative and ctbw deliberative public bodies with
prayer is deeply embedded in the history and tradition of this country_ From
colonial times through the founding of the Republic and ever since, the practice of
legislative prayer has coexisted with the principles of disestablishrent and
religious freedom.
Id., at 786. In fact, the Court noted that agreement was reached on the f n a I language of the Bill
of Rights on September 25,1789, thr� days after those same members of Congress authorized
opening prayers by paid chaplains. Id, at 788. Clearly then, 'Th invoke divine guidance on a
public body ... is not, in these circumstances, an 'establishment' of religion or a step toward
establishment; it is simply a tolerable acknowledgment of beliefs. widely held among the people
of this country." Id, at 792. Those beliefs help define who we are as a nation.
InLynch v Donnelly, 465 U.S. 668,675 (1984), the Court affirmed that "[o]ur history is
replete with official references to the value and invocation of Divine guidance in deliberations
and pronouncements of the Fanxfg Fathers and contemporary leaders." Justice O'Connor
specified chat such official references encompass "government practices embracing religion,
including Thanksgiving and Christrnas holidays, congressional and military chaplains and the
congressional prayer man, the raD D, the Pledge of Allegiance, and presidential proclamations
frr a NtiaP1 Day of Prr." !d, at 693 (concurring opinion). She explained, "Those
government acknowledgments of religion- serve, in the only ways reasonably possible in our
culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence
in the future, and encouraging the recognition of what is worthy of appreciation in society. For
that reason, and because of their history and ubiquity, those pzacdces are not understood as
conveying government approval ofparticularrehgious beliefs." Id
"Thirty years before Marsh was decided, Justice Douglas famously observed, "We are a
religious people whose institutionspresuppose a Supreme Being... When the state encourages
religious instruction or cooperates with religious authorities by adjusting the schedule of public
Jun. 3. ZM IU:ULHM 'RUt No. 1345 r. 4
June Z2009
Page 3
events to sectarian needs, it follows the best of our traditions. For it then respects the religious
nature of our people and accommodates the public service to their spiritual needs." Zorach v.
Clauson, 343 U.S. 306, 313-14 (3952). The Court held that the Establishment Clause, does not
prohibit "Wrayers in our legislative Wb;. the appeals to the Almi&y in the messages of #)--
Chief
eChief Executive; the proclamations making Thanksgiving Day a national holiday; `so help rre
God` in our courtroom oaths -these and all other references to the AhiTighty that rug through our
laws, [and] our public rituals ... [including] the supplication with which the Court opens each
session: `.God save the United States and this HonorableCourt"' Id, at 312-13. Ninety-one
years before Marsh the Court acknowledged in Holy Trinity Church v. United States. 143 US.
457 (1392), that America had a "custom ofopening sessions of all deliberative bodies and most
conventions with prayer..." Id, at 471. By simply following these traditions, government
officials run no risk of violating the Constitution,
B. Sectarian Prayers are Likewise Historical and Constitutionally Permissible.
Recently, some activist groups have implied that a I I sectarian references in public
invocations are. unlawful.To the contrary, the C1xd t m does not requixe such censorship.
Although the Supreme Court has not directly addressed the question, close reading of the case
law indicates that Marsh and its progeny permit sectarian invocations. What matt inmost to the
courts is the context of legislative prayers— rather than the specific content of any particular
invocation.
In short, the rule of thumb is that the government cannot compel samcm to pray in
accordance with one preferred religious viewpoint. For tris reason, a policy which mandates
only "nonsectarian" prayer would itself likely be tmconstitatioaal. Instead, public bodies are
much safer when they provide an open forum for individuals b offer prayer according to the
dictates of their own consciences. This may work best on a rotational basis. Under such a
policy, the viewpoint.expressed--whether sectarian or nonsectarianrAs them left to the
individual prayer -giver, rather than the government.
1 Supreme Court cases.
In Marsh, the Supreme Court gave no indication that the mere mantion of a sectarian
deity or belief would violate the Establishment Clause. Instead, the Court reviewed and relied
upon overlay sectarian prayers as examples of permissible public inwcations. See Marsh, 463
U.S. at 794-95; McCreary County v ACLU o1 K3'•, 125 S.Ct. 2722, 2733, n. 10 (2005). The
Marsh Court did not issue an opinion on whether it would be unconstitutional for prayers to be
offered in Jesus' name (or in the name of any other specific deity) since that issue was not before
the Court. Marsh, 463 U.S. at 793, n. 4, However, the Court did reference the prayers delivered
at the Continental Congress and the Constitutional Convention as examples of what would and
should be hisbmica ly and traditionally permitted. Id at 791-92. Included in those example
prayers were invocations brought in the name of Jesus, by invited g mxas.
For example, the Akst Court reviewed and discussed the opening of the first session of
the Continental Congress with prayer, and concluded that "tbe subject was considered carefully
UUn. J. LUU9 IU.U1Hm AUr No. jj4j r. )
June 2,2009
Page 4
and the action not taken thoughtlessly, by force of long tradition and without regard tD the
problems posed by a pluralistic society." Id The prayer at that first session of the Congress,
September, 7, 1774, in 0aor1: 1% Is Hall, Philadelphia, was defivered by Rev. Jacob Duch& He
included these words (emphasis added):
Be Thou present; O God of Wisdom, and direct the councils of this Honorable
Assembly: enable them tD settle all things on the best and [surest] of foundations:
that the scene of blood may be speedily closed: that Order, Harmony and Peace
may be effectually restored, and Truth, and Justice, Religion, and Piety prevail
and flourish among the people. Preserve the health of their bodies and the vigor
of their minds, shower down on them, and the millions they here represent, such
temporal Blessings as Thou seest, expedient for them in this world,and crown
them with everlasting Glory in the world to come. All this we ask in the name and
through the merits df Jesus Christ, 4 Son and OurSavior, Amen.l
The content of Rev. Duchd's prayer is virtually indistinguishable from the content of tine
typical opeming prayer at 'any public meeting in America today. if the above prayer was
reviewed with approval and referenced by the Supreme Court in Marsh, ti m it, and prayers like
it, should certainly be appropriate today as well. Neither Marsh nor any other Supreme Court
case commands removal of all sectarian references from public prayer—particularly where
different persons of varying creeds take tunas offering the prayer.
2 Lower court cases.
Numerous appellate arl district courts that have had occasion to apply Marsh have found
no trouble wL sectarian prayers --so long as they are not exploited and used for proselytizing.
These lower courts have rightfully focused on the laey guideline provided by Marsh:
The content cf the prayer is not cf concern to judges where, as here, there is no
indication that the prayer opportunity has been exploited to proselytize or advance
any one, or to disparage any other, faith or belief. That being so, it i s not for us to
e m:k on a sensitive evaluation or to parse the content of a particularprayer.
Id., at 794-795 (emphasis added).
For example, the U.S. Court of Appeals for the Tenth Circuit has stated that "the mere
fact a prayer evokes a particular concept of God is not enough torun afoul of the Establisbmem
Clause." Snyder v Murray, 159 F.3d 1227, 1234, n.l 0 (10 Cir. 1998). In that case,the court
held that a city council could lawfully bar a speaker because he would "proselytize" his own
views and "disparage" others by offering a mock, unconventional "prayer." Applying Marsh,
' September 7,1774, First Prayer in Congress: Beautoa Reminiscene (Washington, D.C. Library of Congress);
WILL M J. MERM, America's God and Country. Encyclopedia cf Quotations (Coppell, TX Fame Publishing,
Inc., 1994), p.137; GARY DEMAR, God and Government. • A Biblical and Historical Study (Atlanta, G.A. Amexxcan
Vision.Press, 1982), Vol. t p. 108; JomN S.C. Mum, George Washington (New York, NY Dodd, Mead & Co.,
1975, 1917), p. 187; ltMOLDS, The Mame Scholars Ma►mal (P*ytlaud, ME pm w, Mcl ellen & Co., 1850).
dun. ). L V V I IV:VIMIVi Aur
June 2,2009
Page 5
. No. 3343 P. 6
the court observed: ` Ibekind of legislative prayer that will run afoul of the Oxsdbibm i s one
tlhat proselytizes a particular religious tenet or belief, cr that aggresstvely advorptes a specific
religious creed, or that derogates another religious faith cr doctrine." Id, at 1234 (emphasis
added). Specifically addressing what it meets to "advance" a particular faith under Marsh, the
court farad that, "All prayers 'advane a particular faith or belief in one way or another... By
using the term 1proselytize,".W [Marsh/Court indicated that the real danger in tiffs area is effort
by the government to convert citizens to particular sectarian views." " Id, 1234, n.10 (emphasis
added),
In the Fourth Circuit, the court recently approved a legislative prayer practice :h which
various clergy in a county's religious community were invited to present invocations during
meetings of the county board. Tn that case, Simpson v Chesterfield County Bd. cf Supervisors,
404 F.3d 276 (4ei Cir. 2004), cert. denied 126 S.Ct. 426 (2005), the court found it important that
the C b ty "madeplain that that it was not affiliated with any one specific faith by opening its
doors to a wide pool of clergy."Id, 404 F.3d at 286. The court did not, however, seem to reason
that such a' provision was an absolute prerequisite to the invocation practice's constitutionality,
nor did it invoke the language of its earlier broad pronouncement in Wynne v Town aE Great
Falls, 376 F.3d 292 (4" Cir. 2002), cert. denied 125 S.Ct. 2990 (2005); that any reference to a
particular deity is constitutionally impermissible.
The reason the Wynne case was easily distinguishable from Simpson, and from most other
situations, is because the town council in Wyrme exclusively invoked Jesus' name and also
publicly chided the plaintiff for failing tD stand and participatein the prayers. Wynne presented a
genuinely exploitative situation where a town council "insisted upon involing the name 'Jesus
Christ' to the exclusion of other deities associated with any other particular religious faith."
Wynne, 376 F.3d at 295,301. Obviously, such action may be deemed by a reviewing court as
"exploiting" the invomticn to "proselytize or advance Christianity." The Fourth Circuit's
injunction against proselytizing town council prayers in Wynne thus does not fairly implicate all
nom -proselytizing prayers m that circuit. Th fact the court later clarified in Simpson:
The facts of Wynne [ ] contrast sharply with those in the present case. The
insistent sectarianism of the Great Falls prayers, see Wynne, at 294-96 &'n. 2,
violated even the spacious boundaries at forth m Marsh. [By contrast]
Chesterfield's policy, adapted in the kmad+ata aftennath of Marsh, echoes rather
than exceeds Marsh's teachings. The County never insisted on the invocation of
Jesus Chi& by name, as the Towa Council in Great Falls did. Wynne, at 301.
Simpson, 404 F.3d at 283.
The Fourth Circuit further Specified that; "A party challenging a legislative invocation
practice cannot, therefore, rely on the mere fact that the selecting authority chose a repmotative
of aparticular forth, because some adherent or representative of some faith will invariably give
the invocation." Id, at 285.
Jun. j. MY IU.U1Hm Aur No. jj4j r. I
June 2,2009
Page 6
The Ninth Circuit, which includes California, apparently agrees. While the Ninth Circuit
has yet to issue any ruling .specifically on point regarding legislative prayer; in Bacus v Palo
Verde School Board unpublished -2002 WL 31724273 (9* Cir. 2002), the court held "We need
not decide whether the prayers 'inthe name of Jesus'. would be a permissible solemnization of a
legislature -like body, provided that invocations were, as is traditional n Congress, rotated among
leaders of different faints, sects, and denominations." Id at 1.
One previous state court case in'California provides additional caveats. But-cven in that
case, Rubin v. City of Burbank, 101 Cal.App.4'h 1194 (Cal.App. 2 Dist., 2002), the California
Court of Appeal, Second District recognized the continued vitality and applicability of. Marsh
In Rubin, the court.beld that an invocation offered to a sectarian deity violated the Establishment
Clause because it conveyed a message that said deity was being advanced over other religions.
However, the court's opinion was based in part on the facts that: the speakers selected to give the
invocation were chosen from a single ministerial association that had no members of minority
faiths, and the invocation. at issue was part of the official agenda of the council meeting.
The Rubin case has no direct applicability to your situation, since Lodi is part of a
different appellate district -in California. However, to be even more safe, the model policy that
we offer for your review (explained nt-tr : fully below) includes important safeguards to avoid the
"endorsement" cK "advancement" concerns expressed by the Rubin coot Specifically, ow
model policy includes: a truly open and neutral invitation process (to all religious leaders in the
community); use of a written disclaimer; removal of the hmromtimfrom the formal agenda; etc.
With regard ID prayer COMM the Ninth Circuit's reference to Congressional invocations
is important. Clearly, prays offered be£ome Ccrrgress - n m contain explicit sectarian
references. See Newdow v. Bush, 355 F.Supp.2d 265,285 n 23 (D.D.C.2005) (acknowledging
that "the legislative prayers at the U.S. Congress are overtly sectarian'; see also Steven' B.
Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L.REV. 2083,2104
at n. 118 (1996) (noting that, from 1989 to 1996, for example, "over two hundred and fifty
opening prayers delivered by congressional chaplains [ ] included supplications to Jesus Christ»).
The Eleventh Circuit recently upheld nom -proselytizing but sectarian county commission
meeting prayers in Jesus' name. Cary Pelphrey, a k a Bats, et al v. Cobb County, Georgia, et al,
547F.3d 1263 (11th Cir., Oct 28, 2008).'•In that case, the federal district courtbelow actually
arrived at some helpful standards frr reviewing a legislative prayer, and looked to whether the
public officials had an "impermissible motive or intent" to proselytize only one faith, cr to show
"purposeful preference of one religious view to the exclusion of others." Pelphrey a Cobb
County, - Ga., 410 F.Supp.2d 1324,1338 (N.D. Ga., Jan, 13, 2006). Below this type of threshold,
the courts have oonsistfently disclaimed my interest in the content• of legislative invocations,
announcing a strong disinclination "to embark on a sensitive evaluation or to parse the content of
a part llarprayer." Marsh, 463 U.S. at 794-795. "Whether invocations of `Lord of Lords' or
`the God ofAbraham, Isaac and Mohammed' are `sectarian' is best left tp theologians, not courts
of law." Pelphrey, 547 F.3d at 1267.
JUn. ?. LVV7 iu:u)nm nur
June 2,2009
Page 7
No. JJg3 r. b
Recently, jn Dobrich v. Walls, 380 F.Supp.2d 366 (D. Del., Aug. 2 2005), the federal
district court. in Delaware reviewed and specifically approved as constitutional the prayer policy
of a public school board where the - policy allowed for opening prayers, even though
representatives _were predominately of • one faith tradition and there was occasional sectarian
content in theprayers. As that court explained,"As the Marsh decisionmalms clear, the practice
of opening legislative sessions with a prayer is acceptable under the Constitution." Id, at 377.
The Dobrich court found it persuasive.that i n Marsh, "f t]he Count went on. to find no violation of
the Establishment Clause based on the fact that the clergyman offering the prayers was from one
denomination, used Judeo-Christianprayers, and was paid at the public expense." Id, at 376.
C. The Government Must Avoid -"Comparative Theology."
It is indeed an important principle that government officials cannot "assume the role of
regulators and owsors of legislative prayer." Pelphrey, 410 F.Supp.2d at 1339. As that court
summarized:
it would seem ana lous for the outcome of the Marsh inquiry to tin on the
obviousness or subtlety of the. sectarian references in question; such a rule would
create the perverse incentive for speakers to endeavor to coucb sectarian concepts
in opaque terms, and place courts m the unenviable position of determining just
how "obvious" a sectarian reference has to be befxme it must be excised from
legislative invocations, even when not otherwise offensive to Marsh's prohibition
against proselytization, advancement, or disparagement.
Id, at 1338, n.14.
After a recent cornroversy at the Ohio -House of Representatives, we were asked to
submit ADF's legal opinion on whether a suggested policy of reviewing invocations prior to
ftir delivery,and rrarJ. I` g only "nonsectarian" content, would be . We wrote to
explain that such a prior restraints on free speech would be constitutionally impermissible, and
thatthe S porn Court has counseled against the efforts of government officials to affirmatively
sarem, censor, prescribe and/or proscribe the specific content of public prayers offered by
private speakers, as such government efforts would violate the First Amendment .rights of those
Speakers. See, -e.g., Lee v.* Weisman, 505 U.S. 577, 588-589 (1992): Thankfully, the Speaker of
the House, Rep. Jon Husted, wisely corrected the situation and committed in a September 10,
2007, memo: "As such while the Ohio House of Representatives is under my leadership we will
not censor the content o f prayers given prior to a House session."
The Ohio House made the right legal decision. In Lee, Justice- Souter r md; ed, . "I can
hardly imagine a abject less amenable to the competence of the federal judiciary, or more
deliberately to be avoided where possible" than "comparative theology." Id at 616-17 (Souter,
J, concurring). The legislative branch of government, like the judicial, is prolubited from
divining the "religious" frdm the "nom -religious," and must avoid sifting through individual
prayers to subjectively detarinine whether or not an inwcatim would be "sectarian." Because
Jun. 3. LM IU:U3AM HU r. IVU. ))10 F. I.
June 2, 2009
Page 8 .
such editorial endeavors would offend constitutional guarantees under both the Free Exercise
C3ah3e and the Establishment Clause, they are clearly prohibited by Supreme Court precedent.
Examples of d-ris precedent include: Mitchell v. Helms, 530 U.S. .793, 828 (2000)
(plurality) (staling that for authorities to troll through a religious institution's beliefs in order to
identify -if it is "pervasively sectarian" is offensive and contrary to precedent); Rosenberger v.
Rector A VuWors aE the Univ. of Virgin, 515 U.S. 819, 843-44 (1995) (rejecting argument that
university should distinguish between evangelism, on the one hand, and: the expression of
religious .views on secular su*c s, on the other); Corporation of the .Fresidirtg Bishop V. Amos,
483 U.S. 327,. 336 (1987)' (recopizing a problem should government attempt to divine which
jobs'. am sufficiently related to the core of a religious organization so as to merit exemption from
statutory dries); Id at 344-45 (Brennan; a concurring) (same); Willmar v. Irncent,.454 U.S.
263,269-70n. 6, 272 n: 11 (1981) (holding that inquiries into religious significance of words cr
events are to be avoided); Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970) (holding that it is
desirable to avoid' entanglement that would follow should tax authorities evaluate the temporal
worth of religious social welfare programs); Rusk v Espinosa, 4561U.S. 951 (1982) (mem.)
(striking down charitable solicitation 'ordinance. tbai required officials to distinguish between
"spiritual" and. secular purposes underlying solicitation by religious organizations).
II. MODEL POLICY AND OFFER CE' PRO BONO DEFENSE
Attached tD this letter is a model invocations policy ("Policy") that we respectfully
present for consideration by your local leaders. The Policy is similar to the ones that ADF has
drafted at the request of many other public bodies nationwide, to provide a constitutional
mechanism to preserve the lopgstanding tradition of allowing public meetings to be opened with
a prayer. The Policy avoids government censorship and entanglement in religion, and ensures
that invocations will be offered according to the dictatos of the conscience of each prayer -giver,
as the First Amendment requires.
We strongly, believe #-ot this Policy will pass constitutional muster. For that reason, if
your City Council ultimately adopts the Policy as proposed, and later faces any legal challenge to
h--ADF hereby offers to defend the public body and its Policy free of charge:
In his Farewell Address on September 19, 1796, President Washington famously
admonished, 'UEall the dispositions and habits which lead to political prosperity, Religion and
.morality are indispensable supports. ...The rneee Politician, equally with the pious man, oust to
respect. and to cherish them. A volume could not trace all their connections with private and
public felicity." It is both lawful and wise -for public officialsto iespect and cherish our religious
heritage, andto'invoke God''s.protection andguidance over their public work and ournation.
Jun. j. ZVVy IV:VgAm Aur
June 2, 2009
Page 9
110. ]]`t) r. I U
. We trust that thisinformation will be helpful to you and your local. leaders. If me can
answer any questions or concerns as you and/or your city officials review these materials, please
do not hesitate to contact rre.
Very sincerely yours;
ALuA.NcE DEFENSE FUND
J.'Michael Johnson
Senior 4gal Counsel
JMJ/pg
Attachment (model policy) -
AUF \AMNAL OFFICES - Scomac Arizona ' - CaVa ria, Georgia, Karw, I,ouiaiotn. wee, wasbirglAn, D.C.
Jun. 3. IM I U : MM Hut
POLICY REGARDING OPENING INVOCATIONS
BEFORE MEETINGS OF THE LODI CITY COUNCIL
NO. ))`t) F. I I
WHEREAS, the Lodi City Council ("the QuEil ') is an elected legislative and
deliberative public body, serving the citizens of Lodi, California, and
WHEREAS, the Council has long maintained a tradition of solemnizing its proceedings
by allowing for an opening prayer before ' each meeting, for 'the benefit and blessing of the
Council; and
WHEREAS, the Council wishes to maintain a tradition of solemnizing its proceedings
by allowing for an opening prayer before each meeting, for the bwefit and blessing of the
Council; and
WHEREAS, the Council now desires to adopt this formal, written policy to clarify and
codify its invocationpractices; and
our country's Founders recognized that we possess certain rights that
cannot be awarded, surrendered, nor corrupted by human power, and the Founders explicitly
attributed the origin of these, OUT inalienable rights, to a Creator. nose rights ultimately ensure
the self-government manifest in ou r Legislature, upon which we desire to invoke divine guidance
and blessing; and
WHEREAS, such prayer before deliberative public bodies has been oxsistently upheld
as constitutional by A mencan courts, including the United States Supreme Court; and
WHEREAS, in Marsh v Chambers, 463 U.S. 783 (1983), the United States Supreme
Court rejecbed a challenge to the Nebraska Legislature's practice of opening each day of its
sessions with a prayer by a chaplain paid w it h taxpayer dollars, and specifically concluded, "The
opening of sessions of legislative and other deliberative public bodies with prayer is deeply
srY11 1 in the history and hadkion of this country. From colonial times Hugh the founding
of the Republic and ever since, the practice of legislative prayer has coexisted with the principles
of disestablishmentandreligious fieedom."Id, at 786;and
WHEREAS, the Council desires to avail itself of the Supreme Court's recognition tEt it
is constitutionally pemissible for a public body to "invoke divine guidance" on its work. Id, at
792. Such invocation "is not, in these circumstances, an `establishment' of religion or a step
establishment; it is simply a tolerable acknowledgment of beliefs widely held among the
people of this country." Id; and
WHEREAS, the Supreme Court affirmed in Lynch v Donnelly, 465 U.S. 668 (1984),
"Our history is replete with official references to the value and invocation of Divine guidance in
deliberations and pronouncements of the Founding Fathers and contemporary leaders." Id., at
675; and
Page I of7
Jun. I 2M IU:U4RM t1Ur Ivo, 314i r. It
WHEREAS, the Supreme Court further stated, that "government acknowledgments of
religion serve, in the only ways reasonably possible in our culture, the legitimate secular
purposes of solemnizing public occasions, expressing confidence in the future, and encouraging
the recognition of what is worthy of appreciation in society, For that reason, and because of their
history and ubiquity, those practices are not understood as conveying government approval of
particular religious beliefs."Id, at 693 (O'Connor, J., concurring; and
WHEREAS, the Supreme Court also famously observed in Zorach v. Clauson, 343 U. S.
306, (1952), "We are a reUgicus people whose institutions presuppose a Supreme Being."Id, at
313-14; and
the Supreme Court acknowledged in Holy Z dty Church v. United States,
143 US. 457 (1892), that the American people have long followed a "custom of opening
sessions of all deliberativebodies and most conventions w i t h prayer...," Id, at 471; and
WHEREAS, the Supreme Court has determined, "The content of [such] prayer is not of
concern to judges where ... there is no indication that the prayer opportunity has been exploited
to proselytize cr advance any are, or to disparage any other, faith ur belief."Marsh, 463 U.S. at
794-795;and
WHEREAS, the Supreme Court also proclaimed that it should not be the job of the
courts or deliberative public bodies "to embark on a sensitive evaluation or to parse the content
of a particular prayer" offered before a deliberative public body. Id; and
WHEREAS, the Supreme Court has counseled against the efforts of government
officials to affirmatively screen, censor, prescribe and/or proscribe the specific content of public
prayers offered by private speakers, as such government efforts would violate the First
Amendment rights of those speakers. See, e.g., Lee v Weisman, 505 U.S. 577, 588-589 (1992);
and
WHEREAS, in Bacus v Palo Verde Unified School Disc. Bd cf Educt, 52 Fed. Appx.
355 (9s' Cir. 2002), the United States Court of APPeals for the Ninth Circuit recognized the
continued vitality of Marsh and its applicability to analyzing the constitutionality of legislative
prayer,, and
WHEREAS, the Ninth Circuit held that prayer before deliberative bodies znm not
"disparage other religious faiths," `proselyti7.e," nor "`advance any one... faith or belief."' ,td. at
357 (quoting Abzzhr463 U.S. at 794-95.); and
WHEREAS, the Council intends to avoid all of the unique c=utnstances that rendered
the practices at issue in Bacus unconstitutional, including the facts that:
1 The prayer before meetings was "almost always" offered "in the Name of Jesus,"
despite abject im from the community. Id at 356; and
Page2 of7
Jun. 3. 1009 IUA40 W JJ'tJ
2) The persistent invocations "in the Name of Jesus," `necessarily hall] the effect of
`making adherence to a religion relevant' to ... Vanding in the political community." Id at 357;
and
3 Such continued and "regular" Christian invocations, to the exclusion of all others,
provided Christianity "with a special endorsed and privileged status..." Id; and
4 The same individual almost always offered the invocation, and `�o individuals of
other religions ever gave t h e invocation." Id at 356-57; and
5) The prayer practice was thus not conducted "as is traditional in Congress," where
invocations are "Wtatedamong leaders of different faiths, sects, and denominations." Id. at 356
(citing Marsh, 463 U.S. 783 n.13.); and
WBEREAS, in Rubin Y. City ofBurbank, Burbank, 101 Cal.App.e 1194 (Ca1.App. 2 Dist., 2002),
the Califomia Court of Appeal, Seoond District recognized the continued vitality of Marsh and
its applicability to anAAng the constitutionality of legislative prayer; and
WHEREAS, the Rubin Court held that an invocation offered to a sectarian deity violated
the Establishment Clause because it conveyed a message that said deity was being advanced over
other religions. Id. at 1204;
WHEREAS, the Council intends to avoid those particular circumstances that rendered
the practices at issue nRubin unconstitutional, including the factsthat:
1) The speakers selected to give the invocation were chosen from a single Ministerial
association that had no members of the Muslim, Buddhist, Hindu or Bahsi faiths. Id. at 1198;
and
2) The invocation at issue was part of the official agenda of the council meeting. Id
at 1207; and
WHEREAS, the Council intends, and has intended in past practice, to adopt a policy that
does nor proselytize or advance any Wk or show any purposeful preference of one religious
view to the exclusion afothers, and
WHEREAS, the Council recognizes its constitutional duty to interpret, Construe, and
amend its policies and ordinances to comply with constitutional requirements as they are
announced; and
WHEREAS, the Council accepts as binding the qpl o ty of general principles of law
and all the rights and obligations afforded under the United States and Wfoniia Constitutions
and statutes.
Page 3 of7
Jun. I ZM ►v:u)Hfvt nur IV U, Jli1 I. I`t
NOW, THEREFORE, BE IT RESOLVED by the City Council cE Lodi, California,
that the Council hereby adopts the followingwritten policy regarding opening invocations before
meetings of the Council, to wit:
1. In order to solemnize proceedings of the Lodi City Council, it is the policy of the
Council to allow fcr an invocation cr prayer to be offered before its meetings for the benefit of
the Council.
2 The prayer shall not be listed or recognized as an agenda item for the meeting or
as part of the public business.
3. No member or employee of the Council or any odor r person in attendance at the
meeting shall be required to participate in any prayer that is offered.
4, The prayer shall be voluntarily delivered by an eligible member of the clergy in
the City .of Lodi [ORCounty?]. To ensure that such person (the "invocation speaker") is
selected from among a wide pool of the tll:w . OR county's] clergy, on a rotating basis, the
invocation Speaker shall be selected according to the following procedure:
a. The Clelc to the Lodi City Council (the "Clerk") shall compile and
maintain a database (the "Congregations List') of the religious congregations vAth
an established preseam iu the local community cf the Lodi [CRwhole cquat 71.
b. The Congregations List shall be compiled by referencing the listing for
"churches," "congregations," cr other religious assemblies in the annual Yellow
Pages phone book(s) published for Lodi [Og• county?], research from the Internet,
and consultation with local chambers of commerce. All religious eongregatioas
with an established presence in the local community of Lodi [ORcountrfl are
eligible to be included in the Congregations List. Any such congregation not
otherwise identified for participation may request its inclusion by specific written
communication to the Clerk
C. This policy is intended to be and shall be applied in a way that is all-
inclusive of every diverse religious congregation in community of Lodi [CR
co4MI]. The Congregations List is compiled and used forpurposes of logistics,
efficiency and equal opportunity for all of the community's religiousleade3, who
may themselves choose whether to respond to the Council's invitation and
participate. Should a question arise as to the authenticity of a religicus
congregation, the Clerk shall refer to criteria used by the Internal Revenue Service
in its determination of those religious organizations that would legitimately
qualify for Section 501(c)(3) tax-exempt status.
d. The Congregations List shall also include the name and contact
information of any chaplain who may serve one or more of the fire departments cr
law enforcement agencies of Lodi [Mcounty?].
Page 4 U7
Jun. 3. 2009 10:05AM AW No. 3343 N. 11
e. The Congregations List shall be updated, by reasonable efforts of the
Clerk, in November of each calendar year.
f. Withinthirty (30) days oftheefffective date of this policy, and on cr about
December I of each calendar year thereafter, the Clerk Shall mail an invitation
addressed to the "religious leader" of each congregation listed on the
Congregations List, as well as to the individual chaplains included on the
Congregations List.
The invitation shall be dated at the top of the page, signed by the Cle* at
L bottom ofthe page, and read as follows:
Dear religious leader,
The Lodi City Council makes it apolicy to invite members of the
clergy in Lodi [OR. county?] to voluntarily offer a prayer before
the beginning of its meetings, for the benefit and blessing of the
Council As the leader of one of the religious congregations with
an established presence in the local community, or in your
capacity as a chaplainfor one of the local fire departments or law
enforcement agencies, you are eligible to offer this important
service at an upcoming meeting ofthe Council
If you are willing to assist the Council in this regard please send a
written reply at your earliest convenience to the Clerk to the
Council at the address included on this letterhead Clergy are
scheduled on a first-come, ,first -.serve basis. The dates of the
Council's scheduledmeetingsfor the upeomingyear are listed on
the following, attached page .!f you have a preference among the
dates,please state that request in your written reply_
This opportunity a voluntary, and you me free to offer the
invocation according to the dictates of your own conscience To
maintain a spirit of respect and ecumenism, the Council requests
only that the prayer opportunity not be exploited as an effort to
convert others to the particularfaith ofthe invocation speaker, nor
to disparage anyfaith or beliefdierent than that ofthe invocation
speaker.
On behalf of the Lodi City Council, 1 thank you in advance for
considering thisinvitatiorr
Sincerely,
Clerkto the Council
Page 5 of 7
REMARKS BY MARK C. BOWMAN
OF ALLIANCE DEFENSE FUND
September 30, 2009
Invocations at City Council Meetings
INTRODUCTION
A. There is no more important issue for government than protecting
civil liberties; our first liberty is that of religion
B. Issue: should the City Council allow invocations and, if so, what
rules should govern them?
C. A carefully written policy that permits uncensored invocations is the
best strategy to respect all faiths and satisfy the constitution
II. IS TOLERANCE GIVING VOICE TO ALL FAITHS OR TO NONE?
III. CASES REGARDING LEGISLATIVE INVOCATIONS (ATTACHED)
A. Each ruling is limited to the circumstances of the case
B. Each case reveals what is permissible in that set of circumstances
C. Uncensored prayers are permissible given the right circumstances
D. The disparity between case results is less about the law and more
about the particular circumstances surrounding the invocation
IV. ALLIANCE DEFENSE FUND'S MODEL PRAYER POLICY
A Includes all but one of City Attorney's recommended provisions
B. Benefits
1. Keeps City Council out of "policing" prayers; 11 t" Circuit: "Who
decides what is sectarian and how?"
2. Most inclusive
a. All religiousfaiths
b. No religious faith [Add City Attorney's recommended
provision 4) d.]
3. Prohibits endorsement of any faith or belief by the City
4. Prohibits proselytizing and disparaging any faith or non -faith
5. Pluralistic rather than secular; censorship is the real intolerance
6. Synthesis of all legislative invocation cases; policy does not
require that Lodi reverse any prior rulings or set new precedent
7. Considered "facially va I i d by only federal court to review
8. Adopted by cities across country and in California; Turlock
voted 5-0 to adopt ADF's Model policy
9. 11 local attorneys have submitted petitions to the City Council
supporting uncensored prayer
V. ADF S WILLING TO DEFEND ITS POLICY PRO BONO
A. Protecting religious liberty since 1994
1. 1200Attorneys and 300 supporting organizations
2. Protecting religious liberty since 1994
3. 82% success rate in court
4. Further information attached
B. It is in ADF's interestto recommend a policy that will be upheld
VI. INDEMNIFICATION
A. Non-profit public interest law groups are not insurers and have
ethical and tax exempt status limitations on fundraising for others
B. "Citizen Alliance" formed in Winston Salem, NC to raise funds
C. Citizens for Uncensored Prayer is initiating effort to raise funds
D. Threat of litigation questionable
1. Courts look for "diversity" of faiths and protections against
proselytizing or disparaging
2. Lodi is a diverse community —Sikhs, Muslims, Hindis, Buddhists,
Jews, Pagans, Agnostics and Atheists; diverse communities
make a difficult battleground for anti -prayer groups to argue that
there is an establishment of religion
3. ADF's policy, if followed, protects against proselytizing or
disparaging
LEGISLATIVE INVOCATIONS
4CASE NAME
COURT
DATE
]FACTS
ISSUE
]HOLDING
jPellphrey v. Cobb
4t' Circuit
2005
!Sectarian prayers
'Whether
No. Content of prayer is of
'County
a 1 Circuit
2008
opened county
]Establishment Clause
no concernto judges where
:547 F. 3d 1263
commission meetings;
]permits only
1;hereis no indication of
diverse faiths on
inonsectarian prayers
]xoselytizing or
rotatin basis
dis aragement
Turner v. City
:Prayers limited to city
Whether council
]Vo. Council member's
Council of
4t` Circuit
:1006
council members;
imember has right to
]prayer, as part of agenda, is
.Fredicksburg
]public asked to stand;
;give sectarianprayer
government speech and
534 F. 3d 352 agendaitem as part of council therefore restricted; "we
meeting agenda need not decide whether Est.
Clause compelled
[nonsectarian]prayer
because the Est. Clause does
not absolutely dictate form
of legislative prayer." (Id.
Simpson v
Witch challenged
Whether every
No. As long as method of
Chesterfield
4t' Circuit
2005
refusal of county board
religious "leader" is
creating list of invocants
County
of supervisors to allow
entitled to be included
satisfies Marsh, governing
404 F. 3d 276
her to participate in
in list of invocants
board not required to include
nonsectarian
created by board
every religious leader in
invocations
community
Wynne v. Town of City council prayers Whether limiting Yes. Legislative prayers
GreatFalls 4t' Circuit 2004 always led by same invocationsto single cannot affiliate government
376 F. 3d 292 council member who council member v�ffi one specific faith or
invoked name of Jesus violate Establishment belief in preference to all
in which everyone stood Clause others
and bowed
Lubin v. City of
;ectarian invocations
,Whether city's
4o. Specific references to
3urbank
Second
.002
riven by group limited
)ractice was
Jesus are clearly sectarian
01 Cal. App.
District Ct.
o ministerial
)ermissible under
and imply preference.
1194
appeals
issociation.
Marsh
CA)
4o written policy.
VOTE: Rubin never states
qo diversity of faiths;
hat reference to Jesus would
Che only faith identified
always be impermissible;
)y invocations was
)nly that in the context of
Christianity
the facts before the court,
reference to Jesus caused the
"prayer opportunity to be
exploited to advance one
faith, Christianity, over
another."
Bacus v. Palo
Invocations before
Whether legislative
No.
Verde Unified
9`" Circuit
2002
school board meetings
invocations can be
CAVEAT: "We need not
School Dist.
given by same
identified only with a
decide whether prayers in
(unpublished)
individual, ended in the
single faith
the name of Jesus would be
52 Fed. Appx.
name of Jesus and
an impermissible
355
excluded other faiths
solemnization of a
legislature like body,
provided that invocations
were, as traditional in
congress, rotated among
lenders of different faiths,
sects and denominations (Id.
at 1
Coles v.
Invocations before
Do invocations in
Yes.
Cleveland Board
6 Circuit
1999
school board
context of public
of Education
education remove
171 F. 3d 381
F
Snyder v. Murray
159F. 3d 1227
10`h Circuit
1998
City council refused to
allow applicant to pray
invocation that council
viewed as proselytizing
and disparaging
Does city council have
authority to prohibit
invocations that
proselytize and
disparage?
Yes.
Marsh v.
Nebraska legislature
Whether
Because opening legislative
Chambers
U.S. sup.
1983
used paid Christian
Establishment Clause
sessions with prayer is
463 U.S. 783
Ct.
chaplain and published
prohibited
embedded in "unique
prayer books at public
legislature's practice
history" and tradition of our
expense to give opening
country legislative prayers
invocation before each
are excluded from
session
Establishment Clause
disability rendering them
constitutionally permissible
as long as prayers do not
proselytize or disparage (Id.
at 794-95.
- FACT SHEET
ADF defending public prayer against nationwide secularist assault
i
ADF defendingpublicprayer against nationwidesecularist assault
Prayer at public events is a cherished, and unbroken, tradition in American history. Despite the explicit
approval of public invocations and prayer proclamations by the very people who founded this country,
even those who wrote the Constitution,the Left has been on a nationwide search -and -destroy mission to
eliminate this long-standing and well -loved practice.
`"`"Secularist hypocrisy— Wile the ACLU and Americans United have been attacking Christian gra
they have defended a Wiccan who wanted to deliver an invocation. --Secularist hypocrisy,'
NationwideAssault. The ACLU, Americans United for the Separation of Church and State, FFRF and
others have been preying on small towns and counties across America in hopes of intimidating them,
through the threat of litigation, to end the tradition of openingpublic events with prayer. Sadly, many
have surrendered. However, ADF has been on the move and ready with constitutionally-correctlegal
advice that has helped numerous cities and otherpublic bodies stand strong against the secularist
assault.
• In 2007, ADF sent letters to more than 20,000 city councils outlining a constitutionally -sound
model prayer policy and offering free legal defense should they adopt the policy and face threats
from anti -prayer groups.
• In South Carolina, the state legislature recently passed the ADF-drafted "Public Invocations
Act," a statute to confirm that state and local bodies may continue the long-standing tradition of
opening meetings with prayer.
• ADF was instrumental in the Ohio legislature's reversal of a policy that would have subjected
prayers to review and censorship.
• ADF is also currently defending several government bodies on the issue, including a rural school
board in Louisiana, which has been attacked repeatedly by the ACLU for a decade for the
"crime" of opening their meetings up with prayer.
• In 2005, then -head of theACL U of Louisiana Joe Cook likened this school board to al-paeda
forflohtina to continuenraver.
ABOUTMike Johnson
Mike Johnson serves as senior legal counsel with the Alliance Defense Fund at its Louisiana Regional
Service Center in Shreveport, where he has litigated and won numerous high-profile religious liberty
cases nationwide and has been a principal drafter of pro-life and pro -family legislation for many states
and municipalities. Johnson was appointed in 2008 to the Louisiana Commission on Marriage and
Family by Louisiana Gov. Bob Jindal. Joining ADF in 2002, he is a member of the Louisiana Bar and
has been admitted pro hac vice to many federal district and appellate courts across the country. He has
become a regular feature on Fox News, CNN, ABC, CBS, MSNBC, TIME magazine, Citizen magazine,
Worldmagazine, and major newspapers across the country. Practicing law since 1999, Johnson earned
his J.D. from Louisiana State University.
1A.A.
ALLIANCE DEFENSE FUND
Defending Our Firat Liberty
INTERVIEW RESOURCE SHEET
Topic; ADF defendingpublicprayer against nationwide secularist assault
CurrentADF cases/interventions:
• Forsyth County, NC
o ACLU and Americans United file suit to eliminate invocation at county
commission meetings
o Board voted to retain ADF as counsel and continue litigation rather than folding
• Greece, NY
o Americans United sued to halt opening prayers on the basis that their two clients
felt like "outsiders"
o AD F represents the Greece City Council
• Tangipahoa Parish, LA
o AD F successfully defended the right of the Tangipahoa Parish School Board to
open its meeting with prayer.
o A full panel of the 5t' Circuit threw out the ACLU lawsuit on standing, limiting
future use "offended observer" strategy
o The ACLU has since filed another suit, its sixth against the school board in an
attempt to silence openingprayer
o Most recently, afederal court agreed with the school board on the crucial legal
issues in the case and acknowledged that uncensoredprayer beforepublic
bodies in America is an important tradition that can continue.
National Day of Prayer/ Public Invocations Historical Facts
The tradition of designating an official day of prayer actually began with the Continental
Congress in 1775.
• On October 3, 1789, President George Washington issued a National Day of
Thanksgiving Proclamation, "to be devoted by the people of these United States to the
service of that great and glorious Being who is the beneficent author of all the good that
was, that is, or that will be," so that "we may then unite in most humbly offering our
prayers and supplications to the great Lord and Ruler of Nations, and beseech Him ... to
promote the knowledge and practice of true religion and virtue ..."
• In 1952, President Harry Truman signed into law a joint resolution by Congress to "set
aside an appropriate day as a National Day of Prayer."
• In 1988, the law was amended by Congress and signed by President Ronald Reagan to
specify that the annual event should be observed on "the first Thursday in May in each
year."
To the Lodi City Council,
Members of the City Council, thank you for giving
the religious minority an equal ground on which to
speak this evening. My name is David Diskin, and I
am a Lodi resident of 14 years, a home -owner, a
small business owner, a recipient of the Lodi
Volunteer of the Year award (in this very same
room), and an atheist.
But tonight isn't about my choice of religion, or
yours, it's about the beautiful diversity that Lodi
enjoys. We are overwhelmingly Christian, but we
cannot forget the growing community of Muslims,
Sikh, and non -believers. We have Jews, Hindu,
and Buddhists. We have wiccans, pagans, and
scientologists. Lodi is certainly a melting pot.
Tonight you'll decide what's best for this melting
pot, You've been asked by the people you
represent to find a solution for which there is no
easy answer. I would like to offer you five points
to consider as you make your decision tonight:
1) Lodi does not have money to defend a
faith -based decision in court. We may have
offers of free representation, but there are
no offers of indemnification. Should we
lose that battle, it i s the tax payers who
wi 11 pay for your decision to allow prayer
2) Encouraging prayer from all religions
sounds perfect, but many faiths do not
practice public prayer or involve
themselves with city business. And based
on the last two years, an overwhelming
majority of invocations wi I I still continue
to be Christian - except now they'll be able
to mention Jesus while putting the city at
risk.
3) Prayer reminds many people of the
conflicts caused directly by religion. This
includes excommunication from their
families, the hatred towards
homosexuality, the oppression of women's
rights, sexual abuse from religious leaders,
and other examples of intolerance.
4) Holding an invocation two minutes prior to
the gavel, rather than two minutes after,
is not a solution. Are non-Christians
expected to wait in the lobby until the .
meeting officially starts?Imagine the looks
they would get when entering the council
chambers post -prayer. This skirts the issue
and still provides an opportunity for
division.
5) Citizens who wish to pray have a variety of
places to do so already. This includes
church, home, and even i n their cars. But a
tax -funded building, in a public meeting,
for government issues, intended for all
citizens is not a venue for prayer.
If you personally desire prayer, I ask that you hold
it i n private chambers prior to the public meeting.
If you feel strongly that the public need prayer as
well, let them have a moment of silence to pray
to their own, personal god.
But as a citizen of a community that supports
tolerance and equality, I cannot fathom why a city
council would sanction prayer and subject its
diverse citizens to hear it.
Thank you,
-David Diskin