Wednesday, September 12, 2001
Ninth Circuit Panel Appears Ready to Reinstate Suit Over School Board’s Opening of Meetings With Invocation
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals appeared poised yesterday to reinstate a lawsuit against a school board challenging its practice of opening its sessions with an invocation.
Based on questioning, it appeared that the panel—Judges Andrew J. Kleinfeld, Ferdinand F. Fernandez, and M. Margaret McKeown—were inclined to rule that the persistently sectarian nature of the invocation given at the Palo Verde Unified School District board meetings violated the First Amendment’s Establishment Clause.
The district is based in the Riverside County community of Blythe and has about 3,700 students.
The attorney for the plaintiffs, Peter Eliasberg of the ACLU, cited school prayer cases and argued that any invocation is unconstitutional. The board’s lawyer, Thomas N. Charchut of Haight, Brown & Bonesteel, defended District Judge Robert Timlin’s ruling that the board is a legislative body and has a right to begin its meeting with an invocation just as both houses of Congress and the state Legislature do.
But Kleinfeld noted that the key decision cited by Timlin, Marsh v. Chambers, 463 U.S. 783 (1983), was based on historical practice, going back to the Continental Congress. The delegates set aside objections from some of their colleagues, including future Chief Justice John Jay, “because the delegates did not consider opening prayers as a proselytizing activity or as symbolically placing the government’s ‘official seal of approval on one religious view,’” Chief Justice Warren E. Burger wrote.
Under Marsh, Kleinfeld suggested, the First Amendment is violated if the overwhelming majority of the invocations given at the meetings of a particular body invoke a particular religious creed.
Charchut conceded that at the time the suit was brought, the invocations were almost always given by an assistant superintendent who is a lay minister and who consistently invoked the name of Jesus Christ.
The practice has changed, the attorney said, but he acknowledged that the change occurred too late to become part of the appellate record. He also said he had no authority to stipulate to an injunction against the former practice.
Kleinfeld said he found that practice bothersome.
“ ‘Jesus Christ, Our Lord and Savior,’ leaves some of us out,” he noted. And far from being the unifying force that the Founding Fathers suggested, he commented, the consistent mention of one creed has a separtist connotation.
“If the math teacher is Mr. Goldstein,” the judge suggested, “he may decide that this isn’t the best district in which to develop his career.”
The judge suggested that the problem could be cured by rotating the honor of giving the invocation, similar to the use of invited guest chaplains by legislatures.
“The First Amendment is not majoritarian; it protects against majoritarian power,” Kleinfeld said.
Eliasberg rejected the rotation idea, urging that a school district—particularly one such as Palo Verde which began the practice in 1992—can’t invoke history as justification as Burger did in Marsh.
The rotation concept would also create an excessive entanglement of government with religion, as the board would struggle to determine what range of diverse creeds to acknowledge, he argued.
Kleinfeld, however, cited cases holding that a display of symbols of different religions, such as those often erected in public buildings during the winter holiday season, is permissible because it is “celebrating religious freedom generally” rather than advancing a particular creed.
Fernandez seemed to agree, saying it would not be difficult to say to the board, “look guys, you can’t say Jesus Christ anymore.”
Charchut noted that the district is small and rural, and said the rotation plan might not be practical.
That led McKeown to ask rhetorically whether there was “some special First Amendment that would apply to this area?”
Copyright 2001, Metropolitan News Company