Wednesday, March 27, 2013
Ninth Circuit Upholds Prayers at Lancaster City Council Meetings
By KENNETH OFGANG, Staff Writer
Prayers at the opening of Lancaster City Council meetings do not violate the First Amendment’s Establishment Clause, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The three-judge panel said the prayers are constitutional based on a city policy of inviting members of all faiths and creeds to participate by applying to the city clerk, and to determine the content of their own invocations, free from government interference. Participants have largely been Christian, but have also included a “metaphysicist,” a Muslim, and a Sikh.
The lawsuit was filed by Shelley Rubin and Maureen Feller.
Feller is a Lancaster resident and a Christian. Rubin is the widow of the late Jewish Defense League head Irv Rubin, who won a ruling by this district’s Court of Appeal 10 years ago that “sectarian” invocations at the beginning of Burbank City Council meetings violated the Establishment Clause.
Those prayers were given by members of a local ministerial association that was not entirely Christian, but had no Muslim, Buddhist, Hindu or Baha’i members.
Invocation by Former Mayor
Rubin and Feller filed their suit after attending a 2010 meeting at which the invocation was given by Bishop Henry Hearns, a former mayor of Lancaster who heads the Living Stone Cathedral of Worship in the Antelope Valley community of Sun Village.
The prayer closed:
“Bring our minds to know you and in the precious, holy and righteous and matchless name of Jesus I pray this prayer. Amen and Amen. God bless you.”
The plaintiffs said they “were upset and offended” by the mention of Jesus and would never attend another council meeting unless such references were forbidden.
U.S. District Judge Dale Fischer of the Central District of California dismissed the suit, citing Marsh v. Chambers, 463 U.S. 783 (1983), which held that having a state-salaried chaplain lead a daily prayer in the Nebraska legislature did not violate the Establishment Clause. The Marsh court found that the chaplain’s position had not been used to “proselytize or advance any one, or to disparage any other, faith or belief,” with a mention in a footnote that the chaplain had, in 1980, ceased referring to Jesus after a complaint from a Jewish legislator.
The brief reference to Jesus in Hearns’ invocation, Fischer said, was not sufficient to find an Establishment Clause violation because there was “no evidence or argument to suggest that the…invocation proselytized, advanced, or disparaged any faith,” and the plaintiffs did not content “that it had this purpose or effect.”
Judge Diarmuid F. O’Scannlain, writing for the Ninth Circuit, said the district judge was correct in holding that Marsh controls and that the plaintiffs were incorrect in arguing that Marsh precludes all sectarian references in legislative prayer.
O’Scannlain explained that the city had implemented a proactive policy of neutrality, broadly soliciting the participation of clergy of all faiths and accepting requests from all who wish to do so, whether the city invited them to or not.
In a footnote, the judge rejected an insinuation he attributed to the plaintiffs that the city’s mayor, attorney R. Rex Parris, “is at the center of a campaign to transform Lancaster into a miniature Christendom,” based on a speech he gave to ministers in 2010.
Parris said at the time that Lancaster “should not shy away from” growing a “Christian community.” The mayor later testified that he meant a “community where we love our neighbors, that we take care of our neighbors, that we protect our neighbors” and that the speech did not reflect official city policy.
Multiple Faiths Recruited
O’Scannlain noted that Parris subsequently recruited members of non-Christian faiths to give invocation and that apart from such recruitment, he plays no role in setting the invocation policy.
The judge went on to say that the mere fact that most of those who have given invocations are Christians has no bearing on the constitutionality of the policy. The plaintiffs, he said, made no showing that favoritism, rather than demographics, were responsible for the preponderance of Christians offering the prayers.
Senior Judge Alfred T. Goodwin and visiting District Judge Jack Zouhary of the Northern District of Ohio concurred in the opinion.
The case was argued in the Ninth Circuit by Roger Jon Diamond for the plaintiffs, Allison E. Burns of Stradling Yocca Carlson & Rauth for the city, and Steven W. Fitschen of the National Legal Foundation, representing amicus WallBuilders, Inc. on behalf of the city.
The case is Rubin v. City of Lancaster, 11-56318.
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