Thursday, December 27, 2018
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Ninth Circuit Denies En Banc Rehearing in Prayer Case
Eight Circuit Judges Express Disagreement, With O’Scannlain Protesting That July Decision By a Three-Judge Panel, Left Standing, Contravenes Decisions of U.S. Supreme Court
By a MetNews Staff Writer
A majority of the Ninth U.S. Circuit Court of Appeals active judges has voted not to rehear, en banc, a case in which a three-judge panel held that nonsectarian prayers at open meetings of a public school board violate the Establishment Clause, drawing two opinions yesterday disagreeing with the decision to let the July 25 decision stand.
Senior Judge Diarmuid F. O’Scannlain, joined by Judges Carlos T. Bea, Mark J. Bennett, Jay S. Bybee, Consuelo M. Callahan, Sandra S. Ikuta, Ryan D. Nelson, and Johnnie B. Rawlinson, termed the denial of the petition for a rehearing by the full court “deeply regrettable.” Nelson wrote a separate dissent, in which Bybee, Callahan, Bea and Ikuta joined, and with which Bennett partially concurred.
The per curium opinion in July was signed by Circuit Judges M. Margaret McKeown and Kim McLane Wardlaw and by District Court Judge Wiley Y. Daniel of the District of Colorado, sitting by designation. It affirms a summary judgment and grant of injunctive relief in favor of a group of parents who opposed the prayer policy of San Bernardino County’s Chino Valley Unified School District Board of Education.
July 25 Opinion
The opinion explains:
“The Board’s prayer policy and practice violate the Establishment Clause. The invocations to start the open portions of Board meetings are not within the legislative-prayer tradition that allows certain types of prayer to open legislative sessions. This is not the sort of solemnizing and unifying prayer, directed at lawmakers themselves and conducted before an audience of mature adults free from coercive pressures to participate, that the legislative-prayer tradition contemplates.”
It continues:
“Instead, these prayers typically take place before groups of schoolchildren whose attendance is not truly voluntary and whose relationship to school district officials, including the Board, is not one of full parity.”
The board policy “lacks a secular legislative purpose,” the opinion says, and therefore, under the U.S. Supreme Court’s 1971 decision in Lemon v. Kurtzman, it “violates the Establishment Clause.”
Supreme Court Precedent
Decrying the decision not to grant a rehearing, O’Scannlain pointed to the U.S. Supreme Court’s 1983 decision in Marsh v. Chambers in which Chief Justice Warren Burger said:
“In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.”
In that case, the high court upheld the right of the Nebraska legislature to begin each session with a prayer.
O’Scannlain also noted the Supreme Court’s 2014 decision in Town of Greece v. Galloway finding constitutional the practice of the governing board of a New York town in starting its monthly meetings with a prayer.
The panel that propagated the July 25 decision, he charged, “failed faithfully to apply Town of Greece and Marsh.”
Violates Instruction
He wrote:
“[A] panel of our court has now concluded that the practice of including prayer at the beginning of the open session of a public legislative body is a violation of the Establishment Clause and is no longer constitutional. In doing so, the panel rejected the clear instruction of the Supreme Court and created a circuit split in the process. And today, the full court has failed to correct our own error.
“With respect, I believe our court’s refusal to rehear this case en banc is a needless mistake. The practice of Defendant-Appellant Chino Valley Unified School District Board of Education to begin its regular public meetings with prayer does not constitute an establishment of religion in any sense of that term.”
Rejects Distinction
O’Scannlain went on to charge that the July 25 opinion “bizarrely transforms the Board meetings into a ‘school setting’ by terming the meetings “extensions of the educational experience of the district’s public schools.”
He asserted:
“This distinction is plainly flawed: the Board, as a governing body, exists in order to legislate—not in order to educate. Such a manufactured distinction cannot justify the panel’s outright disregard for Supreme Court instruction and guidance.”
The opinion, he contended, violates the Supreme Court’s holding in Marsh that “invocations may be offered before ‘legislative and other deliberative public bodies.’ ”
The jurist derided the panel’s reference to students being present at board meetings, asking, rhetorically:
“Does the panel mean to suggest that the legislative prayer tradition is constitutional on days when no student is present as a visitor, award recipient, or volunteer, but suddenly becomes unconstitutional on days when students are present?”
Nelson, the Ninth Circuit’s newest member (assuming office Oct. 18), in Part I of his dissent, recited criticisms of Lemon, a case relied upon in the July 25 opinion. It was that portion of Nelson’s dissent in which Bennett did not join.
The jurist maintained that the panel that produced the per curium opinion misapplied the :secular purpose” requirement for governmental actions, set forth in Lemon.
“The Board expressed two secular purposes for the policy, both of which pass constitutional muster: (1) solemnizing the Board meetings and (2) supporting religious diversity,” he wrote. “These stated secular purposes are generally entitled to deference absent a showing that they are ‘motivated wholly by an impermissible purpose’ or are a sham.”
Finding that the stated purposes are legitimate, he said they “satisfy the secular purpose prong under Lemon.”
The order denying a rehearing and the dissents from that order come in Freedom From Religion Foundation v. Chino Valley Unified School District, 16-55425.
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