Tuesday, September 10, 2002
C.A. Says Burbank Council Invocation Violates Establishment Clause
By KENNETH OFGANG, Staff Writer/Appellate Courts
An injunction barring the Burbank City Council from opening its meetings with “sectarian prayer “was upheld yesterday by this district’s Court of Appeal.
Div. Two affirmed Los Angeles Superior Court Judge Alexander Williams III’s ruling that an invocation offered “in the name of Jesus Christ” offended the First Amendment’s Establishment Clause.
Burbank council meetings have, since 1953, opened with invocations—usually given by members of the Burbank Ministerial Association. The group is not entirely Christian, but the evidence before Williams indicated that it had no Moslem, Buddhist, Hindu or Baha’i members.
Irv Rubin, head of the Jewish Defense League, brought suit in 1999, after attending a council meeting in order to express his views on Burbank Airport expansion. The council meeting began with an invocation by a member of the LDS Church, who declared:
“We are grateful heavenly Father for all that thou has poured out on us and we express our gratitude and our love in the name of Jesus Christ.”
He was joined in the suit by Roberto Gandara, a Catholic who had attended an earlier meeting at which Jesus was not mentioned.
Justice Katherine Doi Todd, writing for the Court of Appeal, noted that only one of the religion cases decided by the U.S. Supreme Court, Marsh v.Chambers , 463 U.S. 783 (1983), deals with prayer at a meeting of a legislative body. The court held that having a state-salaried chaplain lead a daily prayer in the Nebraska legislature, did not violate the Establishment Clause.
The Marsh court concluded that:
“The content of the prayer is not of 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 is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.”
The court also noted in a footnote that the chaplain had, in 1980, ceased referring to Jesus after a complaint from a Jewish legislator.
Doi Todd agreed with the trial judge that the inclusion of specific references to Jesus in a government body’s invocation is not permitted by Marsh and constitutes an Establishment Clause violation
The injunction, she went on to say, does not impose censorship or viewpoint discrimination on those who offer invocations.
“In light of the fact that the legislative invocation given at the Burbank City Council meeting took place on government property, was authorized by the long standing policy of the city council, was part of the official agenda of the council meeting, and was for the purpose of calling for spiritual assistance in the work of the legislative body, we are satisfied that it was not ‘private speech,”’ she wrote. “...[A]n objective observer familiar with the City’s policy and implementation would likely perceive that the invocation carried the City’s seal of approval. As such those who provide legislative invocations at the Burbank City Council meetings are subject to the requirement that the prayers should comport with the First Amendment.”
Roger Jon Diamond, Rubin’s attorney, expressed glee at the ruling.
“Praise the Lord,” he exclaimed. “I was praying for this decision and God answered our prayers.”
Rubin and Gandarra both believe that “government should stay out of religion,” their attorney said. Rubin, Diamond added, has been following the case closely, although he was unable to attend the oral argument because he is in custody, awaiting trial on a charge of plotting to blow up a mosque.
Juli Scott, the Burbank chief assistant city attorney who argued the case, said the city was “disappointed” with the ruling. “I obviously don’t agree with the court’s decision or its legal analysis,” she told the MetNews.
A decision on whether to seek California Supreme Court review could come as early as next Tuesday’s council meeting, she said.
The city’s position was backed in amicus briefs by the American Center for Law and Justice, the litigating arm of the conservative Christian movement, as well as by 34 other California cities. The Council for Secular Humanism, represented by former legislative candidate Edward Tabash, supported the trial court’s ruling.
The case is Rubin v. City of Burbank, 02 S.O.S. 4765.
Copyright 2002, Metropolitan News Company