Shelley Rubin v. City of Lancaster , 710 F.3d 1087 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHELLEY RUBIN; MAUREEN I. No. 11-56318
FELLER,
Plaintiffs-Appellants, D.C. No.
2:10-cv-04046-
v. DSF-JC
CITY OF LANCASTER, a municipal
corporation, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
November 8, 2012—Pasadena, California
Filed March 26, 2013
Before: Alfred T. Goodwin and Diarmuid F. O’Scannlain,
Circuit Judges, and Jack Zouhary, District Judge.*
Opinion by Judge O’Scannlain
*
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
2 RUBIN V. CITY OF LANCASTER
SUMMARY**
Civil Rights
The panel affirmed the district court’s bench trial
judgment in favor of the City of Lancaster in plaintiffs’ 42
U.S.C. § 1983 action alleging that the city council’s practice
of opening its meetings with privately led prayers effected an
unconstitutional establishment of religion.
The panel analyzed the City’s policy and practice of
soliciting volunteers from local congregations to lead the
invocations regardless of the faith, denomination, or other
religious belief of the congregation. The panel held that a
Bishop’s single reference to Jesus in an invocation did not
amount to a violation of the Establishment Clause. The panel
applied the history-based analysis set forth in Marsh v.
Chambers, 463 U.S. 783 (1983), and concluded that neither
the Supreme Court’s decision in Marsh, nor in County of
Allegheny v. ACLU, 492 U.S. 573 (1989), categorically
forbids sectarian references in legislative prayer so long as
legislative prayer—whether sectarian or not—does not
proselytize, advance, or disparage one religion or affiliate
government with a particular faith.
The panel also rejected plaintiffs’ contention that viewed
in context, the City’s unwritten policy, practice and custom
posed a First Amendment problem because the majority of
city-council invocations have been Christian. The panel,
focusing on the policy’s neutrality and the principle of private
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RUBIN V. CITY OF LANCASTER 3
choice, not on the number of volunteers from a particular
sect, saw nothing in the record or in the prayer policy to
indicate that the City had affiliated itself with Christianity.
The panel stated that the City did not choose the content of
the prayers or the denomination of the prayer-givers and the
fact that most of the invocations had been Christian was
merely a function of local demographics and the choice of
religious leaders who responded to the City’s invitation for
volunteers.
COUNSEL
Roger Jon Diamond, Santa Monica, California, for
Plaintiffs–Appellants.
Allison E. Burns (argued), David R. McEwen, and Joseph M.
Adams, Stradling Yocca Carlson & Rauth, Newport Beach,
California, for Defendant–Appellee.
Dean R. Broyles, National Center for Law & Policy,
Escondido, California, for amicus curiae National Center for
Law & Policy.
Steven W. Fitschen (argued) and Douglas E. Myers, National
Legal Foundation, Virginia Beach, Virginia, for amicus
curiae WallBuilders, Inc.
Jen Monk, Advocates for Faith & Freedom, Murrieta,
California; and Scott W. Gaylord, Elon University Law
School, Greensboro, North Carolina, for amicus curiae
Independence Law Center.
4 RUBIN V. CITY OF LANCASTER
Deborah J. Dewart, Justice and Freedom Fund, Swansboro,
North Carolina; and James L. Hirsen, Anaheim Hills,
California, for amicus curiae Justice and Freedom Fund.
Gary S. McCaleb and Brett Harvey, Alliance Defense Fund,
Scottsdale, Arizona; and Kevin Theriot, Alliance Defense
Fund, Leawood, Kansas, for amicus curiae Alliance Defense
Fund.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a city council’s practice of
opening its meetings with privately led prayers effects an
unconstitutional establishment of religion.
I
A
The City of Lancaster, California, typically begins each
of its city-council meetings with a citizen-led invocation.1
For years, that practice had been merely an informal one.2
But on August 25, 2009, after receiving a cease-and-desist
letter from the American Civil Liberties Union, the City
1
The relevant facts, which the district court found, are undisputed.
2
During the period in which the invocation practice was informal, “a
substantial majority” of the prayers were “Christian in nature,” and some
“contained explicitly sectarian religious references, including specific
references to Jesus Christ.”
RUBIN V. CITY OF LANCASTER 5
decided to commit to paper an official invocation policy.
That policy sets forth a two-step procedure for soliciting
volunteers. First, the city clerk “compile[s[ and maintain[s]
a database . . . of the religious congregations with an
established presence” in Lancaster. To gather names of local
congregations to add to the master list, the clerk reviews
Lancaster’s Yellow Pages for “churches,” “congregations,”
and “other religious assemblies”; searches the internet for any
local “church,” “synagogue,” “temple,” “chapel,” or
“mosque”; and consults the regional chamber of commerce
and newspaper. All congregations in Lancaster are eligible
to appear on the City’s list. The clerk does not probe “the
faith, denomination, or other religious belief” of a
congregation before adding its name to the database.
Next, the clerk mails all of the listed religious groups an
invitation to open a city-council meeting with an invocation.
The invitation reads,
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 City
Council requests that the prayer opportunity
not be exploited as an effort to convert others
. . . nor to disparage any faith or belief
different [from] that of the invocational
speaker.
Elaborating on its apparent commitment to ecumenism, the
policy states that it “is not intended, and shall not be
implemented or construed in any way, to affiliate the City
Council with, nor express the City Council’s preference for,
any faith or religious denomination.” Instead, the policy “is
6 RUBIN V. CITY OF LANCASTER
intended to acknowledge and express the City Council’s
respect for the diversity of religious denominations and faiths
represented and practiced among the citizens of Lancaster.”
To that end, the City allows each congregation only three,
nonconsecutive invocations a year. No person who has
volunteered to pray has been turned down, and no
government official has ever attempted to influence the
clerk’s selection or scheduling of volunteers.
In late 2009, to gauge public support for the prayer policy,
the City submitted to municipal voters a nonbinding measure
(“Measure I”) requesting a yes-or-no vote on this question:
“In response to a recent complaint, with respect to the
invocations that contained a reference to Jesus Christ[,] shall
the City Council continue its invocation policy in randomly
selecting local clergy of different faiths to deliver the
invocation without restricting the content based on their
beliefs, including references to Jesus Christ?” To aid the
citizenry’s deliberation, the city attorney submitted to the
public (as was his duty) an analysis of the prayer policy’s
legality, which concluded that the policy stood on firm
constitutional footing. The mayor and vice-mayor also
submitted a ballot argument in support of the measure,
asserting that each person has a right to pray in accordance
with his own beliefs and so may pray “to the deity of [his]
own choosing.” The measure was approved.
Shelley Rubin, a Jew, and Maureen Feller, a Christian,
attended a council meeting on April 27, 2010. Bishop Henry
Hearns, former mayor of Lancaster and then-current
“honorary mayor,” delivered the invocation. Hearns thanked
God for his many kindnesses, asked God to bless the council
members (among others), and closed with this entreaty:
“Bring our minds to know you and in the precious, holy and
RUBIN V. CITY OF LANCASTER 7
righteous and matchless name of Jesus I pray this prayer.
Amen and Amen. God bless you.” Because Hearns had
invoked the name of Jesus, Rubin and Feller “were upset and
offended.” Neither plans to attend another council meeting
until references to Jesus are forbidden.
Between the day Lancaster ratified its policy and the day
of Hearns’s invocation, twenty prayers were given by
members of Christian denominations (and each mentioned
Jesus’s name), four were given by a self-identified
“metaphysicist,” one was given by a Sikh, and another by a
Muslim. Since then, nine invocations have mentioned Jesus,
and five have not.
B
A week after Hearns’s invocation, Rubin and Feller sued
the City of Lancaster in California state court under 42 U.S.C.
§ 1983 and Article I, Section 4 of the California Constitution.
Rubin and Feller specifically requested declaratory and
injunctive relief from the City’s policy of permitting prayers
that mention Jesus, arguing that both the invocations and the
policy amounted to an establishment of religion. The City
removed to federal court.
The district court held a bench trial and rejected Rubin
and Feller’s claims. The court reasoned that unless
legislative prayer proselytizes, advances, or disparages a
particular faith, it does not violate the First Amendment
simply because it contains sectarian references. The mere
mention of Jesus in the April 27 invocation, therefore, did not
cross the constitutional line. The district court also rejected
Rubin and Feller’s argument that the prayer practice itself
transgressed the First Amendment. “Volunteers of numerous
8 RUBIN V. CITY OF LANCASTER
faiths are invited to and have given invocations before City
Council meetings,” the court noted, “and the selection process
does not discriminate against any faith.” The court
emphasized that the City—precisely to avoid Establishment
Clause problems—had declined to regulate the content of the
prayers, requesting only that volunteers not use the
opportunity to proselytize or disparage any one faith. Finally,
the court concluded that their state constitutional claim failed
for the same reasons. Rubin and Feller timely appeal.
II
Rubin and Feller argue that the district court wrongly
concluded that both the April 27 invocation and the City’s
prayer practice withstood First Amendment scrutiny.3 We
consider first the prayer and then the policy.
A
Rubin and Feller urge us to declare Hearns’s April 27
invocation (specifically, its reference to Jesus)
unconstitutional and to reverse the district court’s contrary
conclusion. Relying principally on two Supreme Court cases,
they contend that any explicit reference to a sectarian figure
in legislative prayer is a per se breach of the Establishment
Clause.
3
Although Rubin and Feller arguably waived their challenge to the
prayer policy below, the district court nonetheless ruled on it. The issue
of the policy’s constitutionality is therefore before us.
RUBIN V. CITY OF LANCASTER 9
1
Both sides rightly assume that this case falls within the
ambit of Marsh v. Chambers, 463 U.S. 783 (1983). There,
the Supreme Court considered whether the Nebraska
Legislature’s decades-old practice of opening each legislative
day with a prayer delivered by a state-employed chaplain
violated the Establishment Clause. Since 1965, Robert
Palmer, a Presbyterian minister, had served as the Nebraska
Legislature’s official chaplain, a salaried position. Each day
the legislature met, Palmer began with a prayer. Ernest
Chambers, a member of the legislature, sued to enjoin that
practice. Marsh, 463 U.S. at 784–85.
Although the Eighth Circuit had evaluated Nebraska’s
practice under the familiar three prongs of Lemon v.
Kurtzman, 403 U.S. 602 (1971), see Marsh, 463 U.S. at 786,
the Supreme Court took a different approach, “swe[eping]
away” prevailing Establishment Clause doctrine in favor of
a history-based analysis.4 Snyder v. Murray City Corp.,
159 F.3d 1227, 1232 (10th Cir. 1998) (en banc). “The
opening of sessions of legislative and other deliberative
public bodies with prayer,” the Marsh Court noted, “is deeply
4
Since Marsh, legislative prayer has enjoyed a “sui generis status” in
Establishment Clause jurisprudence. Snyder v. Murray City Corp.,
159 F.3d 1227, 1231 (10th Cir. 1998) (en banc); see also McCreary Cnty.
v. ACLU, 545 U.S. 844, 860 n.10 (2005) (“Establishment Clause doctrine
lacks the comfort of categorical absolutes. In special instances we have
found good reason to hold governmental action legitimate where its
manifest purpose was presumably religious. See, e.g., Marsh v. Chambers
. . .”); Card v. City of Everett, 520 F.3d 1009, 1014 (9th Cir. 2008)
(“Marsh . . . should be construed as carving out an exception to normal
Establishment Clause jurisprudence due to the unique history of legislative
prayer.” (internal quotation marks omitted)).
10 RUBIN V. CITY OF LANCASTER
embedded in the history and tradition of this country.”
463 U.S. at 786. The Continental Congress, no less, began
each of its sessions with an invocation delivered by a paid
chaplain. Likewise, the First Congress, in one of its first
official acts, arranged for daily chaplain-led prayer in both
chambers. Days later, “final agreement was reached on the
language of the Bill of Rights.” Id. at 788. “Clearly,” the
Court inferred, “the men who wrote the First Amendment
Religion Clause did not view paid legislative chaplains and
opening prayers as a violation of that Amendment.” Id. at
789–90. Furthermore, the “practice of opening sessions with
prayer has continued without interruption ever since.” Id. at
789. Given this history, there could be “no doubt” that
legislative prayer was constitutional. Id.Having upheld legislative prayer in general, the Marsh
Court next considered whether specific features of
Nebraska’s practice pushed it out of constitutional bounds.
Chambers leveled three complaints: (1) that Nebraska had
selected a representative of “only one denomination” for
sixteen years, (2) that the chaplain was on the state payroll,
and (3) that his prayers were offered “in the Judeo-Christian
tradition.” Id. at 792–93. All three objections flopped.
Choosing “a clergyman of one denomination” did not
“advance[] the beliefs” of his sect. Nor did paying him. Id.
at 794 (“[R]enumeration is grounded in [the Framers’]
historic practice.”). Nor, even, did the words of the prayers
themselves: “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,” the Court
declared. “That being so, it is not for us to embark on a
sensitive evaluation or to parse the content of a particular
prayer.” Id. at 794–95.
RUBIN V. CITY OF LANCASTER 11
A cursory read of Marsh does not disclose whether all or
only some of Palmer’s prayers were “not of concern.” In
footnote 14 (the call for which follows the Court’s description
of the prayers as “Judeo-Christian”), the Court wrote,
Palmer characterizes his prayers as
“nonsectarian,” “Judeo Christian,” and with
“elements of the American civil religion.”
Although some of his earlier prayers were
often explicitly Christian, Palmer removed all
references to Christ after a 1980 complaint
from a Jewish legislator.
Id. at 793 n.14 (citations omitted); see also Van Orden v.
Perry, 545 U.S. 677, 688 n.8 (2005) (plurality opinion) (“In
Marsh, the prayers were often explicitly Christian, but the
chaplain removed all references to Christ the year after the
suit was filed.”). Six years later, in County of Allegheny v.
ACLU, the Court revisited that footnote. 492 U.S. 573(1989). There, the Court weighed the constitutionality of a
city’s yearly public display of a Christmas crèche and a
Hanukkah menorah. Resolving the case under Lemon, the
Court had occasion to address Marsh only in response to one
of the dissent’s arguments:
[I]n Marsh itself, the Court recognized that
not even the “unique history” of legislative
prayer can justify contemporary legislative
prayers that have the effect of affiliating the
government with any one specific faith or
belief. The legislative prayers involved in
Marsh did not violate this principle because
the particular chaplain had “removed all
references to Christ.”
12 RUBIN V. CITY OF LANCASTER
Id. at 603 (internal citations omitted). Rubin and Feller assert
that this snippet from Allegheny both confirms that Marsh
upholds only nonsectarian legislative invocations and
establishes that a single sectarian reference in a legislative
prayer goes too far.
2
Rubin and Feller misread Marsh and misapprehend the
effect of Allegheny. Footnote 14 notwithstanding, Marsh
nowhere confines its review of Nebraska’s practice solely to
the short period in which Palmer delivered only nonsectarian
prayers.5 Rather, the Court trained its analysis on Nebraska’s
practice over time. See, e.g., 463 U.S. at 790 (“. . .
Nebraska’s practice of over a century, consistent with two
centuries of national practice . . .”); id. at 795 (“The unbroken
practice . . . for more than a century in Nebraska . . . gives
abundant assurance that there is no real threat . . . .”). Indeed,
when it took up Chambers’s objection to the prayers’ content,
the Court concluded—in a tellingly worded sentence—that
“there is no indication that the prayer opportunity has been
exploited” to proselytize, advance, or disparage a religion.
Id. at 794–95 (emphasis added). That verb (“has been
exploited”) is in the present perfect tense, denoting “a time in
the indefinite past” or “a past action that comes up to and
touches the present.” See Chicago Manual of Style 237 (16th
ed. 2010). Had the Court wished to avoid suggesting that
Palmer’s pre-1980 sectarian prayers had not advanced
Christianity, it would have used either the simple past (“was
5
“And it is not even clear that the removal of references to Christ
rendered all post-1980 prayers nondenominational.” Galloway v. Town
of Greece, 681 F.3d 20, 30 (2d Cir. 2012), petition for cert. filed,
81 U.S.L.W. 3336 (U.S. Dec. 6, 2012) (No. 12-696).
RUBIN V. CITY OF LANCASTER 13
exploited”) or past perfect (“had been exploited”) with a
qualifying clause or phrase (e.g., “there is no indication that,
during or after 1980, the prayer opportunity [was / had been]
exploited”). As written, the opinion leaves the impression
that none of Palmer’s controversial prayers, at least viewed
cumulatively, crossed the line.
Both dissents in Marsh read the majority opinion as we
do. Justice Brennan, for example, argued that the
“controversy” surrounding the chaplain’s “Christological
references” evinced a threat of state “entanglement” with
religion—a meaningless riposte to the majority if only
Feller’s nonsectarian prayers had been before the Court.
Marsh, 463 U.S. at 799–800 & n.9 (Brennan, J., dissenting).
Likewise, Justice Stevens faulted the majority for neglecting
to scrutinize Palmer’s overtly Christian supplications: “The
Court declines to ‘embark on a sensitive evaluation or to
parse the content of a particular prayer.’ Perhaps it does so
because it would be unable to explain away the clearly
sectarian content of some of the prayers given by Nebraska’s
chaplain.” Id. at 823 & n.2 (Stevens, J., dissenting) (internal
citations omitted) (citing a prayer of Palmer’s from 1978 that
spoke of “the suffering and death of [God’s] son,” “[t]he
power of the cross,” and “the wonder of Christ crucified”).
Plainly, neither dissenting justice interpreted footnote 14 to
leave for another day the constitutional status of single
sectarian references in legislative prayers. See also Van
Orden, 545 U.S. at 688 n.8 (plurality opinion) (“In Marsh, the
prayers were often explicitly Christian . . . .”).
3
What is more telling than Marsh’s language, however, is
that the very “history and tradition” anchoring its holding
14 RUBIN V. CITY OF LANCASTER
reveal a long-standing practice not only of legislative prayer
generally but of sectarian legislative prayer specifically. For
instance, the very first invocation before the Continental
Congress concluded, “All this we ask in the name and
through the merits of Jesus Christ.” Rev. Jacob Duché, First
Prayer of the Continental Congress (Sept. 7, 1774), Office of
the Chaplain: U.S. House of Representatives,
http://chaplain.house.gov/archive/continental.html. Similarly,
Congress’s first Thanksgiving Proclamation besought the
colonial citizenry to “humble and earnest supplication that it
may please God through the merits of Jesus Christ” to forgive
and bless them. 9 Journals of the Continental Congress,
1774–1789 855 (Worthington Chauncey Ford ed., 1907).
Again in 1800, to mark the death of George Washington, a
legislative chaplain petitioned that all “may obtain unto the
resurrection of life, through Jesus Christ our Lord; at whose
second coming in glorious majesty to judge the world . . .
those who sleep in him shall be . . . made like unto his own
glorious body.” Henry Lee III, An Address and a Form of
Prayer, in An American Prayer Book 58–59 (Christopher L.
Webber ed., 2008).
This practice of sectarian congressional prayer has
persisted. Cf. Marsh, 463 U.S. at 790 (giving weight to
legislative prayer as an “unbroken practice”). As one scholar
reports, “from America’s earliest days to the present times,
the prayers delivered by [legislative] chaplains have been true
sacral prayers, and many of them, true Christian prayers.”
Steven Epstein, Rethinking the Constitutionality of
Ceremonial Deism, 96 Colum. L. Rev. 2083, 2104 (1996).
For example, between 1990 and 1996, “over two hundred and
fifty opening prayers delivered by congressional chaplains . . .
included supplications to Jesus Christ.” Id. at 2104 & n.118.
And the tradition continues. See, e.g., Newdow v. Bush,
RUBIN V. CITY OF LANCASTER 15
355 F. Supp. 2d 265, 285 n.23 (D.D.C. 2005) (“[T]he
legislative prayers at the U.S. Congress are overtly
sectarian.”).
This evidence makes it even more difficult to read Marsh
as categorically barring sectarian legislative invocations.
Indeed, if “what matters under Marsh is whether the prayer
to be offered fits within the genre of legislative invocational
prayer that has become part of the fabric of our society,” then
surely, as a general matter, sectarian and nonsectarian
legislative prayer stand on equal footing. Simpson v.
Chesterfield Cnty. Bd. of Sup’rs, 404 F.3d 276, 282 (4th Cir.
2005) (quoting Snyder, 159 F.3d at 1233) (internal alterations
and quotation marks omitted).
4
Nonetheless, Rubin and Feller insist that Allegheny
dislodged Marsh. We disagree. First, though Allegheny
commented on Marsh, it did not—because, in dicta, it could
not—supplant Marsh or restrict its scope. See Simpson,
404 F.3d at 281 n.3 (“Allegheny concerned religious holiday
displays, referencing Marsh to confirm that Marsh did not
apply in that context.”); Joyner v. Forsyth Cnty., 653 F.3d
341, 360 (4th Cir. 2011) (Niemeyer, J., dissenting)
(“Allegheny’s dicta . . . do not govern legislative prayer
cases.”), cert. denied, 132 S. Ct. 1097 (2012). In any event,
Allegheny does not in fact say that a legislative prayer is
constitutional only if nonsectarian. A legislative invocation
stripped of any mention of Jesus, Allegheny suggests, would
not have the “effect of affiliating the government with”
religion, but that is not to say that an explicitly sectarian
prayer necessarily would. See Pelphrey v. Cobb Cnty.,
547 F.3d 1263, 1271–72 (11th Cir. 2008) (“Allegheny does
16 RUBIN V. CITY OF LANCASTER
not require that legislative prayer conform to the
[nonsectarian] model in Marsh. Allegheny instead reiterates
the lesson of Marsh that legislative prayers should not
‘demonstrate a [government] preference for one particular
sect or creed . . . .’”). Rather, so long as legislative
prayer—whether sectarian or not—does not proselytize,
advance, or disparage one religion (Marsh’s language) or
affiliate government with a particular faith (Allegheny’s
reiteration), it withstands scrutiny. Marsh, 463 U.S. at 795.
Far from displacing Marsh, Allegheny merely illuminates its
boundaries.
For these reasons, we join several of our sister circuits in
concluding that neither Marsh nor Allegheny categorically
forbids sectarian references in legislative prayer.6
5
Rubin and Feller argue that Hearns’s April 27 prayer went
too far. “Bring our minds to know you,” Hearns importuned
that evening, “and in the precious, holy and righteous and
matchless name of Jesus I pray this prayer.” As Rubin and
6
See Galloway, 681 F.3d at 29 (“[Allegheny] does not mean that any
single denominational prayer has the forbidden effect of affiliating the
government with any one faith.”); Joyner, 653 F.3d at 351 (“[C]ourts
should not be in the business of policing [legislative] prayers for the
occasional sectarian reference—that carries things too far.”); Pelphrey,
547 F.3d at 1266 (“The taxpayers argue that the Establishment Clause
permits only nonsectarian prayers for the meetings of the commissions,
but we disagree.”). “To the extent that [other] circuit cases stand instead
for the proposition that the Establishment Clause precludes all legislative
invocations that are denominational in nature . . . we cannot agree.”
Galloway, 681 F.3d at 28 (citing Hinrichs v. Bosma, 440 F.3d 393, 399
(7th Cir. 2006) and Stein v. Plainwell Cmty. Schs., 822 F.2d 1406, 1409
(6th Cir. 1987)).
RUBIN V. CITY OF LANCASTER 17
Feller have made quite clear throughout this litigation, they
object to Hearns’s prayer simply because it “mention[s] the
name of Jesus.” “[T]he Plaintiffs,” their brief says, “were
upset and offended because Hearns mentioned the name of
Jesus.” The district court acknowledged as much in its
disposition below: “Plaintiffs clarified at trial that they
challenge . . . only the reference to Jesus.” And again:
“Plaintiffs have made clear that their contention that the April
27 invocation violates the Establishment Clause rests solely
on the single reference to Jesus.” Consequently, the district
court concluded that, aside from Hearns’s invocation of Jesus,
“[p]laintiffs have presented no evidence or argument to
suggest that the April 27” invocation proselytized, advanced,
or disparaged any faith, nor have they “contended that it had
this purpose or effect.”
So encumbered, Rubin and Feller’s challenge to the April
27 prayer collapses. Marsh “does not mean that any single
denominational prayer has the forbidden effect of affiliating
the government with any one faith.” Galloway, 681 F.3d at
29. Therefore, the district court’s refusal to declare Hearns’s
invocation unconstitutional was not error.
B
Rubin and Feller next challenge the district court’s
determination that the April 27 prayer viewed “in
context”—what they call the invocation “policy in
practice”— posed no First Amendment problem. They say
that it was not just Hearns’s invocation that caused them to
sue, but “what preceded” it and “what has occurred since.”
The problem, they allege, is the “unwritten policy, practice
and custom of the City of Lancaster” under which the
18 RUBIN V. CITY OF LANCASTER
majority of city-council invocations have been
Christian—and often explicitly so.7
1
Just as Marsh evaluated Nebraska’s practice of legislative
prayers (not Palmer’s prayers individually), we now must
determine whether the City’s “prayer practice, viewed in its
entirety,” has “advance[d] a single religious sect.” Galloway,
681 F.3d at 28; see Pelphrey, 547 F.3d at 1277–78. To
resolve this question, two circuits have undertaken something
like an observer-based “frequency” analysis, invalidating any
legislative-prayer practice that, from the vantage point of the
prayers’ listeners, has resulted in too large a proportion of
sectarian invocations from one particular religious group.
Because the attendees “hear the prayers, not the policy,” the
Fourth Circuit has reasoned, “we cannot turn a blind eye to
the practical effects of the invocations at issue.” Joyner,
653 F.3d at 354. Adopting a similar approach, the Second
Circuit has asked whether, given the predominance of one
sect’s prayers (among other factors), “the [government’s]
practice, viewed in its totality by an ordinary, reasonable
observer, conveyed the view that [it] favored or disfavored
certain religious beliefs.” Galloway, 681 F.3d at 29.
We read Marsh to require a different inquiry. “In
determining what it means to ‘advance’ one religion or faith
over others, the touchstone of the analysis should be whether
the government has placed its imprimatur, deliberately or by
7
We assume without deciding (because the City makes no argument to
the contrary) that the City’s “policy in practice,” as Rubin and Feller
describe it, is an actionable “policy” or “custom” under Monell v.
Department of Social Services, 436 U.S. 658 (1978).
RUBIN V. CITY OF LANCASTER 19
implication, on any one faith or religion.” Joyner, 653 F.3d
at 362 (Niemeyer, J., dissenting). Reviewing the First
Amendment’s ratification history, the Marsh Court
acknowledged that, though some Framers had in fact opposed
legislative prayer because of its possibly disquieting effect on
listeners of “divided . . . religious sentiments,” that concern
“was met by Samuel Adams, who stated that ‘he was no
bigot, and could hear a prayer from a gentleman of piety and
virtue, who was at the same time a friend to his country.’”
Marsh, 463 U.S. at 791–92. That Adams’s view ultimately
prevailed confirmed for the Marsh Court that the Framers, on
the whole, “did not consider opening prayers as . . .
symbolically placing the government’s official seal of
approval on one religious view.” Id. at 792 (internal
quotation marks omitted). Of course, a state still could,
through its policy or practice, intentionally affiliate itself with
a particular sect, but the question whether it has, Marsh
suggests, will not pivot on the practice’s effect on the
disapproving listener.8 See id. (downplaying the significance
of legislative prayer’s effect on an observer who, as “an adult,
[is] presumably not readily susceptible to religious
indoctrination or peer pressure” (internal citations and
8
Contrasting legislative prayer with prayer during a high-school
graduation ceremony, the Court explained years later,
Inherent differences between the public school system
and a session of a state legislature distinguish this case
from Marsh v. Chambers . . . . The atmosphere at the
opening of a session of a state legislature where adults
are free to enter and leave with little comment and for
any number of reasons cannot compare with the
constraining potential of the one school event most
important for the student to attend.
Lee v. Weisman, 505 U.S. 577, 596–97 (1992).
20 RUBIN V. CITY OF LANCASTER
quotation marks omitted)); see also id. at 798 (Brennan, J.,
dissenting) (bemoaning the majority’s failure to conclude,
under Lemon’s “primary effect” prong, that from the
perspective of the listener, “invocations in Nebraska’s
legislative halls explicitly link religious belief and observance
to the power and prestige of the State”).
Bypassing the reasonable observer, the Marsh Court
instead trained its analysis not only on history but on the
government’s actions. For instance, though the court of
appeals had worried that Palmer’s sixteen-year tenure had
“the effect of giving preference” to Presbyterianism, the
Court, “no more than Members of the Congresses of this
century, [could] perceive any suggestion that choosing a
clergyman of one denomination advances the beliefs” of his
church. Marsh, 463 U.S. at 793 (emphasis added). “To the
contrary, the evidence”—which went solely to the
government’s reasons for retaining Palmer—suggested
merely “that Palmer was reappointed because his
performance and personal qualities were acceptable to the
body appointing him.” Id. at 793; see also id. at 823 n.1
(Stevens, J., dissenting) (“[O]nce again, the Court makes the
subjective motivation of legislators the decisive criterion for
judging the constitutionality of a state legislative practice.”).
The majority was similarly unconcerned that Palmer was a
paid employee of the state, for, regardless of whether
remuneration signals endorsement, it “is grounded in historic
practice.” Id. at 794. Likewise, the Court shrugged off
Chambers’s objection to the prayers themselves, even though
Palmer’s many sectarian references—having actually “led to
controversy [in the legislature] along religious lines”—at
times might have struck listeners as too favorable to
Christianity. See id. at 800 (Brennan, J., dissenting)
(highlighting “a series of [such] instances” in the record). In
RUBIN V. CITY OF LANCASTER 21
sum, whatever message Nebraska might have conveyed
through its practice of selecting, paying, and retaining for
sixteen years a Presbyterian chaplain who often delivered
explicitly Christian invocations, the Supreme Court
concluded that the legislature had not advanced Christianity.
To be sure, had Marsh applied Lemon, then the question
whether Nebraska had advanced Christianity would have
depended on the prayers’ effects and the reasonable
observer’s perceptions. See Lemon, 403 U.S. at 612; Lynch
v. Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J.,
concurring) (reading Lemon’s effect prong to forbid
government action that communicates “a message of
government endorsement” to the reasonable observer); Bd. of
Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226,
249–53 (1990) (plurality opinion) (treating Lemon’s second
prong and the endorsement test as the same inquiry). And
indeed, the Court might well have determined, as had the
Eighth Circuit, that “[t]hose who have observed or
participated in Nebraska’s legislative process over the last
sixteen years would have to conclude that the legislature has
an official view on religion which is expressed by its minister
and promoted with the use of state funds.” Chambers v.
Marsh, 675 F.2d 228, 235 (8th Cir. 1982), rev’d, 463 U.S.
783 (1983).9 Instead, the Court left Lemon on the shelf,
upholding Nebraska’s practice solely on the basis of original
intent, tradition, and the absence of evidence suggesting a
9
But see Lynch, 465 U.S. at 692–93 (O’Connor, J., concurring) (because
of its history, legislative prayer is “not understood as conveying
government approval of particular religious beliefs”); Allegheny, 492 U.S.
at 630 (O’Connor, J., concurring) (“[T]he history and ubiquity of a
practice . . .provides part of the context in which a reasonable observer
evaluates whether a challenged government practice conveys a message
of endorsement of religion.” (internal quotation marks omitted)).
22 RUBIN V. CITY OF LANCASTER
state-led effort to proselytize, advance, or disparage any one
religion.
For these reasons, we conclude that the question in this
case is not simply whether, given the frequency of Christian
invocations, the reasonable observer of Lancaster’s city-
council meetings would infer favoritism toward Christianity.
Rather, it is whether the City itself has taken steps to affiliate
itself with Christianity.
2
Rubin and Feller argue that the City, through its prayer
practice, has placed its “official seal of approval” on
Christianity. Marsh, 463 U.S. at 792. Far from it. The City
has instead taken every feasible precaution—short of the
extra step (itself fraught with constitutional peril10) of
requiring volunteers to refrain altogether from referencing
sectarian figures—to ensure its own evenhandedness. First,
it has codified a litany of neutrality-enforcing safeguards: No
person attending a city-council meeting, including a city
employee or official, is required to participate in any prayer.
No volunteer is paid to pray. Neither the council nor the
clerk may “engage in any prior inquiry, review of, or
involvement in, the content of any prayer to be offered.”
Moreover, the clerk has never removed a congregation’s
name from the list of invitees or refused to include one. Cf.
Joyner, 653 F.3d at 362–63 (Niemeyer, J., dissenting) (“It is
undisputed that both the County’s policy and its
implementation treat religious leaders from all religions
identically, and no congregation was excluded from the
County list.”).
10
See infra Part II.B.4.
RUBIN V. CITY OF LANCASTER 23
Second, the City has taken proactive measures to deliver
on its promise of inclusivity. The clerk must “make every
reasonable effort to ensure that a variety of eligible
invocational speakers are scheduled” to pray, but “[i]n any
event, no invocational speaker shall be scheduled to offer a
prayer at consecutive meetings . . . or at more than three . . .
meetings in any calendar year.” Cf. Pelphrey, 547 F.3d at
1266 (prayer policies constitutional because they “allow
volunteer leaders of different religions, on a rotating basis, to
offer invocations with a variety of religious expressions,”
such as references to Allah, Muhammad, and Jesus, by far the
figure most often mentioned). He is to invite every local
religious group that he can find. And, as responses trickle in,
he is to schedule appearances on “a first-come, first-serve[d]
or other random basis.” No city official has ever attempted
to influence the clerk’s scheduling decisions.
Third, the City has stressed, both to the public and to
invited prayer-givers, the policy’s nonsectarian aims.
Designed to “acknowledge and express the city Council’s
respect for [Lancaster’s] diversity of religious denominations
and faiths,” as well as to “solemnize proceedings” of the
council, the policy states that it “is not intended, and shall not
be implemented or construed in any way, to affiliate the City
Council with, nor express . . . preference for, any faith or
religious denomination.” Hence, the invitation notes that
“[t]his opportunity is voluntary, and you are free to offer the
invocation according to the dictates of your own conscience.”
It also entreats volunteers to respect the sensitive nature of
the forum: “To maintain a spirit of respect and ecumenism,
the City Council requests only that the prayer opportunity not
be exploited as an effort to convert others . . . nor to disparage
any faith or belief different [from] that of the invocational
speaker.” Not only, then, has the City designed its policy to
24 RUBIN V. CITY OF LANCASTER
heed Marsh’s strictures. It also has asked its volunteers to do
the same.
3
But none of this, Rubin and Feller insist, is enough. Its
facially neutral policy notwithstanding, the City has advanced
Christianity in effect because, as it happens, most of the
volunteers so far have been Christian and have given
Christian invocations.11
This argument misconceives the focus of our inquiry.
Whatever the content of the prayers or the denominations of
the prayer-givers, the City chooses neither. That most so far
have been Christian is merely a function of local
“demographics and the choices of the religious leaders who
responded out of their own initiative to the [City’s]
11
In addition to their effects-based argument, Rubin and Feller also
insinuate in passing that the mayor of Lancaster, Rex Parris, is at the
center of a campaign to transform Lancaster into a miniature Christendom.
They point to a speech that Parris made before a meeting of Christian
ministers in 2010, in which he said, “[W]e are growing a Christian
community, and we should not shy away from that.” According to the
district court, Parris later testified “that he meant a ‘community where we
love our neighbors, that we take care of our neighbors, that we protect our
neighbors.’ He further testified that this is his policy; it is not an official
City policy.” Since then, Parris has recruited members of minority (non-
Christian) sects to “sign up” for council invocations. Otherwise, he has
had no involvement in the prayer policy’s administration. For these
reasons, the district court was right to downplay the significance of
Parris’s speech.
RUBIN V. CITY OF LANCASTER 25
invitation.”12 Joyner, 653 F.3d at 363 (Niemeyer, J.,
dissenting). The City cannot control which religious
congregations settle within its limits. Nor can it compel
leaders of those congregations to accept its invitations.13
Rubin and Feller attack the City for the “policy in practice,”
but they have the wrong target: the policy’s authors are the
citizens themselves. Cf. id. (“[Plaintiffs] overlook[] the real
life fact that when Forsyth County calls for prayers from
religious leaders under a neutral policy that is proactively
inclusive, the prayers will reflect the religions of the religious
leaders, not the preferences of the County.”).
In other Establishment Clause contexts, the Supreme
Court has stressed this element of private choice, holding
time and time again that when a neutral government policy or
program merely allows or enables private religious acts, those
acts do not necessarily bear the state’s imprimatur. In the
school-vouchers case, for example, the Court explained that
“where a government aid program is neutral with respect to
religion, and provides assistance directly to a broad class of
citizens who, in turn, direct government aid to religious
schools wholly as a result of their own genuine and
independent private choice, the program is not readily subject
to challenge under the Establishment Clause.” Zelman v.
Simmons-Harris, 536 U.S. 639, 652 (2002). This is because
“[t]he incidental advancement of a religious mission, or the
12
Here, as in Joyner, “there is no evidence to suggest that the [City]
attempted to game the demographics . . . by manipulating the list of
religious leaders to ensure that only Christian prayer would be offered.”
Joynder, 653 F.3d at 363 (Niemeyer, J., dissenting).
13
Though it may encourage them to do so, as the mayor has done.
According to the district court, Mayor Parris has “encourag[ed] ‘a lot of
religious leaders including Sikhs, Rabbis, and Muslims to sign up.’”
26 RUBIN V. CITY OF LANCASTER
perceived endorsement of a religious message, is reasonably
attributable to the individual recipient, not to the
government.” Id. (emphasis added). On this logic, the Court
also has rejected a constitutional challenge to a state tax-
deduction program covering education expenses even for
religious private schools: “Where, as here, aid to parochial
schools is available only as a result of decisions of individual
parents no imprimatur of State approval can be deemed to
have been conferred on any particular religion, or on religion
generally.” Mueller v. Allen, 463 U.S. 388, 399 (1983)
(internal quotation marks and citation omitted). And again,
resolving a challenge to a vocational-scholarship program, the
Court noted that “[a]ny aid . . . that ultimately flows to
religious institutions does so only as a result of the genuinely
independent and private choices of aid recipients,”
emphasizing that the challenged “program is made available
generally without regard to the sectarian–nonsectarian, or
public–nonpublic nature of the institution benefited.” Witters
v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 488
(1986). These and other cases confirm, at the very least, that
“a significant factor in upholding governmental programs in
the face of Establishment Clause attack is their neutrality
towards religion.” Good News Club v. Milford Cent. Sch.,
533 U.S. 98, 114 (2001); see also Zobrest v. Catalina
Foothills Sch. Dist., 509 U.S. 1, 8 (1993) (religious messages
communicated by a taxpayer-funded sign-language
interpreter working in a parochial school did not bear the
government’s endorsement because the program neutrally
provided access to large group of citizens regardless of
religious views).
Focusing here “on [the policy’s] neutrality and the
principle of private choice, not on the number of” volunteers
from a particular sect, Zelman, 536 U.S. at 652, we see
RUBIN V. CITY OF LANCASTER 27
nothing in the record or in the prayer policy to indicate that
the City has affiliated itself with Christianity.
4
To avoid even the appearance that the prayer “policy in
practice” too closely aligns the City with Christianity, Rubin
and Feller request a ban on “prayers in the name of Jesus
Christ (or any other religious figure).”14 Presumably, Rubin
and Feller would have us order the City to review as a matter
of course the text of every proposed prayer, approving for
delivery only those drafts rid of all references to saints,
disciples, prophets, deities, and the like.
That remedy comes with its own set of First Amendment
infirmities. For one thing, it would assign to the government
the task of coauthoring prayers, precisely what the Court in
Lee v. Weisman declared unconstitutional. In Lee, a rabbi
argued that the government crossed the line when it told him
that his graduation-ceremony invocation “should be
nonsectarian.” Lee, 505 U.S. at 588. The Court agreed: “It
is a cornerstone principle of our Establishment Clause
jurisprudence that ‘it is no part of the business of government
to compose official prayers,’” or “direct[] and control[]” their
content. Id. at 588 (quoting Engel v. Vitale, 370 U.S. 421,
425 (1962)). “A state-imposed requirement that all
14
In truth, Rubin and Feller’s requests for relief have been inconsistent.
In the first paragraph of their complaint, they ask for declaratory and
injunctive relief only from prayers “wherein the name of Jesus Christ is
invoked.” But at the end of the complaint, they ask the court to enjoin
Lancaster from “condoning, allowing, and sponsoring religious prayers.”
The district court concluded that plaintiffs “challenge only the reference
to Jesus.” On appeal, plaintiffs now ask for an injunction against prayers
mentioning Christ or any other “religious figure.”
28 RUBIN V. CITY OF LANCASTER
legislative prayers be nondenominational . . . begins to sound
like the establishment of ‘an official or civil religion,’” the
Second Circuit has explained, and “[t]he problem with such
civic religious statements lies, in part, in the danger that such
efforts to secure religious ‘neutrality’ may produce ‘a
brooding and pervasive devotion to the secular and a passive,
or even active, hostility to the religious.’” Galloway, 681 F.3d
at 29 (quoting Sch. Dist. of Abington Twp., Pa. v. Schempp,
374 U.S. 203, 306 (1963) (Goldberg, J., concurring)).
Consequently, “a government may not establish a vague
theism as a state religion any more than it may establish a
specific creed.”15 Id. at 29.
Second, the very act of deciding—as a matter of
constitutional law, no less—who counts as a “religious
figure” or what amounts to a “sectarian reference” not only
embroils judges in precisely those intrareligious controversies
that the Constitution requires us to avoid, but also imposes on
us a task that we are incompetent to perform.16 See Lee,
505 U.S. at 616–17 (Souter, J., concurring). Rubin and Feller
ask us to forbid mention of Jesus, since he is clearly a
religious figure. Ostensibly, the same is true of “Allah,”
15
Here, adopting a “vague theism” as civic religion would also risk
shutting out those religious leaders who, perhaps for doctrinal reasons, are
disinclined to restyle or dilute their prayers. See Robert J. Delahunty,
“Varied Carols”: Legislative Prayer in a Pluralist Polity, 40 Creighton
L. Rev. 517, 526–27 (2007) (“Faced with the choice of praying in
conformity with a government-imposed standard of orthodoxy or not
praying at all, many clergy (to their credit) will choose not to pray at all.”).
16
It also may be that the task is simply impossible. See Geoffrey R.
Stone, In Opposition to the School Prayer Amendment, 50 U. Chi. L. Rev.
823, 829 (1983) (arguing that “the very concept of a ‘nondenominational
prayer’ is self-contradictory”).
RUBIN V. CITY OF LANCASTER 29
“Muhammad,” or “Buddha.” But do more generic religious
appellations also cross the line? “Heavenly Father” strikes
some as comfortably ecumenical, see, e.g., Simpson, 404 F.3d
at 284, yet several sects reject the “fatherhood of God,” see
generally, e.g., Elizabeth A. Johnson, She Who Is: The
Mystery of God in Feminist Theological Discourse (2002),
and some reject even the idea of a heavenly deity, see
generally, e.g., Paul Harrison, Elements of Pantheism:
Religious Reverence of Nature and the Universe (2004).
Other seemingly “safe” Judeo-Christian monikers, such as
“Lord,” “Jehovah,” “Abraham,” and “Moses,” are no less
problematic. See Joyner, 653 F.3d at 364 (Niemeyer, J.,
dissenting) (“[A]dherents to the Hindu or Muslim religions
could assert that they are offended by prayers in the Judeo-
Christian tradition, which the majority has deemed to be
nonsectarian and nonoffensive.”). Even within the Judeo-
Christian tradition, some deific titles that seem ecumenical
turn out not to be. See id. (“[I]n Simpson, we labeled as
nonsectarian references to ‘Lord of [l]ords,’ and “King of
[k]ings.’ . . . Yet, those phrases refer to Jesus in the New
Testament. See Revelations, 19:15.”). As these few
examples show, “[s]imply by requiring the enquiry,
nonpreferentialists invite the courts to engage in comparative
theology.” Lee, 505 U.S. at 616–17 (Souter, J., concurring).
We “can hardly imagine a subject less amenable to the
competence of the federal judiciary, or more deliberately to
be avoided where possible.”17 Id. Thus, we avoid it here.
17
The Eleventh Circuit admitted in Pelphrey that it “would not know
where to begin to demarcate the boundary between sectarian and
nonsectarian expressions.” 547 F.3d at 1272. There, as here, the plaintiffs
offered little guidance:
Even the individual taxpayers cannot agree on which
expressions are “sectarian.” Bats, one of the taxpayers,
30 RUBIN V. CITY OF LANCASTER
III
Rubin and Feller also claim that Hearns’s invocation and
the City’s prayer practice violate Article 1, Section 4 of the
California Constitution, which, in relevant part, mimics the
Establishment Clause. See Cal. Const. art. 1, § 4. This
“protection against the establishment of religion embedded in
the California Constitution [does not] create[] broader
protections than those of the First Amendment,” given that
“the California concept of a ‘law respecting an establishment
of religion’ coincides with the intent and purpose of the First
Amendment establishment clause.” E. Bay Asian Local Dev.
Corp. v. California, 13 P.3d 1122, 1138 (Cal. 2000) (internal
citation omitted). Therefore, for the same reasons that Rubin
and Feller’s First Amendment claim fails, their state claim
fails as well.
testified that a prohibition of “sectarian” references
would preclude the use of “father,” “Allah,” and
“Zoraster” but would allow “God” and “Jehovah.”
Selman, another taxpayer, testified, “[Y]ou can't say
Jesus, . . . Jehovah, . . . [or] Wicca . . . .” Selman also
deemed “lord or father” impermissible.
The taxpayers’ counsel fared no better than his clients
in providing a consistent and workable definition of
sectarian expressions. In the district court, counsel for
the taxpayers deemed “Heavenly Father” and “Lord”
nonsectarian, even though his clients testified to the
contrary. . . . When asked . . . whether “King of kings”
was sectarian, he replied, “King of kings may be a
tough one . . . . It is arguably a reference to one God
. . . . I think it is safe to conclude that it might not be
sectarian.”
Id.RUBIN V. CITY OF LANCASTER 31
IV
The district court correctly determined that neither
Hearns’s April 27 invocation nor the City’s prayer policy
constituted an unconstitutional establishment of religion.
AFFIRMED.