JOHN DOE, Individually and as next friend of his minor children James Doe and Jack Doe v. TANGIPAHOA PARISH SCHOOL BOARD; JIMMIE RICHARDSON, Reverend, School Board Member, District A; ROBERT POTTS, School Board Member, District B; LEONARD GENCO, School Board Member, District C; AL LINK, School Board Member, District D; DON WILLIAMS, School Board Member, District E; ROBERT CAVES, School Board Member, District F; MAXINE DIXON, School Board Member, District G; SANDRA BAILEY-SIMMONS, School Board Member, District H; CARL BARDWELL, School Board Member, District I; LOUIS JOSEPH, Superintendent, Tangipahoa Parish School System
No. 05-30294
United States Court of Appeals, Fifth Circuit
December 15, 2006
Charles R. Fulbruge III, Clerk
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
This appeal presents an Establishment Clause issue of first impression in our circuit. The Tangipahoa Parish School Board, its Board members, and the Tangipahoa Parish School System‘s superintendent (collectively, the Board) challenge a permanent injunction against the Board‘s opening its meetings with prayer. Consistent with the long-standing rule of deciding a constitutional
The Board‘s having conceded the prayers are unconstitutional under the test employed in Lemon v. Kurtzman, 403 U.S. 602, 613 (1971), this opinion assumes, without deciding, that Marsh v. Chambers’ legislative/deliberative-body exception applies. 463 U.S. 783 (1983). Under Marsh, the four prayers at issue are unconstitutional; the balance of the injunction is vacated. Applying a Lemon, rather than Marsh, analysis, Judge Stewart concurs in these four prayers being unconstitutional, but would affirm the injunction. Judge Clement would vacate the injunction, opining the prayers at issue fit within Marsh‘s ambit of protection.
As a result, the portion of the injunction relating to the four prayers in the parties’ joint stipulations is AFFIRMED; the remainder of the injunction is VACATED. This matter is REMANDED to the district court for entry of an injunction consistent with this opinion. AFFIRMED in PART; VACATED in PART; and REMANDED.
I.
In October 2003, John Doe, a resident and taxpayer of Loranger, Tangipahoa Parish, Louisiana, filed this action against the Board, including on behalf of his two minor sons. The Board is a “[p]olitical subdivision” of the State,
Doe challenged several prayer events permitted by the School System: pre-game prayers over the public-address system at athletic events; prayers including student athletes prior to, and after completion of, such events; prayers by students to the student body over the public-address system; and the Board‘s opening its meetings with a prayer (prayer practice). All but the challenge to the Board‘s prayer practice were resolved by a consent judgment in August 2004. It enjoined those other prayer events, except for prayers given by students at graduation ceremonies to the extent permitted by Jones v. Clear Creek Independent School District, 977 F.2d 963, 972 (5th Cir. 1992) (permitting student-initiated prayers at graduation ceremonies so long as they do not have a coercive effect), cert. denied, 508 U.S. 967 (1993).
Regarding the Board‘s prayer practice, the parties in September 2004 entered into the following joint stipulations, the sole evidence presented in district court. The Board is a deliberative body that acts in the public interest. It is responsible for operating and governing the School System‘s 35 schools, including the high school attended by Doe‘s two sons. The Board meets twice each month in the School System‘s central office. The Board‘s president normally presides; the vice-president presides in his absence. The meetings are open to the public, and
Each meeting begins with a prayer, followed by a recitation of the Pledge of Allegiance. This prayer practice has been followed since at least 1973; prayers have been offered by Board members, the Board president, the School System‘s assistant superintendent, School System teachers and students, and ministers. An individual may present a prayer only after being selected by a Board member. In a sampling of prayers delivered between January 2002 and August 2004, ten were by Board members, nine by students or former students, four by principals or assistant principals, three each by teachers and the assistant superintendent, and one each by the Board president and a minister.
The stipulations contained four of the prayers given; each contained a reference to “Jesus Christ” or “God” and “Lord“. The School System‘s assistant superintendent presented the following prayer on 18 February 2003:
Heavenly Father, we thank you for the many blessings we‘ve received. We thank you for our health. We thank you for our strength. We thank you for our peace of mind. We thank you for allowing us to assemble here tonight, and we ask that you give this Board and our Superintendent all the wisdom and the knowledge, and the understanding they need to make the correct decisions for our students and for our parents.
Also Lord, we ask that you throw your strong arm of protection around our President and around his Cabinet Members, to help him make the right decisions that will affect thousands оf U.S. soldiers, airmen, and marines, at this time. We ask that you give him the same wisdom that you gave Solomon in making decisions that‘s [sic] best for our country. Also, we thank you for the greatest gift of all — your darling son, Jesus Christ. For we all know that He was born, died, and rose again, so that we all may be forgiven for our sins. And Lord, as we leave this meeting tonight, we ask that you guide us safely to our various abodes. These things we ask in your darling son, Jesus Christ‘s[,] name. Amen.
A Board member‘s son presented the following prayer on 23 September 2003:
Almighty God, we make our earnest prayer that Thou wilt keep the United States in thy holy protection, that Thou wilt incline in the hearts of the citizens to cultivate a spirit of subordination and obedience to government, and entertain a brotherly affection and love for one another and for their fellow citizens of the United States at large. And finally that Thou wilt most graciously be pleased to dispose us all to do justice, to love mercy, and to demean ourselves with that charity, humility, and pacific temper of mind which were the characteristics of the Devine [sic] Author of our blessed religion, and without an [sic] humble imitation of whose example in these things, we can never hope to be a happy nation. Grant our supplications, we beseech Thee, through Jesus Christ our Lord. Amen.
A School System elementary-school principal presented the following prayer on 18 May 2004:
Heavenly Father, we thank you for all the blessings that you have given us. Let us not take for granted that each breath that we take
is a blessing from you, and even though we don‘t understand the hardships that are рut before us at different times in our lives, let us always remember that the experiences that we go through have a purpose and even though we don‘t understand the purpose, it is your desire that we have each and every experience on this earth, for without you we have nothing. Watch over our soldiers that are overseas. Please keep them safe. Please soften the hearts of our adversaries and help them see that we are trying to do what we believe is good and right and to bring freedom to people that have been oppressed. Please guide all the people in this room that are in charge of setting the education of our children and setting the future of our children. Let all of us keep in mind that we have one focus and that is what is best for our children. Let us keep them at the front of all our decision-making processes. Let us do everything to bring glory and honor to your name, and we ask all of these things through Your Son, Jesus Christ. Amen.
In the final prayer included in the stipulations, a Board member presented the following on 15 June 2004:
Father, we thank You for Your many blessings. Father, we are grateful for the opportunity to live in this country, the greatest country on this planet. God, we have the freedom to choose, to live our lives as we please. We have the opportunity to pursue any goals we so desire. Lord, this big Board — group of people meeting here tonight has an awesome responsibility to see that each and every child in the parish has the opportunity, and the chance to prepare themsеlves to the fullest to live their adult lives. God, we just pray that we in this parish will have the guidance and the wisdom to make it happen. In your name we pray. Amen.
On 3 August 2004, approximately ten months after this action was filed and only approximately one month before the consent judgment and joint stipulations, the Board considered — but unanimously rejected — a written policy that would have permitted only Board members to begin “meetings with a brief non-sectarian, non-proselytizing invocation to solemnize the occasion“. Accordingly, the Board‘s unwritten practice of selecting speakers who give prayers of their own unrestricted choosing remained in effect.
This action seeks injunctive and declaratory relief. The district court held the prayers: fall outside the legislative-prayer context permitted by Marsh v. Chambers, 463 U.S. 783 (1983); and otherwise violate the Establishment Clause pursuant to the traditional analysis under Lemon v. Kurtzman, 403 U.S. 602 (1971). The court permanently enjoined the Board from opening its meetings with any prayer: “the [Board‘s] practice of opening each meeting with a religious invocation violates [Doe‘s] rights under the Establishment Clause of the First Amendment“. Doe v. Tangipahoa Parish Sch. Bd., No. 03-2870, slip op. at 25 (E.D. La. 24 Feb. 2005).
Neither in district court, nor on appeal, has the Board challenged Doe‘s standing to bring this action. Nor did the district court address it. Because standing is jurisdictional, however, we must address it sua sponte before considering this Establishment Clause issue of first impression in our circuit. Doe v. Sch. Bd. of Ouachita Parish, 274 F.3d 289, 292 (5th Cir. 2001); see Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 547 (1986) (“This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.“) (quoting Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)).
A.
Neither of the separate opinions contests the following standing analysis. This inquiry has two components. First addressed are constitutional limitations, derived from the Constitution‘s case-and-controversy requirement in Article III; second, judicially-created prudential limitations are examined. McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003).
To establish Article III standing, Doe “must show that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress“. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “[T]he concept of injury for standing purposes is particularly elusive in Establishment Clause cases“. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 294 n.31 (5th Cir. 2001) (alteration in original) (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir. 1991), cert. denied, 505 U.S. 1219 (1992)). Our “rules of standing recognize that noneconomic or intangible injury may suffice to make an Establishment Clause claim justiciable“. Id. (quoting Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997)). For example, direct exposure to a mandatory school-uniform policy satisfied the “intangible injury” requirement for Establishment Clause standing. Id. Parents and students challenged this policy, claiming, inter alia, its opt-out procedures “favor[ed] certain established religions at the expense of other religions and thus violate[d] the Establishment Clause“. Id. at 282.
In the context of the Establishment Clause, “we attach considerable weight to ... standing ... not [having] been an issue in the Supreme Court in similar cases“. Murray, 947 F.2d at 151. For example, standing existed for a claimed Establishment Clause violation that had impaired “use or enjoyment of a public facility“. Sch. Bd. of Ouachita Parish, 274 F.3d at 292.
Standing is bolstered when, as here, the plaintiffs are public school students and their parents, “who enjoy a cluster of rights
Doe appears to assert two standing bases: (1) as a parent of two students in the School System, he (as well as his two sons) has attended, and been offended by, Board meetings; and (2) as a resident and taxpayer of Tangipahoa Parish, where the school district is located. (Because we hold Doe has standing under the first basis, we need not address taxpayer standing.)
In his original 14 October 2003 complaint, Doe stated: he was “a domiciliary and resident” and “a taxpayer and registered voter” of Tangipahoa Parish, and also the father of two school-system students; and he and his sons found “objectionable the non-secular manner in which the Board‘s meetings are conducted.... By commencing the meetings with a prayer, the Board is conveying its endorsement of religion“. He noted explicit references to God and Jesus Christ at Board meetings. In seeking injunctive relief, Doe explained his family “ha[d] suffered, and will continue to suffer, immediate and irreparable harm in the event that [the Board is] allowed to continue permitting, authorizing, encouraging, and
As permitted by
In its 26 January 2004 answer, the Board admitted its meetings were open to the public; it denied, but only for a lack of information, Doe‘s allegations regarding attendance and involvement. No mention was made whether Doe had standing to bring this action.
Instead, the parties on 30 August 2004 entered into the earlier-discussed consent judgment, which resolved all claims in Doe‘s complaint except his challenge to the Board‘s prayer practice. Four days later, on 3 September 2004, the parties entered into the stipulations discussed supra. These stipulations did not address the standing issue directly, noting only that Doe was “a person of full age of majority and a resident and domiciliary of ... [Tangipahoa] Parish ... wherein he is a registered voter and taxpayer” and parent of two students within the School System. The remainder of the stipulations do not address Doe personally.
Although we have not located any precedent for this implied-admission concept regarding standing, we find it sufficiently analogous to the apрroach taken by
Based on the unchallenged allegations in the complaint, Doe has shown an injury; he and his sons have attended Board meetings and have been offended by the Board‘s prayer practice, which they “find wholly objectionable“. This suffices for a noneconomic, intangible injury under our Establishment Clause jurisprudence. Littlefield, 268 F.3d at 294 n.31.
Doe‘s injury, caused by that practice, would be redressed by an injunction against it. Nothing has been offered to suggest that the Board did not comply with the one imposed by the district court, so Doe‘s injury appears sufficiently redressed by it.
Accordingly, three prudential factors are considered: (1) whether Doe‘s complaint fits “within the zone of interests protected by the ... constitutional provision at issue“; (2) “whether [his] complaint raises [more than] abstract questions amounting to generalized grievances which are more appropriately resolved by the legislative branches“; and (3) “whether [Doe] is asserting his ... own legal rights and interests“, as opposed to
B.
Applied to the States through the Fourteenth Amendment, Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8 (1947), the First Amendment‘s Establishment Clause states: “Congress shall make no law respecting an establishment of religion“.
The permanent injunction at issue is reviewed for abuse of discretion; such an abuse occurs if, inter alia, the district court relies on erroneous conclusions of law. McClure, 335 F.3d at 408. Of course, its constitutional-law conclusions are reviewed de novo. Qutb v. Strauss, 11 F.3d 488, 491 (5th Cir. 1993), cert. denied, 511 U.S. 1127 (1994). An Establishment Clause challenge may be evaluated using one of several judicially-created tests. As it did in district court, the Board relies solely upon the legislative-prayer exception enunciated in Marsh.
The Establishment Clause issue at hand being one of first impression for our circuit, little mention has been made of Marsh. One of our few opinions to discuss it explained the prayers in Marsh showed “absolutely no evidence of an intent to proselytize, or advance, any religion, and no threat of an establishment of religion“. Murray, 947 F.2d at 155 (holding, inter alia, a Christian cross contained in a city‘s insignia did not violate the
After holding Marsh did not apply to the Board‘s prayer practice, the district court, as urged by Doe, held it violated each prong of the Supreme Court‘s traditional Establishment Clause analysis first outlined in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (requiring a challenged practice to: (1) “have a secular legislative purpose“; (2) have a “principal or primary effect ... that neither advances nor inhibits religion“; and (3) “not foster an excessive government entanglement with religion“) (internal citations and quotation marks omitted).
As noted, the Board defends its prayer practice solely under Marsh, however. It concedes that practice would not survive the Lemon test. For this reason, and because this opinion assumes the Board, as a stipulated public deliberative body, falls under Marsh, this opinion looks to its legislative-prayer exception in determining whether the Board‘s prayer practice violates the Establishment Clause. See, e.g., Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., 52 F. App‘x 355, 356 (9th Cir. 2002) (applying Marsh to a school board as a deliberative body); Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 278 (4th Cir.) (applying Marsh to a county board of supervisors as a deliberative body), cert. denied, 126 S.Ct. 426 (2005); Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998) (en banc)
1.
“We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). In that regard, “[t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789“. Lynch v. Donnelly, 465 U.S. 668, 674 (1984). This role is reflected in Marsh, which addressed the narrow question of whether the Nebraska state legislature‘s practice of opening each legislative session with a prayer by a paid chaplain violated the Establishment Clause. 463 U.S. at 784. Relying in large part on the “unique history” of prayer at legislative sessions and historical evidence of the intent of the Establishment Clause drafters, the Court held this practice constitutionally permissible. Id. at 790-91.
In [the] 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. To invoke
Divine guidance on a public body entrustеd with making the laws ... is simply a tolerable acknowledgment of beliefs widely held among the people of this country.
Id. at 792 (emphasis added). Likewise, earlier in its opinion, the Court stated: “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country“. Id. at 786 (emphasis added).1
The challenged prayers in Marsh contained no references to Jesus Christ; although the chaplain had made Christian references in the past, they had been removed at the request of a non-Christian legislator. Id. at 793 n.14. The Court emphasized: “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.” Id. at 794-95. Likewise, consistent with our holding in Jones, 977 F.2d at 972, the consent judgment between Doe and the Board provides that student-led prayers may be
References to God in a motto or pledge, for example, have withstood constitutional scrutiny; they constitute permissible “ceremonial deism” and do not give an impression of government approval. County of Allegheny, 492 U.S. at 595 n.46, 603; see Lynch, 465 U.S. at 716 (Brennan, J., dissenting) (suggesting phrases such as “In God We Trust” are best explained as “ceremonial deism“, or practices “protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content“); N.C. Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1151 (4th Cir. 1991) (explaining that use of these oft-repeated phrases “merely reflect[s] this fact of our history and no longеr ha[s] any potentially entangling theological significance“) (quoting Hall v. Bradshaw, 630 F.2d 1018, 1023 (4th Cir. 1980), cert. denied, 450 U.S. 965 (1981)), cert. denied, 505 U.S. 1219 (1992). Our circuit has similarly examined legislative prayers alongside other “government use[s] of religious acknowledgment” such as “In God We Trust” on our currency and opening our sessions with “God save the United States and this honorable court“. Murray, 947 F.2d at 154-55.
Since Marsh, the legislative-prayer exception has been sparsely applied; the Court has not held it controlling for an
Similarly, in Edwards v. Aguillard, 482 U.S. 578 (1987), the Court explained that Marsh‘s holding was based on “the historical acceptance of the practice” and deemed Marsh inapplicable to public schools, where there existed no similar longstanding tradition of prayer. Id. at 583 n.4 (“Such a historical approach is not useful in determining thе proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted.“). Likewise, in Lee v. Weisman,
Later that year, on remand from the Supreme Court, our court decided Jones, in which we reflected on the Court’s holding in Lee that a school principal, by inviting a local clergy member to deliver a graduation prayer, violated the Establishment Clause. Jones, 977 F.2d at 965. We held Lee did not render infirm the graduation prayers at issue in Jones because they imposed no elements of unconstitutional coercion found in Lee. The student-driven nature of the prayers — the graduating class decided whether any prayer would be given — and the lack of involvement with religious institutions allowed them to pass constitutional muster. Id. at 968-72.
In its most recent Establishment Clause decisions, the Court has reaffirmed Marsh’s viability for legislative prayer. In McCreary County, it noted Marsh’s legislative prayer was upheld “despite its religious nature”. 125 S. Ct. at 2733 n.10. In Van Orden v. Perry, 125 S. Ct. 2854 (2005), decided the same day, the
Nor have our sister circuits expansively applied Marsh, even for prayer in “legislative and other deliberative public bodies”. Marsh, 463 U.S. at 786. When they do apply Marsh, other circuits typically emphasize it permits only nonsectarian, non-“proselytiz[ing legislative prayers that do not] ... advance ... or ... disparage any ... faith or belief”. Id. at 794-95; see also, e.g., Snyder v. Murray City Corp., 159 F.3d 1227, 1235 (10th Cir. 1998) (en banc) (applying Marsh to uphold city council’s decision to disallow a particular opening prayer proselytizing its religious views while disparaging others), cert. denied, 526 U.S. 1039 (1999). Two circuits have squarely addressed opening prayers
In Coles v. Cleveland Board of Education, the Sixth Circuit in 1999 concluded school-board prayer was appropriately considered among the Supreme Court’s decisions addressing “school-related activities”, because board meetings “take place on school property and are inextricably intertwined with the public school system”. 171 F.3d at 377. Coles found two relevant “overriding principles” in the Supreme Court’s school-prayer jurisprudence: “first ... that ‘coercion’ of impressionable young minds is to be avoided, and ... second ... that the endorsement of religion is prohibited in the public schools context”. Id. at 379. After briefly outlining Marsh’s legislative-prayer exception, Coles held Marsh not controlling because the school board did not fit within the scope of legislative and deliberative bodies to which Marsh should apply. Id. at 381 (“Simply stated, the fact that the function of the school board is uniquely directed toward school-related matters gives it a different type of ‘constituency’ than those of other legislative bodies — namely, students.”). Applying the Lemon test instead, Coles held the school board’s prayers violated the Establishment Clause. Id. at 385. (Seven judges dissented, however, from the denial of rehearing en banc. 183 F.3d 538 (6th Cir. 1999).)
Other circuits have also affirmed Marsh’s viability in the limited sphere of legislative prayer. Quite recently, the Seventh Circuit endorsed a narrow view of Marsh, holding its protections encompass only nonsectarian legislative prayer. Hinrichs v. Bosma, 440 F.3d 393, 399 (7th Cir. 2006). In Hinrichs, the Speaker of Indiana’s House of Representatives requested that ordered injunctive relief be stayed; taxpayers had challenged the Indiana House’s 188-yeаr-old practice of opening official meetings with brief prayers, and the district court permanently enjoined sectarian prayers. Id. at 395-96. The prayers were typically delivered by local clerics of various faiths, but Christian prayers dominated: of 45 prayers in 2005 for which transcripts were available, 29 were “identifiably Christian”. Id. at 395. Relying on the Court’s language in Marsh and Allegheny, and noting that no other circuit had taken a contrary position, the Seventh Circuit held the prayers fell outside Marsh’s protections. Id. at 400-02; see id. at 399 (“[W]e have read Marsh as hinging on the nonsectarian nature of the invocations at issue there”.).
The Tenth Circuit in Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998) (en banc), cert. denied, 526 U.S. 1039 (1999), applied Marsh in denying a speaker’s request to present an
The Fourth Circuit upheld a county board of supervisors’ invocation policy that permitted only “non-sectarian [prayers] with elements of the American civil religion”. Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 278 (4th Cir. 2005) (quoting the board’s policy). “[S]eeking to avoid the slightest hint of sectarianism”, the board, by letter, directed those presenting the prayer to avoid making references to Jesus Christ. Id. at 279. The court noted that earlier, in Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004), cert. denied, 125 S. Ct. 2990 (2005), it had contrasted this constitutionally permissible policy with prаyers found impermissible because “sectarian references ... were far more than occasional or incidental”. Simpson, 404 F.3d at 283.
The remaining circuits have offered only a limited discussion of legislative prayer as permitted by Marsh. See, e.g., ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d 772, 777 (8th Cir. 2005) (“[T]he Court has approved certain government activity that directly or indirectly recognizes the role of religion in our national life”.); Freethought Soc’y of Greater Phila. v. Chester County, 334 F.3d 247, 266 (3d Cir. 2003) (declining to apply Marsh to a Ten Commandments display but noting “that the Supreme Court has acknowledged the proposition that history can transform the effect of a religious practice”); Commack Self-Serv. Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 430 (2d Cir. 2002) (applying Lemon, but explaining that legislative prayers in Marsh were permissible because they “did not confer a substantial and impermissible benefit on religion in general or on Christianity in particular”),
2.
For the Board’s prayers to fall outside those permitted by Marsh, we must conclude either: (1) the Board, although stipulated to be a deliberative bоdy, does not fit within Marsh’s description of “legislative and other deliberative public bodies”, 463 U.S. at 786, either because Marsh did not intend to encompass any entities beyond legislatures or because the prayers fit within the public-school context to which Marsh does not apply; or (2) the prayers are not nonsectarian and non-proselytizing, in violation of Marsh and subsequent guidance from the Court. Because the overtly sectarian prayers included in the stipulations fall outside Marsh’s limited reach, we need not decide: (1) whether the Board fits within Marsh’s legislative scope; and (2) thus whether other prayers might be constitutionally permissible. This is in keeping
Accordingly, we assume arguendo the Board is a Marsh “legislative” or “other deliberative public body”. As another circuit explained, “Marsh does not permit legislators to ... engage, as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe”. Wynne, 376 F.3d at 301. In allowing such explicit references to “Jesus Christ”, in selecting other persons to offer prayers who also referred exclusively to the Christian deity, and in demonstrating an unwillingness to adopt a policy that would have forbidden such references, the Board engaged in what Marsh forbids.2
Although Marsh emphasized the longstanding tradition of legislativе prayer, it also found “no indication” that the chaplain’s nonsectarian prayers were “exploited to proselytize or advance any one” religion. 463 U.S. at 794-95. In contrast, it appears the sectarian prayers here were exploited in such a manner, both with their overtly Christian tone and no evidence that an adherent of any non-Christian faith was permitted to offer a prayer presenting a different message.3 Other circuits have found prayers violative of Marsh even where some were offered by clerics of non-Christian faiths. See, e.g., Hinrichs, 440 F.3d at 395.
Unlike Coles, where at least some of the school board’s prayers were “secular in their tenor”, 171 F.3d at 373, none of the prayers included in the stipulations had such a tenor. Instead, each evoked a Christian tone, reflecting the Board’s religious preference for Christianity. The Board claims Coles is distinguishable because that school board had a student member and thus student participation was not entirely voluntary. Without supporting evidence, the Board claims it does not have a student member.4 Neither the Board’s membership nor the statute establishing parish school boards reflect, however, that a student is not a member. See
The most sectarian of the earlier-quoted prayers in the stipulations not only referred to “Jesus Christ” — which the Ninth Circuit deemed impermissible under Marsh, Bacus, 52 F. App’x at 356 — but also spoke of Jesus Christ as “the greatest gift of all — your darling son”. As the Ninth Circuit explained, “[s]ome religions accept Jesus Christ as the Messiah, some do not, and some people do not believe in any religious faith”. Id. at 357. By solemnizing its prayers with any reference to Jesus Christ, the Board demonstrated its “allegiance to a particular sect or creed”. Id. (quoting County of Allegheny, 492 U.S. at 603). The Christian references, which went far beyond a permissible “ceremonial deism”, were more overt and extensive than those found impermissible by the Sixth and Ninth Circuits.
As stated, no evidence exists that any prayers were given by non-Christians.5 Based on the four prayers in the stipulations, it is reasonable to infer none were. Accordingly, by providing only Christians who presented Christian prayers, the Board at minimum “aggressively advocate[d]” Christianity. Snyder, 159 F.3d at 1234. We need not determine whether the prayers “proselytized” because it is enough that this prayer opportunity was “exploited to
Because Board members selected those who offered prayers, they were able to — and did — select only those who would advance the Christian faith. The Board’s prayers did “further” and “promote” their Christian beliefs, see id., rather than attempting to “bind peoples of varying faiths”. Snyder, 159 F.3d at 1234. The four prayers in the stipulations evidence “an [impermissible] intent to proselytize, or advance” Christianity. See Murray, 947 F.2d at 155. There is no evidence of any prayers that represented a different faith or were secular in tone.
Further, after this action was filed, the Board made no attempt to mitigate the effect the prayers had on those in attendance, or to make the prayers more inclusive of other religious beliefs. See Wynne, 376 F.3d at 295 (noting the town council refused suggested nonsectarian alternatives for its
“Whatever else the Establishment Clause may mean[,] ... it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).” County of Allegheny, 492 U.S. at 605. Because the Board’s prayers in the stipulations demonstrate a clear preference for Christianity, they are not permitted under Marsh.
In so holding, this opinion takes no position on whether another form of prayer is permissible at Board meetings.6 Instead, it holds only that prayers of the type included in the stipulations do not pass constitutional muster. This holding is far more narrow than the relief granted by the permanent injunction at issue; it
III.
Pursuant to this opinion and those by Judges Stewart and Clement, the permanent injunction is AFFIRMED in PART and VACATED in PART and this matter is REMANDED to district court for entry of an injunction consistent with this opinion.
AFFIRMED in PART; VACATED in PART; REMANDED
This case squarely presents the issue of the application of Marsh v. Chambers, 463 U.S. 783 (1983), to opening prayers by a school board.1 I am not convinced that Marsh applies to the situation before us; therefore, I believe the correct course is to affirm the district court’s ruling, especially in light of the fact that the school board stipulated that its practice would fail under Lemon v. Kurtzman, 403 U.S. 602 (1971). My belief that Marsh is inapplicable to this situation is supported by the language of Marsh, subsequent Supreme Court precedent, and other Circuits’ applications of Marsh.
I.
This case comes to this court on a record of stipulated facts. John Doe, on behalf of himself and as next friend of his minor children, John and Jack Doe, students at Loranger High School in Tangipahoa Parish, filed suit against the Tangipahoa Parish School Board in 2003, alleging various violations of the Establishment
The parties agree that the school board is a deliberative body responsible for the operation of the public schools within Tangipahoa Parish. The school board’s meetings take place twice monthly in the boardroom of the Tangipahoa Parish School System’s central office. The meetings are open to the public, and students may attend the meetings. The board meetings commence with an invocation, and board members, teachers, and students have delivered the prayer on various occasions over the last 30 years. The school board conceded that its practice would fail under the Supreme Court’s four-part test in Lemon v. Kurtzman2 but argued that Marsh v. Chambers was the correct test to apply to these facts.
The district court ruled that, because of the school board’s “obvious connection to public education,” 2005 WL 517341, *7 (E.D. La. 2005), and because of the refusal of most federal courts to extend Marsh beyond its specific facts, id. at *8, Marsh was
II.
The facts of this case give rise to the thorny issue of Marsh’s place in the Supreme Court’s Establishment Clause jurisprudence. The only way to resolve this dispute is to squarely decide whether Marsh should be extended from its original context to this new set of circumstances. After reviewing the parties’ briefs and the stipulated record, I believe that Marsh does not apply to these facts in light of the constricted holding in Marsh itself and how other federal сourts, including this one, have interpreted Marsh. I would affirm the injunction of the district court based on the school board’s admission that its practice fails under Lemon.
Marsh does not apply to prayer at school board meetings because of the narrowness of its holding. The Court allowed the practice of legislative prayer to continue because it is “deeply embedded in the history and tradition of this country,” id., and, because days after approving a draft of the First Amendment, Congress voted to open legislative sessions with prayer, id. at 787. Therefore, the Court reasoned, the practice does not present a “potential for establishment.” Id. at 791.
The school board argues that it is a “deliberative public body” such that Marsh applies to its practice exactly as it would to a legislature’s. The Circuit courts that have considered this issue, however, have found that Marsh, despite its singular mention of non-legislative bodies, 463 U.S. at 786, is too narrow a holding to be interpreted so broadly.
The clearest example of a court being unwilling to use the solitary expression of the phrase “other deliberative public bodies” to extend the reasoning of Marsh is ACLU v. Constangy, 947 F.2d 1145 (4th Cir. 1991), cert. denied, 505 U.S. 1219 (1992). Judge Constangy served on the North Carolina state bench and opened every judicial session with a prayer. Despite his argument that his practice should be allowed because the judiciary is a “deliberative public bod[y]”, the Fourth Circuit held that this language should not be interpreted without looking to the rest of
Marsh does not “create[] a presumption of validity for government-sponsored prayer at all deliberative public bodies.” Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 380-81 (6th Cir. 1999). Instead, the furthest reach of Marsh has been local governing bodies that are legislative in nature. See, e.g., Simpson v. Chesterfield County, 404 F.3d 276, 278, 280 (4th Cir.), cert. denied, 126 S. Ct. 426 (2005) (allowing a county board of supervisors who modeled its policy on the language of Marsh to open its meetings with a prayer); Wynne v. Town of Great Falls, 376 F.3d 292, 301-02 (4th Cir. 2004), cert. denied, 125 S. Ct. 2990 (2005) (striking down the sectarian prayers of a town council while noting that if the prayers had not been sectarian they would survive challenge under Marsh).
Beyond the fact that the school board is not a legislature, the application of Marsh should be limited by the special protections that the Court has mandated for any functions related to public education. In rejecting the mandatory observance of the
pledge of allegiance in public schools, the Court stated, “[t]hat [school boards] are educating the young for citizenship is reason for scrupulous protection of [c]onstitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943); see also Lee v. Weisman, 505 U.S. 577, 592 (1992) (“[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.“).The Sixth Circuit in Coles directly considered the application of Marsh to prayer by a school board. The court held that Marsh should not be applied to the practice because a school board is not equivalent to a legislature because of the school board‘s student “constituency.” 171 F.3d at 381. The school board argues that Coles is irrelevant to this case because there is no evidence before the court that students are required to attend school board meetings, that the meetings take place on school property, or that students regularly attend the meetings voluntarily to discuss issues. While the Coles court did rely on these factors to some extent, the greater thrust of the holding is that “the function of a school board is uniquely directed toward school related matters . . . .” Id.
Nor can the school board claim any protection of history for its practice. The Supreme Court has noted that not all practices that hаve a long history are protected by the kind of reasoning present in Marsh, see County of Allegheny v. ACLU, 492 U.S. 573, 603 (1989) (”Marsh plainly does not stand for the sweeping proposition . . . that all accepted practices 200 years old and their equivalents are constitutional today.“), and the school board has only followed this practice for 30 years. Additionally, the Court has noted on several occasions that Establishment Clause challenges related to public education are rarely protected by history. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987) (“[A] historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted.“) (internal citations omitted); Wallace
The Court meant for Marsh to be a doctrinal enclave in its Establishment Clause analysis, narrowly ruling on the basis of both extensive, specific history and the nature of the legislative body at issue. I am not persuaded that we are on firm footing to extend this exceptional exception without further guidance from the Court. We should interpret Marsh according to the very narrow question that it claimed to decide: “whether the Nebraska Legislature‘s practice of opening each legislative day with a prayer by a chaplain pаid by the State violates the Establishment Clause of the First Amendment.” 463 U.S. at 784. The opening of a non-legislative public body with a prayer would extend the holding of Marsh beyond “the historical acceptance” of legislative prayer, Edwards, 482 U.S. at 583 n.4.
The Supreme Court has had multiple opportunities to extend its reasoning in Marsh to other situations and yet has chosen not to. In McCreary County v. ACLU, 125 S. Ct. 2722 (2005), the Court noted that, unless special factors such as those that existed in Marsh
Even this rationale has been limited by the Court in subsequent cases. In County of Allegheny, the Court addressed the appropriateness of a creche display in front of a government building. The Court noted that the historic pedigree of government recognition of religious holidays could not save the display of the creche if it otherwise violated the Establishment Clause. 492 U.S. 573, 603. Although the dissenting Justices would have held that the display was constitutional because it did not proselytize, the Court rejected this approach, holding that, except in the limited factual circumstances of Marsh, proselytization is not necessary to show that the government has preferred one religion over another, or even religion over non-religion. Id. at 602-05. The Marsh opinion‘s singular mention of “other deliberative public bodies,” without more, is not enough to overcome the Supreme Court‘s own reluctance in subsequent cases to extend Marsh‘s reasoning to different factual scenarios.
Even in cases where the Supreme Court has arguably relied on Marsh to approve of government action that would seemingly
Finally, in Lee v. Weisman, 505 U.S. 577 (1992), the Court compared the legislative prayer at issue in Marsh to a school-sponsored prayer at a high school graduation. Although the opinion in Lee did not explicitly focus on the history of the legislative prayer practice, the Court carefully limited its discussion to a comparison of the graduation prayer to a prayer in a state legislative chamber, id. at 596-97, and refused to extend Marsh to that prayer, id. at 596. Even cases in which the Supreme Court has relied on Marsh, there is no support for the extension of Marsh that the Tangipahoa School Board seeks in this case.
We also considered Marsh in Murray v. City of Austin, a case involving whether a religious symbol in a city insignia violates the Establishment Clause. Although the decision in Murray discusses Marsh in terms that appear to go beyond its historical meaning, 947 F.2d 147, 155 (5th Cir. 1991) (“[W]e lack the kind of evidence of original intent present in Marsh . . . [y]et this case does share some important similarities with Marsh . . . .“), cert.
Other Circuits that have considered the application of Marsh also have narrowly construed the decision to address only those circumstances that would warrant a direct application of Marsh. The Fourth Circuit first addressed the issue in Constangy, finding that without evidence of long-standing tradition and the “intent of the framers of the Bill of Rights with regard to the [practice],” 947 F.2d at 1148, Marsh should not be applied. The court reaffirmed their reliance on the historical circumstances of Marsh in Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003), cert. denied, 541 U.S. 1019 (2004), when the court refused to apply Marsh to exempt the evening prayer at the Virginia Military Institute from the Lemon test. Id. at 370.
Subsequent Fourth Circuit cases have applied Marsh but have not extended it. When considering whether the daily, voluntary recitation of the pledge in public schools violates the Establishment Clause, the court relied on Marsh not for its specific holding but for its reliance on history. Myers v. Loudoun County Public Schools, 418 F.3d 395, 403-04 (4th Cir. 2005). The Fourth Circuit struck down prayer by a legislative body, a town
Almost every other Circuit that has considered the application of Marsh to diverse facts has relied on the historical analysis in Marsh to limit its holding to only its specific factual context. See, e.g., Hinrichs v. Bosma, 440 F.3d 393, 398 (7th Cir. 2006) (striking down sectarian legislative prayer while noting that the practice of legislative prayer is “analyzed . . . largely based on considerations of history and tradition“); Glassroth v. Moore, 335 F.3d 1282, 1298 (11th Cir.) (holding that the placement of a Ten Commandments monument in a courthouse should not be judged by Marsh because the practice does not have the “unambiguous and unbroken history” of legislative prayer), cert. denied, 540 U.S. 1000 (2003); ACLU v. Capitol Square Review and Advisory Bd., 243 F.3d 289, 300 (6th Cir. 2001) (holding that the state motto of Ohio, “With God, All Things Are Possible,” does not violate the Establishment Clause after undertaking an extensive historical review of ceremonial deism based in part on Marsh‘s historical analysis); Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 381 (6th Cir. 1999) (viewing Marsh as “one-of-a-kind“); Warner v. Orange County Dep‘t of Prob., 115 F.3d 1068, 1076 (2d Cir. 1997) (refusing to apply Marsh because it “relied heavily on the long tradition of public prayer in [the legislative] context“) (citations omitted), cert. denied, 528 U.S. 1003 (1999); Cammack v. Waihee, 932 F.2d 765, 772 (9th Cir. 1991) (refusing to apply Marsh to Hawaii‘s Good Friday holiday because Marsh was “explicitly based upon the ‘unique history’ surrounding legislative prayer“) (citations omitted), cert. denied, 505 U.S. 1219 (1992); Jager v. Douglas County Sch. Dist., 862 F.2d 824, 828 (11th Cir.) (holding that “[b]ecause Marsh was based on more than 200 years of the ‘unique history’ of legislative invocations, it has no application to the case at bar“) (citations omitted), cert. denied, 490 U.S. 1090 (1989). But see Van Zandt v. Thompson, 839 F.2d 1215, 1219 (7th Cir. 1988) (“The district court viewed Marsh as . . . a one-time departure from the Court‘s consistent application of the Lemon criteria to establishment clause cases. . . . In our opinion this is much too crabbed a view.“). Finally, in a concurrence, Judge Lucero‘s
Based on my view of the narrowness of the exception in Marsh, I must dissent from its application to any part of the practice of the Tangipahoa School Board of opening its meetings with a prayer. The school board is not a legislative body within the purview of Marsh, nor does its practice share the “unique” history of legislative prayer.
III.
The Supreme Court has made clear that Marsh‘s application depends on a showing that the practice at issue is legislative prayer with its unique history. The Lemon test should apply to the practice of the Tangipahoa Parish School Board because the Supreme Court has announced no applicable exception to its normal Establishment Clause jurisprudence that would allow this court to deviate from Lemon. In light of the school board‘s admission that its practices fail the Lemon test, I would affirm the district court‘s order. I dissent from any application of Marsh vacating the district court‘s order, and I concur in the judgment only to the extent that it upholds the injunction.
I would hold that Marsh v. Chambers, 463 U.S. 783 (1983), rather than Lemon v. Kurtzman, 403 U.S. 602 (1971), applies to this deliberative body. I disagree with the conclusion that the four stipulated prayers violate Marsh. As to the question of how to apply Marsh, I read Marsh as prohibiting exploitation of prayer opportunities to advance one religion over another. Therefore, the injunction should be vacated in full because Doe failed to demonstrate that the Board exploited the prayer opportunity either “to proselytize or advance any one, or to disparage any other, faith or belief.” Id. at 794-95. The conclusion in Judge Barksdale‘s opinion that the Boаrd demonstrated a clear preference for Christianity suffers from a lack of evidence in the record and an erroneously shifted burden of proof that requires the Board to prove it did not violate Marsh. Furthermore, even under the reasoning in Judge Barksdale‘s opinion, the fourth prayer in the stipulations, given June 15, 2004, survives scrutiny under Marsh.
A. Marsh permits sectarian prayer when the prayer opportunity is not exploited for impermissible purposes
I believe that Judge Barksdale‘s opinion misreads Marsh as allowing only non-sectarian prayer. This view would deem all explicit references to sectarian deities necessarily unconstitutional without regard to the government body‘s practices
(1) A content-based rule contradicts Marsh
The precedent on which Judge Barksdale‘s opinion chiefly relies disavows leading with the content-based analysis employed in his opinion. In Marsh, the Court described the prayer as being “in the Judeo-Christian tradition.” 463 U.S. at 793. The only reference in the Marsh majority opinion to any sectarian/non-sectarian distinction came in a footnote, when the Court observed that the chaplain who gave the prayers described them as being
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.
Id. at 794-95. The Marsh Court‘s instruction not to reject prayer based on content alone is clear—unless the prayer opportunity has been shown to be exploitive, the content of the prayer is irrelevant. Judge Barksdale‘s opinion contradicts Marsh‘s instruction by first focusing on the content of the prayers rather than the Board‘s use of the prayer opportunity.
If content is determinative, the Marsh Court‘s analysis would be internally conflicted. The content of congressional prayer, referred to by the Marsh Court as exemplifying permissible legislative prayer, traditionally has included sectarian references. In addition, Congress continues to permit sectarian invocations, as it has since the practice‘s inception.3 This
By rеlying on congressional prayer as a demonstrative example, the Marsh Court endorsed the understanding that the sectarian nature of the prayer‘s content does not render it necessarily constitutionally unsound. Marsh, 463 U.S. at 794-95; see also McCreary County, 125 S. Ct. at 2733 n.10 (citing Marsh as an example of a permissible prayer whose “manifest purpose was presumably religious“). Indeed, the Court stated that the Founders “did not consider opening prayers as a proselytizing activity or as symbolically placing the government‘s official seal of approval on one religious view.” Marsh, 463 U.S. at 792 (internal quotation omitted). The content of the prayers identified in the stipulations does not vary meaningfully from that of the prayers offered in Congress on a day-to-day basis. Furthermore, two federal district courts have recently affirmed the principle that a prayer‘s sectarian nature does not make it impermissible. Pelphrey v. Cobb County, 410 F. Supp. 2d 1324, 1325, 1349 (N.D. Ga. 2006)
(2) Marsh instead focuses on the exploitation of the prayer opportunity
Where invocations are intended to promote non-sectarian calls for guidance, wisdom, and solemnity, the First Amendment clearly is not violated. See Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 282 (4th Cir. 2005) (“The Court also recognized that legislative invocations comport with the Establishment Clause not only because that tradition is ancient, but because invocations are intended to harmonize broadly ‘with the tenets of some or all religions.‘“) (quoting Marsh, 463 U.S. at 792); Snyder v. Murray City Corp., 159 F.3d 1227, 1234 (10th Cir. 1998) (en banc) (“That genre, although often taking the form of invocations that reflect a Judeo-Christian ethic, typically involves nonsectarian requests for wisdom and solemnity, as well as calls for divine blessing on the work of the legislative body.“). This safe-harbor rule permitting non-sectarian prayer, however, does not compel a rule—imposed by Judge Barksdale‘s opinion—rendering all sectarian prayer necessarily unconstitutional. As the Tenth Circuit pointed out in Snyder, the
B. Marsh applied to this record
Judge Barksdale‘s opinion accepts Doe‘s argument, stating that “[e]ach prayer in the stipulations is Christian in tenor, if not in fact.” Furthermore, it states that “none of the prayers included in the stipulations had such a [secular] tenor. Instead, each
As is normally the case, the plaintiff bringing an Establishment Clause claim under
Doe has made no showing that he or anyone was ever denied the opportunity to have an invocation led by someone of a more personally acceptable denomination (or non-denomination). Rather,
Judge Barksdale‘s opinion, however, when analyzing the stipulated prayers under Marsh, states, “it appears the sectarian prayers here were exрloited [to advance Christianity] with their overtly Christian tone and no evidence [was produced] that an adherent of any non-Christian faith was permitted to offer a prayer presenting a different message.” This determination is based on an absence of evidence. The similar conclusion that “the Board at [a] minimum aggressively advocate[d] Christianity” is based on an inference, which, in turn, is also drawn from a lack of evidence. The foundation for the holding that the Board improperly advanced Christianity is the understanding that the Board “provid[ed] only Christians who presented Christian prayers.” That understanding is nothing more than an inference “[b]ased on the four prayers in the stipulations” and the fact that “no evidence exists that any prayers were given by non-Christians.” The record is devoid of any
Even if the contention in Judge Barksdale‘s opinion that “[t]here is no evidence of any prayers that represented a different faith” were a correct application of the burden of proof, there is, likewise, no evidence that any non-Christians were ever denied an opportunity to offer a prayer or in any way were hampered in participating in whatever form they wished. After the Board asserted that it has never excluded any faith or denomination from participating in the invocations, Doe identified nothing in the record to counter this assertion.
Regardless, there is evidence in support of a non-exclusive policy. In the stipulated facts, the named defendants, including the members of the Board, stated a willingness to “testify under oath that the Tangipahoa School Board does not discriminate on the basis of religious viewpoint and that any individual who wants to give the invocation prior to a board meeting can do so regardless of their religious beliefs.” Again, Doe offers no evidence to counter the proposed testimony.
We should not overlook the possibility of alternative reasons for rejecting the policy. The policy limited the pool of potential leaders of the invocation in conflict with the Board‘s past practice. That change could have been the reason for rejecting the proposed policy. Indeed, the rejection of the policy could have stemmed from the Board‘s concern that it was not constitutionally permitted to limit the viewpoint of potential speakers. Whatever thе reason, without more evidence in the record, the Board‘s rejection of the written policy does not prove that the Board exploited the prayer opportunity to advance Christianity to the exclusion of other faiths.
C. The June 15 prayer survives even the reading of Marsh employed in Judge Barksdale‘s opinion
Even under the reading of Marsh applied in Judge Barksdale‘s opinion, the prayer given June 15, 2004, is not unconstitutional. The prayer contains no sectarian invocations. Rather, the generic
Judge Barksdale‘s opinion cites Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006), for the proposition that Marsh permits only non-sectarian prayer. Both sides of the Hinrichs debate, however, would allow the June 15 prayer to survive constitutional scrutiny; the injunction in place in Hinrichs certainly would permit the June 15 prayer. See Hinrichs, 440 F.3d at 402 (“The injunction permits prayer so long as it is of a nondenominational nature and does not ‘use Christ‘s name or title or any other denominational appeal.‘“) (quoting Hinrichs v. Bosma, 410 F. Supp. 2d 745, 748 (S.D. Ind. 2006) (denying a stay of an injunction on sectarian prayer)). In rejecting the June 15 prayer, Judge Barksdale‘s opinion strays from its own reasoning.
D. Conclusion
I would apply Marsh to this deliberative body. In my view, Judge Barksdale‘s opinion misreads Marsh and improperly shifts the burden onto the Board to prove it did not violate Marsh. On this record, I cannot conclude that Doe has proven that the Board