Merritt E. Jones, on His Behalf and as Next Friend of Pamela Jones, a Child v. Clear Creek Independent School District

unteer; and REAVLEY, Before GARWOOD principle equal 3. Consistent with BARKSDALE, Judges. Circuit conscience, the invocation and liberty of REAVLEY, Judge: shall nonsectarian Circuit benediction nonproselytizing nature. brought Graduating parents seniors and adopted Board of Trustees district from Clear Creek’s enjoin this suit to a school request of its attor- the Resolution at the benedictions at permitting invocations and case, it to conform ney in this who drafted graduation ceremonies. public high opinion Stein v. Judge Merritt’s the school dis- with The district court held that may request a student Any tion ceremonies wherein between an invo- definitional distinction blessing. deity’s See Webster’s assistance or irrelevant to this cation and a benediction is Dictionary Collegiate (de- open- Ninth New fining (1985) “invocation” to describe the case. We use invocation). closing parts gradua- in terms Clear Creek’s benediction Schools, Community Plainwell parents, 1987 letter “commencement is a (6th Cir.1987) (analogizing to the activity, scheduled school and all school approval legislative Court’s regulations enforced.” Clear Creek [are] Chambers, prayer Marsh undisputably controls its commencement programs. Clear Creek’s rental of an audi- nonsectarian, nonproselytiz- holding ownership torium is tantamount to for “ graduation prayer ing does violate the poses facility State, control. And ‘the Amendment). First private no less than a property, owner of tripartite Applying the test announced in power preserve has property to under Kurtzman, Lemon v. 403 U.S. its control for the use to which it is lawful- (1971), Judge 29 L.Ed.2d 745 ly long regula- dedicated’ ”... “as as the DeAnda held that the Establishment speech tion on is reasonable and not an prohibit Clause does not Clear Creek from suppress expression merely effort to be- permitting invocations that conform with public oppose speaker’s cause officials Resolution, granted summary judg- Perry Perry Education Ass’n v. view.” for Clear Creek. Ass’n, Local Educators’ 460 U.S. 948, 955, 103 S.Ct. 74 L.Ed.2d 794 II. ANALYSIS (quoting United States Postal Service v. Assns., Greenburgh Council Jones claims that the Resolution is a Civic facially respecting unconstitutional law an 2676, 2684, 101 S.Ct. religion. Alternatively, establishment of (1981)). prema- the district

she asserts court subject Resolution is to turely granted summary judgment Estab without The lishment giving opportunity scrutiny her an to discover Clause because it is the Clear through whether Creek would enforce the mechanism pro which the state in a Resolution constitutional manner. space vides arguably a closed forum for religious speech government spon at a Constitutionality A. Vitale, Resolution's Engel sored event. 370 U.S. 421, 430, 1261, 1266-67, 82 S.Ct. 8 L.Ed.2d Applicability 1. Establishment Clause (1962) (noncompulsory public nature of proscription The First Amendment’s school does not “free it from the “respecting of laws an establishment of Clause”); limitations of the Establishment religion” applies governments to state Jager Dist., v. Douglas County School through the Fourteenth Amendment. Ev (11th Cir.) (considering Estab v. Board Ewing erson Education challenge lishment Clause a reli “[w]hen 1, 15, Township, 504, 511, 67 S.Ct. gious given invocation is sys via a sound (1947). 91 L.Ed. Because Clear Creek’s by principals tem controlled and the promulgated Board of Trustees the Resolu school-spon invocation occurs at a pursuant authority by tion conferred facility”), sored event at a school-owned law, subject Texas the Resolution is to Es Board Ed scrutiny. tablishment Clause (1989); Stein, 104 L.Ed.2d 988 822 F.2d at ucation, Island Trees Union Free School (recognizing Establishment Clause Pico, Dist. v. challenge graduation where invocations 2799, 2806-07, voluntarily presented by written and stu escape The Resolution does not Es dents). scrutiny by only pas tablishment Clause The Resolution also involves Clear Creek sively limiting students’ free choice of by subjecting invocations graduation speech True, content. the Res proposed invocations to review the “sen- contemplates olution invocations written principal,” faculty representa- ior class and delivered student volunteers throughout four-year of a approval graduating with the of the senior tive class But, according class. May to Clear Creek’s attendance at school. Marsh, Constitutionality upheld

2. Test of the Court the Nebras- legislature’s practice ka of paying a Chris- parties argued the Resolution’s chaplain begin tian sessions with an in- Marsh while the dis constitutionality under vocation due to the historical acceptance of applied deciding Lemon trict court practice this since our ancestors declared summary judgment motion. Creek’s independence England. from circuits consider Judges of other two 792, 103 at 3336. But the Court has constitutionality of invocations at later said that high public ceremonies approach historical is not useful [s]uch disagreement have demonstrated some in determining proper roles of church applied. Compare Weisman the test public schools, and state in free since Lee, (D.R.I.), aff'd, F.Supp. 71-75 virtually education was non- Lemon), (1st Cir.1990) (applying F.2d 1090 908 existent at the time the Constitution was -, granted, - 111 S.Ct. U.S. adopted. Stein, 1305, 113 L.Ed.2d 240 Edwards 578, Aguillard, v. 482 583 n. U.S. (one analogizes judge F.2d at 1409 822 4, 2573, 4, 107 n. S.Ct. 2577 judges apply Marsh and the other two (1987). well). Lemon Application 3. Lemon opinion The writer of this is inclined to Purpose a. Supreme that opinion the Court require decisions that the Resolution satis- Clear Creek satisfies Lemon's Lemon. has fy Supreme “par- prong showing first that by the Resolution on Lemon every relied in ticularly case purpose.” has “a secular 403 U.S. at 612- involving relationship the sensitive between 13, 91 2111. S.Ct. at Clear Creek’s Trust government religion in the education need the ees not have enacted Resolution in Rapids our children.” Grand School Dist. exclusively objec furtherance of secular Ball, 383, 3216, 373, v. 473 U.S. 105 S.Ct. Lynch Donnelly, 668, v. tives. 465 U.S. see also id. 3222, (1985); L.Ed.2d 87 267 6, 1355, 6, n. 681 104 n. 79 S.Ct. 1363 (“reaffirm[ing] action alleged Wallace, that state (1984); accord L.Ed.2d 472 604 the violate Establishment Clause should be 56, Though, at at U.S. 105 S.Ct. Lemon criteria”); against “[wjhile measured the normally is the Court deferential Jaffree, 38, 63, Wallace 105 pur to a of a State’s articulation secular 2479, 2493, (1985) (Pow- L.Ed.2d 29 pose, S.Ct. 86 it is that the required statement ell, J., concurring) (extolling purpose Lemon’s an- such be sincere not a sham.” Edwards, 586-87, deciding in at alytical usefulness constitution- 482 U.S. at schools). ality prayer silent in 2579.2 purpose requirement require- that Court’s While alone

2. We believe the secular striking purpose may rarely encompasses an actual determinative in down ment of secular be statute, govern- prior requirements ... allusions in a it nevertheless reminds cases purpose preeminence. Justice it acts it so without secular recently O'Connor that when should do religious prac- purpose particular endorsing elaborated on Lemon's test: a belief tice that all citizens do not share. inquiry purpose into the chal- [behind Wallace, U.S. at 105 S.Ct. at 2499-500 472 lenged state should deferential and action] limited_ (O’Connor, J., concurring judgment). A ma- the text and Even if official histo- jority Justice O’Connor’sLem- of the Court cites purpose, ry express a statute secular no Edwards, purpose analysis U.S. at 482 improper should to have an statute be held only beyond purview at 2579. purpose that if it is As above religion articulated Justice O’Connor endorsement of or a belief Wallace, majority opinions Lynch, the Edwards, is for "was and the law’s reason Arkansas, existence.” purpose prong not re- Epperson does 89 Lemon's (1968). challenged quire a 228 determination of whether S.Ct. 21 L.Ed.2d greater I have that our are state action has a secular or ... little doubt courts legisla- capable distinguishing purpose. opinions that down a sham strike secular one, "preeminent” having "primary” reli- pose from a or that the tion as a sincere Lemon only analyzing gious purpose after each inquiry do so into effect of an enactment would help purpose and find- decide cases where the secular claimed state those close validi- Edwards, See, e.g., ty expressed purpose illusory. U.S. at each of an secular in doubt. contends that it in Clear Creek includes coincide or harmonize with the tenets of Lynch, religions.” vocations in its ceremonies to some ... (citation these occasions. omitted).

solemnize Justice O’Con- 104 S.Ct. at 1364 recognizes “government reject nor that such ac a reading We of the First Amend- serve, knowledgments the ment that would freeze either church and only ways reasonably possible in politics our cul state or perpetual- into ture, legitimate purpose[] ly antagonistic secular postures. solemnizing public occasions.” argues that Clear Creek (O’Connor, J., at S.Ct. employ religious accomplish goals means to accord Coun concurring judgment); in the can by nonreligious be attained means. ty Allegheny v. American Civil Liber Lubbock, F.2d at 1045. This court Pittsburgh Chapter, ties Union Greater has even held that a statute employ cannot 573, 109 3102 n. an obvious means to serve other (1989); Stein, 822 F.2d at legitimate secular interests. Karen wise 1409; Weisman, (Bownes, 908 F.2d at 1095 Cir.1981), Treen, B. v. (5th

J., concurring). 'd, 913, 102 aff Jones asserts that Clear Creek’s solemni- L.Ed.2d 455 say But to pretext zation employs rationale is for the Resolution “religious means” is purpose Resolution’s introduction of into to confuse analyses and effect un der Lemon. Unlike the laws at issue in public plaintiffs schools. But unlike the in Wallace, Edwards, Lubbock, Treen, Lubbock Jones of- the Resolution takes religious position fers no evidence of motivation proposed no on whether a invoca through legislative history deity, or overt reli- tion references a seeks to gious references in the proselytization. Resolution. limit sectarianism and fact, through option, employ its student and the Resolution does not obviously an nonproselytization and nonsectarian man- means to solemnize Clear Creek dates, deemphasizes the Resolution the reli- ceremonies.

gious significance of allowed invocations. Moreover, we are unaware of an exclu- apparently sively equivalent

While Resolution toler- secular for Clear Creek’s addressing deity, ates invocations a we solemnization choice. 716-17, (Brennan,

think that this is as consistent with the at at dis- solemnizing (as secular purpose any senting) deism,” as reli- “ceremonial invoca- gious purpose. precisely It is in “uniquely acknowl- tions are suited to serve such edging principle transcendence, wholly a purposes solemnizing secular simple understanding— public occasions”). terms of universal Jones offers no solem- like may valedictory “God” —that attendees nization substitute other than a perceive profound address, significance supplemented social in Clear Lake implausible program occasion. It is not that its 1986 with an invocation. We Clear Creek's Trustees intended the Reso- do not consider invocations such as the just lution to foster perception proposal approved by any such a in Jones3 most, many, if not veiling attendees. The Resolu- more secular for references a tion’s merely happens deity pronouns objects. “reason or effect in and hidden 585-94, 2578-83; Graham, agreed following 107 S.Ct. at Jones that Stone v. invocation is 39, 41-42, not offensive: (1980); Lubbock Civil Liberties Un gathered today people We ask that the grateful here Dist., Independent ion v. Lubbock School administration, faculty, for the (5th Cir.), denied, reh’g High and the students of Clear Lake School. (1982), country We are most thankful to live in a importance which stresses the of individual required That the Lemon Court "a” secular you year, freedom. Thank for this wonderful

purpose along "primarily” nonreligious friendship fellowship with a for the grown among that has us, effect further convinces us that we need not and for the memories that purpose primary promulgat- you divine a state’s ing in we will cherish forever. Thank for our Lemon, challenged past experience, please, help a law. See 403 U.S. at us all to be 612-13, 91 S.Ct. at 2111. successful in the future. begin public 1361. We each hearing has a secular even Because Clear Creek in gradua- federal court with the invocation allowing at its “God invocations pose for save United States this tions, court that Honorable agree with the district we Court.” first Resolution satisfies Lemon’s matter of law. prong as a principal leg- difference between the prayer approved islative in any Marsh and Effect

b. sanctioned the Resolution is that Weisman, during public the latter occurs urges us to follow recognize function. We holding primary we are to be in that the F.Supp. at prayer at a effect of nondenominational particularly vigilant monitoring com- public high pliance voluntarily attended with the Establishment Clause elementary religion secondary Fam- graduation ceremony is to advance schools. ilies entrust schools with the edu- pro- in contravention of Lemon’s second children, cation of their but condition scription. But understanding their trust on the that the mechanically invalidating than [r]ather purposely classroom will not be used to governmental all conduct or statutes advance views that conflict give special recogni- benefits or confer private with the beliefs of the student general or to one tion to family. and his or her Students in such approach an would faith —as absolutist impressionable institutions are and their scrutiny dictate—the Court [mandates involuntary. attendance is challenged legislation or official con- of] Edwards, whether, reality, it duct to determine 2577; Lubbock, see also 669 F.2d at 1043 faith, establishes (explaining special governmen- concern for or tends to do so.... schools). religious neutrality tal in public case, inquiry calls for line- In each Yet the students affected the Resolu- fixed, drawing; per no se rule can be impressionable people tion are the least framed_ purpose The of Estab- receiving special protection religious from objec- to state an lishment Clause “was Supreme inferences under Court’s tive, The not to write a statute.” ... decisions. indistinct, “blurred, erects a Clause ceremony high lies on the threshold of depending on all variable barrier adulthood, school students’ transitions into particular relation- circumstances of hardly when sensibilities consti- ship.” impressionable tute blank slates. All of 678, Lynch, 465 U.S. at 104 S.Ct. at 1361- have the students will seen United States (quoting v. Tax Commission Walz currency, many will have witnessed York, City New judicial legislative proceedings. or Given 1409, 1411, 25 L.Ed.2d 697 S.Ct. Marsh, an adult world these students enter 614, 2112) Lemon, 403 at 91 S.Ct. at U.S. they expected in to tolerate some are added). (emphasis The facts here differ religion. governmental accommodation Weisman, and we conclude from those determining primary the Resolution’s primary that the Resolution's effect is effect, effect in we focus on an invocation’s religion. or to advance endorse graduation ceremo- the context of an entire examples governmental Constitutional 679-80, 104 at ny. at S.Ct. religious accommodation abound. Nebras- (“[fjocus exclusively open may pay chaplain ka a Protestant to inevitably component any activity would legislature’s daily with an invo- sessions under the Establish- lead to its invalidation Marsh, at cation. Clause”). characteristics Several statutorily prescribed at 3338. Our nation- in- distinguish the Resolution’s combine al motto is “In Trust.” 36 U.S.C. God We prayer stricken vocations from the school Pledge Allegiance, Wallace, Treen, recited Stone, Jager, Engel, § daily by public striking chil- thousands of While possibly Weisman. dren, regulation prescribing a describes us as nation under York “One down New by public school daily prayer for recitation Lynch, 465 at 104 S.Ct. at God.” children, Amos, Supreme even notes (1987)(emphasis add- ed). passive Clear Creek’s role distin- nothing in the deci- is of course

[t]here state-sanctioned, guishes the officially writ- here that is inconsistent sion reached prayers ten stricken in Engel. with the fact that school children officially encouraged to ex- others are aWhile law’s denominational neu reciting country by press love for our trality voluntary provisions observance such as the Declara- documents historical enough are not alone to “free it from the refer- Independence which contain tion of Clause,” limitations of the Establishment Deity singing officially ences to Engel, 370 U.S. at 82 S.Ct. at the com- espoused anthems which include these factors in concert with the others of faith in a poser’s professions specified mollify any above advance or en fact that there are Being, or with the dorsement of consistent with the public life many manifestations in our of Resolution. patriotic or ceremo- belief God. Such We think that the Resolution allows invo- no true resemblance nial occasions bear significance grad- cations to enhance the unquestioned exercise minimizing any uation to attendees while spon- York has that the State of New governmental advancement or endorsement instance. sored this religion. The Resolution no more ad- n. Engel, 370 U.S. at 435 myri- vances or endorses than the added). (emphasis 1269 n. 21 public religious ad of constitutional accom- witness the invocations Most students above; given modations cited its solemniza- by the Resolution once in four sanctioned function, legit- tion the Resolution has a daily weekly. years, opposed Con- Stein, primary imate effect. Accord nonproselyti- sistent with the Resolution's (approving F.2d at 1409 nonsectarian requirement, the invocations are his- zation high school invocations for so- torically brief—under one minute. Stu- purposes); Bogen Doty, lemnization in an assem- dents deliver the invocations (8th (“we Cir.1979) suggest bly many parents are rather where establishing solemnity primary is the setting, pros- where the than a classroom gatherings effect of all invocations at peer pect of subtle official and coercion persons differing religion”). views on separation stricter of the state warrants things religious. from Entanglement c. pas- Nor do we overlook Clear Creek’s argues provi- that the Jones Resolution’s process. sive role in the invocation inclusion and sion that invocations be nonsectarian invocations, The Resolution facilitates but nonproselytizing an constitutes excessive existence, reference to a it leaves their and entanglement government religion of and deity, graduating to the discretion each proscription. in violation of Lemon’s third And class and student volunteer. disagree. We to have forbidden “effects” under Lem- “Entanglement question is a of kind and on, say that the it must be fair to degree.” Lynch, 465 U.S. at advanced government has itself at 1365. Even if school officials review through activities and influence. its own Walz, voluntarily As the “for the submitted invocations for sec- Court observed Religion proselytization,4 any men who wrote the Clauses of tarianism and entan- the the First Amendment ‘establishment’ glement that this fosters is not constitu- sponsorship, of a connoted finan- tionally review must occur excessive. Such support, cial and active involvement of graduation ceremony, so the before sovereign religious activity.” 397 does not mandate the “continu- Resolution U.S., S.Ct., at 1411. activity” pro- ing supervision of nonsecular F.2d at 1047 Corp. scribed in Lubbock. Presiding Bishop the Church See (school monitoring Latter-Day Jesus official Christ Saints may proviso an admonition to those student 4. The Resolution’s third be under- stood as either In ac- Lemon test entanglement). properly is limited meetings to institu- excessive entanglement.” Lynch, tional complaint, we consid- with Jones’ cordance (O’Connor, J., at 1368 the invoca- concur- “activity” at issue here er the Separation Smith, accord ring); delivery approval and not its tion’s Reconstructing “Secular": Disestab- program. acceptance graduation into the Decision, lishment 67 Tex.L.Rev. 971- concurrence, Judge In his Weisman (1989) (arguing original dises- invocation Bownes writes that an sought separate tablishment decision to are chosen the school speakers state). institutions church and given guidelines suggesting district and By requiring that invocations nonsec- prayers violates Lemon’s the content presented by tarian and written and stu- 1095; prong. F.2d at entanglement cf. volunteers, effectively dent the Resolution (no entanglement Jager, F.2d at 831 excludes institutions from its invocation school does not choose when view. entangle- Such exclusion renders content). The Resolu- speaker or monitor impossible under Justice O’Connor’s not involve Clear Creek choos- tion does statement of Lemon’s third test. wishing prepare and ing among those invocations, graduation and Jones Thus, because the Resolution has a sec- is so presents no evidence that Clear Creek solemnizing purpose ular primary ef- content, involved. As for invocation fect, excessively entangle not does proscribes types certain of invo- Resolution religion, agree with Clear Creek we prescribing any invocation. cations without the district court that the Resolution does to solem- We think that Clear Creek seeks not violate the Establishment Clause. in manner

nize its ceremonies attendees, B. DiscoveRY acceptable and in Adequacy most to all constitutionally doing pre-screen so any complain Jones does not lan proposed invocations for sectarianism guage included in a Clear Creek proselytization. agrees ceremony after 1986 and Yet she 1987 invocation was offensive. has held state prematurely the district court asserts that Lemon’s en- action unconstitutional under granted summary judgment on the based prong it has found exces- tanglement when constitutionality giv Resolution’s without entanglement governmental sive between depose opportunity her an institutions. (“no officials and discover whether Clear Creek at 1365 evidence U.S. at constitutionally apply the Res would Creek of contact with church authorities concern- characterizes the Resolu olution. design or the exhibit ing the content or attempt last minute tion as Clear Creek’s [city’s] purchase of the prior to or since Den, injunction given pre-1987 dodge an créche”); Larkin v. Grendel’s blatantly sectarian invocations. 116, 126-27, 505, 511-12, 74 (1982) (zoning ordinance allow- Injunctive inappropriate relief power liquor veto over certain churches sought prevent injury spec that is when entanglement); licenses unconstitutional v. Parish ulative at best. Carter Orleans Lemon, 625, at 2117 91 S.Ct. Schools, 261, (5th Cir. Public 725 F.2d 263 (state salary supplements of to teachers 1984). districts have Even where school subjects parochial schools exces- secular “very reluctantly complied with constitu Walz, entanglement); sive 397 U.S. 674- standards,” re this court has twice tional (New 75, may 90 at 1414 York consti- S.Ct. denial of a district court’s fused to reverse tutionally exempt religious organizations Lubbock, 669 F.2d at equitable relief. See tax). property from real Meltzer v. original); (emphasis 1049 Orange Instruction Board Public proposition states the Justice O’Connor of Florida, 559, (5th County, 568 entanglement prong 548 directly: “[t]he proselytization. writing or as a man- cations for sectarianism volunteers the invocations or proposed date that school officials review invo- 424 Lemon, Cir.1977), rehearing, on policy 311 is constitutional under aff'd 1089, reaching but question without cert.

(1978), 99 rigid whether some less restrictive test 872, (1979). We find no might properly applied more be in this sett discretion, see United States v. abuse ing.1 is That a matter on which the Su Co., 345 629, 633, Grant 73 S.Ct. W.T. preme enlighten Court well further us 894, 897, (1953), in 97 L.Ed. 1303 the dis Lee, long. Weisman v. before 908 injunctive court’s final denial of trict - (1st Cir.1990), granted cert. F.2d 1090 declaratory relief in this case. U.S. -, 111 S.Ct. L.Ed.2d (1991). III. CONCLUSION

Because the Resolution does not violate

the Establishment Clause and the district denying did not abuse its

court discretion equitable relief based actions, pre-Resolution we AF- Creek’s MP & CRANE CO. and Aetna FIRM. Casualty Surety Company, & Petitioners, GARWOOD, Judge, Circuit whom v. BARKSDALE, joins Judge, Circuit Director, Arlo R. HAYES and Office concurring. specially Compensation Programs, Workers’ applied tripartite district court Department Labor, United States Re- Kurtzman, of Lemon v. test spondents. (1971), 91 S.Ct. L.Ed.2d SUDERMAN Texas STEVEDORES and the school upheld policy. Appel district’s Association, Employers’ Insurance argue do lants other some test Petitioners, applied, but should rather contend'that Lemon policy controls and that the fails to requirements. Appellees Lemon’s meet Godfrey Director, A. GREEN and Office under Lemon and also Compensation Programs, defend of Workers’ Chambers, Labor, on Marsh v. rely Department United States Re- spondents. (1983). L.Ed.2d Judge Reavley’s opinion convincingly dem Nos. 90-4460. satisfied, onstrates that Lemon and we States Appeals, United Court of Moreover, completely agree. in the Fifth Circuit. context, apparent it seems April 1991. poses Lemon challenged policy’s high Rehearing Rehearing En Banc hurdle, it clears Lemon then it if est Denied June 1991. passes muster establishment clause under any reasonably test. conceivable Accord join

ingly, Judge we so much

Reavley’s opinion as deals with whether Lynch Donnelly, Judge Campbell), granted - U.S. -, (1984), 79 L.Ed.2d ap It also repeatedly emphasized observed that "we have pears us that force of certain our unwillingness any single our to be confined to area, precedents particularly in this Lubbock test criteria in this There sensitive area.” are Independent Civil Liberties Union v. Lubbock good arguments why might a case this kind District, (5th Cir.), reh’g School 669 F.2d 1038 Marsh, analyzed be better under or some vari denied, (1982), F.2d 424 thereof, Jager ant than under Lemon. See (1983), 74 L.Ed.2d 1003 Douglas District, County School 862 F.2d question by been called have into Board of (11th Cir.1989) (dissenting opinion 836-838 Community Education Westside Schools Judge Roney); Chief Stein v. Plainwell Commu - -, Mergens, Schools, 1409-10, nity 1412-15 Where (6th Cir.1987) (opinions Judges Merritt and might were the some lead issue here Wellford); Lee, Weisman v. what different likewise need not be reached. (1st Cir.1990) (dissenting opinion 1098-99

Case Details

Case Name: Merritt E. Jones, on His Behalf and as Next Friend of Pamela Jones, a Child v. Clear Creek Independent School District

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 22, 1991

Citation: 930 F.2d 416

Docket Number: 89-2638

Court Abbreviation: 5th Cir.