In a ruling that apparently conflicts with U.S. Supreme Court precedent, a three-judge panel of the 9th U.S. Circuit Court of Appeals affirmed a ban on “anything that might resemble a prayer” at board meetings of a Southern California school district.
“This requires the board to censor or otherwise remove individuals who attempt to say a prayer, or anything that might resemble a prayer, during the public comment period,” explained Robert Tyler, a legal counsel representing the Chino Valley Unified School District in a case brought by an atheist activist group.
“Such an overbroad injunction is a clear violation of the right of private citizens to address their local representatives in public meetings and is dangerous to the First Amendment.”
The Freedom from Religion Foundation sued the district in southwestern San Bernardino County, which was represented by the Faith and Freedom Foundation and others.
The appeals court panel said the order it affirmed from a lower court “prevents the creation of a de facto opening invocation during the public comment period,” imposing severe restrictions on what the public can say.
Four years ago, however, the U.S. Supreme Court affirmed the practice of ceremonial prayer at city council meetings in Town of Greece v. Galloway.
In that decision, Justice Anthony M. Kennedy noted the historical significance of such invocations.
“Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government,” Kennedy wrote.
The 9th Circuit judges, M. Margaret McKeown, Kim McLane Wardlaw and Wiley Daniel, decided the board’s invocations were not “within the legislative-prayer tradition that allows certain types of prayer to open legislative sessions.”
One factor was that “these prayers typically took place before groups of schoolchildren whose attendance was not truly voluntary.”
The board practice was to randomly select the person to give the invocation from a list of local clergy.
If that person did not show up, a board member could solicit a volunteer.
But the lawsuit claimed that on several occasions board members made comments such as “God appointed us to be here.” And a teacher was thanked for “placing God before herself.”
They also thanked a Christian pastor who gave an opening prayer for serving “the Lord Jesus Christ.”
The district court said the personal expressions of faith were forbidden.
On appeal, the judges said the prayer practice isn’t within the legislative-prayer tradition approved by the courts.
The 9th Circuit panel said the prayers couldn’t be allowed because children are present at the Chino meetings.
“The presence of large numbers of children and adolescents, in a setting under the control of public-school authorities, in inconsonant with the legislative-prayer tradition.”
That fact, the opinion said, justifies the content-based restriction on board members.