GALLOWAY v. TOWN OF GREECE

of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), the Court gave this often-repeated summary:

"The `establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa." Id., at 15-16, 67 S.Ct., at 511-512.

Allegheny, 492 U.S. at 591, 109 S.Ct. at 3099-3100 (citations and internal quotation marks omitted); see also, id., 109 S.Ct. at 3101 ("Whether the key word is `endorsement,' `favoritism,' or `promotion,' the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from making adherence to a religion relevant in any way to a person's standing in the political community.") (citation and internal quotation marks omitted); id. at 3105 ("[T]he Establishment Clause does not limit only the religious content of the government's own communications. It also prohibits the government's support and promotion of religious communications by religious organizations.").

The Court in Allegheny determined that the creche display violated the Establishment Clause, and that the menorah did not. In that regard, the Court found that the creche "endorse[d] Christian doctrine." Id. at 3105. On the other hand, the Court found that the menorah display did not violate the Establishment Clause, even though the menorah is a sectarian religious symbol, because it was displayed along with a Christmas tree and a sign saluting "liberty." Id. at 3113-16 (plurality) (Stating that "[t]he Christmas tree, unlike the menorah, is not itself a religious symbol.").

Based on the specific facts presented, the court found that the creche display amounted to an endorsement of the Christian faith, while the menorah was "not an endorsement of religious faith but simply a recognition of cultural diversity." Allegheny, 109 S.Ct. at 3115.

In her concurring opinion, Justice O'Connor agreed that the menorah display did not violate the Establishment Clause, even though it is a "religious and indeed sectarian" symbol. Id. at 3123. Justice O'Connor stated that a viewer would not view the menorah, alongside the Christmas tree and sign celebrating liberty, as endorsing religion: "Although the religious and indeed sectarian significance of the menorah is not neutralized by the setting, this particular physical setting changes what viewers may fairly understand to be the purpose of the display — as a typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content." Id. (citations and internal quotation marks omitted).

As part of the majority's explanation, the Court discussed the dissenting opinion of Justice Kennedy, who argued that the creche display was acceptable, pursuant to Marsh. In rejecting that argument, the Allegheny majority stated, in pertinent part:

Indeed, in Marsh itself, the Court recognized that not even the "unique history" of legislative prayer, 463 U.S., at 791, 103 S.Ct., at 3336, can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief. Id., at 794-795, 103 S.Ct., at 3337-3338. The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had "removed all references to Christ." Id., at 793, n. 14, 103 S.Ct., at 3337, n. 14. Thus, Marsh plainly does not stand for the sweeping proposition Justice KENNEDY apparently would ascribe to it, namely, that all accepted practices 200 years old and their equivalents are constitutional today.

Id., 109 S.Ct. at 3106. This statement from Allegheny is the primary support for Plaintiffs' contention that all legislative prayer must be non-sectarian.

The Allegheny decision itself is based on the majority's application of Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355 (1984), not Marsh. See, e.g., Allegheny, 109 S.Ct. at 3117 (Justice O'Connor concurring opinion) ("The constitutionality of the two displays . . . turns on how we interpret and apply the holding in Lynch v. Donnelly. . . .").

Subsequently, the Supreme Court conducted another Establishment Clause analysis, in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649 (1992) ("Lee"). In pertinent part, Lee involved a public middle school graduation ceremony, at which a clergyman delivered an invocation prayer. Prior to the graduation, the school principal gave the invited rabbi "a pamphlet entitled `Guidelines for Civic Occasions,' prepared by the National Conference of Christians and Jews, which "recommended that public prayers at nonsectarian civic ceremonies by composed with `inclusiveness and sensitivity.'" Id., 112 S.Ct. at 2652. Additionally, the school principal told the rabbi that "the invocation and benediction should be nonsectarian." Id. The Court found that the principal's attempt to instruct the rabbi on the content of his prayer was improper, stating that, "[t]hrough these means the principal directed and controlled the content of the prayers." Id. at 2656. The Court further stated:

It is a cornerstone principle of our Establishment Clause jurisprudence that "it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government," Engel v. Vitale, 370 U.S. 421, 425, 82 S.Ct. 1261, 1264, 8 L.Ed.2d 601 (1962), and that is what the school officials attempted to do.

***

We are asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition, prayer which is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint. . . . If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself.

***

Though the efforts of the school officials in this case to find common ground appear to have been a good-faith attempt to recognize the common aspects of religions and not the divisive ones, our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students. Engel v. Vitale, supra, 370 U.S., at 425, 82 S.Ct., at 1264. And these same precedents caution us to measure the idea of a civic religion against the central meaning of the Religion Clauses of the First Amendment, which is that all creeds must be tolerated and none favored. The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted.

Id. at 2656-57; see also, id. at 2658 ("A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed."). Additionally, the Court held that the school's practice of including prayer at graduation was coercive and unconstitutional. In that regard, the Court explained that its determination was not inconsistent with Marsh:

Inherent differences between the public school system and a session of a state legislature distinguish this case from Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). . . . 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. The influence and force of a formal exercise in a school graduation are far greater than the prayer exercise we condoned in Marsh.

Id. at 2660.

The foregoing Supreme Court cases establish several principles. First, legislative prayer is acceptable in general, provided that the prayer opportunity is not exploited to proselytize or advance any one, or to disparage any other, faith or belief. Second, unless the prayer opportunity has been so exploited, courts should not "parse" the content of a particular prayer. Third, prayers in the Judeo-Christian tradition are acceptable, although legislative prayers that have the effect of affiliating the government with any one specific faith or belief are improper. Finally, the government may not compose official prayers or dictate the content of prayers.

Since Marsh was decided, several circuit courts and district courts have issued opinions concerning legislative prayer. A number of these cases have specifically considered whether legislative prayer must be nonsectarian.

In Stein v. Plainwell Community Schs., 822 F.2d 1406 (6^th Cir. 1987) ("Stein"), the Sixth Circuit considered the constitutionality of invocational prayers at high school commencement exercises. As part of its, discussion, the court referred to Marsh, as follows:

In Marsh v. Chambers, the Supreme Court, looking primarily to the intent of the framers of the Constitution and historical practice since 1789, id. at 786-792, 103 S.Ct. at 3333-36, upheld "nonsectarian," id. at 793 n. 14, 103 S.Ct. at 3337 n. 14 "nonproselytizing" legislative invocations that do not "symbolically place the government's official seal of approval on one religious view," id. at 792, 103 S.Ct. at 3336 (citation omitted). The Court emphasized that "civil" or secularized invocations are used across the country to open legislative, judicial, and administrative sessions of state legislatures, city councils, courts and other public bodies, as well as by private institutions of all kinds. So long as the invocation or benediction on these public occasions does not go beyond "the American civil religion," so long as it preserves the substance of the principle of equal liberty of conscience, no violation of the Establishment Clause occurs under the reasoning of Marsh. Id. at 793, n. 14, 103 S.Ct. at 3337 n. 14.

Id. at 1408-1409. Respectfully, though, this description of Marsh does not appear to be entirely accurate, as shown by the discussion above and by a review of the Marsh decision itself. Most notably, the Marsh court did not indicate that legislative invocations had to be nonsectarian. Nor did the court state that invocations must "not go beyond `the American civil religion.'" To the contrary, the only reference to American civil religion in the Marsh decision is in a footnote, setting forth Palmer's own description of his prayers, not the Court's. Nor did the Court in Marsh refer to legislative prayers as being "civil or secularized invocations."

In Snyder v. Murray City Corp., 159 F.3d 1227 (10^th Cir. 1998), cert den. 526 U.S. 1039 (1999), the Tenth Circuit upheld a city council's decision to prevent a private citizen from offering a "prayer" at a meeting, where the "prayer" was really a sarcastic commentary directed against legislative prayer. In pertinent part, the Tenth Circuit stated that under Marsh,

the kind of legislative prayer that will run afoul of the Constitution is one that proselytizes a particular religious tenet or belief, or that aggressively advocates a specific religious creed, or that derogates another religious faith or doctrine. When a legislative invocation strays across this line of proselytization or disparagement, the Establishment Clause condemns it.

Id., 159 F.3d at 1234. In that regard, the court further explained:

The Tenth Circuit assumed without deciding that the appellant's "prayer" was "an invocational prayer," while noting that the "supposed prayer can perhaps as easily be characterized as political harangue." Id. at 1229.

Of course, all prayers "advance" a particular faith or belief in one way or another. The act of praying to a supreme power assumes the existence of that supreme power. Nevertheless, the context of the decision in Marsh-in which the Court considered the constitutionality of a Presbyterian minister's "Judeo Christian," "nonsectarian" invocations for the Nebraska Legislature-underscores the conclusion that the mere fact a prayer evokes a particular concept of God is not enough to run afoul of the Establishment Clause. Rather, what is prohibited by the clause is a more aggressive form of advancement, i.e., proselytization. See Marsh, 463 U.S. at 793 n. 14, 794-95, 103 S.Ct. 3330. By using the term "proselytize," the Court indicated that the real danger in this area is effort by the government to convert citizens to particular sectarian views. See Websters Third New International Dictionary (Unabridged) 1826 (1986) (defining "proselytize" as "to convert from one religion, belief, opinion, or party to another"). As the Court reiterated in Lee, "[I]n the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed." Lee, 505 U.S. at 591-92, 112 S.Ct. 2649.

Id., n. 10 (emphasis added). The circuit court noted that legislative prayer may "often" contain Judeo-Christian references:

The genre approved in Marsh is a kind of ecumenical activity that seeks to bind peoples of varying faiths together in a common purpose. 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.

Id. at 1234 (emphasis added). The Tenth Circuit held that the city council had properly rejected the appellant's request, since his proposed prayer "aggressively proselytizes for his particular religious views and strongly disparages other religious views." Id. at 1235 ("Snyder's claim must fail as a matter of law because his proposed prayer falls well outside the genre of legislative prayers that the Supreme Court approved in Marsh[.] . . . Snyder's prayer aggressively proselytizes for his particular religious views and strongly disparages other religious views.").

In Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., No. 99-57020, 52 Fed.Appx. 355, 2002 WL 31724273 (9^th Cir. Dec. 3, 2002) ("Bacus"), the Ninth Circuit considered the constitutionality of a school board's practice of beginning public meetings with prayer. The "same individual almost always offered the invocation, always `in the name of Jesus,' and no individuals of other religions ever gave the invocation." Id., 2002 WL 31724273 at *1. The court found that such prayers "did not disparage other religious faiths, and did not proselytize." Id. Nevertheless, the court found that such prayers violated the Establishment Clause, purportedly because they "advanced one faith, Christianity, providing it with a special endorsed and privileged status in the school board." Id.

The Ninth Circuit specifically did not address the precise issue before this Court. Id. ("[W]e need not decide whether prayers `in the Name of Jesus' would be a permissible solemnization of a legislaturelike body, provided that invocations were, as is traditional in Congress, rotated among leaders of different faiths, sects, and denominations." (citation omitted).

In Wynne v. Town of Great Falls, S.C., 376 F.3d 292 (4^th Cir. 2004) ("Wynne"), the Fourth Circuit considered the constitutionality of a town council's practice of beginning monthly meetings with prayer: Where a member of the council, and often the same member, led the prayer; where the Mayor and council members were all Christians; and where the prayers "`frequently refer[red] to Jesus, Jesus Christ, Christ or Savior." Id., 376 F.3d at 294. The court discussed Marsh and Allegheny, and stated, in pertinent part, "that while Marsh may have found that history can affect the constitutionality of nonsectarian references to religion by the government, the Court [did not hold] that history can legitimate practices that demonstrate the government's allegiance to a particular sect or creed." Id. at 297 (emphasis in original, citation omitted). The court found that under the facts described above, the town council had "improperly `exploited' a prayer opportunity to advance one religion over others." Id. at 298. On this point, the court further stated:

The prayers challenged here stand in sharp contrast to the prayer held not to constitute an establishment of religion in Marsh. In Marsh, the approved prayer was characterized as `nonsectarian' and `civil'; indeed the chaplain had affirmatively `removed all references to Christ." Marsh, 463 U.S. at 793 n. 14, 103 S.Ct. 3330. Here, on the other hand, the prayers sponsored by the Town Council `frequently' contained references to `Jesus Christ,' and thus promoted one religion over all others[.]

Id. at 298.

As part of its discussion, the court rejected that portion of the Snyder decision which held that since "all prayers advance a particular faith or belief in one way or another, Marsh must have prohibited only the more aggressive form of advancement, i.e., proselytization," stating that the Tenth Circuit's "premise and conclusion are wrong." Id. at 301, n. 6 (citation omitted). In that regard, the Fourth Circuit stated that non-sectarian Judeo-Christian prayers "do not advance a particular sect or faith." Id. (emphasis in original).

The Fourth Circuit again considered a challenge to legislative prayer in Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276 (4^th Cir. 2005) ("Simpson"). In Simpson, a county board of supervisors adopted a policy that "invocation[s] must be non-sectarian with elements of the American civil religion and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief." Id., 404 F.3d at 278. The county invited leaders of various religions to offer such nonsectarian prayers, and in that regard, the court stated:

This diversity reflects the Board's requirement that prayers be `non-sectarian.' . . . As to the effect and/or impact of the invocations, they are brief, benign pronouncement of simple values that are not controversial nor confrontational but for, at most, mention of specific Judeo-Christian references that are nevertheless clearly recognized as symbols of the universal values intended to be conveyed. The County, seeking to avoid the slightest hint of sectarianism, revised its invitation letter to the clergy. The letter now directs clerics to avoid invoking the name of Jesus Christ, a custom to which Christian clergy often had adhered when closing their invocations in the past.

Id. at 279 (citation and internal quotation marks omitted). The plaintiff-appellant, Simpson, a self-described witch, alleged that the county's policy violated the Establishment Clause. The basis of her complaint was that she asked to be added to the list of invited clergy, but the county denied her request to be added to the list of clergy, telling her that invocations were limited those "traditionally made to a divinity that is consistent with the Judeo-Christian tradition." Id. at 280. The court summarized Marsh as standing for the idea that "non-sectarian legislative prayer generally does not violate the Establishment Clause." Id. at 282 (citation omitted). Purportedly applying that principle, the court stated that the use of the name Christ was improper, but that the following terms were permissible: "Lord God, our creator"; "giver and sustainer of

life"; "the God of Abraham, Isaac and Jacob"; "Heavenly Father"; "Lord our Governor"; and "Lord of Lords, King of Kings, creator of planet Earth and the universe and our own creator." Id. at 284.

In Hinrichs v. Bosma, 440 F.3d 393 (7^th Cir. 2006) ("Hinrichs"), the Seventh Circuit considered an Establishment Clause challenge to the Indiana House of Representative's "practice of opening its proceedings with overtly sectarian prayer, usually Christian." Id., 440 F.3d at 394. The appellant was seeking a stay, pending appeal, of a district court's ruling, which found that the aforementioned policy was unconstitutional, and which permanently enjoined such prayer. See, id. 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.") (citation omitted). The court began by indicating that Marsh, and the cases applying Marsh, generally approved only nonsectarian legislative prayer. Id. at 399 (citing, inter alia, Allegheny); see also, id. at 401 ("These cases appear to teach the rule that non-sectarian legislative prayer is constitutionally sound, but sectarian appeals, including those of an overtly Christian nature, are not.") (citations omitted). In that regard, the court rejected the idea that "prohibiting clerics from invoking Christ would violate the Free Exercise or Free Speech Clauses of the First Amendment." Id. at 402. Consequently, the majority agreed with the district court and denied the stay. Id. at 403. One justice dissented, stating that, "[w]hile there is caselaw supporting the proposition that Marsh approves of only nonsectarian legislative prayer, there still remain powerful arguments to the contrary, not the least of which is the Marsh majority's curious ambiguity on the point." Id. at 403. Subsequently, the Seventh Circuit reversed its decision, reversed the district court, and remanded the case with instructions to dismiss for lack of subject matter jurisdiction.

Invited clergy were asked to "strive for an ecumenical prayer." Id. at 395.

Hinrichs v. Speaker of House of Reps. of Indiana General Assembly, 506 F.3d 584, 585 (7^th Cir. 2007) ("We denied the stay but noted that our decision was based only on a preliminary understanding of the facts surrounding Indiana's practice. Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006) ("Hinrichs II"). After briefing, oral argument and supplemental briefing, we now hold that the plaintiffs do not have standing to maintain this action.").

In Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5^th Cir. 2006), the Fifth Circuit was faced with an Establishment Clause challenge to a school board's practice of beginning its meetings with prayer. Prayers were offered by board members, school administrators, teachers, students, and clergy, and the sample prayers in the record each "contained a reference to `Jesus Christ' or `God' and `Lord.'" Id., 473 F.3d at 192. The district court permanently enjoined the school board from opening its meetings with any prayer. Id., 473 F.3d at 193. On appeal, two circuit court panel members found the aforementioned prayer policy unconstitutional and affirmed the injunction in part, though for different reasons, and the third member voted to find that the prayer policy did not violate Marsh. More specifically, Judge Barksdale found that the prayers violated Marsh because they were sectarian, and therefore advanced Christianity. See, id. at 203, n. 2 ("[T]he impermissible advancement of a particular religion is grounded in the Board's refusal to adopt a nonsectarian policy, the prayers' uniformly

Judge Barksdale indicated that, "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., 473 F.3d at 1989. However, as discussed above, the prayers at issue in Marsh spanned a period of sixteen years, and during most of that time the prayers contained references to Jesus Christ.

Christian tenor, and their overtly sectarian, proselytizing references."). Judge Barksdale further faulted the school board for selecting only prayer-givers "who would advance the Christian faith" and for not adopting a non-sectarian prayer policy after the lawsuit was filed. Id. at 204. In a concurring opinion, Judge Stewart voted to uphold the injunction, finding that the prayer policy was unconstitutional under Lemon. Finally, Judge Clement filed a dissenting opinion, finding that the challenged policy did not violate Marsh, since the plaintiff-appellee "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 211 (citation and internal quotation marks omitted). On this point, Judge Clement observed:

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. FN 1 This practice, which Judge Barksdale's opinion would deem unconstitutional under Marsh, has been upheld by the D.C. Circuit. See Murray v. Buchanan, 720 F.2d 689, 690 (D.C. Cir. 1983) (en banc) (per curiam); see also Newdow v. Eagen, 309 F.Supp.2d 29, 41 (D.D.C. 2004) (holding that congressional prayer remains constitutional under Marsh).

FN1. There is no doubt that prayers before Congress often contain explicit sectarian references. See Newdow v. Bush, 355 F.Supp.2d 265, 285 n. 23 (D.D.C. 2005) (noting that "the legislative prayers at the U.S. Congress are overtly sectarian"); see also Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 Colum. L. Rev. 2083, 2104 n. 118 (1996) (noting that, in the six-year period before 1996, "over two hundred and fifty opening prayers delivered by congressional chaplains have included supplications to Jesus Christ").

By relying 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, 103 S.Ct. 3330; 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, 103 S.Ct. 3330 (internal quotation omitted). The content of the prayers identified in the stipulations [in this case] does not vary meaningfully from that of the prayers offered in Congress on a day-to-day basis.

Id. at 212-213. Judge Clement further found that the plaintiff had not offered proof that the school board had excluded non-Christian faiths from participating in prayers. Id. at 215. In that regard, Judge Clement noted that the school board had indicated its "willingness to allow any viewpoint to be heard at the meetings." Id.

In any event, following a rehearing en banc, the Fifth Circuit reversed its earlier decision, vacated the district court's judgment, and remanded the case with instructions to dismiss it for lack of standing. Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494 (5^th Cir. 2007) (en banc). The school board then adopted a new prayer policy, authorizing the board "to invite and host a rotating roster of Parish clergy to deliver prayers." The board also drafted a form letter to use when inviting clergy, which stated, in relevant part: "To maintain a spirit of respect and ecumenism, the Board requests only that the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocation speaker, nor to disparage any faith or belief different than that of the invocation speaker." The policy did not expressly prohibit sectarian prayer or recommend that clergy refrain from using sectarian language. Following the adoption of this policy, a number of invited clergy offered prayers that contained references to Jesus Christ. Subsequently, the Doe Plaintiff refiled his lawsuit, and established his standing to challenge the school board's policy. In Doe v. Tangipahoa Parish Sch. Bd., 631 F.Supp.2d 823 (E.D. La. 2009) ("Doe II"), the district court considered cross-motions for summary judgment on the Establishment Clause claims. The district court set forth its interpretation of Marsh, in pertinent part, as follows:

Doe v. Tangipahoa Parish Sch. Bd., 631 F.Supp.2d 823, 826 (E.D. La. 2009).

Id. at 828.

Id. at 829, n. 6.

Fidelity to Marsh commands not a content-based approach, or an inquiry into whether prayers are sectarian or nonsectarian at the outset, but, rather, focuses on exploitation of the prayer opportunity and efforts, direct or not, to proselytize; to promote or sell a religion. The Supreme Court in Marsh discussed the tenure of the hired chaplain and held "[a]bsent proof that the chaplain's reappointment stemmed from an impermissible motive, . . . long tenure does not in itself conflict with the Establishment Clause." Marsh, 463 U.S. at 793-94, 103 S.Ct. 3330. Noting that the prayers were offered in the Judeo-Christian tradition, the Supreme Court refused to examine their content because: ["]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.["] Marsh, 463 U.S. at 794-95, 103 S.Ct. 3330. In other words, in light of the historical background of legislative prayer, Marsh teaches us that sectarian references do not inherently violate the Establishment Clause; rather, important factors inform the constitutionality of legislative prayer practice: the identity of the speaker, the selection of the speaker, the method and process of selection, and the nature of the prayers.

Id. at 839-840 (citations omitted). Nevertheless, the district court found that there were triable issues of fact as to whether the school board had exploited the prayer opportunity to advance Christianity. Id. at 840. For example, there was some evidence suggesting that the person responsible for inviting clergy had favored Christian clergy over non-Christian clergy, as well as some evidence that board members viewed the invocations as being limited to Christian prayer. Id.

In Turner v. City Council of the City of Fredericksburg, Virginia, 534 F.3d 352 (4^th Cir. Jul. 23, 2008), cert den., 129 S.Ct. 909 (2009), the Fourth Circuit addressed a challenge to a city council's policy "requiring that legislative prayers be nondenominational." Id., 534 F.3d a 353. In that case, the council's prayers were offered only by elected council members, on a rotating basis. Id. The plaintiff-appellant, Turner, a minister and elected member of the council, argued that the council's policy violated his First Amendment rights, because his "religious beliefs require[d] him to close his prayers in the name of Jesus Christ." Id. at 354. Turner alleged that the Supreme Court's decision in Lee prohibited the town council from dictating the content of prayers, but the court disagreed: "We do not read Lee as holding that a government cannot require legislative prayers to be nonsectarian. Instead, Lee established that government cannot compel students to participate in a religious exercise as part of a school program." Id. at 355. The court's opinion, authored by retired Supreme Court Justice O'Connor, further stated:

Opening prayers need not serve a proselytizing function, and often are an acknowledgment of beliefs widely held among the people of this country. So long as the prayer is not used to advance a particular religion or to disparage another faith or belief, courts ought not to parse the content of a particular prayer.

We need not decide whether the Establishment Clause compelled the Council to adopt their legislative prayer policy, because the Establishment Clause does not absolutely dictate the form of legislative prayer.

Id. at 356 (emphasis added; citations omitted). Significantly, the circuit court did not state that legislative prayer must be nonsectarian. This fact is significant because the district court below had expressly held that such prayer must be nonsectarian. See, Turner v. City Council of the City of Fredericksburg, Virginia, Civil Action No. 3:06CV23, 2006 WL 2375715 at *3-4 (E.D. Va. Aug. 14, 2006) ("The Supreme Court and this circuit require that legislative prayer be nonsectarian."). Rather than affirming the district court's decision on that basis, the circuit court affirmed for reason stated above. Accordingly, the circuit court's decision appears to be a retreat from its earlier ruling in Simpson. Significantly, the circuit court's statement that it "need not decide whether the Establishment Clause compel[s]" a nonsectarian prayer policy clearly indicates that the issue is unsettled in the Fourth Circuit. (emphasis added).

Subsequently, in Pelphrey, as already discussed above, the Eleventh Circuit considered an Establishment Clause challenge to the policies of two county commissions, under which clergy from various religious denominations were invited to give legislative prayers at meetings. Despite the county's policy of inviting a variety of clergy, the great majority of the clergy were Christian. Id., 547 F.3d at 1267. The county did "not compose or censor the prayers," and the prayers actually given "included references to `Jesus,' `Allah,' `God of Abraham, Isaac, and Jacob,' `Mohammed,' and `Heavenly Father.'" Id., 547 F.3d at 1266-67. The plaintiffs-appellants

"argue[d] that the Establishment Clause permits only nonsectarian prayers for the meetings," but the circuit court disagreed since the defendants had not exploited the prayer opportunity, and since "[w]hether invocations of `Lord of Lords' or `the God of Abraham, Isaac, and Mohammed' are `sectarian' is best left to theologians, not courts of law." Id. at 1266-67. With respect to this issue, the court stated, in pertinent part:

Marsh, as informed by Allegheny and Lee, controls our review of the constitutionality of legislative prayers. The district court concluded that these decisions direct us not to inquire into the content of prayers for "legislative and other deliberative public bodies" unless "the prayer opportunity has been exploited" to advance or disparage a belief, Marsh, 463 U.S. at 786, 794, 103 S.Ct. at 3333, 3338, or affiliated the government with a specific faith, Allegheny, 492 U.S. at 603, 109 S.Ct. at 3106. We agree.

The taxpayers argue that Marsh permits only "nonsectarian" prayers for commission meetings, but their reading is contrary to the command of Marsh that courts are not to evaluate the content of the prayers absent evidence of exploitation. The taxpayers rely on the acknowledgment by the Supreme Court in Marsh that the chaplain had "removed all references to Christ" after 1980 and offered "nonsectarian" prayers at the time of the challenge. Marsh, 463 U.S. at 793 n. 14, 103 S.Ct. at 3337 n. 14. The Court provided these descriptions of the prayers in a footnote, but the Court never held that the prayers in Marsh were constitutional because they were "nonsectarian." See id. Nor did the Court define that term. See id. To read Marsh as allowing only nonsectarian prayers is at odds with the clear directive by the Court that the content of a legislative prayer "is not of concern to judges where . . . there is no indication that the prayer opportunity has been exploited to proselytize or advance any one . . . faith or belief." Id. at 794-95, 103 S.Ct. at 3337-38.

The Marsh Court considered several factors to determine whether the legislative prayers had been exploited to advance one faith. The Court weighed the chaplain's religious affiliation, his tenure, and the overall nature of his prayers. Id. at 792-95, 103 S.Ct. at 3336-38. The "nonsectarian" nature of the chaplain's prayers was one factor in this fact-intensive analysis; it did not form the basis for a bright-line rule.

The taxpayers argue that Allegheny requires us to read Marsh narrowly to permit only nonsectarian prayer, but they are wrong. Allegheny does not require that legislative prayer conform to the 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. . . ." See Allegheny, 492 U.S. at 605, 109 S.Ct. at 3107. When legislative prayers do not "have the effect of affiliating the government with any one specific faith or belief," id. at 603, 109 S.Ct. at 3106 (citation omitted), "it is not for [the court] to embark on a sensitive evaluation or to parse the content of a particular prayer." Marsh, 463 U.S. at 795, 103 S.Ct. at 3338.

We would not know where to begin to demarcate the boundary between sectarian and nonsectarian expressions, and the taxpayers have been opaque in explaining that standard. Even the individual taxpayers cannot agree on which expressions are "sectarian." Bats, one of the taxpayers, 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. At the hearing for oral arguments before this Court, the taxpayers' counsel asserted two standards to determine when references are impermissibly "sectarian." Counsel for the taxpayers first stated, "It is sectarian when the . . . prayer has the effect of affiliating the government with one specific faith or belief," but he later described a reference as "sectarian" when it "invokes the name of a divinity . . . in which only one faith believes."

Counsel had difficulty applying either standard to various religious expressions. When asked, for example, 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."

The difficulty experienced by taxpayers' counsel is a glimpse of what county commissions, city councils, legislatures, and courts would encounter if we adopted the taxpayers' indeterminate standard. As the taxpayers' counsel conceded at oral arguments, "the line is not completely bright between sectarian and nonsectarian." On that score, we are in complete agreement with the taxpayers' counsel.

Id. at 1271-72. The court also summarized the various decisions of the courts of appeal interpreting Marsh, and concluded that they do not require legislative prayer to be nonsectarian:

The taxpayers erroneously contend that several other circuits have read Marsh to permit only nonsectarian prayer. A review of the precedents of our sister circuits establishes that they have not reached a consensus on the permissibility of sectarian references in legislative prayers. Two of the circuits read Marsh as we do. The remaining four circuits have not reached a decision about sectarian references in legislative prayers.

The Fourth Circuit has not read Marsh to bar legislative prayers that contain a variety of religious expressions. In its first decision to address Marsh, the Fourth Circuit concluded that the prayers of a city council that contained references to "Jesus Christ" were inconsistent with Marsh because the prayers "contain[ed] explicit references to a deity in whose divinity only those of one faith believe." Wynne v. Town of Great Falls, S.C., 376 F.3d 292, 301 (4th Cir. 2004). The court understood Marsh and Allegheny, as we do, to "teach that a legislative body cannot . . . `exploit' [a] prayer opportunity to `affiliate' the Government with one specific faith or belief. . . . " Id. at 298.

In its second decision, the Fourth Circuit read Marsh, as we do, to allow a county to invite clergy from diverse faiths to offer "a wide variety of prayers" at meetings of its governing body. Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 284 (4th Cir. 2005) (Wilkinson, J.). The prayers included "wide and embracive [sic] terms" such as "`Lord God, our creator,' `giver and sustainer of life,' `the God of Abraham, Isaac and Jacob,' `the God of Abraham, of Moses, Jesus, and Mohammad,' `Heavenly Father,' `Lord our Governor,' `mighty God,' `Lord of Lords, King of Kings, creator of planet Earth and the universe and our own creator.'" Id. at 284. The court stated that "a practice would remain constitutionally unremarkable where `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 283 (quoting Marsh, 463 U.S. at 794-95, 103 S.Ct. at 3338). The court distinguished Wynne on the ground that the prayers of the city council had been exploitive because their "pervasively and exclusively sectarian nature" had "undermined . . . participation by persons of all faiths in public life." Id.

The Simpson court praised the County for its practice of prayer being "in many ways more inclusive than that approved by the Marsh Court." Id. at 285. The County relied on voluntary clergy and "welcome[d] rabbis, imams, priests, pastors, and ministers" who represented "a wide cross-section of the County's religious leaders." Id. The court explained that invalidating a practice of prayer more inclusive than that upheld in Marsh "would achieve a particularly perverse result"; a cramped reading of Marsh "would push localities intent on avoiding litigation to select only one minister from only one faith." Id. at 287. That consequence would make "America and its public events more insular and sectarian rather than less so." Id.

This year, Justice Sandra Day O'Connor, writing for the Fourth Circuit, read Marsh to allow invocations offered during meetings of a city council. Turner v. City Council of City of Fredericksburg, Va., 534 F.3d 352, 356 (4th Cir. 2008). The city council permitted only nondenominational prayers at its meetings, and Turner, a member of the council who had not been allowed to offer a sectarian prayer, challenged that policy. Id. at 354. The Fourth Circuit upheld the policy and applied the same standard from Marsh that we apply today: "So long as the prayer is not used to advance a particular religion or to disparage another faith or belief, courts ought not to `parse the content of a particular prayer.'" Id. at 356 (quoting Marsh, 463 U.S. at 795, 103 S.Ct. at 3338). Although it upheld the policy of the council, the Fourth Circuit expressly declined to hold that Marsh required a policy of nondenominational prayers: "We need not decide whether the Establishment Clause compelled the Council to adopt their legislative prayer policy, because the Establishment Clause does not absolutely dictate the form of legislative prayer." Id. Because the invocations in Turner, like the invocations in Marsh, "recognized the rich religious heritage of our country in a fashion that was designed to include members of the community, rather than to proselytize[,]" Justice O'Connor wrote that they fell "squarely within the range of conduct permitted by Marsh and Simpson." Id. As the Fourth Circuit recognized, Marsh permits a range of prayers to be offered during local, state, or federal legislative meetings. Id.

The Tenth Circuit also has stated that Marsh does not categorically prohibit prayers that invoke "particular concept[s] of God. Snyder v. Murray City Corp., 159 F.3d 1227, 1233-34, 1234 n. 10 (10th Cir. 1998) (en banc). The Tenth Circuit upheld the decision of a city council to deny a citizen's request to offer a prayer that "aggressively proselytize[d] for his particular religious views and strongly disparage[d] other religious views." Id. at 1235. The court read Marsh to hold that legislative prayer is unconstitutional "when `the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.'" Id. at 1233-34 (quoting Marsh, 463 U.S. at 794-95, 103 S.Ct. 3330).

Contrary to the taxpayers' argument, the Fifth Circuit, the Seventh Circuit, and the Ninth Circuit have not decided the constitutionality of sectarian references in legislative prayers. The decision of the Fifth Circuit that the taxpayers cite, Doe v. Tangipahoa Parish School Board (Doe I), 473 F.3d 188, 202-05 (5th Cir. 2006), was fractured, with the panel split three ways, and the en banc court vacated that decision, granted rehearing, and remanded with instructions to dismiss for lack of standing. Doe v. Tangipahoa Parish Sch. Bd. (Doe II), 494 F.3d 494 (5th Cir. 2007) (en banc). Although the Seventh Circuit initially stated that Marsh "hing[ed] on the nonsectarian" nature of the prayers and denied a request for a stay of an injunction against the practice of the Indiana Legislature, Hinrichs v. Bosma (Hinrichs I), 440 F.3d 393, 394-95, 399 (7th Cir. 2006), the Seventh Circuit later reversed that injunction and, like the Fifth Circuit in Doe II, remanded with instructions to dismiss for lack of standing. Hinrichs v. Speaker of the House of Representatives of the Ind. Gen. Assembly (Hinrichs II), 506 F.3d 584, 585 (7th Cir. 2007). The taxpayers also rely on Bacus v. Palo Verde Unified School District Board of Education, 52 Fed.Appx. 355 (9th Cir. 2002) (unpublished opinion), to suggest that the Ninth Circuit has prohibited sectarian references in legislative prayers, but Bacus is an unpublished decision that concerned prayers offered only "in the Name of Jesus" at the meetings of a school board. Id. at 356. The court stated that it "need not decide whether the prayers `in the Name of Jesus' would be a permissible solemnization of a legislature-like body, provided that invocations were, as is traditional in Congress, rotated among leaders of different faiths, sects, and denominations." Id. As an unpublished opinion, Bacus has no precedential effect in the Ninth Circuit. See Ninth Cir. R. 36-3.

The Sixth Circuit stated, in dicta, decades ago that Marsh permits only nonsectarian prayers, but that decision involved public school graduations, not legislative bodies. Stein v. Plainwell Cmty. Sch., 822 F.2d 1406, 1409 (6th Cir. 1987). The graduation ceremonies included invocations that "employ[ed] the language of Christian theology and prayer." Id. at 1410. The Supreme Court has since rejected the application of Marsh to prayer at public school graduations. See Lee, 505 U.S. at 597, 112 S.Ct. at 2660-61.

Contrary to the taxpayers' argument, there is no clear consensus among our sister circuits about sectarian references in legislative prayer, but we read Marsh, as the Fourth Circuit and the Tenth Circuit do, to forbid judicial scrutiny of the content of prayers absent evidence that the legislative prayers have been exploited to advance or disparage a religion. The taxpayers would have us parse legislative prayers for sectarian references even when the practice of legislative prayers has been far more inclusive than the practice upheld in Marsh. We decline this role of "ecclesiastical arbiter," Marsh, 463 U.S. at 821, 103 S.Ct. at 3351 (Brennan, J., dissenting), for it "would achieve a particularly perverse result." Simpson, 404 F.3d at 287.

Id. at 1272-74.

Thus rejecting the notion that legislative prayer must be nonsectarian, the Eleventh Circuit proceeded to consider whether the prayer practice at issue in Pelphrey violated the Establishment Clause. In that regard, the court considered three factors: "the identity of the invocational speakers, the selection procedures employed, and the nature of the prayers." Pelphrey, 547 F.3d at 1277. As for the first factor, the court observed that although the invited clergy were "predominantly" Christian, "prayers were also offered by members of the Jewish, Unitarian, and Muslim faiths." Id. The court found that this factor did not support an Establishment Clause violation, since the practice was more inclusive of different religious faiths than that approved in Marsh. As for the second factor, the nature of the prayers, the court stated that the prayers

included references from Christianity and other faiths. . . . Most of the references were brief and occurred at the end of each prayer. Some prayers included references to "Jesus Christ," but others referenced "Allah," "Mohammed," and the Torah. Prayers included a variety of terms, such as "king of kings and lord of lords," "Heavenly Father," and "God of Abraham, Isaac, and Jacob, God of history, Lord of creation, Lord of love, our Father [.]

Id. at 1278. On this point, the court found that "[t]he diversity of the religious expressions, in contrast with the prayers in the Judeo-Christian tradition allowed in Marsh, supports the finding that the prayers, taken as a whole, did not advance any particular faith." Id.

And, with regard to the third factor, the selection process employed, the court, as already discussed, found that the procedures employed by one of the county boards, "the County Commission," were not motivated by an improper motive. Id. at 1278. As to this finding, the record indicated that the county employee responsible for inviting clergy to County Commission meetings "compiled the list of potential speakers from various sources and included diverse religious institutions, including a mosque and three synagogues," and "did not exclude religious institutions based on their beliefs." Id. Based upon its analysis, the court concluded that the County Commission's policy did not violate the Establishment Clause. On the other hand, the court conceded that there was an issue of fact as to whether the procedures employed by the other county board, the Planning Commission, were tainted by an improper motive. As to the Planning Commission, there was evidence that the employee responsible for inviting clergy had intentionally excluded certain denominations from her list of potential clergy. Id., 547 F.3d at 1281-1282.

One member of the Pelphrey panel filed a dissenting opinion, arguing that Marsh does not permit legislative prayer at "virtually every government meeting." Id., 547 F.3d at 1282 (Middlebrooks, dissenting). However, he "agree[d] with much of the majority opinion, particularly with respect to the danger of the federal judiciary embarking on the editing of prayer." Id.

Following Pelphrey, two district court cases have considered the constitutionality of legislative prayer practices: Joyner v. Forsyth County, N.C., No. 1:07CV243, 2009 WL 3787754 (M.D.N.C. Nov. 9, 2009) ("Joyner") and Doe v. Indian River Sch. Dist., 685 F.Supp.2d 524 (D.Del. 2010) ("Indian River"). In Joyner, the plaintiffs alleged that

a county board of commissioners violated the Establishment Clause by "sponsoring and allowing sectarian prayer" at meetings. Joyner, 2009 WL 3787754 at *1. The prayers were given by invited local clergy. Initially, the county had no prayer policy, but it adopted one after the plaintiffs sued. The newly-adopted policy indicated that invited clergy could offer an invocation "according to the dictates of [his or her] conscience," provided that "the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocational speaker, [or] to disparage any [other faith]," so as to maintain a "spirit of respect and ecumenism." Id. at *2. Prayers at board meetings "frequently contained at least one reference to Jesus, Jesus Christ, Christ Savior, or the Trinity." Id. at *3. None of the prayers in the court's record "invoked a deity associated with any specific faith other than Christianity." Id. The court, interpreting and applying Fourth Circuit law, concluded that there was a "nonsectarian maxim," forbidding sectarian prayer. Id. at *6-7. The court further found that

Marsh requires that a divine appeal be wide-ranging, tying its legitimacy to common religious ground. Such prayer should transcend denominational boundaries and appeal broadly to the aspirations of all citizens. Prayers consistent with Marsh highlight beliefs widely held. They also evoke common and inclusive themes and forswear the forbidding character of sectarian invocations.

Id. at *7 (emphasis added; citations and internal quotation marks omitted). Applying this standard, the court found that the challenged prayers violated the Establishment Clause, because they contained frequent references to Jesus, which prevented them from qualifying as "nonsectarian or civil prayer," and therefore had the effect of promoting Christianity and affiliating the board with "a specific faith or belief." Id.; see also, id. at *8 ("[P]rayers given under Defendant's policy do not reflect . . . diversity.").

In Indian River, the district court considered an Establishment Clause challenge to a school board's policy of "opening its public meetings with a prayer or moment of silence." Id., 685 F.Supp.2d at 526. Board members were selected, on a rotating basis, to either offer a prayer or a moment of silence at the beginning of each meeting," in accordance with the freedom of conscience of the individual adult Board member." Id. at 529. The board's policy stated that the prayer "shall not be used or exploited to proselytize, advance or convert anyone, or to derogate or otherwise disparage any particular faith or belief," and further provided:

Any such prayers may be sectarian or non-sectarian, denominational or non-denominational, in the name of a Supreme Being, Jehovah, Jesus Christ, Buddha, Allah, or any other person or entity, all in accord with the freedom of conscience, speech and religion of the individual Board member, and his or her particular religious heritage.

Id. Pursuant to this policy, some board members gave explicitly Christian prayers, while some members quoted historical figures such as George Washington, Ghandi, and Mark Twain, and others observed a moment of silence. Id. at 530. The court, interpreting and applying Marsh and its progeny, held that the sectarian nature of many of the prayers did not render them unconstitutional. Id. at 541 ("[T]he Court concludes that the fact that Board Members often reference Jesus Christ in their prayers does not render the Board's Pray Policy unconstitutional under Marsh."); see also, id. at 542 ("If the Court were to accept Plaintiffs' view, a reference to a particular deity in any prayer offered in a legislative or deliberative body would automatically render the practice

unconstitutional. This conclusion cannot be squared with the reasoning in Marsh."). The court continued:

Moreover, the Court questions whether the mere reference to a deity or religious figure — whether it be "Jesus Christ," "God," "Allah," "Mohammed," or "Yahweh" — necessarily renders a prayer "sectarian." For example, the Fourth Circuit has approved of a county's practice of inviting clergy from diverse faiths to offer "a wide variety of prayers" at the meetings of its governing body. Although the county had subsequently directed clergy to omit specific references to Jesus Christ, the Fourth Circuit determined that the prayers given at these meetings-which included references to "wide and embracive [sic] terms" such as "`Lord God, our creator,' `giver and sustainer of life,' `the God of Abraham, Isaac and Jacob,' `the God of Abraham, of Moses, Jesus, and Mohammad,' `Heavenly Father,' `Lord our Governor,' `mighty God,' [and] `Lord of Lords, King of Kings, creator of planet Earth and the universe and our own creator'"-were constitutional under Marsh. [(citing and quoting Simpson)] Notably, the Fourth Circuit expressed no disagreement with the lower court's finding that the prayers were "not controversial nor confrontational but for, at most, mention of specific Judeo-Christian references that are nevertheless clearly recognized as symbols of the universal values intended to be conveyed." Similarly, the Eleventh Circuit has explained that the distinction between sectarian and nonsectarian prayers is anything but a bright line. [(citing Pelphrey)]

Id. at 542-43 (footnotes omitted). The court further found that the school board's policy had not been used to proselytize or advance Christianity. Id. at 543-44 ("[T]he record before the Court demonstrates that, at most, certain Board Members briefly refer to Jesus Christ by name in concluding their prayers. The Court does not agree that these references, by themselves, constitute `proselytizing' or the `advancement' of religion.") (footnote omitted). Consequently, the court found that the school board's policy did not violate the Establishment Clause.

In the instant case, the Court is of course bound by the decisions of the Supreme Court. However, no Supreme Court decision has addressed the precise issues and factual circumstances that are before this Court. Additionally, the Court is not aware of any binding Second Circuit authority that is on point, and the circuit courts which have issued decisions concerning legislative prayer are divided. Nevertheless, the circuit court and district court decisions discussed above are instructive, even though they are not binding on this Court.

It is clear that outcomes in Establishment Clause cases are extremely fact specific. See, e.g., Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 2868-69 (2005) ("[N]o exact formula can dictate a resolution to such fact-intensive cases.") (Breyer, concurring). Here, the Court has considered the particular facts of this case in light of all of the binding and non-binding authority discussed above, and finds that the Town's prayer policy does not violate the Establishment Clause. In making that determination, the Court has considered a number of factors in light of the entire record in this case. For example, at the outset, there is no indication that the Town established its unwritten policy of having prayer before meetings for an improper purpose. That is, the Town did not begin having prayer at meetings in order "to proselytize or advance any one, or to disparage any other, faith or belief." Instead, the record indicates that Auberger initiated the policy of having prayer at meetings because he wanted to continue the prayer tradition that he had observed while a member of the Monroe County Legislature.

The Town's prayer policy, to the extent that one exists, is to invite clergy from all denominations within the Town, without any guidance or restriction on the content of prayers. The Town will also permit anyone who volunteers to give an invocation, including atheists and members of non-Judeo-Christian religions such as Wicca, and has never denied a request by anyone to deliver a prayer. Town clerical employees, who have no stake in the process other than to perform the task assigned to them, have invited clergy from lists published by the Town Chamber of Commerce and local newspaper. The clerical employees indicate that they have endeavored to include all groups listed in those publications. The Town has no control over which religious groups are listed in those publications. Over time the clerical employees have compiled lists of clergy who have agreed to give invocations, and the lists do not reflect all of those who declined an invitation.

The groups listed in the Community Guide and Greece Post are overwhelmingly Christian, which reflects the fact that there are comparatively few non-Christian organizations in the Town. Plaintiffs maintain that the Town intentionally excluded non-Christian groups listed in those publications, but the record does not support such assertion. For example, the only purportedly non-Christian group listed in the Community Guide was the Church of Jesus Christ of Latter-Day Saints, and the reasonable inference from the record is that this group did not make it onto Sofia's list because it declined her invitation. Significantly, along with the Church of Jesus Christ of Latter-Day Saints, a number of Christian churches listed in the Community Guide were not included on Sofia's list. The only non-Christian group listed in the Greece Post, the Bahai Faith Community, was included on Fiannaca's list, and a representative of the Bahai community gave an invocation on December 16, 2008.

Plaintiffs indicate that the Church of Jesus Christ of Latter-Day Saints is a non-Christian denomination, but have offered no evidence to support that claim. The Court observes that, according to what appears to be the official website of The Church of Jesus Christ of Latter-Day Saints, http://www.lds.org/, the church believes in the divinity of Jesus Christ, refers to Jesus Christ as "the Savior" and "the Son of God," and indicates that Jesus Christ founded the Church. Whether the Church of Jesus Christ of Latter-Day Saints is a Christian organization is a question beyond the Court's expertise. See, Colorado Christian University v. Weaver, 534 F.3d 1245, 1265 (10^th Cir. 2008) ("[T]he definition of who is a `Christian' can generate an argument in serious circles across the country. Some students at CCU are members of the Church of Jesus Christ of Latter-Day Saints, or "Mormons." Members of the LDS Church stoutly insist that they are Christians, but some Christians, with equal sincerity and sometimes vehemence, say they are not.") But in any event, there is no indication that Sofia, Wagoner, or Fiannaca considered the group to be non-Christian.

Plaintiffs maintain that the Town intentionally excluded three other minority faiths from giving invocations: A Jehovah's Witness congregation, a Vietnamese Buddhist congregation, and Jewish synagogues located outside the Town. Plaintiffs allege that the Town had constructive notice of the Jehovah's Witness group, because it once applied for a zoning permit. Plaintiffs further state that the Town had constructive notice of the Vietnamese Buddhist group, because a Town official was aware of the group's existence as a result of having driven by its temple. And finally, Plaintiff's insist that the Town had constructive notice of the synagogues, because Auberger was aware that there were synagogues located outside the Town. See, Pl. Memo in Opposition [#38] at 15 ("Town officials . . . ignored anecdotal information about local minority-faith communities.") (emphasis added). The Court disagrees that these points create a reasonable inference that the Town excluded these faiths for religious reasons. Significantly, there is no evidence that Sofia, Wagoner, or Fiannaca was aware of these groups, which were not listed in the Community Guide or Greece Post. Plaintiffs argument in this regard seems disingenuous in any event, since even assuming that these supposedly "disfavored minority" groups had each delivered a prayer, Plaintiffs would no doubt still argue that the Town's selection procedure was

Although there is evidence that some of the groups listed in the Community Guide and Greece Post were actually located outside the geographic limits of the Town, there is no indication that Sofia, Wagoner, or Fiannaca was aware of that Fact. Moreover, Fiannaca indicated her belief that she was supposed to invited clergy from religious organizations located in the Town.

unconstitutional, since the vast majority of invited clergy would still have been Christian. In that regard, the ACLU, writing on behalf of Plaintiffs, has already indicated that the Town should invite clergy from outside the Town to create an acceptable level of diversity. See, Footnote 39 above.

See, Pl. Memo in Opposition [#38] at 15 ("Four prayers [33%] in 2008 were offered by non-Christians, but all those occurred only because Defendants were facing litigation and not because their prayer practice had genuinely been opened to minority faiths."); see also, id. at 17 (Referring to addition of minority faiths to clergy lists as "token gestures," since "the Town continues to act with an impermissible religious motive."); id. at 19 ("[W]hile the Town may have now altered its practices, the changes do not alter the basic, discriminatory structure of the system.").

The Court has also considered the identities of the prayer-givers and the process that the Town employed in inviting clergy to deliver prayers, and finds that these factors did not have the purpose or effect of proselytizing or advancing any one, or disparaging any other, faith or belief, within the meaning of the Establishment Clause. As discussed above, houses of worship in the Town of Greece are overwhelmingly Christian. At their depositions, Plaintiffs could not identify a single non-Christian house of worship in the Town, despite having lived there for decades. Moreover, the sources that town used to identify and invite clergy to deliver prayers, consisting of the Community Guide and Greece Post, were almost exclusively made up of listings for Christian churches. Notably, there were no synagogues, mosques, or other non-Christian churches listed in either source, with the exception of the Bahai faith, and possibly the Church of Jesus Christ of Latter-Day Saints. And as the Court has already observed, there is no indication that Sofia, Wagoner, or Fiannaca intentionally excluded any non-Christian denomination. Moreover, a wide variety of Christian denominations were invited to deliver prayers, including Assemblies of God, Catholic, Presbyterian, Methodist, Lutheran, Pentecostal, and non-denominational. Additionally, town officials advised Plaintiffs that anyone, including an atheist, was welcome to offer an invocation. Furthermore, after Plaintiffs complained, representatives of the Jewish, Bahai, and Wicca faiths, volunteered to give invocations and were permitted to do so. The Town's willingness to rotate the prayer opportunity amongst various denominations, each with their own particular beliefs, belies any attempt to proselytize or advance any one, or to disparage any other, faith or belief.

See, Footnote 63.

Lastly, the Court has considered the nature of the prayers, and finds that they did not proselytize or advance any one, or disparage any other, faith or belief. It is undisputed that the vast majority of prayers at issue in this case were offered by Christian clergy, and that many of them contained at least one reference to Jesus Christ. On this point, as the Court noted earlier, many of the prayers end with the phrase, "in Jesus' name," or similar language. Otherwise, though, most of the prayers that Plaintiffs maintain are sectarian are indistinguishable from prayers that they say are non-sectarian. Some of the allegedly sectarian prayers contain no reference to Jesus or any other deity. None of the allegedly sectarian Christian prayers disparaged other religions or attempted to convert anyone.

Plaintiffs maintain that some of the prayers "have been aggressively proselytizing," but they neglect to include any citation to the record so it is unclear which prayers they mean. (Plaintiff's Reply Memo [#43] at 12). Nevertheless, the Court does not view any of the prayers in the record as being either aggressive or proselytizing. The mere fact that prayers may contain a reference to Jesus or another deity does not make them proselytizing. Instead, limited references such as, "in Jesus's name," are, under the facts of this case, "tolerable acknowledgment[s] of beliefs widely held among the people of this country." Marsh, 103 S.Ct. at 3336.

Perhaps Plaintiffs are referring to one occasion when an invited clergyman asked the audience to stand for the prayer. See, Pl. Memo in Opposition [#38] at 9; Pl. Appendix of Exhibits, Ex. 616 (Clergyman asks audience, who had been standing for the Pledge of Allegiance, to again stand for the prayer: "Please let us stand again once more. Let's stand please."). The Court does not consider such a request to be aggressive proselytization. And in any event, as shown above, Plaintiffs characterized two separate prayers as nonsectarian, even though one prayer asked the audience to bow its heads and the other asked the audience to stand.

Plaintiffs maintain, however, that sectarian legislative prayers necessarily violate the Establishment Clause. In that regard, Plaintiffs contend that prayers may only refer to a "generic God," and must not refer to any particular deity or to any religious belief, such as the Holy Trinity, that is specific to a particular religion or group of religions. Plaintiff's further maintain that to prevent sectarian prayer, the Town must instruct potential prayer-givers to give inclusive ecumenical prayers. The Court disagrees.

It is clear to this Court that Marsh does not require that legislative prayer be non-sectarian. To the contrary, Marsh upheld the constitutionality of legislative prayer, thereby specifically carving out a unique exception to the Lemon test, based primarily if not exclusively on the long history of legislative prayer in Congress, which is often overtly sectarian. See, Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d at 213-213 (Clement, J., dissenting) ("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."). On this point, the Court takes judicial notice of just two recent prayers given at the beginning of sessions of the United States House of Representatives. On April 15, 2010, the Rev. Clyde Mighells, of Lighthouse Reformed Church, gave the opening prayer in the House, which ended with the words, "It is in the blessed name of our Lord, Jesus Christ, that we lay these requests at Your feet. Amen." 156 CONG. REC. H2581 (daily ed. April 15, 2010). And on June 30, 2010, the Rev. Robert Henderson, of First Baptist Church, Lincoln, Illinois, offered the opening prayer in the House, which ended with the words, "These things we pray in the name of our Lord Jesus Christ. Amen." 156 CONG. REC. H5205 (daily ed. June 30, 2010). These prayers are indistinguishable from some of those being challenged in this case, and according to Marsh, "it would be incongruous to interpret [the

See, Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 Colum. L. Rev. 2083, 2104 (1996) ("The First Congress enacted legislation providing for chaplains for both the House of Representatives and the Senate. Congressional chaplains have led daily prayers in Congress since that time. And from America's earliest days to the present times, the prayers delivered by these chaplains have been true sacral prayers, and many of them, true Christian prayers. Indeed, within the last six years alone, over two hundred and fifty opening prayers delivered by congressional chaplains have included supplications to Jesus Christ.") (emphasis added).

Reverend Henderson and Reverend Mighells were both Guest Chaplains, who gave their invocations under the sponsorship of particular Members of the House. The official chaplain of the House of Representatives, the Rev. Daniel P. Coughlin, maintains a website for the Office of the Chaplain of the House, which states, in pertinent part: "One of the special privileges and great joys of being House Chaplain is to welcome guest chaplains who have been recommended by the Members of Congress. This is a wonderful opportunity to affirm pastoral leaders from many different backgrounds. This practice manifests the freedom of worship enjoyed across this nation." See, http://chaplain.house.gov/chaplaincy/guest_chaplains.html

Establishment Clause] as imposing more stringent First Amendment limits on the States than the draftsmen imposed on the Federal Government." Marsh, 103 S.Ct. at 3335.

The Supreme Court's decision in Allegheny does not compel a contrary ruling. As already mentioned, the majority decision in Allegheny stated that, "The legislative prayers involved in Marsh did not violate [the Establishment Clause] because the particular chaplain had removed all references to Christ." Allegheny, 109 S.Ct. at 3106 (citation and internal quotation marks omitted). That statement is binding on this Court. Nevertheless, the statement does not indicate that legislative prayers must be nonsectarian. The facts of Marsh were, of course, that a single clergyman of a single Christian denomination had been the chaplain of the Nebraska legislature for sixteen years. Under those facts, the Supreme Court may have found it significant, in denying the Establishment Clause challenge, that the chaplain had deleted all references to Christ, albeit belatedly, because otherwise it might have appeared that Nebraska was advancing a particular faith. In this case, though, the facts are entirely different, since the Town has rotated the prayer opportunity amongst numerous clergy of a variety of denominations. Where, as here, a legislature permits a variety of clergy to give invocations, there is arguably less likelihood that the government could be viewed as advancing a particular religion, and therefore less concern over the sectarian nature of particular prayers. In any event, under Marsh, the issue is not whether the prayer is sectarian or non-sectarian, but whether, based on the totality of the circumstances, the prayer is being exploited to advance or disparage a belief, or to associate the government with a particular religion.

The Court also disagrees with Plaintiffs' contention that the Town must, or even can, instruct potential prayer-givers that prayers should be "inclusive and ecumenical." In Lee, the Supreme Court characterized the defendant school's similar instruction to an invited rabbi as an impermissible attempt by government to control the content of prayer. Lee, 112 S.Ct. at 2656; see also, id. at 2658 ("A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed."). The Court finds that the policy requested by Plaintiffs would violate Lee, since it would likewise impose a state-created orthodoxy. In this regard, the Court respectfully disagrees with the Fourth Circuit's decision in Turner.

Plaintiffs indicate that Town officials should "ask invited clergy to keep the prayers ecumenical and inclusive or Christians and non-Christians alike," and that the officials could then "reasonably assume that clergy who accept an invitation to deliver a nonsectarian prayer will make a good-faith effort to comply with the terms of the invitation, and no pre-screening of the prayer would be needed." Pl. Memo in Opposition [#38] at 13. Plaintiffs thus indicate that the non-sectarian requirement is a condition or term of the invitation.

Moreover, the Court finds that Plaintiff's proposed non-sectarian policy, which would require Town officials to differentiate between sectarian prayers and non-sectarian prayers, is vague and unworkable, as Pelphrey demonstrates. The instant case illustrates the illusory nature of so-called nonsectarian prayer, since as shown above, many of the prayers that Plaintiffs say are sectarian are indistinguishable from prayers that they say are not.

Considering all of these factors, and in light of the undisputed facts of this case, the Court finds as a matter of law that the Town did not violate the Establishment Clause.

CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment [#33] is granted, Plaintiffs' motion for summary judgment [#32] is denied, and this action is dismissed.

SO ORDERED.