Ninth Circuit Court Of Appeals Upholds City’s Invocation Policy For Council Meetings

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In Rubin v. City of Lancaster, the Ninth Circuit Court of Appeals upheld a lower court’s determination that the city council’s invocation policy and practice did not amount to an unconstitutional establishment of religion. Two attendees of a city council meeting alleged that the City’s practice of allowing prayers that mention Jesus and the City’s invocation policy constituted an establishment of religion.

For many years the City had informally begun its council meetings with a citizen led invocation. Prior to the lawsuit, the ACLU had challenged this practice.  In response to the ACLU, the City drafted an official invocation policy. The policy requires the city clerk to maintain a database of established religious congregations in the City and to invite all of the congregations to deliver an invocation. The policy elaborates that the purpose is to “acknowledge and express the city council’s respect for the diversity of religious denominations and faiths represented and practiced among the citizens of Lancaster.” The City gauged public support for the policy by submitting a nonbinding measure to municipal voters, and the voters approved the measure.

In upholding the lower court’s determination, the Ninth Circuit analyzed the City’s invocation policy and one specific invocation which referenced Jesus. The Court held that sectarian legislative invocations are not categorically banned, that the City’s policy was facially neutral, and that the record did not indicate that the City had taken steps to affiliate itself with Christianity. Additionally, the Court found that the City had codified neutrality enforcing safeguards, taken proactive measures to be inclusive, and stressed the policy’s nonsectarian aims. The Court explained that “so long as legislative prayer - whether sectarian or not – does not proselytize, advance, or disparage one religion or affiliate government with a particular faith, it withstands scrutiny.” In this case, the Court found no evidence to suggest that the invocations proselytized, advanced, or disparaged any faith.

* Caitlyn Sharrow, a second-year law student at Loyola University Chicago School of Law, is A Loyola Education Practicum Student. The Practicum, part of Loyola’s education law curriculum, was created to provide law students with practical experience at education law firms and organizations. Students receive academic credit for their Practicum experience.