Ninth Circuit Upholds Opening Prayers at City Council Meetings - Prayers May Be Sectarian But May Not Proselytize or Disparage Other Faiths

by Best Best & Krieger LLP

Overview: The Ninth Circuit recently upheld as constitutional a city council’s practice of opening its sessions with prayer. The court upheld the city’s policy concerning such prayers, which extended the invitation to lead the invocation to private citizens. The policy required the city to invite every religious congregation in the city to give an invocation at city council meetings. The city then scheduled responding persons on a random or first-come-first-serve basis. No person could appear at consecutive city council meetings or more than three meetings a year. While the city did not review any prayer’s content, it requested that no one proselytize or disparage other faiths. The court also found that referring to religious figures, such as Jesus, in their opening prayers was not per se unconstitutional. Please note, however, that the issue of whether city council meetings may be opened with prayer and, if so, the content of the prayer, remains a very unsettled area of law.

Practical Points: Any city contemplating adopting a policy concerning prayer at city council meetings should be aware that its policy may be subject to challenge and litigation. The plaintiffs in this Ninth Circuit case have stated that they will seek to have the full Ninth Circuit overturn this decision. This issue may even be ripe for Supreme Court review -- the Federal Circuit Courts around the country are split on whether sectarian references can be made. In addition, in 2002 a California Court of Appeal decision (Rubin v. City of Burbank) held, contrary to the Ninth Circuit decision, that a prayer at a city council meeting referring to Jesus was an unconstitutional sectarian prayer and that advising the invocators to refrain from such sectarian references was not unconstitutional censorship or viewpoint discrimination.

Summary Analysis: In Rubin v. City of Lancaster, the Ninth Circuit upheld the city’s policy concerning prayer at city council meetings because it was compatible with the 1983 U.S. Supreme Court decision in Marsh v. Chambers, which upheld prayer (even sectarian prayer) at meetings of legislative bodies under long-standing American history and tradition. The city’s policy did not favor one faith over another, did not entangle the city in the prayers’ content, did not affiliate the city with any particular faith, and required individuals not to proselytize or disparage other faiths. The fact that some people mentioned religious figures, such as Jesus, in their prayers did not render those prayers unconstitutional. Marsh v. Chambers recognized that mentioning such religious figures was part of the acceptable history and tradition of prayers in legislative bodies. Mentioning such religious figures did not in itself constitute proselytizing or disparaging other faiths. By contrast, the city’s barring the mention of such religious figures or sectarian references would improperly put the city in the position of co-authoring the prayers. Moreover, so long as the city’s policy remains neutral, it is irrelevant that most individuals offering prayers have been Christian, giving Christian prayers. That result was not caused by the city’s policy but by local demographics and the identity of the individuals who have responded to the city’s invitation to offer prayers.

Follow-up contact: If you have any questions about this decision or its effect on your organization, please contact Municipal Law attorneys Michael Mullins, Scott Smith or Matthew Schettenhelm, or your BB&K attorney.

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