May 21, 2012

Americans United for Separation of Church and State has asked a federal appeals court to find that the City of Lakeland, Fla., violated the U.S. Constitution when it opened meetings of its city commission with exclusively Christian prayers for 25 years.

In a friend-of-the-court brief in Atheists of Florida, Inc. v. City of Lakeland, Americans United urged the 11th U.S. Circuit Court of Appeals to reverse a district court decision that 25 years of Christian prayers delivered by Christian clergy did not violate the First Amendment because a wide range of Christian viewpoints were represented and none of the pastors delivering invocations attempted to convert anyone.

 “For decades, this prayer policy excluded all faiths other than Christianity from meetings,” said the Rev. Barry W. Lynn, executive director of Americans United. “That multiple Christian viewpoints were represented is irrelevant – exclusion is exclusion.”

Americans United argued that allowing exclusively Christian clergy to deliver predominantly Christian prayers resulted in less diversity – and promoted Christianity more directly – than the policy upheld by the 11th Circuit Court in Pelphrey v. Cobb County. That prayer practice was upheld because Cobb County, Ga., “allow[ed] volunteer leaders of different religions, on a rotating basis, to offer invocations with a variety of religious expressions.”

Going back to at least the 1980s, Lakeland had a list of clergy who could be selected to deliver invocations to open meetings. Until 1985 there was one rabbi on the list, but he retired that year and was not replaced on the approved list. Thus until 2010, when the city changed its policy to include multiple religious denominations, only Christian clergy opened meetings of the city commission. 

The sectarian bias was challenged in federal court by members of Atheists of Florida, a local group.

The U.S. district judge agreed to hear a challenge to both the old and new policies, noting that there was no guarantee that the city would not resume using the old policy. And yet, the court still found that even the original policy did not violate the separation of church and state, and also that the plaintiffs failed to establish that their claims stemmed from an official city policy, even though the pre-2010 policy reflected “a practice of the organization that had been handed down for generations,” according to a witness. 

Americans United noted that the U.S. Supreme Court has stressed that even the historical practice of legislative prayer must be conducted in a way that respects religious diversity.

In Marsh v. Chambers, the Supreme Court held that legislative bodies may open their meetings with prayers if “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” and if the practices “harmonize[d] with the tenets of some or all religions.”

Americans United also said that the district court erred when it essentially allowed the city to plead ignorance of the dominance of Christian prayers at meetings, because city officials who attended the meetings could not have reasonably been unaware that every meeting opened with a message from a Christian clergy member.

The brief, filed today, was authored by Americans United Senior Litigation Counsel Gregory M. Lipper, Legal Director Ayesha N. Khan and Madison Fellow Benjamin N. Hazelwood. (Hazelwood is admitted in New York only, and is supervised by Khan, a member of the D.C. Bar.)