Doe v. Tangipahoa Parish Sch. Bd., No. 05-30294 (5th Cir. Dec. 15, 2006)
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has split three ways over a challenge to Louisiana’s Tangipahoa Parish School Board’s practice of opening its meetings with a prayer. The effect of the split opinions is that the court has ruled that the particular prayers considered in the court record violated the First Amendment’s Establishment Clause, but the lower court’s blanket prohibition of any invocations at all has been vacated. A taxpayer filed the suit in federal district court challenging the board’s practice. For the court’s consideration, the parties jointly submitted four prayers offered at board meetings, not stipulating whether they were representative. Each prayer was Christian "in tenor, if not in fact." Prior to the district court’s decision, the board considered but rejected a policy that would have permitted only school board members to begin "meetings with a brief non-sectarian, non-proselytizing invocation to solemnize the occasion." As a result, the board’s unwritten practice of selecting speakers to give prayers of their own choosing remained in effect. The district court held that the prayers in question fell outside the legislative prayer context that the U.S. Supreme Court had permitted in Marsh v. Chambers, 463 U.S. 783 (1983) and violated the Establishment Clause under Lemon v. Kurtzman, 403 U.S. 602 (1971). The court enjoined the board from opening its meetings with any prayer.
Appeals court Judge Rhesa Barksdale began his analysis by noting that the school board relied solely the legislative prayer exception carved out in Marsh, having conceded that otherwise its practice would not survive challenge under Lemon. He assumed without deciding that Marsh applied to the board’s practice because the parties had jointly stipulated that the board is a public deliberative body. Marsh has been sparingly applied, he noted, and the courts have continued to define the decision as a narrow exception for nonsectarian legislative invocations. He compared the Sixth Circuit’s ruling in Coles v. Cleveland Board of Education, 171 F.3d 369 (6th Cir. 1999) that school board prayers do not fit "within the scope of legislative and deliberative bodies to which Marsh should apply," to the Ninth Circuit’s holding in Bacus v. Palo Verde Unified School District Board of Education, 52 F. Appx. 355 (9th Cir. 2002), which assumed without deciding that the Marsh exception does apply to school boards as deliberative bodies. Assuming like the Ninth Circuit that the school board falls within the ambit of Marsh, Judge Barksdale concluded the Tangipahoa prayers failed to meet the additional constitutional requirement of not advancing "any one … faith or belief," because their decidedly Christian content "display[ed] ‘the government’s allegiance to a particular sect or creed.’" Even after the suit had been filed, he noted, the board "made no attempt to mitigate the effect the prayers had on those in attendance, or to make the prayers more inclusive of other religious beliefs." However, he declined to take a position on whether another form of prayer would be permissible at board meetings and held only that prayers of the type considered do not pass constitutional muster. As the result, his holding was narrower in scope than the lower court’s.
Judge Carl Stewart, concurring in part and dissenting in part, agreed with Judge Barksdale that the prayers considered were unconstitutional. However, he argued that Marsh has no application to school boards at all, because they are not legislative bodies as contemplated by the Supreme Court when it carved out its narrow exception based on historical precedent. Conceding that the school board is a deliberative body, he nonetheless pointed out that the board’s nature is not lawmaking, which was the narrow focus of the exception. "Beyond the fact that the school board is not a legislature," he added, "the application of Marsh should be limited by the special protections that the Court has mandated for any functions related to public education."
In contrast, Judge Edith Clement, who also concurred in part and dissented in part, said she would hold that Marsh, rather than Lemon, applies to the board as a deliberative body. In addition, she disagreed with Judge Barksdale’s conclusion that the four stipulated prayers violate Marsh, contending that Judge Barksdale had misread Marsh as allowing only nonsectarian prayer. Judge Clement rejected a content-based rule for determining whether prayers are constitutional. First, she argued that Marsh permits sectarian prayer when the prayer opportunity is not exploited for impermissible purposes. A content-based rule contradicts Marsh, she reasoned, because the Supreme Court in that case expressly avoided ruling on the content of the prayer. Second, she argued that Marsh focused instead on whether the prayer in question could be characterized as a "more aggressive form of advancement" of a particular religious faith that amounts to proselytizing. Applying Marsh to the facts in the Tangipahoa case, Judge Clement concluded that even if the prayers had been uniformly Christian, there was no evidence that the board was advancing Christianity to the exclusion of any other sect or belief. The board had asserted it had never excluded any faith or denomination from participating, and that the assertion had never been refuted.
Doe v. Tangipahoa Parish Sch. Bd., No. 05-30294 (5th Cir. Dec. 15, 2006)
[Full opinion]
[Editor’s Note: The Legal Clips summary of the district court decision is below. Another ongoing legal dispute over this issue in Delaware has generated several procedural rulings. Information on that case and discussion of school board invocations is posted at the second link.]
[NSBA School Law pages on Doe v. Tangipahoa Parish Sch. Bd.]
[NSBA School Law pages on Dobrich v. Walls]