The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 93-308
of :
: December 15, 1993
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE BERNIE RICHTER, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following question:
May a county board of supervisors open its sessions with an invocation?
CONCLUSION
A county board of supervisors may open its sessions with an invocation.
ANALYSIS
We are asked to examine the permissibility of the practice of a deliberative body of
a public entity (here a county board of supervisors) commencing its sessions with an invocation.
An invocation, for purposes of this analysis, is "a prayer of entreaty that is usually a call for the
divine presence and is offered at the beginning of a meeting. . . ." (Webster's Third New Internat.
Dict. (1961) p. 1190.) May a public deliberative body regularly permit such an invocation? We
conclude that it may.
In the absence of any contrary specifications, it will be assumed that the invocation
in question is not (1) required by law as a condition to the official proceedings, (2) part of the
deliberative agenda but rather incidental thereto, (3) offered by or supervised or approved as to
content by a public officer, (4) officially limited to a particular religion, (5) disparaging of others,
or (6) directed towards proselytizing.1
1
No opinion is expressed concerning the constitutional validity of a practice which lacks any of
the assumed characteristics of the invocation under consideration. The assumptions are based upon
the typical practices of public bodies which permit the opening of their sessions with an invocation.
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The First Amendment of the United States Constitution provides in relevant part:
"Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof; . . ."
This restriction against the exercise of federal power is applicable to state and local governments
as well, by virtue of the due process clause of the Fourteenth Amendment. (See Lee v. Weisman
(1992) 505 U.S. __ [120 L.Ed.2d 467, 480-481; 112 S.Ct. 2649].)
In Marsh v. Chambers (1983) 463 U.S. 782, the United States Supreme Court
sustained the constitutional validity of opening the sessions of legislative and other deliberative
public bodies with an invocation. The court stated in part:
"The opening of sessions of legislative and other deliberative public bodies
with prayer is deeply embedded in the history and tradition of this country. From
colonial times through the founding of the Republic and ever since, the practice of
legislative prayer has coexisted with the principles of disestablishment and religious
freedom." (Id., at 786.)
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"It can hardly be thought that in the same week, members of the First
Congress voted to appoint and to pay a chaplain for each house and also voted to
approve the draft of the First Amendment for submission to the states, they intended
the Establishment Clause of the Amendment to forbid what they had just declared
acceptable. In applying the First Amendment to the states through the Fourteenth
Amendment . . . it would be incongruous to interpret that clause as imposing more
stringent First Amendment limits on the states than the draftsman imposed on the
Federal Government." (Id., at 790-791.)
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"To invoke divine guidance on a public body entrusted with making the laws
is not, in these circumstances, an `establishment of religion' or a step toward
establishment; it is simply a tolerable acknowledgment of beliefs widely held among
the people of this country." (Id., at 792.)
The issues to be resolved herein are (1) whether, in the decade following the decision in Marsh, the
court has taken a different approach which might portend a modified result and (2) whether the
California Constitution would compel a different result in this state.
1. Subsequent Federal Considerations
In Allegheny County v. Greater Pittsburg ACLU (1989) 492 U.S. 573, the court held
unconstitutional a display of a Christian nativity scene on public property. Without limiting its
holding in Marsh, which the court explicitly noted was based upon the unique history and tradition
of legislative body invocations, the court employed its traditional analysis of religious establishment
clause cases as set forth in Lemon v. Kurtzman (1971) 403 U.S. 602. Under Lemon, to withstand
an establishment clause challenge, the government practice must be shown to (1) reflect a clearly
secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) avoid
excessive government entanglement with religion. (Allegheny County v. Greater Pittsburg ACLU,
supra, 492 U.S. at 592.)
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In Lee v. Weisman, supra, 120 L.Ed.2d 467, the court invalidated a public school
initiated and sponsored graduation invocation. The court, after declining to reconsider the Lemon
criteria in general, discussed and distinguished, but in no manner disapproved, its opinion in Marsh.2
The court stated:
"Inherent differences between the public school system and a session of a
State legislature distinguish this case from Marsh v. Chambers . . . . 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 487.)
To this date, then, the United States Supreme Court has neither retreated from its
three-part Lemon analysis of religious establishment clause cases in general nor deviated from the
unique approach taken in the legislative body invocation cases which has been based upon
considerations of history and tradition.
2. California Constitutional Considerations
In Sands v. Morongo Unified School District (1991) 53 Cal.3d 863, the California
Supreme Court examined the constitutional ramifications respecting invocations at high school
graduation ceremonies.3 Justices Kennard, Mosk, and Broussard concluded that a school graduation
invocation violated the First and Fourteenth Amendments of the United States Constitution under
the Lemon test. (Id., at 883-884.) Chief Justice Lucas concurred "reluctantly" under the supremacy
clause (id., at 884), but "would, if free to do so, uphold the challenged practice of the school district"
(id., at 901). Justice Arabian concurred ". . . reluctantly, with the hope and expectation that the high
court will soon endorse another view." (Id., at 918.) In dissent, Justice Panelli would have upheld
the invocation under both Marsh (id., at 923, 925) and Lemon (id., at 925, 939). Justice Baxter,
dissenting, stated that he "would not hold that prayer is in all circumstances constitutionally
impermissible in a public high school graduation ceremony" under Lemon. (Id., at 944.) With
respect to the California Constitution, Chief Justice Lucas summarized as follows:
"As a result of the various opinions filed in this case, three justices have
concluded that the practice violates our state Constitution, two have concluded it
does not, and two (myself included) have declined to reach any state constitutional
issues. Therefore, our judgment does not rest on the state Constitution; any
resolution of the state issues will necessarily await another day." (Id., at 902.)
In view of the foregoing judicial treatment of school graduation invocations in Sands,
it remains to be determined how the California Supreme Court would now address the issue of
legislative body invocations under the provisions of the California Constitution.
2
The four dissenting justices, citing Justice Holmes' aphorism that "a page of history is worth a
volume of logic" (New York Trust Co. v. Eisner (1921) 256 U.S. 345, 349), would have applied the
Marsh approach to school graduation as well as to legislative body invocations.
3
The Sands decision predated the United States Supreme Court's five-to-four decision in Lee v.
Weisman.
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Article I, section 4 of the California Constitution provides in part:
"Free exercise and enjoyment of religion without discrimination or preference
are guaranteed. . . . The Legislature shall make no law respecting an establishment
of religion."
Article XVI, section 5 in turn provides:
"Neither the Legislature, nor any county, city and county, township, school
district, or other municipal corporation, shall ever make an appropriation, or pay
from any public fund whatever, or grant anything to or in aid of any religious sect,
church, creed, or sectarian purpose, . . ."4
Extrapolating from the concurring and dissenting opinions in Sands, we believe that
if the issue were presented to the court today, a majority would hold that legislative body
invocations are not prohibited by the California Constitution. In his dissent in Sands, Justice Panelli
referred extensively to the history and tradition of ceremonial prayer in California (53 Cal.3d at 931-
933),5 concluding that such an historical perspective provides no support for the "separationist
interpretation" under the state provisions (id., at 934-936). Both of the dissenting justices were of
the view that neither of the provisions unique to the California Constitution, i.e., the "preference or
discrimination" clause and the prohibition against grants in aid for religious purposes, precluded a
properly conducted invocation. (Id., at 933-939, 945-947.) With regard to the two state provisions,
Justice Panelli explained in part:
"In summary, I cannot find in the `preference or discrimination' clause an
intent to erect the absolute `wall of separation' that would justify a decision to ban
religious invocations at high school graduation ceremonies. Instead, the clause
appears to add only the requirement that the state not prefer, or discriminate against,
a particular sect. [Citation.] This requirement can be met by having the invocation
delivered, on a rotating basis, by speakers representing various points of view. But
the practical impossibility of accommodating all points of view on each occasion
does not amount to discrimination. As we held in Fox v. City of Los Angeles (1978)
22 Cal.3d 792, 797, `[i]n the California Constitution there is no requirement that each
religion always be represented.'" (Id., at 935.)
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"Even under the [California Educational Facilities Authority v. Priest (1974)
12 Cal.3d 593] standard, however, I would hold that religious invocations at high
4
Article IX, section 8, prohibits the appropriation of public money for the support of any sectarian
school, or the teaching of any sectarian doctrine in the public schools. This provision would not
pertain to the legislative body invocation in question as it might to a school graduation invocation.
5
Justice Panelli observed:
"Since 1849 the state Constitution has begun with a religious invocation:
`We, the People of the State of California, grateful to Almighty God for our freedom,
in order to secure and perpetuate its blessings, do establish this Constitution.' (Cal.
Const. of 1849, preamble.) This language, as well as the history of how it came to
be included, eloquently refute the argument that the framers of the state Constitution
intended to prohibit ceremonial prayer." (Id., at 931.)
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school graduation ceremonies do not violate article XVI, section 5. In Priest we held
that this provision did not prohibit the state from making low-interest, government
construction bonds available to private, sectarian colleges. [Citation.] We relied in
part on our earlier decision upholding tax exemptions for parochial schools.
[Citations.] If the material financial assistance to religious schools approved in these
cases is not a `direct, immediate, and substantial' benefit [citation], then neither is a
costless, brief, traditional invocation at a high school graduation ceremony." (Id., at
938.)
With respect to the two California provisions, Justice Baxter expressed in dissent:
"Article I, section 4 of the California Constitution affords essentially the same
guaranty of religious freedom and state neutrality as does the First Amendment,
adding an express guaranty against discrimination or preference. [Citation.] Except
as noted above, where a preference may be implied by the delivery of invocations by
members of the same sect over an extended period, and an endorsement may be
implied if the speaker solicits audience participation in religious prayer, the past
practices of the Morongo Unified School District in permitting religious invocations
at high school graduation ceremonies are not shown by this record to have denied
any rights guaranteed by article I, section 4." (Id., at 945.)
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"Because there is no expenditure of funds beyond the de minimis amount of
overhead expense that may be attributable to the seconds during which a speaker
may recite a prayer, and that recitation need not be viewed in all cases as reflecting
state endorsement or support of the religious views of the speaker, I conclude that
the California Constitution does not ban the inclusion in a graduation ceremony of
all invocations in which the speaker may offer a prayer or statement of religious
nature.
"Like the free exercise and establishment clauses of the First Amendment,
therefore, the California Constitution does not prohibit all reference to religion in
academic events. Again, it is sponsorship or endorsement, express or implied, of
religion or a particular religion that is the evil sought to be avoided. . . ." (Id., at
947.)
As previously noted, neither of the justices who concurred "reluctantly" with the
Sands majority's interpretation of the First and Fourteenth Amendments of the federal Constitution
reached the California constitutional issues. (Id., at 884, 918.) Nevertheless, neither justice left any
doubt as to his views concerning the probative significance of history and tradition upon an
appropriate interpretation of California's charter document. Thus, Chief Justice Lucas stated:
"History plays two important roles in constitutional analysis. Initially, it aids
in the search for core values and principles underlying the text of the Constitution
that may reveal with greater specificity than the text itself the evils sought to be
prevented and the benefits sought to be obtained by constitutional provisions. . . .
"History also provides a means to assess whether particular government
practices have enhanced or inhibited basic constitutional values and principles over
time. Although long-standing tradition alone does not constitutionally validate a
policy or practice, it may be a factor of great importance in a pragmatic evaluation
of its character and effect. . . ." (Id., at 886.)
5. 93-308
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"The public acknowledgement of a Supreme Being is a consistent element of
American culture, specifically endorsed by the framers and upheld in the traditions
of both state and national governments since the founding of the republic. . . .
"Since the First Congress, national government encouragement of public
prayers, and other generalized references to a Supreme Being, has continued. . . .
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"All three branches of our national government and state governments
continue to make ceremonial references to a Supreme Being. . . ." (Id., at 890-891.)
Justice Arabian similarly viewed the issues from an historical perspective:
"Historically, religion and prayer have always played a role in our most
cherished public ceremonies. . . . Modern times have not diminished the impulse or
voice, on our most solemn public occasions, to invoke the divinity for blessing and
guidance.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"If history then offers no binding precedent, it does provide perspective.
Public prayer is an American tradition. It has occupied . . . a long and honorable
place in our public lives. . . .
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"Our national experience teaches that the mutual independence of church and
state is the most conducive system to religious freedom and social and political
tranquility. Public prayer does not threaten that harmony or the liberty of conscience
which underlies it. On the contrary, it is through such occasions that we reinforce
and celebrate the rich diversity that has made us a great and noble people." (Id., at
917-918.)
Hence, we believe that a majority of the California Supreme Court today would uphold legislative
body invocations, regardless of any holding on school graduation invocations, under both state and
federal Constitutions.
In light of United States Supreme Court and California Supreme Court decisions
relevant to the question presented, we conclude that a county board of supervisors may open its
sessions with an invocation.
*****
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