Doe v. Tangipahoa Parish School Bd.

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT December 15, 2006

Charles R. Fulbruge III

Clerk

No. 05-30294

JOHN DOE, Individually and as next friend of his minor children

James Doe and Jack Doe,

Plaintiff-Appellee,

versus

TANGIPAHOA PARISH SCHOOL BOARD; JIMMIE RICHARDSON, Reverend,

School Board Member, District A; ROBERT POTTS, School Board

Member, District B; LEONARD GENCO, School Board Member, District

C; AL LINK, School Board Member, District D; DON WILLIAMS, School

Board Member, District E; ROBERT CAVES, School Board Member,

District F; MAXINE DIXON, School Board Member, District G; SANDRA

BAILEY-SIMMONS, School Board Member, District H; CARL BARDWELL,

School Board Member, District I; LOUIS JOSEPH, Superintendent,

Tangipahoa Parish School System

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

(2:03-CV-2870)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This appeal presents an Establishment Clause issue of first

impression in our circuit. The Tangipahoa Parish School Board, its

Board members, and the Tangipahoa Parish School System’s

superintendent (collectively, the Board) challenge a permanent

injunction against the Board’s opening its meetings with prayer.

Consistent with the long-standing rule of deciding a constitutional

issue on its most narrow basis, the injunctive relief must be

narrowed greatly. This disposition is reached through differing

opinions by each panel member.

The Board’s having conceded the prayers are unconstitutional

under the test employed in Lemon v. Kurtzman, 403 U.S. 602, 613

(1971), this opinion assumes, without deciding, that Marsh v.

Chambers’ legislative/deliberative-body exception applies. 463

U.S. 783 (1983). Under Marsh, the four prayers at issue are

unconstitutional; the balance of the injunction is vacated.

Applying a Lemon, rather than Marsh, analysis, Judge Stewart

concurs in these four prayers being unconstitutional, but would

affirm the injunction. Judge Clement would vacate the injunction,

opining the prayers at issue fit within Marsh’s ambit of

protection.

As a result, the portion of the injunction relating to the

four prayers in the parties’ joint stipulations is AFFIRMED; the

remainder of the injunction is VACATED. This matter is REMANDED to

the district court for entry of an injunction consistent with this

opinion. AFFIRMED in PART; VACATED in PART; and REMANDED.

I.

In October 2003, John Doe, a resident and taxpayer of

Loranger, Tangipahoa Parish, Louisiana, filed this action against

the Board, including on behalf of his two minor sons. The Board is

a “[p]olitical subdivision” of the State, LA. CONST. art. 6, §

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44(2), and a statutorily defined “[p]ublic body”, LA. REV. STAT. ANN.

§ 42:4.2.

Doe challenged several prayer events permitted by the School

System: pre-game prayers over the public-address system at

athletic events; prayers including student athletes prior to, and

after completion of, such events; prayers by students to the

student body over the public-address system; and the Board’s

opening its meetings with a prayer (prayer practice). All but the

challenge to the Board’s prayer practice were resolved by a consent

judgment in August 2004. It enjoined those other prayer events,

except for prayers given by students at graduation ceremonies to

the extent permitted by Jones v. Clear Creek Independent School

District, 977 F.2d 963, 972 (5th Cir. 1992) (permitting student-

initiated prayers at graduation ceremonies so long as they do not

have a coercive effect), cert. denied, 508 U.S. 967 (1993).

Regarding the Board’s prayer practice, the parties in

September 2004 entered into the following joint stipulations, the

sole evidence presented in district court. The Board is a

deliberative body that acts in the public interest. It is

responsible for operating and governing the School System’s 35

schools, including the high school attended by Doe’s two sons. The

Board meets twice each month in the School System’s central office.

The Board’s president normally presides; the vice-president

presides in his absence. The meetings are open to the public, and

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students may attend. (Although it is possible under Louisiana law

for a student to be a Board member, LA. REV. STAT. ANN. §

17:52(E)(1), the stipulations are silent as to whether there is a

student member on the Board.)

Each meeting begins with a prayer, followed by a recitation of

the Pledge of Allegiance. This prayer practice has been followed

since at least 1973; prayers have been offered by Board members,

the Board president, the School System’s assistant superintendent,

School System teachers and students, and ministers. An individual

may present a prayer only after being selected by a Board member.

In a sampling of prayers delivered between January 2002 and August

2004, ten were by Board members, nine by students or former

students, four by principals or assistant principals, three each by

teachers and the assistant superintendent, and one each by the

Board president and a minister.

The stipulations contained four of the prayers given; each

contained a reference to “Jesus Christ” or “God” and “Lord”. The

School System’s assistant superintendent presented the following

prayer on 18 February 2003:

Heavenly Father, we thank you for the many

blessings we’ve received. We thank you for

our health. We thank you for our strength.

We thank you for our peace of mind. We thank

you for allowing us to assemble here tonight,

and we ask that you give this Board and our

Superintendent all the wisdom and the

knowledge, and the understanding they need to

make the correct decisions for our students

and for our parents.

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Also Lord, we ask that you throw your strong

arm of protection around our President and

around his Cabinet Members, to help him make

the right decisions that will affect thousands

of U.S. soldiers, airmen, and marines, at this

time. We ask that you give him the same

wisdom that you gave Solomon in making

decisions that’s [sic] best for our country.

Also, we thank you for the greatest gift of

all — your darling son, Jesus Christ. For we

all know that He was born, died, and rose

again, so that we all may be forgiven for our

sins. And Lord, as we leave this meeting

tonight, we ask that you guide us safely to

our various abodes. These things we ask in

your darling son, Jesus Christ’s[,] name.

Amen.

A Board member’s son presented the following prayer on 23 September

2003:

Almighty God, we make our earnest prayer that

Thou wilt keep the United States in thy holy

protection, that Thou wilt incline in the

hearts of the citizens to cultivate a spirit

of subordination and obedience to government,

and entertain a brotherly affection and love

for one another and for their fellow citizens

of the United States at large.

And finally that Thou wilt most graciously be

pleased to dispose us all to do justice, to

love mercy, and to demean ourselves with that

charity, humility, and pacific temper of mind

which were the characteristics of the Devine

[sic] Author of our blessed religion, and

without an [sic] humble imitation of whose

example in these things, we can never hope to

be a happy nation.

Grant our supplications, we beseech Thee,

through Jesus Christ our Lord. Amen.

A School System elementary-school principal presented the following

prayer on 18 May 2004:

Heavenly Father, we thank you for all the

blessings that you have given us. Let us not

take for granted that each breath that we take

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is a blessing from you, and even though we

don’t understand the hardships that are put

before us at different times in our lives, let

us always remember that the experiences that

we go through have a purpose and even though

we don’t understand the purpose, it is your

desire that we have each and every experience

on this earth, for without you we have

nothing.

Watch over our soldiers that are overseas.

Please keep them safe. Please soften the

hearts of our adversaries and help them see

that we are trying to do what we believe is

good and right and to bring freedom to people

that have been oppressed.

Please guide all the people in this room that

are in charge of setting the education of our

children and setting the future of our

children. Let all of us keep in mind that we

have one focus and that is what is best for

our children. Let us keep them at the front

of all our decision-making processes. Let us

do everything to bring glory and honor to your

name, and we ask all of these things through

Your Son, Jesus Christ. Amen.

In the final prayer included in the stipulations, a Board member

presented the following on 15 June 2004:

Father, we thank You for Your many blessings.

Father, we are grateful for the opportunity to

live in this country, the greatest country on

this planet. God, we have the freedom to

choose, to live our lives as we please. We

have the opportunity to pursue any goals we so

desire.

Lord, this big Board — group of people meeting

here tonight has an awesome responsibility to

see that each and every child in the parish

has the opportunity, and the chance to prepare

themselves to the fullest to live their adult

lives. God, we just pray that we in this

parish will have the guidance and the wisdom

to make it happen. In your name we pray.

Amen.

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It was not stipulated that the above four prayers were

representative, or typical, of those offered at Board meetings.

Each prayer in the stipulations is Christian in tenor, if not in

fact.

On 3 August 2004, approximately ten months after this action

was filed and only approximately one month before the consent

judgment and joint stipulations, the Board considered — but

unanimously rejected — a written policy that would have permitted

only Board members to begin “meetings with a brief non-sectarian,

non-proselytizing invocation to solemnize the occasion”.

Accordingly, the Board’s unwritten practice of selecting speakers

who give prayers of their own unrestricted choosing remained in

effect.

This action seeks injunctive and declaratory relief. The

district court held the prayers: fall outside the legislative-

prayer context permitted by Marsh v. Chambers, 463 U.S. 783 (1983);

and otherwise violate the Establishment Clause pursuant to the

traditional analysis under Lemon v. Kurtzman, 403 U.S. 602 (1971).

The court permanently enjoined the Board from opening its meetings

with any prayer: “the [Board’s] practice of opening each ...

meeting with a religious invocation violates [Doe’s] rights under

the Establishment Clause of the First Amendment”. Doe v.

Tangipahoa Parish Sch. Bd., No. 03-2870, slip op. at 25 (E.D. La.

24 Feb. 2005).

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II.

Neither in district court, nor on appeal, has the Board

challenged Doe’s standing to bring this action. Nor did the

district court address it. Because standing is jurisdictional,

however, we must address it sua sponte before considering this

Establishment Clause issue of first impression in our circuit. Doe

v. Sch. Bd. of Ouachita Parish, 274 F.3d 289, 292 (5th Cir. 2001);

see Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 547

(1986) (“This question the court is bound to ask and answer for

itself, even when not otherwise suggested, and without respect to

the relation of the parties to it.”) (quoting Mansfield, C. & L. M.

Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)).

A.

Neither of the separate opinions contests the following

standing analysis. This inquiry has two components. First

addressed are constitutional limitations, derived from the

Constitution’s case-and-controversy requirement in Article III;

second, judicially-created prudential limitations are examined.

McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003).

To establish Article III standing, Doe “must show that the

conduct of which he complains has caused him to suffer an ‘injury

in fact’ that a favorable judgment will redress”. Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting Lujan

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v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “[T]he

concept of injury for standing purposes is particularly elusive in

Establishment Clause cases”. Littlefield v. Forney Indep. Sch.

Dist., 268 F.3d 275, 294 n.31 (5th Cir. 2001) (alteration in

original) (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th

Cir. 1991), cert. denied, 505 U.S. 1219 (1992)). Our “rules of

standing recognize that noneconomic or intangible injury may

suffice to make an Establishment Clause claim justiciable”. Id.

(quoting Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir.

1997)). For example, direct exposure to a mandatory school-uniform

policy satisfied the “intangible injury” requirement for

Establishment Clause standing. Id. Parents and students

challenged this policy, claiming, inter alia, its opt-out

procedures “favor[ed] certain established religions at the expense

of other religions and thus violate[d] the Establishment Clause”.

Id. at 282.

In the context of the Establishment Clause, “we attach

considerable weight to ... standing ... not [having] been an issue

in the Supreme Court in similar cases”. Murray, 947 F.2d at 151.

For example, standing existed for a claimed Establishment Clause

violation that had impaired “use or enjoyment of a public

facility”. Sch. Bd. of Ouachita Parish, 274 F.3d at 292.

Standing is bolstered when, as here, the plaintiffs are public

school students and their parents, “who enjoy a cluster of rights

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vis-a-vis their schools” and thus transcend the realm of mere

bystanders. Id. A parent may be permitted to bring an action as

the next friend of his or her children; however, for an action for

themselves as well, parents must “assert an injurious deprivation

of their own legal rights or interests”. Ward v. Santa Fe Indep.

Sch. Dist., 393 F.3d 599, 606 (5th Cir. 2004).

Doe appears to assert two standing bases: (1) as a parent of

two students in the School System, he (as well as his two sons) has

attended, and been offended by, Board meetings; and (2) as a

resident and taxpayer of Tangipahoa Parish, where the school

district is located. (Because we hold Doe has standing under the

first basis, we need not address taxpayer standing.)

In his original 14 October 2003 complaint, Doe stated: he was

“a domiciliary and resident” and “a taxpayer and registered voter”

of Tangipahoa Parish, and also the father of two school-system

students; and he and his sons found “objectionable the non-secular

manner in which the Board’s meetings are conducted.... By

commencing the meetings with a prayer, the Board is conveying its

endorsement of religion”. He noted explicit references to God and

Jesus Christ at Board meetings. In seeking injunctive relief, Doe

explained his family “ha[d] suffered, and will continue to suffer,

immediate and irreparable harm in the event that [the Board is]

allowed to continue permitting, authorizing, encouraging, and

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acquiescing in the delivery of ... religious invocations at the

start of each board meeting”.

As permitted by Federal Rule of Civil Procedure 15(a), Doe’s

26 November 2003 amended complaint was filed before the Board

answered. The amendment added: “Plaintiffs, John Doe, James Doe,

and Jack Doe, have been in attendance at school board meetings

which were opened with a prayer”.

In its 26 January 2004 answer, the Board admitted its meetings

were open to the public; it denied, but only for a lack of

information, Doe’s allegations regarding attendance and

involvement. No mention was made whether Doe had standing to bring

this action.

Instead, the parties on 30 August 2004 entered into the

earlier-discussed consent judgment, which resolved all claims in

Doe’s complaint except his challenge to the Board’s prayer

practice. Four days later, on 3 September 2004, the parties

entered into the stipulations discussed supra. These stipulations

did not address the standing issue directly, noting only that Doe

was “a person of full age of majority and a resident and

domiciliary of ... [Tangipahoa] Parish ... wherein he is a

registered voter and taxpayer” and parent of two students within

the School System. The remainder of the stipulations do not

address Doe personally.

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The Board’s failure to challenge Doe’s assertions that he

attended Board meetings and was offended by their content was never

challenged, beyond the lack-of-information denial in its answer,

filed more than eight months before the consent judgment. As this

action progressed, the Board had many opportunities — including

during the bench trial — to contest Doe’s standing; the Board’s

failure to challenge either Doe’s attendance at Board meetings or

his assertion that he was offended is the equivalent of an implied

admission.

Although we have not located any precedent for this implied-

admission concept regarding standing, we find it sufficiently

analogous to the approach taken by Federal Rule of Civil Procedure

15(b). That rule states, in part: “When issues not raised by the

pleadings are tried by express or implied consent of the parties,

they shall be treated in all respects as if they had been raised in

the pleadings”. Similarly, the Board’s decision to proceed on the

merits of Doe’s claim, without challenging either that he attended

Board meetings or was offended by them, permits an inference that

the Board conceded these allegations in Doe’s complaint. Further,

the Board’s entering into the consent judgment and stipulations

with Doe permits the inference that, had the Board disagreed with

Doe’s allegations that he attended Board meetings and was offended

by its prayer practice, it would not have entered into the consent

judgment and stipulations. We may make such inferences from the

12

record. Cf. Ladue v. Chevron, U.S.A., Inc., 920 F.2d 272, 277 (5th

Cir. 1991) (inferring from the record the cause of injury in a

products liability action). Nor do we have any reason to believe

the interests of Doe, in his role as next friend, conflict with

those of his sons. In contrast, such a conflict arose in Newdow

with evidence that the interests of a non-custodial father

conflicted with those of his child. 542 U.S. at 15.

Based on the unchallenged allegations in the complaint, Doe

has shown an injury; he and his sons have attended Board meetings

and have been offended by the Board’s prayer practice, which they

“find wholly objectionable”. This suffices for a noneconomic,

intangible injury under our Establishment Clause jurisprudence.

Littlefield, 268 F.3d at 294 n.31.

Doe’s injury, caused by that practice, would be redressed by

an injunction against it. Nothing has been offered to suggest that

the Board did not comply with the one imposed by the district

court, so Doe’s injury appears sufficiently redressed by it.

Accordingly, three prudential factors are considered: (1)

whether Doe’s complaint fits “within the zone of interests

protected by the ... constitutional provision at issue”; (2)

“whether [his] complaint raises [more than] abstract questions

amounting to generalized grievances which are more appropriately

resolved by the legislative branches”; and (3) “whether [Doe] is

asserting his ... own legal rights and interests”, as opposed to

13

those of third parties. Murray, 947 F.2d at 151 (quoting Cramer v.

Skinner, 931 F.2d 1020, 1024 (5th Cir. 1991)). None of the

prudential limitations bars Doe’s standing: his assertion that the

prayer practice of the Board, a political subdivision of the state,

impermissibly “inject[s] religion” into Board meetings, fits within

the zone of Establishment Clause claims; he raises not abstract,

generalized grievances, but his own experiences at Board meetings;

and, finally, he asserts both his own injury, as well as those of

his sons as next friend. Id.

B.

Applied to the States through the Fourteenth Amendment,

Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8 (1947), the

First Amendment’s Establishment Clause states: “Congress shall

make no law respecting an establishment of religion”. U.S. CONST.

amend. I. This has become synonymous with the proposition that

neither the federal nor a state government, nor their entities, may

“promote or affiliate ... with any religious doctrine or

organization, may not discriminate among persons on the basis of

their religious beliefs and practices, ... and may not involve

itself too deeply in such an institution’s affairs”. County of

Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter,

492 U.S. 573, 590-91 (1989) (internal footnotes omitted). The

Amendment “guarantee[s] religious liberty and equality to ‘the

infidel, the atheist, or the adherent of a non-Christian faith such

14

as Islam or Judaism’”. Id. at 590 (quoting Wallace v. Jaffree, 472

U.S. 38, 52 (1985)). “The touchstone for our [Establishment

Clause] analysis is the principle that the ‘First Amendment

mandates governmental neutrality between religion and religion, and

between religion and nonreligion.’” McCreary County v. Am. Civil

Liberties Union of Ky., 125 S. Ct. 2722, 2733 (2005) (quoting

Epperson v. Arkansas, 393 U.S. 97, 104 (1968)).

The permanent injunction at issue is reviewed for abuse of

discretion; such an abuse occurs if, inter alia, the district court

relies on erroneous conclusions of law. McClure, 335 F.3d at 408.

Of course, its constitutional-law conclusions are reviewed de novo.

Qutb v. Strauss, 11 F.3d 488, 491 (5th Cir. 1993), cert. denied,

511 U.S. 1127 (1994). An Establishment Clause challenge may be

evaluated using one of several judicially-created tests. As it did

in district court, the Board relies solely upon the legislative-

prayer exception enunciated in Marsh.

The Establishment Clause issue at hand being one of first

impression for our circuit, little mention has been made of Marsh.

One of our few opinions to discuss it explained the prayers in

Marsh showed “absolutely no evidence of an intent to proselytize,

or advance, any religion, and no threat of an establishment of

religion”. Murray, 947 F.2d at 155 (holding, inter alia, a

Christian cross contained in a city’s insignia did not violate the

15

Establishment Clause). Accordingly, we look not only to Supreme

Court precedent, but also to that from other circuits.

After holding Marsh did not apply to the Board’s prayer

practice, the district court, as urged by Doe, held it violated

each prong of the Supreme Court’s traditional Establishment Clause

analysis first outlined in Lemon v. Kurtzman, 403 U.S. 602, 612-13

(1971) (requiring a challenged practice to: (1) “have a secular

legislative purpose”; (2) have a “principal or primary effect ...

that neither advances nor inhibits religion”; and (3) “not foster

an excessive government entanglement with religion”) (internal

citations and quotation marks omitted).

As noted, the Board defends its prayer practice solely under

Marsh, however. It concedes that practice would not survive the

Lemon test. For this reason, and because this opinion assumes the

Board, as a stipulated public deliberative body, falls under Marsh,

this opinion looks to its legislative-prayer exception in

determining whether the Board’s prayer practice violates the

Establishment Clause. See, e.g., Bacus v. Palo Verde Unified Sch.

Dist. Bd. of Educ., 52 F. App’x 355, 356 (9th Cir. 2002) (applying

Marsh to a school board as a deliberative body); Simpson v.

Chesterfield County Bd. of Supervisors, 404 F.3d 276, 278 (4th

Cir.) (applying Marsh to a county board of supervisors as a

deliberative body), cert. denied, 126 S.Ct. 426 (2005); Snyder v.

Murray City Corp., 159 F.3d 1227 (10th Cir. 1998) (en banc)

16

(applying Marsh to a city council), cert. denied, 526 U.S. 1039

(1999). Unlike the district court’s analysis and Judge Stewart’s

opinion, assuming Marsh applies avoids being placed “between the

proverbial rock and a hard place”, Coles v. Cleveland Bd. of Educ.,

171 F.3d 369, 371 (6th Cir. 1999) — the Court’s legislative-prayer

analysis and its Establishment Clause jurisprudence in the public-

schools context.

1.

“We are a religious people whose institutions presuppose a

Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). In

that regard, “[t]here is an unbroken history of official

acknowledgment by all three branches of government of the role of

religion in American life from at least 1789”. Lynch v. Donnelly,

465 U.S. 668, 674 (1984). This role is reflected in Marsh, which

addressed the narrow question of whether the Nebraska state

legislature’s practice of opening each legislative session with a

prayer by a paid chaplain violated the Establishment Clause. 463

U.S. at 784. Relying in large part on the “unique history” of

prayer at legislative sessions and historical evidence of the

intent of the Establishment Clause drafters, the Court held this

practice constitutionally permissible. Id. at 790-91.

In [the] light of the unambiguous and unbroken

history of more than 200 years, there can be

no doubt that the practice of opening

legislative sessions with prayer has become

part of the fabric of our society. To invoke

17

Divine guidance on a public body entrusted

with making the laws ... is simply a tolerable

acknowledgment of beliefs widely held among

the people of this country.

Id. at 792 (emphasis added). Likewise, earlier in its opinion, the

Court stated: “The opening of sessions of legislative and other

deliberative public bodies with prayer is deeply embedded in the

history and tradition of this country”. Id. at 786 (emphasis

added).1

The challenged prayers in Marsh contained no references to

Jesus Christ; although the chaplain had made Christian references

in the past, they had been removed at the request of a non-

Christian legislator. Id. at 793 n.14. The Court emphasized:

“The content of the prayer is not of concern to judges where, as

here, 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.” Id. at 794-95. Likewise, consistent with

our holding in Jones, 977 F.2d at 972, the consent judgment between

Doe and the Board provides that student-led prayers may be

1

Although Judge Stewart opines that Marsh applies only to

legislative bodies, Marsh contemplated deliberative public bodies

more generally. In any event, as stated, this opinion only assumes

that Marsh applies. To decide, as Judge Stewart does, whether it

applies is not necessary and, as discussed infra, is violative of

the well-settled rule that constitutional questions, especially

those involving the Establishment Clause, should be decided on the

most narrow basis possible. Accordingly, this opinion does not

respond to Judge Stewart’s reasons for claiming Marsh does not

apply to the Board’s prayer practice.

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permitted during graduation ceremonies, so long as they do not have

a coercive effect.

References to God in a motto or pledge, for example, have

withstood constitutional scrutiny; they constitute permissible

“ceremonial deism” and do not give an impression of government

approval. County of Allegheny, 492 U.S. at 595 n.46, 603; see

Lynch, 465 U.S. at 716 (Brennan, J., dissenting) (suggesting

phrases such as “In God We Trust” are best explained as “ceremonial

deism”, or practices “protected from Establishment Clause scrutiny

chiefly because they have lost through rote repetition any

significant religious content”); N.C. Civil Liberties Union Legal

Found. v. Constangy, 947 F.2d 1145, 1151 (4th Cir. 1991)

(explaining that use of these oft-repeated phrases “merely

reflect[s] this fact of our history and no longer ha[s] any

potentially entangling theological significance”) (quoting Hall v.

Bradshaw, 630 F.2d 1018, 1023 (4th Cir. 1980), cert. denied, 450

U.S. 965 (1981)), cert. denied, 505 U.S. 1219 (1992). Our circuit

has similarly examined legislative prayers alongside other

“government use[s] of religious acknowledgment” such as “In God We

Trust” on our currency and opening our sessions with “God save the

United States and this honorable court”. Murray, 947 F.2d at 154-

55.

Since Marsh, the legislative-prayer exception has been

sparsely applied; the Court has not held it controlling for an

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Establishment Clause challenge. Instead, the Court has continued

to define Marsh as a narrow exception for nonsectarian legislative

invocations. In County of Allegheny, applying the Lemon test to a

challenged holiday display in local government buildings, the Court

discussed its earlier opinion in Marsh: “However history may

affect the constitutionality of nonsectarian references to religion

by the government, history cannot legitimate practices that

demonstrate the government’s allegiance to a particular sect or

creed.” 492 U.S. at 603 (internal footnote omitted). The history

of legislative prayer, which justified the nonsectarian prayers in

Marsh, “can[not] justify contemporary legislative prayers that have

the effect of affiliating the government with any one specific

faith or belief”. Id. (explaining that the prayers in Marsh “did

not violate this principle because the particular chaplain had

‘removed all references to Christ’” (quoting Marsh, 463 U.S. at 793

n.14)).

Similarly, in Edwards v. Aguillard, 482 U.S. 578 (1987), the

Court explained that Marsh’s holding was based on “the historical

acceptance of the practice” and deemed Marsh inapplicable to public

schools, where there existed no similar longstanding tradition of

prayer. Id. at 583 n.4 (“Such a historical approach is not useful

in determining the proper roles of church and state in public

schools, since free public education was virtually nonexistent at

the time the Constitution was adopted.”). Likewise, in Lee v.

20

Weisman, 505 U.S. 577 (1992), the Court noted Marsh’s application

to legislative bodies but refused to extend its legislative-prayer

exception to public school graduation ceremonies. See id. at 596-

97. Justice Scalia’s dissent analogized the legislative prayers in

Marsh to the Court’s tradition of opening its sessions with the

“ceremonial deism” of “God save the United States and this

Honorable Court”, which dates back to Chief Justice Marshall. Id.

at 635 (Scalia, J., dissenting).

Later that year, on remand from the Supreme Court, our court

decided Jones, in which we reflected on the Court’s holding in Lee

that a school principal, by inviting a local clergy member to

deliver a graduation prayer, violated the Establishment Clause.

Jones, 977 F.2d at 965. We held Lee did not render infirm the

graduation prayers at issue in Jones because they imposed no

elements of unconstitutional coercion found in Lee. The student-

driven nature of the prayers — the graduating class decided whether

any prayer would be given — and the lack of involvement with

religious institutions allowed them to pass constitutional muster.

Id. at 968-72.

In its most recent Establishment Clause decisions, the Court

has reaffirmed Marsh’s viability for legislative prayer. In

McCreary County, it noted Marsh’s legislative prayer was upheld

“despite its religious nature”. 125 S. Ct. at 2733 n.10. In Van

Orden v. Perry, 125 S. Ct. 2854 (2005), decided the same day, the

21

Court explained it was not constitutionally problematic that the

legislative prayers in Marsh “had once been offered in the Judeo-

Christian tradition”, because the references to Christ had been

removed after the litigation commenced. Id. at 2862 n.8. The

Court then explained that Marsh stands for the following

proposition: “Simply having religious content or promoting a

message consistent with a religious doctrine does not run afoul of

the Establishment Clause”. Id. at 2863 (noting that the Ten

Commandments, at issue in Van Orden, have an “undeniable historical

meaning”). Because both McCreary County and Van Orden involved Ten

Commandment displays, not legislative prayers, however, the Court

declined to expand Marsh’s reach.

Nor have our sister circuits expansively applied Marsh, even

for prayer in “legislative and other deliberative public bodies”.

Marsh, 463 U.S. at 786. When they do apply Marsh, other circuits

typically emphasize it permits only nonsectarian, non-

“proselytiz[ing legislative prayers that do not] ... advance ...

or ... disparage any ... faith or belief”. Id. at 794-95; see

also, e.g., Snyder v. Murray City Corp., 159 F.3d 1227, 1235 (10th

Cir. 1998) (en banc) (applying Marsh to uphold city council’s

decision to disallow a particular opening prayer proselytizing its

religious views while disparaging others), cert. denied, 526 U.S.

1039 (1999). Two circuits have squarely addressed opening prayers

22

at school-board meetings and Marsh’s applicability to them; the

Sixth and Ninth Circuits employed different approaches to hold the

prayers violated the Establishment Clause.

In Coles v. Cleveland Board of Education, the Sixth Circuit in

1999 concluded school-board prayer was appropriately considered

among the Supreme Court’s decisions addressing “school-related

activities”, because board meetings “take place on school property

and are inextricably intertwined with the public school system”.

171 F.3d at 377. Coles found two relevant “overriding principles”

in the Supreme Court’s school-prayer jurisprudence: “first ...

that ‘coercion’ of impressionable young minds is to be avoided, and

... second ... that the endorsement of religion is prohibited in

the public schools context”. Id. at 379. After briefly outlining

Marsh’s legislative-prayer exception, Coles held Marsh not

controlling because the school board did not fit within the scope

of legislative and deliberative bodies to which Marsh should apply.

Id. at 381 (“Simply stated, the fact that the function of the

school board is uniquely directed toward school-related matters

gives it a different type of ‘constituency’ than those of other

legislative bodies — namely, students.”). Applying the Lemon test

instead, Coles held the school board’s prayers violated the

Establishment Clause. Id. at 385. (Seven judges dissented,

however, from the denial of rehearing en banc. 183 F.3d 538 (6th

Cir. 1999).)

23

More recently, in contrast to the Coles approach, the Ninth

Circuit, in an unpublished opinion, applied Marsh to a school

board’s prayers that typically included “in the name of Jesus” and

were presented by a Christian. Bacus v. Palo Verde Unified Sch.

Dist. Bd. of Educ., 52 F. App’x 355, 356 (9th Cir. 2002). In so

doing, the court “assum[ed] without deciding that [Marsh] is

applicable” to the school board as a deliberative body. Id. (“On

the facts of this case, even if the school board is like a state

legislature for this purpose, the invocations are

unconstitutional.”). As in the action at hand, but unlike in

Marsh, the sectarian references in the prayers at issue in Bacus

were not removed after they were challenged, and the prayers

consistently advanced the Christian faith. Bacus held: “[T]he

prayers did not disparage other religious faiths, and did not

proselytize. But that is not enough” to survive constitutional

muster. Id. at 357. The prayers in Bacus failed the additional

requirement that they “not ‘advance any one ... faith or belief’”.

Id. (quoting Marsh, 463 U.S. at 794-95). The school board’s

decision to solemnize its meetings by using Jesus’ name

impermissibly “display[ed] ‘the government’s allegiance to a

particular sect or creed’”. Id. (quoting County of Allegheny, 492

U.S. at 603). Stating that “[i]njunctions against governmental

prayers violative of the Establishment Clause are routinely

24

granted”, id., the Ninth Circuit reversed the district court’s

denial of such relief.

Other circuits have also affirmed Marsh’s viability in the

limited sphere of legislative prayer. Quite recently, the Seventh

Circuit endorsed a narrow view of Marsh, holding its protections

encompass only nonsectarian legislative prayer. Hinrichs v. Bosma,

440 F.3d 393, 399 (7th Cir. 2006). In Hinrichs, the Speaker of

Indiana’s House of Representatives requested that ordered

injunctive relief be stayed; taxpayers had challenged the Indiana

House’s 188-year-old practice of opening official meetings with

brief prayers, and the district court permanently enjoined

sectarian prayers. Id. at 395-96. The prayers were typically

delivered by local clerics of various faiths, but Christian prayers

dominated: of 45 prayers in 2005 for which transcripts were

available, 29 were “identifiably Christian”. Id. at 395. Relying

on the Court’s language in Marsh and Allegheny, and noting that no

other circuit had taken a contrary position, the Seventh Circuit

held the prayers fell outside Marsh’s protections. Id. at 400-02;

see id. at 399 (“[W]e have read Marsh as hinging on the

nonsectarian nature of the invocations at issue there”.).

The Tenth Circuit in Snyder v. Murray City Corp., 159 F.3d

1227 (10th Cir. 1998) (en banc), cert. denied, 526 U.S. 1039

(1999), applied Marsh in denying a speaker’s request to present an

25

invocation at a city-council meeting because of its disparaging,

proselytizing content. Id. at 1236. The court held: “the kind of

legislative prayer that will run afoul of the Constitution is one

that proselytizes a particular religious tenet or belief, or that

aggressively advocates a specific religious creed”, id. at 1234; in

contrast, a permissible prayer “typically involves nonsectarian

requests for wisdom and solemnity, as well as calls for divine

blessing on the work of the legislative body”, id.; and Marsh

approved of a “genre” of prayer that “is a kind of ecumenical

activity that seeks to bind peoples of varying faiths together in

a common purpose”, id.

The Fourth Circuit upheld a county board of supervisors’

invocation policy that permitted only “non-sectarian [prayers] with

elements of the American civil religion”. Simpson v. Chesterfield

County Bd. of Supervisors, 404 F.3d 276, 278 (4th Cir. 2005)

(quoting the board’s policy). “[S]eeking to avoid the slightest

hint of sectarianism”, the board, by letter, directed those

presenting the prayer to avoid making references to Jesus Christ.

Id. at 279. The court noted that earlier, in Wynne v. Town of

Great Falls, 376 F.3d 292 (4th Cir. 2004), cert. denied, 125 S. Ct.

2990 (2005), it had contrasted this constitutionally permissible

policy with prayers found impermissible because “sectarian

references ... were far more than occasional or incidental”.

Simpson, 404 F.3d at 283.

26

In Wynne, before filing suit against the town council, the

plaintiff had proposed nonsectarian alternatives to the council’s

practice of making references to “Christ” or “Jesus Christ”; as did

the Board in the appeal at hand, the council refused those

suggestions; and exclusively Christian prayers continued to be

presented. 376 F.3d at 295. Unlike the “nonsectarian” and “civil”

invocations in Marsh, those permitted by the town council

“‘frequently’ contained references to ‘Jesus Christ’ and thus

[impermissibly] promoted one religion over all others”. Id. at

298-99 (internal footnote omitted).

The remaining circuits have offered only a limited discussion

of legislative prayer as permitted by Marsh. See, e.g., ACLU Neb.

Found. v. City of Plattsmouth, 419 F.3d 772, 777 (8th Cir. 2005)

(“[T]he Court has approved certain government activity that

directly or indirectly recognizes the role of religion in our

national life”.); Freethought Soc’y of Greater Phila. v. Chester

County, 334 F.3d 247, 266 (3d Cir. 2003) (declining to apply Marsh

to a Ten Commandments display but noting “that the Supreme Court

has acknowledged the proposition that history can transform the

effect of a religious practice”); Commack Self-Serv. Kosher Meats,

Inc. v. Weiss, 294 F.3d 415, 430 (2d Cir. 2002) (applying Lemon,

but explaining that legislative prayers in Marsh were permissible

because they “did not confer a substantial and impermissible

benefit on religion in general or on Christianity in particular”),

27

cert. denied, 537 U.S. 1187 (2003); Jager v. Douglas County Sch.

Dist., 862 F.2d 824, 828-29 (11th Cir.) (declining to apply Marsh

to prayers prior to high-school football games because, unlike the

“unique history” of invocations at legislative sessions, those “at

school-sponsored football games were nonexistent when the

Constitution was adopted”), cert. denied, 490 U.S. 1090 (1989);

Carter v. Broadlawns Med. Ctr., 857 F.2d 448, 453 (8th Cir. 1988)

(“We do not believe the evidence recounted in Marsh can support a

rule permitting state sponsored chaplaincies of any stripe.”).

2.

For the Board’s prayers to fall outside those permitted by

Marsh, we must conclude either: (1) the Board, although stipulated

to be a deliberative body, does not fit within Marsh’s description

of “legislative and other deliberative public bodies”, 463 U.S. at

786, either because Marsh did not intend to encompass any entities

beyond legislatures or because the prayers fit within the public-

school context to which Marsh does not apply; or (2) the prayers

are not nonsectarian and non-proselytizing, in violation of Marsh

and subsequent guidance from the Court. Because the overtly

sectarian prayers included in the stipulations fall outside Marsh’s

limited reach, we need not decide: (1) whether the Board fits

within Marsh’s legislative scope; and (2) thus whether other

prayers might be constitutionally permissible. This is in keeping

28

with the long-standing and extremely sensible rule that

“constitutional issues should be decided on the most narrow,

limited basis”. United States v. Roberts, 274 F.3d 1007, 1012 (5th

Cir. 2001). For obvious reasons, this holds especially true for

Establishment Clause challenges. See, e.g., Lee, 505 U.S. at 597

(“Our Establishment Clause jurisprudence remains a delicate and

fact-sensitive one”). The opinions by Judges Stewart and Clement

ignore this bedrock prudential rule.

Accordingly, we assume arguendo the Board is a Marsh

“legislative” or “other deliberative public body”. As another

circuit explained, “Marsh does not permit legislators to ...

engage, as part of public business and for the citizenry as a

whole, in prayers that contain explicit references to a deity in

whose divinity only those of one faith believe”. Wynne, 376 F.3d

at 301. In allowing such explicit references to “Jesus Christ”, in

selecting other persons to offer prayers who also referred

exclusively to the Christian deity, and in demonstrating an

unwillingness to adopt a policy that would have forbidden such

references, the Board engaged in what Marsh forbids.2

2

Judge Clement contends this analysis incorrectly allocates

the burden of proof to the defendant Board, rather than the

plaintiff Doe, because the Establishment Clause violation is based

on an absence of evidence. See infra. But the unconstitutionality

here is not found in a lack of evidence (i.e., in the Board’s

failure to prove) that prayers from other faiths were offered;

rather, the impermissible advancement of a particular religion is

grounded in the Board’s refusal to adopt a nonsectarian policy, the

prayers’ uniformly Christian tenor, and their overtly sectarian,

29

Although Marsh emphasized the longstanding tradition of

legislative prayer, it also found “no indication” that the

chaplain’s nonsectarian prayers were “exploited to proselytize or

advance any one” religion. 463 U.S. at 794-95. In contrast, it

appears the sectarian prayers here were exploited in such a manner,

both with their overtly Christian tone and no evidence that an

adherent of any non-Christian faith was permitted to offer a prayer

presenting a different message.3 Other circuits have found prayers

violative of Marsh even where some were offered by clerics of non-

Christian faiths. See, e.g., Hinrichs, 440 F.3d at 395.

proselytizing references. See, e.g., Hinrichs, 440 F.3d at 395-96

(upholding Establishment Clause injunction when evidence showed 41

of the 53 legislative invocations during the calendar year were

Christian, many containing identifiable supplications to Christ).

It is the Board’s stipulated prayer practice, not one particular

prayer, that is at issue.

3

Judge Clement maintains a content-based analysis contradicts

Marsh. See infra. But Marsh’s guidance is not so simple. Marsh’s

not examining content was conditioned on there being “no indication

that the prayer opportunity has been exploited to proselytize or

advance any one [faith or belief]”, 463 U.S. at 794, a condition

that often requires examination of content. See, e.g., Hinrichs,

440 F.3d at 398-99 (rejecting the argument that Marsh proscribes

examining sectarian prayer content, and “read[ing] Marsh as hinging

on the nonsectarian nature of the invocations at issue”). Marsh

noted the sectarian references were removed following filing of the

complaint. 463 U.S. at 793, n.14. Unlike Marsh, the sectarian

advances at issue here continue unabated, as reflected in the

stipulations. This fact, combined with the apparent foreclosure of

other religious viewpoints, demonstrates, as discussed infra, the

prayer practice was exploited to advance, if not also proselytize,

a particular faith.

30

The longstanding history of legislative prayer does not

“justify contemporary legislative prayers that have the effect of

affiliating the government with any one specific faith or belief”.

County of Allegheny, 492 U.S. at 603. The prayers here have just

that effect: an observer would perceive them to affiliate the

Board, a political subdivision charged with acting in the public

interest, with Christianity, and they show a clear preference for

the Christian faith. This is impermissible under the Establishment

Clause.

Unlike Coles, where at least some of the school board’s

prayers were “secular in their tenor”, 171 F.3d at 373, none of

the prayers included in the stipulations had such a tenor.

Instead, each evoked a Christian tone, reflecting the Board’s

religious preference for Christianity. The Board claims Coles is

distinguishable because that school board had a student member and

thus student participation was not entirely voluntary. Without

supporting evidence, the Board claims it does not have a student

member.4 Neither the Board’s membership nor the statute

establishing parish school boards reflect, however, that a student

is not a member. See LA. REV. STAT. ANN. § 17:52(E)(1) (requiring,

inter alia, that a school-board candidate have reached age 18).

Even assuming the Board does not have a student member, and because

4

Contrary to Judge Clement’s opinion, because the Board, not

Doe, makes this claim, the burden obviously rested on it to provide

supporting evidence.

31

we rely solely on Marsh, while Coles applied Lemon, this is a

distinction without a difference.

The most sectarian of the earlier-quoted prayers in the

stipulations not only referred to “Jesus Christ” – which the Ninth

Circuit deemed impermissible under Marsh, Bacus, 52 F. App’x at 356

– but also spoke of Jesus Christ as “the greatest gift of all –

your darling son”. As the Ninth Circuit explained, “[s]ome

religions accept Jesus Christ as the Messiah, some do not, and some

people do not believe in any religious faith”. Id. at 357. By

solemnizing its prayers with any reference to Jesus Christ, the

Board demonstrated its “allegiance to a particular sect or creed”.

Id. (quoting County of Allegheny, 492 U.S. at 603). The Christian

references, which went far beyond a permissible “ceremonial deism”,

were more overt and extensive than those found impermissible by the

Sixth and Ninth Circuits.

As stated, no evidence exists that any prayers were given by

non-Christians.5 Based on the four prayers in the stipulations, it

is reasonable to infer none were. Accordingly, by providing only

Christians who presented Christian prayers, the Board at minimum

“aggressively advocate[d]” Christianity. Snyder, 159 F.3d at 1234.

We need not determine whether the prayers “proselytized” because it

is enough that this prayer opportunity was “exploited to

5

Again, in the light of the joint stipulations, the burden

was on the Board to provide evidence of non-Christian prayers. It

failed to do so, as discussed infra.

32

proselytize or advance any one ... faith or belief”. Marsh, 463

U.S. at 794-95 (emphasis added). The terms “proselytize” and

“advance” are not synonymous. While “proselytize” “necessarily

means to seek to ‘convert’ others to that belief”, “‘advance’ ...

means simply to ‘forward, further, [or] promote’ the belief”.

Wynne, 376 F.3d at 300 (quoting WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY, 30, 1821 (3d ed. 1993)) (alteration in original).

“Advancement could include ‘conversion’ but it does not necessarily

contain any ‘conversion’ or ‘proselytization’ element.” Id.

(emphasis in original).

Because Board members selected those who offered prayers, they

were able to – and did – select only those who would advance the

Christian faith. The Board’s prayers did “further” and “promote”

their Christian beliefs, see id., rather than attempting to “bind

peoples of varying faiths”. Snyder, 159 F.3d at 1234. The four

prayers in the stipulations evidence “an [impermissible] intent to

proselytize, or advance” Christianity. See Murray, 947 F.2d at

155. There is no evidence of any prayers that represented a

different faith or were secular in tone.

Further, after this action was filed, 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. See Wynne, 376 F.3d at 295 (noting the town

council refused suggested nonsectarian alternatives for its

33

invocations). Along this line, and although this alone is not

dispositive, the Board unanimously rejected a policy requiring

“non-sectarian, non-proselytizing” invocations. This was done

shortly before the consent judgment concerning other prayer events

in the School System.

“Whatever else the Establishment Clause may mean[,] ... it

certainly means at the very least that government may not

demonstrate a preference for one particular sect or creed

(including a preference for Christianity over other religions).”

County of Allegheny, 492 U.S. at 605. Because the Board’s prayers

in the stipulations demonstrate a clear preference for

Christianity, they are not permitted under Marsh.

In so holding, this opinion takes no position on whether

another form of prayer is permissible at Board meetings.6 Instead,

it holds only that prayers of the type included in the stipulations

do not pass constitutional muster. This holding is far more narrow

than the relief granted by the permanent injunction at issue; it

6

Contrary to Judge Clement’s opinion at 4, this opinion does

not “render[] all sectarian prayer necessarily unconstitutional”.

Nor, contrary to her claim at 5, does it “reduc[e] Marsh to a

sectarian/non-sectarian litmus test”. Instead, being faithful to

finding the most narrow basis for deciding the issue at hand, and

based on the facts presented in the joint stipulations, this

opinion holds that the prayers presented in those stipulations are

unconstitutional. In short, this holding is far more narrow than

the broad reach erroneously ascribed to it by Judge Clement.

Moreover, her opinion fails to recognize that, even if another type

of prayer had been given, which the Board failed to show, that

would not cure the unconstitutionality of the prayers in the joint

stipulations.

34

enjoined all prayers at Board meetings. For the issue at hand, the

holding in this opinion — and the concomitant injunctive relief —

need not be that expansive.

III.

Pursuant to this opinion and those by Judges Stewart and

Clement, the permanent injunction is AFFIRMED in PART and VACATED

in PART and this matter is REMANDED to district court for entry of

an injunction consistent with this opinion.

AFFIRMED in PART; VACATED in PART; REMANDED

35

CARL E. STEWART, Circuit Judge, concurring in the judgment in part

and dissenting in the judgment in part:

This case squarely presents the issue of the application of

Marsh v. Chambers, 463 U.S. 783 (1983), to opening prayers by a

school board.1 I am not convinced that Marsh applies to the

situation before us; therefore, I believe the correct course is to

affirm the district court’s ruling, especially in light of the fact

that the school board stipulated that its practice would fail under

Lemon v. Kurtzman, 403 U.S. 602 (1971). My belief that Marsh is

inapplicable to this situation is supported by the language of

Marsh, subsequent Supreme Court precedent, and other Circuits’

applications of Marsh.

I.

This case comes to this court on a record of stipulated facts.

John Doe, on behalf of himself and as next friend of his minor

children, John and Jack Doe, students at Loranger High School in

Tangipahoa Parish, filed suit against the Tangipahoa Parish School

Board in 2003, alleging various violations of the Establishment

1

Contrary to Judge Barksdale’s assertion that constitutional

analysis requires that we avoid deciding this question, his

assuming arguendo approach actually decides that Marsh applies

because it is only the application of Marsh that would justify the

vacatur of any part of the district court’s injunction, especially

considering the school board’s concession that its entire practice

would fail under Lemon. Moreover, this case is unlike Bacus v.

Palo Verde Unified Sch. Dist. Bd of Ed., 52 F. App’x 355 (9th Cir.

2002), because the outcome of that case did not hinge on the

application of Marsh; the outcome would have been the same under

both Marsh and Lemon. Id. at 356.

36

Clause. All but one of the alleged violations were resolved

through a consent decree entered into by the parties on August 31,

2004. The issue that was not resolved, the opening of school board

meetings with a prayer, proceeded to a bench trial before the

district court judge on the stipulated facts.

The parties agree that the school board is a deliberative body

responsible for the operation of the public schools within

Tangipahoa Parish. The school board’s meetings take place twice

monthly in the boardroom of the Tangipahoa Parish School System’s

central office. The meetings are open to the public, and students

may attend the meetings. The board meetings commence with an

invocation, and board members, teachers, and students have

delivered the prayer on various occasions over the last 30 years.

The school board conceded that its practice would fail under the

Supreme Court’s four-part test in Lemon v. Kurtzman2 but argued

that Marsh v. Chambers was the correct test to apply to these

facts.

The district court ruled that, because of the school board’s

“obvious connection to public education,” 2005 WL 517341, *7 (E.D.

La. 2005), and because of the refusal of most federal courts to

extend Marsh beyond its specific facts, id. at *8, Marsh was

2

The Lemon test requires that government action have a secular

purpose, that its primary effect must be one that neither advances

or inhibits religion, and that it not foster excessive government

entanglement with religion in order to survive an Establishment

Clause challenge. 403 U.S. at 613.

37

inapplicable to the case and the Lemon test should apply. The

district court then proceeded to analyze the constitutionality of

the school board’s prayer practice under Lemon, holding that the

practice violated the Establishment Clause.

II.

The facts of this case give rise to the thorny issue of

Marsh’s place in the Supreme Court’s Establishment Clause

jurisprudence. The only way to resolve this dispute is to squarely

decide whether Marsh should be extended from its original context

to this new set of circumstances. After reviewing the parties’

briefs and the stipulated record, I believe that Marsh does not

apply to these facts in light of the constricted holding in Marsh

itself and how other federal courts, including this one, have

interpreted Marsh. I would affirm the injunction of the district

court based on the school board’s admission that its practice fails

under Lemon.

Marsh does not apply to prayer at school board meetings

because of the narrowness of its holding. The Court allowed the

practice of legislative prayer to continue because it is “deeply

embedded in the history and tradition of this country,” id., and,

because days after approving a draft of the First Amendment,

Congress voted to open legislative sessions with prayer, id. at

787. Therefore, the Court reasoned, the practice does not present

a “potential for establishment.” Id. at 791.

38

While Marsh mentions “other deliberative public bodies,” 463

U.S. at 786, this phrase only appears once in an opinion that

otherwise focuses entirely on the very specific factual history of

legislative prayer. This kind of history is not shared by the

practice at issue here because the school board is not a

legislative body. From the board’s admission that it directs the

operation of the schools in its parish rather than passing laws, it

seems obvious that the board’s function is not legislative in

nature.

The school board argues that it is a “deliberative public

body” such that Marsh applies to its practice exactly as it would

to a legislature’s. The Circuit courts that have considered this

issue, however, have found that Marsh, despite its singular mention

of non-legislative bodies, 463 U.S. at 786, is too narrow a holding

to be interpreted so broadly.

The clearest example of a court being unwilling to use the

solitary expression of the phrase “other deliberative public

bodies” to extend the reasoning of Marsh is ACLU v. Constangy, 947

F.2d 1145 (4th Cir. 1991), cert. denied, 505 U.S. 1219 (1992).

Judge Constangy served on the North Carolina state bench and opened

every judicial session with a prayer. Despite his argument that

his practice should be allowed because the judiciary is a

“deliberative public bod[y]”, the Fourth Circuit held that this

language should not be interpreted without looking to the rest of

39

the Marsh opinion that very strongly focuses on the specific unique

history of legislative prayer. Id. at 1148. The court

specifically held that “the Supreme Court sees the holding of Marsh

to be predicated on the particular historical circumstances

presented in that case” and refused to extend Marsh past those

circumstances. Id.

Marsh does not “create[] a presumption of validity for

government-sponsored prayer at all deliberative public bodies.”

Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 380-81 (6th Cir.

1999). Instead, the furthest reach of Marsh has been local

governing bodies that are legislative in nature. See, e.g.,

Simpson v. Chesterfield County, 404 F.3d 276, 278, 280 (4th Cir.),

cert. denied, 126 S. Ct. 426 (2005) (allowing a county board of

supervisors who modeled its policy on the language of Marsh to open

its meetings with a prayer); Wynne v. Town of Great Falls, 376 F.3d

292, 301-02 (4th Cir. 2004), cert. denied, 125 S. Ct. 2990 (2005)

(striking down the sectarian prayers of a town council while noting

that if the prayers had not been sectarian they would survive

challenge under Marsh).

Beyond the fact that the school board is not a legislature,

the application of Marsh should be limited by the special

protections that the Court has mandated for any functions related

to public education. In rejecting the mandatory observance of the

40

pledge of allegiance in public schools, the Court stated, “[t]hat

[school boards] are educating the young for citizenship is reason

for scrupulous protection of [c]onstitutional freedoms of the

individual, if we are not to strangle the free mind at its source

and teach youth to discount important principles of our government

as mere platitudes.” West Virginia Bd. of Educ. v. Barnette, 319

U.S. 624, 637 (1943); see also Lee v. Weisman, 505 U.S. 577, 592

(1992) (“[T]here are heightened concerns with protecting freedom of

conscience from subtle coercive pressure in the elementary and

secondary public schools.”).

The Sixth Circuit in Coles directly considered the application

of Marsh to prayer by a school board. The court held that Marsh

should not be applied to the practice because a school board is not

equivalent to a legislature because of the school board’s student

“constituency.” 171 F.3d at 381. The school board argues that

Coles is irrelevant to this case because there is no evidence

before the court that students are required to attend school board

meetings, that the meetings take place on school property, or that

students regularly attend the meetings voluntarily to discuss

issues. While the Coles court did rely on these factors to some

extent, the greater thrust of the holding is that “the function of

a school board is uniquely directed toward school related matters

. . . .” Id.

41

Even on the stipulated factual record before us here, it is

clear that the existence of the school board is dependent on the

existence of public schools. Supreme Court jurisprudence, as well

as common sense, dictate that school board members should not be

allowed to do at meetings what they could not mandate in the

schools. E.g., Coles, 171 F.3d at 382 (“Allowing the board to act

in a manner inconsistent with its fundamental function of running

the school system only leads to its further erosion in the minds of

those students who either attend or hear about such meetings.”).

Nor can the school board claim any protection of history for

its practice. The Supreme Court has noted that not all practices

that have a long history are protected by the kind of reasoning

present in Marsh, see County of Allegheny v. ACLU, 492 U.S. 573,

603 (1989) (“Marsh plainly does not stand for the sweeping

proposition . . . that all accepted practices 200 years old and

their equivalents are constitutional today.”), and the school board

has only followed this practice for 30 years. Additionally, the

Court has noted on several occasions that Establishment Clause

challenges related to public education are rarely protected by

history. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 583 n.4

(1987) (“[A] historical approach is not useful in determining the

proper roles of church and state in public schools, since free

public education was virtually nonexistent at the time the

Constitution was adopted.”) (internal citations omitted); Wallace

42

v. Jaffree, 472 U.S. 38, 80 (1985) (O’Connor, J., concurring) (“The

simple truth is that free public education was virtually

nonexistent in the late 18th century. Since there then existed few

government-run schools, it is unlikely that the persons who drafted

the First Amendment . . . anticipated the problems of interaction

of church and state in the public schools.”) (internal citations

omitted).

The Court meant for Marsh to be a doctrinal enclave in its

Establishment Clause analysis, narrowly ruling on the basis of both

extensive, specific history and the nature of the legislative body

at issue. I am not persuaded that we are on firm footing to extend

this exceptional exception without further guidance from the Court.

We should interpret Marsh according to the very narrow question

that it claimed to decide: “whether the Nebraska Legislature’s

practice of opening each legislative day with a prayer by a

chaplain paid by the State violates the Establishment Clause of the

First Amendment.” 463 U.S. at 784. The opening of a non-

legislative public body with a prayer would extend the holding of

Marsh beyond “the historical acceptance” of legislative prayer,

Edwards, 482 U.S. at 583 n.4.

The Supreme Court has had multiple opportunities to extend its

reasoning in Marsh to other situations and yet has chosen not to.

In McCreary County v. ACLU, 125 S. Ct. 2722 (2005), the Court noted

that, unless special factors such as those that existed in Marsh

43

counsel otherwise, government affiliation with religion is not

constitutional. Id. at 2733 n.10. These cases and the language in

Marsh itself lead to the conclusion that the holding in Marsh was

meant to be a very limited exception from more commonly accepted

Establishment Clause doctrine predicated on the “unique history,”

463 U.S. at 791, of the practice at issue in Marsh.

Even this rationale has been limited by the Court in

subsequent cases. In County of Allegheny, the Court addressed the

appropriateness of a creche display in front of a government

building. The Court noted that the historic pedigree of government

recognition of religious holidays could not save the display of the

creche if it otherwise violated the Establishment Clause. 492 U.S.

573, 603. Although the dissenting Justices would have held that

the display was constitutional because it did not proselytize, the

Court rejected this approach, holding that, except in the limited

factual circumstances of Marsh, proselytization is not necessary to

show that the government has preferred one religion over another,

or even religion over non-religion. Id. at 602-05. The Marsh

opinion’s singular mention of “other deliberative public bodies,”

without more, is not enough to overcome the Supreme Court’s own

reluctance in subsequent cases to extend Marsh’s reasoning to

different factual scenarios.

Even in cases where the Supreme Court has arguably relied on

Marsh to approve of government action that would seemingly

44

otherwise be in violation of the Establishment Clause, the Court

has carefully narrowed the holding of Marsh to the unique history

of legislative prayer. In Van Orden v. Perry, 125 S. Ct. 2854

(2005), the Court approvingly quoted Marsh to emphasize that not

all government affiliation with religion violates the Establishment

Clause but still noted that Marsh relied on the unique factual

circumstances of legislative prayer, dating back to the drafters of

the Constitution. Id. at 2862. In Lynch v. Donnelly, 465 U.S. 668

(1984), in which the Court upheld the inclusion of a creche in a

multi-denominational holiday display, Marsh was quoted approvingly

multiple times; however, the Court also undertook a historical

analysis of national recognition of holiday celebrations. Id. at

674-78.

Finally, in Lee v. Weisman, 505 U.S. 577 (1992), the Court

compared the legislative prayer at issue in Marsh to a school-

sponsored prayer at a high school graduation. Although the opinion

in Lee did not explicitly focus on the history of the legislative

prayer practice, the Court carefully limited its discussion to a

comparison of the graduation prayer to a prayer in a state

legislative chamber, id. at 596-97, and refused to extend Marsh to

that prayer, id. at 596. Even cases in which the Supreme Court has

relied on Marsh, there is no support for the extension of Marsh

that the Tangipahoa School Board seeks in this case.

45

What the Tangipahoa School Board asks this court to do is

extend the holding of Marsh to a new set of factual circumstances

that are completely distinct from the legislative arena, something

none of our prior cases have done. In Peyote Way Church of God,

Inc. v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991), this court

considered whether federal laws that prohibited the use of peyote

generally but allowed its use by Native American tribes violated

the Establishment Clause. In determining that the special

relationship between the federal government and Native American

tribes is not susceptible to the usual Establishment Clause

analysis, this court cited Marsh as an example of the flexible

approach the Supreme Court has taken when specific factors, such as

“unambiguous and unbroken history of more than 200 years,” are

present. 922 F.2d at 1216 (citing Marsh, 463 U.S. at 792). There

is no special relationship or unique history in this case that

warrants ignoring the Supreme Court’s general instruction that the

Lemon test applies to Establishment Clause challenges.

We also considered Marsh in Murray v. City of Austin, a case

involving whether a religious symbol in a city insignia violates

the Establishment Clause. Although the decision in Murray

discusses Marsh in terms that appear to go beyond its historical

meaning, 947 F.2d 147, 155 (5th Cir. 1991) (“[W]e lack the kind of

evidence of original intent present in Marsh . . . [y]et this case

does share some important similarities with Marsh . . . .”), cert.

46

denied, 505 U.S. 1219 (1992), the case ultimately rests on County

of Allegheny’s language about government endorsement of religion.

Id. at 156. Murray does not stand for the proposition that Marsh

can be applied in the absence of the unique history of the practice

at issue in that case.

Other Circuits that have considered the application of Marsh

also have narrowly construed the decision to address only those

circumstances that would warrant a direct application of Marsh.

The Fourth Circuit first addressed the issue in Constangy, finding

that without evidence of long-standing tradition and the “intent of

the framers of the Bill of Rights with regard to the [practice],”

947 F.2d at 1148, Marsh should not be applied. The court

reaffirmed their reliance on the historical circumstances of Marsh

in Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003), cert. denied,

541 U.S. 1019 (2004), when the court refused to apply Marsh to

exempt the evening prayer at the Virginia Military Institute from

the Lemon test. Id. at 370.

Subsequent Fourth Circuit cases have applied Marsh but have

not extended it. When considering whether the daily, voluntary

recitation of the pledge in public schools violates the

Establishment Clause, the court relied on Marsh not for its

specific holding but for its reliance on history. Myers v. Loudoun

County Public Schools, 418 F.3d 395, 403-04 (4th Cir. 2005). The

Fourth Circuit struck down prayer by a legislative body, a town

47

council, in Wynne because it was sectarian, 376 F.3d 292, 301-02,

although the prayers otherwise would have fit within Marsh’s

framework of legislative prayer, including the historical

circumstances of legislative prayer. Id. at 302. Similarly, the

practice of a county board of supervisors to open its meetings with

a prayer was found not to violate Marsh because a board of

supervisors is a legislative body similar to the kind that was

specifically at issue in Marsh and because its prayer policies

specifically tracked the language the Court used in Marsh. Simpson

v. Chesterfield County, 404 F.3d 276, 278, 280. In short, all the

cases of the Fourth Circuit support a narrow reading of Marsh,

limited to the practice of legislative prayer that was at issue in

the case.

Almost every other Circuit that has considered the application

of Marsh to diverse facts has relied on the historical analysis in

Marsh to limit its holding to only its specific factual context.

See, e.g., Hinrichs v. Bosma, 440 F.3d 393, 398 (7th Cir. 2006)

(striking down sectarian legislative prayer while noting that the

practice of legislative prayer is “analyzed . . . largely based on

considerations of history and tradition”); Glassroth v. Moore, 335

F.3d 1282, 1298 (11th Cir.) (holding that the placement of a Ten

Commandments monument in a courthouse should not be judged by Marsh

because the practice does not have the “unambiguous and unbroken

history” of legislative prayer), cert. denied, 540 U.S. 1000

48

(2003); ACLU v. Capitol Square Review and Advisory Bd., 243 F.3d

289, 300 (6th Cir. 2001) (holding that the state motto of Ohio,

“With God, All Things Are Possible,” does not violate the

Establishment Clause after undertaking an extensive historical

review of ceremonial deism based in part on Marsh’s historical

analysis); Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 381 (6th

Cir. 1999) (viewing Marsh as “one-of-a-kind”); Warner v. Orange

County Dep’t of Prob., 115 F.3d 1068, 1076 (2d Cir. 1997) (refusing

to apply Marsh because it “relied heavily on the long tradition of

public prayer in [the legislative] context”) (citations omitted),

cert. denied, 528 U.S. 1003 (1999); Cammack v. Waihee, 932 F.2d

765, 772 (9th Cir. 1991) (refusing to apply Marsh to Hawaii’s Good

Friday holiday because Marsh was “explicitly based upon the ‘unique

history’ surrounding legislative prayer”) (citations omitted),

cert. denied, 505 U.S. 1219 (1992); Jager v. Douglas County Sch.

Dist., 862 F.2d 824, 828 (11th Cir.) (holding that “[b]ecause Marsh

was based on more than 200 years of the ‘unique history’ of

legislative invocations, it has no application to the case at bar”)

(citations omitted), cert. denied, 490 U.S. 1090 (1989). But see

Van Zandt v. Thompson, 839 F.2d 1215, 1219 (7th Cir. 1988) (“The

district court viewed Marsh as . . . a one-time departure from the

Court’s consistent application of the Lemon criteria to

establishment clause cases. . . . In our opinion this is much too

crabbed a view.”). Finally, in a concurrence, Judge Lucero’s

49

analysis in Snyder v. Murray City Corp., which would apply Marsh

only to legislative prayer by established chaplaincies,

demonstrates another viewpoint about the extreme narrowness of the

holding in Marsh. 159 F.3d 1227, 1237 (10th Cir. 1998) (Lucero,

J., concurring), cert. denied, 526 U.S. 1039 (1999).

Based on my view of the narrowness of the exception in Marsh,

I must dissent from its application to any part of the practice of

the Tangipahoa School Board of opening its meetings with a prayer.

The school board is not a legislative body within the purview of

Marsh , nor does its practice share the “unique” history of

legislative prayer.

III.

The Supreme Court has made clear that Marsh’s application

depends on a showing that the practice at issue is legislative

prayer with its unique history. The Lemon test should apply to the

practice of the Tangipahoa Parish School Board because the Supreme

Court has announced no applicable exception to its normal

Establishment Clause jurisprudence that would allow this court to

deviate from Lemon. In light of the school board’s admission that

its practices fail the Lemon test, I would affirm the district

court’s order. I dissent from any application of Marsh vacating

the district court’s order, and I concur in the judgment only to

the extent that it upholds the injunction.

50

51

EDITH BROWN CLEMENT, Circuit Judge, concurring in the judgment in

part and dissenting in the judgment in part:

I would hold that Marsh v. Chambers, 463 U.S. 783 (1983),

rather than Lemon v. Kurtzman, 403 U.S. 602 (1971), applies to this

deliberative body. I disagree with the conclusion that the four

stipulated prayers violate Marsh. As to the question of how to

apply Marsh, I read Marsh as prohibiting exploitation of prayer

opportunities to advance one religion over another. Therefore, the

injunction should be vacated in full because Doe failed to

demonstrate that the Board exploited the prayer opportunity either

“to proselytize or advance any one, or to disparage any other,

faith or belief.” Id. at 794–95. The conclusion in Judge

Barksdale’s opinion that the Board demonstrated a clear preference

for Christianity suffers from a lack of evidence in the record and

an erroneously shifted burden of proof that requires the Board to

prove it did not violate Marsh. Furthermore, even under the

reasoning in Judge Barksdale’s opinion, the fourth prayer in the

stipulations, given June 15, 2004, survives scrutiny under Marsh.

A. Marsh permits sectarian prayer when the prayer opportunity is

not exploited for impermissible purposes

I believe that Judge Barksdale’s opinion misreads Marsh as

allowing only non-sectarian prayer. This view would deem all

explicit references to sectarian deities necessarily

unconstitutional without regard to the government body’s practices

52

or motivations. Such a holding does not square with Marsh. The

Marsh Court’s focus was—as ours should be—not on the content of the

prayer but on the practices and motivations behind the prayer

opportunity. Under Marsh, a plaintiff must first show that a

prayer opportunity was exploited for an impermissible purpose

before the prayer’s content becomes relevant. Marsh, 463 U.S. at

794-95. The Supreme Court has recently reaffirmed this premise.

“[The] Establishment Clause doctrine lacks the comfort of

categorical absolutes. In special instances we have found good

reason to hold governmental action legitimate even where its

manifest purpose was presumably religious.” McCreary County v. Am.

Civil Liberties Union of Ky., 125 S. Ct. 2722, 2733 n.10 (2005)

(emphasis added). The McCreary County Court cited Marsh as one

such example of the Court “upholding legislative prayer despite its

religious nature.” Id. A content-based rule is troubling for

several reasons.

(1) A content-based rule contradicts Marsh

The precedent on which Judge Barksdale’s opinion chiefly

relies disavows leading with the content-based analysis employed in

his opinion. In Marsh, the Court described the prayer as being “in

the Judeo-Christian tradition.” 463 U.S. at 793. The only

reference in the Marsh majority opinion to any sectarian/non-

sectarian distinction came in a footnote, when the Court observed

that the chaplain who gave the prayers described them as being

53

“‘nonsectarian,’ ‘Judeo Christian,’ and with ‘elements of the

American civil religion.’” Id. at 793 n.14. The Court expressly

avoided ruling based on the content of the prayer:

The content of the prayer is not of concern to

judges where, as here, 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. That

being so, it is not for us to embark on a

sensitive evaluation or to parse the content

of a particular prayer.

Id. at 794–95. The Marsh Court’s instruction not to reject prayer

based on content alone is clear—unless the prayer opportunity has

been shown to be exploitive, the content of the prayer is

irrelevant. Judge Barksdale’s opinion contradicts Marsh’s

instruction by first focusing on the content of the prayers rather

than the Board’s use of the prayer opportunity.

If content is determinative, the Marsh Court’s analysis would

be internally conflicted. The content of congressional prayer,

referred to by the Marsh Court as exemplifying permissible

legislative prayer, traditionally has included sectarian

references. In addition, Congress continues to permit sectarian

invocations, as it has since the practice’s inception.3 This

3

There is no doubt that prayers before Congress often contain

explicit sectarian references. See Newdow v. Bush, 355 F. Supp. 2d

265, 285 n.23 (D.D.C. 2005) (noting that “the legislative prayers

at the U.S. Congress are overtly sectarian”); see also Steven B.

Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96

COLUM. L. REV. 2083, 2104 & n.118 (1996) (noting that, in the six-

year period before 1996, “over two hundred and fifty opening

prayers delivered by congressional chaplains have included

54

practice, which Judge Barksdale’s opinion would deem

unconstitutional under Marsh, has been upheld by the D.C. Circuit.

See Murray v. Buchanan, 720 F.2d 689, 690 (D.C. Cir. 1983) (en

banc) (per curiam); see also Newdow v. Eagen, 309 F. Supp. 2d 29,

41 (D.D.C. 2004) (holding that congressional prayer remains

constitutional under Marsh).

By relying on congressional prayer as a demonstrative example,

the Marsh Court endorsed the understanding that the sectarian

nature of the prayer’s content does not render it necessarily

constitutionally unsound. Marsh, 463 U.S. at 794–95; see also

McCreary County, 125 S. Ct. at 2733 n.10 (citing Marsh as an

example of a permissible prayer whose “manifest purpose was

presumably religious”). Indeed, the Court stated that the Founders

“did not consider opening prayers as a proselytizing activity or as

symbolically placing the government’s official seal of approval on

one religious view.” Marsh, 463 U.S. at 792 (internal quotation

omitted). The content of the prayers identified in the

stipulations does not vary meaningfully from that of the prayers

offered in Congress on a day-to-day basis. Furthermore, two federal

district courts have recently affirmed the principle that a

prayer’s sectarian nature does not make it impermissible. Pelphray

v. Cobb County, 410 F. Supp. 2d 1324, 1325, 1349 (N.D. Ga. 2006)

supplications to Jesus Christ”).

55

(refusing to enjoin sectarian prayers at government meetings “that

refer to ‘Jesus,’ ‘Jesus Christ,’ or ‘Christ’”) ; Dobrich v. Walls,

380 F. Supp. 2d 366, 371, 377 (D. Del. 2005) (permitting sectarian

prayers at school board meetings, including the expression “in the

name of Christ”).

(2) Marsh instead focuses on the exploitation of the prayer

opportunity

Where invocations are intended to promote non-sectarian calls

for guidance, wisdom, and solemnity, the First Amendment clearly is

not violated. See Simpson v. Chesterfield County Bd. of

Supervisors, 404 F.3d 276, 282 (4th Cir. 2005) (“The Court also

recognized that legislative invocations comport with the

Establishment Clause not only because that tradition is ancient,

but because invocations are intended to harmonize broadly ‘with the

tenets of some or all religions.’”) (quoting Marsh, 463 U.S. at

792); Snyder v. Murray City Corp., 159 F.3d 1227, 1234 (10th Cir.

1998) (en banc) (“That genre, although often taking the form of

invocations that reflect a Judeo-Christian ethic, typically

involves nonsectarian requests for wisdom and solemnity, as well as

calls for divine blessing on the work of the legislative body.”).

This safe-harbor rule permitting non-sectarian prayer, however,

does not compel a rule—imposed by Judge Barksdale’s

opinion—rendering all sectarian prayer necessarily

unconstitutional. As the Tenth Circuit pointed out in Snyder, the

56

Establishment Clause does not prohibit all prayer that can be

identified with a particular sect; “[r]ather, what is prohibited by

the clause is a more aggressive form of advancement, i.e.,

proselytization.” 159 F.3d at 1234 n.10 (citing Marsh, 463 U.S. at

793 n.14, 794–95). Because all prayer is, at least in some way,

inclusive to some and exclusive to others, “the kind of legislative

prayer that will run afoul of the Constitution is one that

proselytizes a particular religious tenet or belief, or that

aggressively advocates a specific religious creed, or that

derogates another religious faith or doctrine.” Id. at 1234. The

Snyder court also noted that “[b]y using the term ‘proselytize,’

the Court indicated that the real danger in this area is effort by

the government to convert citizens to particular sectarian views.”

Id. at 1234 n.10. By reducing Marsh to a sectarian/non-sectarian

litmus test, Judge Barksdale’s opinion overlooks the pivotal focus

of the Marsh decision—whether the prayer opportunity was exploited

for constitutionally impermissible purposes—and contravenes the

Court’s admonition against ruling based on content alone. See

Marsh, 463 U.S. at 794–95; see also Snyder, 159 F.3d at 1234 n.10

(noting that “all prayers ‘advance’ a particular faith or belief in

one way or another” and reading Marsh as “underscor[ing] the

conclusion that the mere fact a prayer evokes a particular concept

of God is not enough to run afoul of the Establishment Clause”).

57

In addition, as the Court forewarned, a content-based approach

is bad policy: by placing the evaluation of the prayers’ content

ahead of the evaluation of the use of the prayer opportunity, this

approach needlessly puts federal courts in the position of drawing

the constitutional (and theological) line between sectarian and

non-sectarian prayer. Marsh, 463 U.S. at 795 (“[I]t is not for us

to embark on a sensitive evaluation or to parse the content of a

particular prayer.”) (emphasis added). Such attempts require

courts to interpret tenets of different faiths and to make

controversial judgments about what aspects of those faiths are most

important to their adherents. Lee v. Weisman, 505 U.S. 577, 616–17

(1992) (Souter, J., concurring) (“I can hardly imagine a subject

less amenable to the competence of the federal judiciary, or more

deliberately to be avoided where possible” than “comparative

theology.”). To make such judgments, courts must determine both

the doctrinal meaning of a prayer (which requires the court to

ascertain the prayer leader’s belief) and whether that meaning

differs significantly from the religious beliefs of others (which,

again, requires ascertaining their beliefs). Drawing such

theological distinctions, which only invite a new wave of

litigation, is beyond the expertise, or proper role, of federal

courts.

B. Marsh applied to this record

58

In addition to many generalist religious references, the

illustrative set of prayers from the stipulations include

references to “Jesus Christ,” “Jesus Christ our Lord,” and “Your

Son, Jesus Christ.” In Doe’s view, “that these prayers advance

Christianity is undeniable.” Doe further contends that the prayers

“clearly discriminate against non-Christians.” In support of the

argument that the Board’s invocations improperly advance

Christianity, Doe cites County of Allegheny v. American Civil

Liberties Union Greater Pittsburgh Chapter for the proposition that

“[t]he clearest command of the Establishment Clause is that one

religious denomination cannot be officially preferred over

another.” 492 U.S. 573, 605 (1989) (internal quotation omitted).

The Establishment Clause does not, however, demand that governments

abandon religion in favor of secularism: “To the extent that the

Establishment Clause prevents preferences for one religion over

another, it likewise prevents preferences for religion over

nonreligion.” Murray v. City of Austin, 947 F.2d 147, 155 (5th

Cir. 1991); see also County of Allegheny, 492 U.S. at 605 (noting

that there exists “no official preference even for religion over

nonreligion”).

Judge Barksdale’s opinion accepts Doe’s argument, stating that

“[e]ach prayer in the stipulations is Christian in tenor, if not in

fact.” Furthermore, it states that “none of the prayers included

in the stipulations had such a [secular] tenor. Instead, each

59

evoked a Christian tone, reflecting the Board’s religious

preference for Christianity.”

As is normally the case, the plaintiff bringing an

Establishment Clause claim under § 1983 bears the burden of proof.

See Gillette v. United States, 401 U.S. 437, 450–51 (1971)

(rejecting a challenge under the Establishment Clause); Bowden v.

City of Electra, 152 F. App’x 363, 367 (5th Cir. 2005) (noting, in

another constitutional context, that “a plaintiff in a suit filed

under 42 U.S.C. § 1983 has the burden of proving each element of

the constitutional violation”); Doe v. Beaumont Indep. Sch. Dist.,

173 F.3d 274, 300 (5th Cir. 1999) (Garza, J., dissenting) (“[T]he

plaintiffs bear the burden of proof on . . . their Establishment

Clause claim.”), reh’g en banc, 240 F.3d 462 (5th Cir. 2001). On

more than one occasion, however, Judge Barksdale’s opinion faults

the Board for not proving a particular point. The stipulations do

not contain evidence establishing viewpoint discrimination or

hostility to non-Christian religions. In the absence of proof to

the contrary, the Board’s actions have not been shown to be

impermissible under the Constitution. The conclusions in Judge

Barksdale’s opinion, based upon an absence of evidence, cannot be

squared with the allocation of the burden of proof on Doe.

Doe has made no showing that he or anyone was ever denied the

opportunity to have an invocation led by someone of a more

personally acceptable denomination (or non-denomination). Rather,

60

the record, as limited as it is, reflects that the Board has

affirmatively stated, through the stipulated and offered testimony,

its willingness to allow any viewpoint to be heard at the meetings.

Doe’s bare argument, unsupported by the stipulated evidence, that

the Board is not true to its word cannot carry his burden. Even if

Doe’s claim—that historically, the Board’s prayers have been

uniformly Christian—is true, there is simply no record evidence

that the Board advances Christianity to the exclusion of another

sect or creed.

Judge Barksdale’s opinion, however, when analyzing the

stipulated prayers under Marsh, states, “it appears the sectarian

prayers here were exploited [to advance Christianity] with their

overtly Christian tone and no evidence [was produced] that an

adherent of any non-Christian faith was permitted to offer a prayer

presenting a different message.” This determination is based on an

absence of evidence. The similar conclusion that “the Board at [a]

minimum aggressively advocate[d] Christianity” is based on an

inference, which, in turn, is also drawn from a lack of evidence.

The foundation for the holding that the Board improperly advanced

Christianity is the understanding that the Board “provid[ed] only

Christians who presented Christian prayers.” That understanding is

nothing more than an inference “[b]ased on the four prayers in the

stipulations” and the fact that “no evidence exists that any

prayers were given by non-Christians.” The record is devoid of any

61

evidence showing that anyone from any other sect or creed ever

asked to participate in the Board’s invocations.4

Even if the contention in Judge Barksdale’s opinion that

“[t]here is no evidence of any prayers that represented a different

faith” were a correct application of the burden of proof, there is,

likewise, no evidence that any non-Christians were ever denied an

opportunity to offer a prayer or in any way were hampered in

participating in whatever form they wished. After the Board

asserted that it has never excluded any faith or denomination from

participating in the invocations, Doe identified nothing in the

record to counter this assertion.

Regardless, there is evidence in support of a non-exclusive

policy. In the stipulated facts, the named defendants, including

the members of the Board, stated a willingness to “testify under

oath that the Tangipahoa School Board does not discriminate on the

basis of religious viewpoint and that any individual who wants to

give the invocation prior to a board meeting can do so regardless

of their religious beliefs.” Again, Doe offers no evidence to

counter the proposed testimony.

4

Judge Barksdale’s opinion similarly faults the Board for not

proving that a student is not a member. While the presence or

absence of a student member on the school board is not

determinative because Judge Barksdale’s opinion assumes that Marsh

applies, the absence of proof regarding the Board’s assumed-but-

not-proven exclusionary policy is critical.

62

I also disagree with the attempt in Judge Barksdale’s opinion

to prove exploitation of the prayer opportunity by reference to the

Board’s unadopted policy. Judge Barksdale’s opinion infers

hostility to non-sectarian, non-proselytizing prayer from the

Board’s rejection of the written policy. Moreover, based solely on

the Board’s rejection of the policy, Judge Barksdale’s opinion

surmises that “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.”

We should not overlook the possibility of alternative reasons

for rejecting the policy. The policy limited the pool of potential

leaders of the invocation in conflict with the Board’s past

practice. That change could have been the reason for rejecting the

proposed policy. Indeed, the rejection of the policy could have

stemmed from the Board’s concern that it was not constitutionally

permitted to limit the viewpoint of potential speakers. Whatever

the reason, without more evidence in the record, the Board’s

rejection of the written policy does not prove that the Board

exploited the prayer opportunity to advance Christianity to the

exclusion of other faiths.

C. The June 15 prayer survives even the reading of Marsh employed

in Judge Barksdale’s opinion

Even under the reading of Marsh applied in Judge Barksdale’s

opinion, the prayer given June 15, 2004, is not unconstitutional.

The prayer contains no sectarian invocations. Rather, the generic

63

references to “Father,” “God,” and “Lord” indisputably pass the

perceived non-sectarian requirement. By grouping this last prayer

in with the first three, Judge Barksdale’s opinion obfuscates the

important distinction it seems to be trying to draw. Unlike the

Christian references found in the other stipulated prayers, such as

“Jesus Christ,” “Jesus Christ our Lord,” and “Your Son, Jesus

Christ,” the June 15 prayer displays no Christian tenor.

Judge Barksdale’s opinion cites Hinrichs v. Bosma, 440 F.3d 393

(7th Cir. 2006), for the proposition that Marsh permits only non-

sectarian prayer. Both sides of the Hinrichs debate, however, would

allow the June 15 prayer to survive constitutional scrutiny; the

injunction in place in Hinrichs certainly would permit the June 15

prayer. See Hinrichs, 440 F.3d at 402 (“The injunction permits

prayer so long as it is of a nondenominational nature and does not

‘use Christ’s name or title or any other denominational appeal.’”)

(quoting Hinrichs v. Bosma, 410 F. Supp. 2d 745, 748 (S.D. Ind.

2006) (denying a stay of an injunction on sectarian prayer)). In

rejecting the June 15 prayer, Judge Barksdale’s opinion strays from

its own reasoning.

D. Conclusion

I would apply Marsh to this deliberative body. In my view,

Judge Barksdale’s opinion misreads Marsh and improperly shifts the

burden onto the Board to prove it did not violate Marsh. On this

record, I cannot conclude that Doe has proven that the Board

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violated Marsh. As such, I would vacate the district court’s

injunction in full.

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