Doe ex rel. Doe v. Tangipahoa Parish School Board

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 , 103 S.Ct. 3330 , 77 L.Ed.2d 1019 (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 , 91 S.Ct. 2105 , 29 L.Ed.2d 745 (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 Clause. All but one of the alleged violations were *206 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 Tan-gipahoa 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. Kurtzman 2 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 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 , 103 S.Ct. 3330 . Therefore, the Court reasoned, the practice does not present a “potential for establishment.” Id. at 791 , 103 S.Ct. 3330 .

While Marsh mentions “other deliberative public bodies,” 463 U.S. at 786 , 103 S.Ct. 3330 , 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 *207 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 , 103 S.Ct. 3330 , 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 NCLU v. Constangy, 947 F.2d 1145 (4th Cir.1991), ceH. denied, 505 U.S. 1219 , 112 S.Ct. 3027 , 120 L.Ed.2d 898 (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 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 “ereate[ ] 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, — U.S.-, 126 S.Ct. 426 , 163 L.Ed.2d 324 (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, — U.S.-, 125 S.Ct. 2990 , 162 L.Ed.2d 910 (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 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 [constitutional 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 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943); see also Lee v. Weis-man, 505 U.S. 577, 592 , 112 S.Ct. 2649 , 120 L.Ed.2d 467 (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 *208 directed toward school related matters Id.

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 , 109 S.Ct. 3086 , 106 L.Ed.2d 472 (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, 107 S.Ct. 2573 , 96 L.Ed.2d 510 (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 v. Jaffree, 472 U.S. 38, 80 , 105 S.Ct. 2479 , 86 L.Ed.2d 29 (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 , 103 S.Ct. 3330 . 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, 107 S.Ct. 2573 .

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, 545 U.S. 844 , 125 S.Ct. 2722 , 162 L.Ed.2d 729 (2005), the Court noted that, unless special factors such as those that existed in Marsh 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 , 103 S.Ct. 3330 , of the practice at issue in Marsh .

Even this rationale has been limited by the Court in subsequent cases. In County *209 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 , 109 S.Ct. 3086 , 106 L.Ed.2d 472 . 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, 109 S.Ct. 3086 . 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 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 Or-den v. Perry, 545 U.S. 677 , 125 S.Ct. 2854 , 162 L.Ed.2d 607 (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 , 104 S.Ct. 1355 , 79 L.Ed.2d 604 (1984), in which the Court upheld the inclusion of a creche in a multi-denomina-tional 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 , 112 S.Ct. 2649 , 120 L.Ed.2d 467 (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 , 112 S.Ct. 2649 , and refused to extend Marsh to that prayer, id. at 596, 112 S.Ct. 2649 . 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.

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 , 103 S.Ct. 3330 ). 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.

*210 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 Mwray 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, denied, 505 U.S. 1219, 112 S.Ct. 3028 , 120 L.Ed.2d 899 (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 Con-stangy, 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 , 124 S.Ct. 1750 , 158 L.Ed.2d 636 (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 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. Bosnia, 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 , 124 S.Ct. 497 , 157 L.Ed.2d 404 (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 *211 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 ofProb., 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 , 120 S.Ct. 495 , 145 L.Ed.2d 382 (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 , 112 S.Ct. 3027 , 120 L.Ed.2d 898 (1992); Jager v. Douglas County Sch. Dist., 862 F.2d 824 , 828 (11th Cir.) (holding that “[b]eeause 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 , 109 S.Ct. 2431 , 104 L.Ed.2d 988 (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 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 , 119 S.Ct. 1334 , 143 L.Ed.2d 499 (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.

. 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 Fed. Appx. 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.

. 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 , 91 S.Ct. 2105 .