stating that benedictions and invocations are proper so long as they do not exceed the scope of “the American civil religion”
How later courts described this case
- stating that benedictions and invocations are proper so long as they do not exceed the scope of “the American civil religion”
- Boggs, Circuit Judge, dissenting from the denial of rehearing en banc, joined by Judges David A. Nelson, Alan E. Norris, Suhreinrich, Siler and Batchelder
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
concurring in the denial of rehearing en banc, joined by Chief Circuit Judge BOYCE F. MARTIN, Jr.
The language of my colleagues dissenting from the en banc vote in this case is colorful — especially the rhetoric about beginning school board meetings “doing yoga” or “deep breathing exercises” or readings from Oprah Winfrey or the “wisdom of Barney.” Some of the “how-now-brown-cow” alliteration is interesting — for example, the statement that those not voting for the en banc “must believe that the Constitution allows Marx but not Moses, Oprah but nor Obediah, and Emerson but not Ephesians.”
Unfortunately, these amusing rhetorical devices do not mention that what we have here is a sectarian Christian minister as school board president not only calling for the congregation to pray to his sectarian “Lord,” his New Testament “Lord” but also to do so “in Jesus’ name.” The rhetoric of my colleagues has broad appeal to many religious and political groups, but it has not appealed to the Supreme Court or this court in the past.
My dissenting friends would allow, as they say quite explicitly in the second paragraph, sectarian “prayers that call *541 upon one or another form of deity satisfactory to members of that body.” This, of course, would allow Catholic prayers to the Virgin Mary where the majority is Catholic and can enforce its will, or “fire and brimstone” prayers where the majority is Fundamentalist, or Jewish prayers in Hebrew where the majority of the community is of the Jewish faith.
It does not appeal to the American sense of fair play required by the Establishment Clause as elaborated in Marsh v. Chambers, 463 U.S. 783 , 103 S.Ct. 3330 , 77 L.Ed.2d 1019 (1983), for as our Court said some years ago in Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir.1987), in striking down similar sectarian prayers at commencement exercises:
From the beginning of the colonial period to the present, American churches have taken their various religious differences seriously, and under the Free Exercise and Establishment clauses taken together, we have generally accepted and settled on an accommodation: The concept of the equal liberty of conscience is our guiding principle. In our national and community life, we can never be sure whether our particular religious, sectarian and moral convictions will be in the majority or the minority. So, as a diverse people we have rejected the notion of a confessional state that supports religion in favor of a neutral state designed to foster the most extensive liberty of conscience compatible with a similar or equal liberty for others. To those who act or argue against this principle of equal liberty of conscience on grounds that their duty is to use the state in support of their particular beliefs, we answer that we cannot expect others to accept an inferior liberty. To those who say that the principle of equal liberty of conscience has the effect of rejecting the absolute nature of their religious beliefs, we reply that if any principle can be agreed to, it can only be that of an equal liberty of conscience for all.
In Marsh v. Chambers, the Supreme Court, looking primarily to the intent of the framers of the Constitution and historical practice since 1789, id. at 786-792, 103 S.Ct. 3330 , upheld “nonsectarian,” id. at 793 n. 14, 103 S.Ct. 3330 , “nonproselytizing” legislative invocations that do not “symbolically place the government’s official seal of approval on one religious view,” id. at 792 , 103 S.Ct. 3330 (citation omitted). The Court emphasized that “civil” or secularized invocations are used across the country to open legislative, judicial, and administrative sessions of state legislatures, city councils, courts and other public bodies, as well as by private institutions of all kinds. So long as the invocation or benediction on these public occasions does not go beyond “the American civil religion,” so long as it preserves the substance of the principle of equal liberty of conscience, no violation of the Establishment Clause occurs under the reasoning of Marsh. Id. at 793 n. 14, 103 S.Ct. 3330 .
The annual graduation exercises here are analogous to the legislative and judicial sessions referred to in Marsh and should be governed by the same principles. The invocation and benediction at a graduation ceremony serves the “solemnizing” function described by Justice O’CONNOR in her concurrence in Lynch v. Donnelly:
Such governmental “acknowledgments” of religion as legislative prayers of the type approved in Marsh v. Chambers, government declaration of Thanksgiving as a public holiday, printing of “In God We Trust” on coins, and opening court sessions with “God save the United States and this honorable court” ... serve the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worth of appreciation in society. *542 465 U.S. 668 , 104 S.Ct. 1355 , 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring) (citation omitted).
Like federal, state and local legislative and court sessions throughout the country, there are thousands of public graduation exercises annually. They are frequently memorable occasions for students, parents and friends. To prohibit entirely the tradition of invocations at graduation exercises while sanctioning the tradition of invocations for judges, legislators and public officials does not appear to be a consistent application of the principle of equal liberty of conscience.
At the same time, the invocations and benedictions delivered at these occasions should not be framed in language that is unacceptable under Marsh , language that says to some parents and students: we do not recognize your religious beliefs, our beliefs are superior to yours. The invocations and benedictions delivered here do not pass the Marsh test. They are framed and phrased so that they “symbolically place the government’s seal of approval on one religious view” — the Christian view. They employ the language of Christian theology and prayer. Some expressly invoke the name of Jesus as the Savior. They are not the “civil” invocations or benedictions used in public legislative and judicial sessions as described in Marsh .
What we have before us in the instant case from Cleveland are similar sectarian prayers that “invoke the name of Jesus as the Savior.” Despite the amusing rhetoric of my dissenting friends about “yoga,” etc., I doubt that the chairman of the Cleveland School Board would want to substitute yoga, breathing exercises, Oprah, Barney or Emerson because he is interested in invoking the name of Jesus as our Savior.
I do not mean in any way to denigrate the religious views of the Cleveland School Board President who is a Christian minister. I have been baptized in this same faith for more than 60 years and bow my head in reverence to the Christian faith and the teachings of Jesus. But I do not believe as a judge that I may constitutionally call upon those attending my court to repeat the Lord’s Prayer or participate in any other prayer in which I ask them to accept Jesus as their Savior. Thank God that the Establishment Clause forbids me from doing that whenever I may be tempted to do so, just as it forbids the Cleveland School Board Chairman from worshiping his Savior in sessions over which he presides. Invoking Jesus as the Savior, or any other sectarian form of prayer, is no more appropriate in opening school board meetings than it would be in opening a session of the Sixth Circuit Court of Appeals.