Opposition Brief — Turner v. City Council of the City of Fredericksburg, Virginia (No. 08-518)

VA 2. NOV 2 0 2008

No. 08-518 OFFICE OF THE 6 ERK

IN THE

Supreme Court of the United States

HASHMEL C. TURNER, IR.,

Petitioner,

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TRE City CouncIL OF THE CITy OF FREDERICKSBURG, VIRGINIA;

THOMAS J. TOMZAK, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE

CITY OF FREDERICKSBURG, VIRGINIA,

Respondents.

On PeriTION FOR A Writ or CERTIORARI TO THE

Unrrep States Court or APPEALS FOR THE Fourtu Circuit

BRIEF IN OPPOSITION

Rosert M. RoLE

KATHYRN KOLBERT

PEOPLE For THE AMERICAN Counsel of Record

Way FouNDATION Maya M. ECKSTEIN

2000 M Street, N. W, Suite 400 TERENCE J. RASMUSSEN

Washington, D. C. 20036 Hunton & WILLIAIS LLP

Telephone: (202) 467-4999 Riverfront Plaza, East Tower

Facsimile: (202) 293-2672 951 East Byrd Street

Richmond, Virginia 23219

Telephone: (804) 788-8200

Facsimile: (804) 788-8218

Counsel for the Respondents

219577 ce]

COUNSEL PRESS

$00) 274-3321 + (800) 355-6859

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TABLE OF CONTENTS

Page |

TABLE OF CITED AUTHORITIES ......... iii

AS RE «0%. 1

STATEMENT OF THE CASE ............... 3

A. Councilor Turner Assumes a Seat on the

D ] ...... 4

B. Councilor Turner Sues the City Council

h 16006 bean edocs c. 6

REASONS FOR DENYING THE PETITION ... 9

I. The Fourth Circuit Properly Applied this

Court’s Precedents and Held that the

City Council, a Government Body, Could

Regulate Its Own Speech .............. 9

A. The Fourth Circuit Held Correctly

that the City Council’s Official

Opening Prayers Are Government

J7JJ.;˙Ü ——T—— b's 9

B. The Fourth Circuit Held Correctly

that Because the City Council’s

Official Opening Prayers Are

Government Speech, Councilor

Turner’s Free Speech and Free

Exercise Challenges Fail ........... 13

ii

Contents

C. Whether the Establishment Clause

Requires Nonsectarian Legislative

Prayer Is Not at Issue in this Case

II. There Is No Circuit Split.

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APPENDIX — EXCERPTED TRANSCRIPT

JJ

Page

iii

TABLE OF CITED AUTHORITIES

Page

Cases:

Arkansas Educ. Television Comm’n v. Forbes,

r cnn cwscccuniccee 14

Bacus v. Palo Verde Unified Sch. Dist. Bd. of

Educ., 52 Fed. Appx. 355 (9th Cir. 2002) 11

Bd. of Airport Comm'rs u. Jews for Jesus, Inc.,

r 15

Bd. of Educ. of Westside County Sch. u Mergens,

Se ED a Sev incduccédebdvavece 10

City of Chicago v. Morales, 527 U.S. 41 (1999) ... 14-15

Cornelius u NAACP Legal Def. & Educ. Fund,

D 14

Goulart uv. Meadows, 345 F.3d 239 (4th Cir.

VVV 14

c 11, 14

//! ·⁰rꝛAAĩʃſ 12

iv

Cited Authorities

Page

Marsh v. Chambers, 463 U.S. 783 (1983) ..... passim

Pelphrey u Cobb County, Georgia, F.3d _,

2008 WL 4710693 (11th Cir. Oct. 28, 2008)

VVT 2, 3, 10, 16, 18, 19

Rosenberger u Rector and Visitors of Univ. of

Virginia, 515 U.S. 819 (1995) ............ 2, 7, 13

Rubin u City of Burbank, 124 Cal. Rptr. 2d 867

D 11

Santa Fe Indep. Sch. Dist. u Doe, 530 U.S. 290

%%% 10

Simpson v. Chesterfield County Board of

Supervisors, 404 F.3d 276 (4th Cir. 2005),

cert. denied 546 U.S. 937 (2005) .......... passim

Snyder v. Murray City Corp., 159 F.3d 1227

, SA 11, 12, 17

Turner v. City Council of the City of

Fredericksburg, Va., 534 F.3d 352 (4th Cir.

T—T—P—PTPTWBͤ mA y passim

Wynne v. Town of Great Fails, 376 F.3d 292

r,, ̃ —— +. ae

eee: Seg ee | Freer,” CS

*

Cited Authorities

United States Constitution:

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INTRODUCTION

In an opinion authored by Justice Sandra Day

O'Connor, sitting by designation, the Court of Appeals

below applied settled precedent concerning legislative

prayer to allow the City Council of Fredericksburg,

Virginia (“City Council”) to control its own government

speech. Specifically, the Fourth Circuit held that the City

Council acted permissibly when it determined that the

official invocations with which it opened its meetings

would remain nonsectarian, thereby complying with this

Court’s admonition that such prayers neither

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

particular faith or belief.” Marsh v. Chambers, 463 U.S.

783, 794-95 (1983) (allowing legislative prayer). The

Fourth Circuit recognized that as government speech,

the City Council’s opening prayers were not subject to

the individual protections of the Free Speech and Free

Exercise Clauses. And because the Council’s policy

governing invocations followed the rule of Marsh, it

complied with the Establishment Clause.

Relying largely on case law having nothing to do with

legislative prayer, Councilor Turner claims that the

Fourth Circuit got it wrong. Indeed, Councilor Turner

claims that this case involves “unique and important”

questions of First Amendment law, that the result below

is “unprecedented” and “has already triggered a

discriminatory backlash,” and that Justice O’Connor’s

opinion “threaten[s] to undermine free speech rights

around the country.” Petition for Writ of Certiorari

(“Turner’s Pet.”), at 1, 2 (Oct. 20, 2008). In a

supplemental petition, Councilor Turner claims further

that a recent decision of the United States Court of

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Appeals for the Eleventh Circuit has created a circuit

split.

Councilor Turner is mistaken on all counts. There

is no basis for his exaggerated language and no reason

for this Court to grant his Petition.

First, the Fourth Circuit below applied settled law

holding that legislative prayer such as that offered by

the City Council is government speech. Far from being

“unprecedented,” see Turner’s Pet., at 2, every case that

has ever considered legislative prayer has reached this

same conclusion. Indeed, as Justice O’Connor

recognized in her opinion below, “{Councilor] Turner has

not cited a single case in which a legislative prayer was

treated as individual or private speech.” (Appendix to

Turner’s Pet. (“(Turner's App.“), p. A-6).

Second, the Fourth Circuit below applied settled law

holding that “when the State is the speaker, it may make

content-based choices.” Rosenberger v. Rector and

Visitors of Univ. of Virginia, 515 U.S. 819, 833 (1995).

The individual protections of the Free Speech and Free

Exercise Clauses do not apply to the government’s own

speech. Accordingly, the City Council was entitled to

determine that when it spoke through legislative

prayers — a practice allowed by this Court in Marsh —

it would refrain from potentially polarizing sectarian

references.

Finally, the recent decision of the Eleventh Circuit

in Pelphrey u Cobb County, Georgia, F.3d 2008

WL 4710693 (11th Cir. Oct. 28, 2008), has not created a

circuit split. Indeed, the Eleventh Circuit itself denied

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that its decision was contrary to the Fourth Circuit’s

decision below, a denial that Councilor Turner

conveniently omits from his Supplemental Brief.

See Pelphrey, at *9 (noting that “Justice Sandra Day

O'Connor, writing for the Fourth Circuit [in Turner],

... applied the same standard from Marsh that we

apply today”) (emphasis added).

In conclusion, Councilor Turner’s Petition is long

on hyperbole and short on accurate legal analysis. This

Court should deny Councilor Turner’s Petition.

STATEMENT OF THE CASE

The City of Fredericksburg, Virginia, is governed by

the City Council, which consists of seven elected members.

(Turner’s App., p. A-12). The City Council holds public

meetings every two weeks to conduct its business. /d.

The Mayor presides over these meetings. Id.

The City Council begins each of its meetings with a

“Call to Order.” Id. After the call to order, the Mayor

recognizes a Council member to deliver the City

Council’s opening prayer. Jd. The Council member

delivering the prayer at any given meeting is selected

from a list of Council members who have placed their

name on the Council’s prayer rotation. /d.

Members of the public are asked to stand for the

opening prayer. /d. After standing, many “close their

eyes and bow their heads” while the Council member

recognized by the Mayor delivers the Council’s prayer.

Id. Following the opening prayer, everyone in the City

Council chambers remains standing and recites the

Pledge of Allegiance. /d.

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This order of events is memorialized in the City

Council’s official printed meeting agendas. Jd. These

agendas include “Prayer” as an official agenda item,

after the “Call to Order” and immediately before the

“Pledge of Allegiance.” Id.

A. Councilor Turner Assumes a Seat on the City

Council

From their beginning in 1957 to 2002, there is no

indication that the City Council’s opening prayers had

ever been sectarian. This changed when Councilor

Turner assumed a seat on the City Council in 2002 and

placed his name in the prayer rotation. Id. When it was

Councilor Turner’s turn to deliver the Council’s opening

prayer, he concluded it with phrases such as “in Jesus’

holy name we pray,” see Appendix, p. 4a, and “in the

name of Jesus Christ, we thank you for what you are

going to do.” Id. at p. 5a. Indeed, on April 8, 2003, after

being recognized by the Mayor to deliver the Council’s

opening prayer, Councilor Turner assumed the role of a

government-sponsored minister, stating:

Mayor, our City Council, before I go in prayer,

I would like to make a request to all that are

here and those that are out there in TV land.

I believe that our land is in need of much

prayer, and we would invite all of you that

know the word of prayer, that know there is a

God that created this universe .. and answers

prayers, we would ask that whether you are

seated or whether you are standing tonight,

that if you would go to God in prayer

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[W]e need to go to God in prayer. And I believe

that He would hear and answer each and every

one of our prayers.

Id. at p. Ia (emphasis added). Following this prologue,

Councilor Turner delivered a prayer that concluded

with: “Forgive us all for our sins, lead, guide and direct

us is our prayer in Jesus’ name.” /d. at p. 2a (emphasis

added). Several months later, upon his next opportunity

to deliver the City Council’s opening prayer, Councilor

Turner prayed: “Must Jesus bear the cross alone and

all the world go free. No there’s a cross for everyone

and, surely, there's a cross for me.. . Lord, we ask

these blessings in Jesus’ name.” Id. at pp. 7a-8a.

Following objections by the ACLU to Councilor

Turner’s prayers, in November 2005, the City Council

adopted a policy regulating its own speech. Specifically,

the policy required the City Council to “continue its

current practice of offering the official [opening]

prayer to a non-denominational ‘God,’ without invoking

the name of a specifically Christian (or other

denominational) deity.” Turner’s App., p. A-13. Councilor

Turner abstained from the vote on this policy. Id.

Following the adoption of this policy, the Mayor

asked Councilor Turner if he “would continue to invoke

the name of Jesus Christ” when he delivered the

Council’s opening prayers. Id. at p. A-14. Councilor

Turner insisted that he would. Id. As a result, at the

City Council meeting on November 22, 2005, the Mayor

did not recognize Councilor Turner to give the Council’s

opening prayer, as Councilor Turner had been scheduled

to do. Id.

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B. Councilor Turner Sues the City Council and

the Mayor

On January 10, 2006, Councilor Turner filed this suit

against the City Council and the Mayor of the City of

Fredericksburg, Dr. Thomas J. Tomzak. Councilor

Turner claimed that the City Council’s prayer policy

violated his alleged right to deliver official City Council

prayers in the name of Jesus Christ. Councilor Turner

asserted claims under the First, Fifth and Fourteenth

Amendments to the United States Constitution, various

provisions of the Virginia Constitution, and various

federal and state statutes.

On cross-motions for summary judgment, the

district court granted defendants’ motion and dismissed

Councilor Turner’s Complaint. (Turner’s App., pp.

A-11 - A-23). The district court held that the official

opening prayers of the City Council were government

speech. (Turner’s App., pp. A-15 - A-17). Because the

prayers were government speech, the “First

Amendment guarantees with respect to free expression

and exercise of religion” — guarantees that apply only

to private speech — “[we]re not implicated.” (Turner’s

App., p. A-16). Rather, the district court recognized, the

City Council’s speech was “subject only to the

proscriptions of the Establishment Clause,” see Turner’s

App., p. A.18, proscriptions that the policy satisfied.

On appeal, in an opinion by Justice Sandra Day

O’Connor, the Fourth Circuit affirmed the decision of

the district court. Turner v. City Council of the City of

Fredericksburg, Va., 534 F.3d 352 (4th Cir. 2008),

included in Turner’s App., pp. A-1 - A-10. The Fourth

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Circuit held that “[bJecause the prayers ai issue here

are government speech, . . Fredericksburg’s prayer

policy does not violate Turner’s Free Speech and Free

Exercise rights.” (Turner’s App., p. A-3).

In reaching this conclusion, the Fourth Circuit first

considered whether the City Council’s opening prayers

were “speech that must be attributed to the government,

or whether the . . . prayers were given in a personal

capacity.” (Turner’s App., p. A-4). The court noted that

Councilor Turner hald] not cited a single case in which a

legislative prayer was treated as individual or private

speech.” (Turner’s App., p. A-6). The court noted further

that the facts of this case — in which the opening prayers

were “an official part of every Council meeting,” the prayer-

givers were “allowed to speak only by virtue of [their] role

as a Council member,” and the prayers were “clearly

serving a government purpose” — compelled the

conclusion that the prayers were government speech.

(Turner’s App., pp. A-5 - A-6).

The Fourth Circuit then considered whether the City

Council’s prayer policy violated Councilor Turner’s Free

Speech and Free Exercise rights. As Justice O’Connor

noted, It his issue turns on the characterization of the

invocation as government speech.” Turner’s App., at p.

A-9 (quoting Simpson v. Chesterfield County Board of

Supervisors, 404 F.3d 276, 288 (4th Cir. 2005)). When

the government is “the speaker,” it may “regulate the

content of what is or is not expressed.” Turner’s App.,

at p. A-10 (quoting Rosenberger v. Rectors and Visitors

of University of Virginia, 515 U.S. 819, 833 (1995)).

Because the City Council’s prayers were government

speech, Councilor Turner’s “First Amendment and Free

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Exercise rights ha[d] not been violated.” Turner’s App.,

at A-10.

Finally, the Fourth Circuit considered whether the

City Council’s prayer policy itself violated the

Establishment Clause. Relying on this Court’s decision

in Marsh v. Chambers, 463 U.S. 783 (1983), the Fourth

Circuit held that it did not. Rather, “(t]he Council’s

decision to provide only nonsectarian legislative prayers

placeld] it squarely within the range of conduct

permitted by Marsh.” Turner’s App., at p. A-9.

Justice O’Connor noted expressly that the Fourth

Circuit was not deciding whether a nonsectarian prayer

policy was required by the Establishment Clause; that

is, it was not deciding whether Councilor Turner’s

prayers in the name of Jesus Christ were

constitutionally permissible absent any Council policy.

Rather, the court held only that the City Council’s

nonsectarian prayer policy was an acceptable regulation

of the Council’s own speech. See Turner’s App., p. A-8

(“We need not decide whether the Establishment Clause

compelled the Council to adopt their [nonsectarian]

legislative prayer policy... . ).

' Defendants note that there is no support in the record,

and Councilor Turner cites none, for Councilor Turner’s claims

that the decision below “has already triggered a discriminatory

backlash against state-trooper chaplains in Virginia.” Turner’s

Pet., at 1.

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REASONS FOR DENYING THE PETITION

This Court should deny Councilor Turner’s Petition.

This case presents no “unique and important questions,”

see Turner’s Pet., at 11, and most certainly does not

“threaten[] to sweep an entire category of individual free

speech rights out of the constitution.” Id. at 12. Rather,

the Fourth Circuit below applied settled precedent in

holding that the City Council, a government body, could

regulate its own speech. No court has held otherwise.

Accordingly, there is no circuit split on this issue and no

other factors weighing in favor of this Court’s

intervention. Cf Sup. Ct. R. 10 (“A petition for writ of

certiorari will be granted only for compelling reasons.”).

I. The Fourth Circuit Properly Applied this Ceurt’s

Precedents and Held that the City Council, a

Government Body, Could Regulate Iis Own

Speech

A. The Fourth Circuit Held Correctly that the

City Council’s Official Opening Prayers Are

Government Speech

The Fourth Circuit held correctly that the City

Council’s official opening prayers are government

speech. Notwithstanding Councilor Turner’s efforts to

confuse this issue, see Turner’s Pet., at 12, 14-17, this is

not a novel or open question. Every court that has ever

considered legislative prayer, including this Court, has

treated such prayer as “government speech, ‘subject

only to the proscriptions of the Establishment Clause.“

Simpson v. Chesterfield County Bd. of Supervisors, 404

F.3d 276, 288 (4th Cir. 2005) (Wilkinson, J.), cert. denied

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546 U.S. 937 (2005). Justice O’Connor recognized this

below, noting that “[Councilor] Turner hajd] not cited a

single case in which a legislative prayer was treated as

individual or private speech.” (Turner’s App., p. A-6).

In light of this monolithic authority, Councilor

Turner’s claim that the Fourth Circuit’s decision on this

point was “unprecedented,” see Turner’s App., at A-2,

is preposterous.

This Court’s decision in Marsh v. Chambers, 463

U.S. 783 (1983), is instructive. The plaintiff in Marsh

challenged the opening prayers of the Nebraska state

legislature. This Court did not analyze the

constitutionality of those prayers under the Free Speech

and Free Exercise Clauses, as it would have done if the

speech in question had been private. See Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (noting

that “private speech endorsing religion [is protected by]

the Free Speech and Free Exercise Clauses”) (quoting

Bd. of Educ. of Westside County Sch. v. Mergens, 496

U.S. 226, 250 (1990)). Rather, this Court defined the issue

as whether the challenged legislative prayers “violate|d|

the [Establishment [C]lause,” Marsh, 463 U.S. at 784,

a clause that applies only to speech by (or endorsed by)

the government. See Santa Fe, 530 U.S. at 302 (the

“Establishment Clause forbids . . . government speech

endorsing religion”) (quoting Mergens, 496 U.S. at 250).

No case has ever deviated from the approach of

Marsh and applied a free speech or free exercise

analysis to legislative prayer. See, e.g., Pelphrey v. Cobb

County, F3d 2008 WL 4710693 (11th Cir. Oct. 28,

2008) (applying Establishment Clause to opening

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prayers of county commissions); Hinrichs u Bosma, 440

Fd 393 (7th Cir. 2006) (applying Establishment Clause

to opening prayers of Indiana state legislature);

Simpson, 404 F.3d at 288 (opening prayers of a local

government body are “government speech, ‘subject only

to the proscriptions of the Establishment Clause“)

(quoting Rosenberger, 515 U.S. at 820); Wynne v. Town

of Great Falls, 376 F.3d 292 (4th Cir. 2004) (applying

Establishment Clause to opening prayers of town

council), cert. denied, 545 U.S. 1152 (2005); Snyder v.

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

(applying Establishment Clause to opening prayers of

city council); Bacus v. Palo Verde Unified Sch. Dist. Bd.

of Educ., 52 Fed. Appx. 355 (9th Cir. 2002) (in

unpublished decision, applying Establishment Clause to

opening prayers of school board); Rubin v. City of

Burbank, 124 Cal. Rptr. 2d 867 (Cal. Ct. App. 2002)

(applying Establishment Clause to opening prayers of

city council).

To hold that this case involves anything other than

government speech would strain credulity. The City

Council’s opening prayers are exactly that — the City

Council’s opening prayers. They are offered on the City

Council’s behalf by an elected councilor after the Mayor

calls the meeting to order and recognizes that elected

official to deliver the City Council’s prayer. See supra,

at 3. Members of the public are asked to and do stand

for the prayer, which is followed immediately by the

Pledge of Allegiance. See supra, at 3. Only by turning a

blind eye to these facts could one characterize these

officially sanctioned prayers, delivered only by

government officials in their capacity as such, as private

speech entitled to protection under the Free Speech and

Free Exercise Clauses.

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Councilor Turner attempts to support his “private

speech” argument by claiming that this Court’s

“government speech doctrine” has had a “relatively

short lifespan,” see Turner’s Pet., at 14, and is thus

evolving and open for debate. This argument is

disingenuous. The “doctrine” to which Councilor Turner

refers has nothing to do with legislative prayer, which

occupies a unique niche in Establishment Clause

jurisprudence. See Simpson, 404 F.3d at 281 (the

decision in Marsh “has made legislative prayer a field

of Establishment Clause jurisprudence with its own set

of boundaries and guidelines”); Snyder, 159 Fd at 1232

(“the mainline body of Establishment Clause case law

provides little guidance for our decision in this case

[involving legislative prayer]. Our decision, instead,

depends on our interpretation of the holding in

Marsh.”). Indeed, the “doctrine” Councilor Turner cites

has nothing to do with the Establishment Clause at all.

Rather, it is essentially the federal government’s defense

to claims that it is using public money to compel

speech in violation of the First Amendment. See, e. g.,

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005)

(advertising funded by targeted government

assessment on beef producers was government speech,

and thus not subject to a First Amendment challenge

as a compelled subsidy).

In sum, the Fourth Circuit’s conclusion that the City

Council’s opening prayers are government speech is

supported both by common sense and by the unanimous

case law addressing legislative prayer, including this

Court’s decision in Marsh.

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B. The Fourth Circuit Held Correctly that

Because the City Council’s Official Opening

Prayers Are Government Speech, Councilor

Turner’s Free Speech and Free Exercise

Challenges Fail

Councilor Turner conceded in the district court that

if the City Council’s opening prayers are government

speech, his challenges under the Free Speech and Free

Exercise Clauses fail. See Turner’s Consol. Mem. in

Support of Plaintiff’s Mot. for Summary Judgment and

in Opp. to Defendants’ Mot. for Summary Judgment, at

15 (June 23, 2006) (conceding that “an individual free

speech analysis is inapposite in the government speech

arena”). Although he now argues a different view, see

Turner’s Pet., at 20-21, Councilor Turner’s initial

concession was correct. As this Court has recognized,

“when the State is the speaker, it may make content-

based choices.” Rosenberger v. Rector and Visitors of

Univ. of Virginia, 515 U.S. 819, 833 (1995); see also,

e. g., Simpson, 404 F.3d at 288 (“government speech [is]

subject only to the proscriptions of the Establishment

Clause”) (citing Rosenberger).

As the City Council’s opening prayers are

government speech, Councilor Turner’s claim that the

City Council infringed upon his rights of free speech

and free exercise in a manner that cannot withstand

“strict scrutiny,” see Turner’s Pet., at 18-21, is misplaced.

There are no such rights with respect to government

speech. See, e.g., Simpson, 404 F.3d at 287-88 (rejecting

plaintiff’s claim that county board’s refusal to allow her

to deliver its opening prayer violated her First

Amendment rights). Put simply, Anjo individual has a

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First Amendment right to offer an official prayer

reflecting his personal religious beliefs.” Hinrichs v.

Bosma, 410 F. Supp. 2d 745, 750 (S.D. Ind. 2006).

Councilor Turner’s repeated references to a “forum”

analysis fail for similar reasons. By invoking the term

“forum,” Councilor Turner refers to this Court’s

distinction in cases under the Free Speech Clause

between the various venues in which private speech can

occur. See Arkansas Educ. Television Comm'n v. Forbes,

523 U.S. 666, 677 (1998) (referring to “the traditional

public forum, the public forum created by government

designation, and the nonpublic forum”) (quoting

Cornelius uv NAACP Legal Def & Educ. Fund, Inc.,

473 U.S. 788, 802 (1985)). A “forum” analysis, however,

has nothing to do with legislative prayer, which is

government speech. Rather, this Court “adopted a forum

analysis as a means of determining when the

[gjovernment’s interest in limiting the use of its property

... outweighs the interest of those” — i. e., those outside

of the government — “wishing to use the property for

other purposes.” Cornelius, 473 U.S. at 800; see also

Goulart u. Meadows, 345 F3d 239, 248 (4th Cir. 2003)

(“The Supreme Court has adopted forum analysis as

the means of analyzing restrictions placed on private

speech that occurs on government property.”) (emphasis

added). This explains why no case involving legislative

prayer engages in the “forum” analysis that falsely

anchors Councilor Turner’s petition.

Nor can Councilor Turner rely on the “vagueness”

and “overbreadth” doctrines. See Turner’s Pet., at 24-

28. Those doctrines apply to protect only the private

“exercise of First Amendment rights.” City of Chicago

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v. Morales, 527 U.S. 41, 52 (1999); see also Bd. of Airport

Comm rs u Jews for Jesus, Inc., 482 U.S. 569, 574 (1987)

(airport regulation was overbroad because it

“prohibit{ed] ... protected expression” under the First

Amendment).

In sum, as Justice O’Connor recognized below,

“because the prayers at issue here are government

speech, . . Fredericksburg’s prayer policy does not

violate [Councilor] Turner’s Free Speech and Free

Exercise rights.” (Turner’s App., p. A-3).

C. Whether the Establishment Clause Requires

Nonsectarian Legislative Prayer Is Not at

Issue in this Case

Councilor Turner asks this Court to grant certiorari

and “acknowledge that the Establishment Clause does

not require that legislative prayer extinguish the

diversity of religious viewpoints in our country.”

Turner’s Pet., at 30. But the decision below held no such

thing. Although the City Council argued below — and

still believes — that the Establishment Clause forbids

sectarian legislative prayer, the Fourth Circuit did not

address that issue. See Turner’s App., at p. A-8 (wie

need not decide whether the Establishment Clause

compelled the Council to adopt their legislative prayer

policy” prohibiting sectarian references).

Rather, the Fourth Circuit below held simply that

the Council, as a government body regulating its own

speech, was permitted to adopt such a policy.

See Turner’s App., at A-9 (“The Council’s decision to

provide only nonsectarian legislative prayers places it

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squarely within the range of conduct permitted by

Marsh ... .”); see also Pelphrey, 2008 WL 4710693, at

*9 (“the Fourth Circuit [in Turner] expressly

declined to hold that Marsh required a policy of

nondenominational prayers”) (citing Turner v. City

Council of City of Fredericksburg, Va., 534 F.3d 352 (4th

Cir. 2008)). This holding makes sense. The City Council

surely may determine how it will effectuate Marsh’s

admonition that legislative prayer may not “proselytize

or advance any one, or disparage any other, particular

faith or belief.” Marsh, 463 U.S. at 794-95.

Councilor Turner, however, believes that the City

Council lacked the authority to regulate its own speech

and to determine how it would comply with the mandate

of Marsh. He claims that the City Council’s prayer policy

violates the Establishment Clause because it attempts

to “prescribe or proscribe the content of official

prayers.” Pet., at 21-24. Councilor Turner cites Lee u

Weisman, 505 U.S. 577 (1992), a case having nothing to

do with legislative prayer, as the sole support for this

argument. See Pet., at 21-24.

Councilor Turner, however, misunderstands the

scope of Lee. The student-plaintiff in Lee argued that a

school-sponsored prayer at a middle school graduation

violated the Establishment Clause. See Lee, 505 U.S. at

580. In response to this argument — and in an effort to

minimize any perceived violation of the Establishment

Clause — the defendant school district noted that it had

asked the invited clergy to deliver prayers that were

strictly nonsectarian. /d. at 588-89.

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This Court rejected the school district’s argument.

It held that school-sponsored prayers at a public school

graduation were impermissible, whether sectarian or

not. Jd. at 588-90. In short, the decision in Lee applied

to the school prayer context, in which no government-

sponsored prayers are permissible.

In sharp contrast, this case involves the one context

in which this Court has held that the Constitution does

permit the government to sponsor prayer; namely, the

context of a legislative invocation, as long as the

government ensures that the invocation is not “exploited

to proselytize or advance any one, or disparage any

other, faith or belief.” See Marsh, 463 U.S. at 794-95;

see also Lee, 505 U.S. at 596-97 (refusing to apply the

rule of Marsh to school prayer because of [ilnherent

differences between the public school system and a

session of a state legislature”); Simpson, 404 Fd at

281 (“Marsh, in short, has made legislative prayer a field

of Establishment Clause jurisprudence with its own set

of boundaries and guidelines.”). Given this Court’s

special treatment of legislative prayer, a legislative body

has not only the right, but the obligation to regulate —

or “prescribe” — the content of its official prayers.

Marsh recognized this obligation when it held that there

are limits on the allowable scope of legislative prayer.

Marsh, 463 U.S. at 794; see also Snyder v. Murray City

Corp., 159 F.3d 1227, 1234 (10th Cir. 1998) (“[wJhen a

legislative body prevents its agents from reciting a

prayer that falls outside this genre [of acceptable

legislative invocations], the legislators are merel,’

enforcing the principleſs] [adopted] in Marsh”).

18

In conclusion, because the City Council’s choice to

offer nonsectarian legislative prayers does not violate

the Establishment Clause, that choice is necessarily

permissible. See Simpson, 404 F.3d at 288 (government

speech is “subject only to the... Establishment Clause”).

II. There Is No Circuit Split

As discussed above, the decision of the Fourth

Circuit below accords with settled law concerning the

government’s ability to regulate its own speech in the

legislative prayer context. Nonetheless, Councilor

Turner claims in his Supplemental Brief (“Turner’s

Supp. Pet.”) that there is in fact a “circuit split” on this

issue. Turner’s Supp. Pet., at 1. As support for this claim,

he cites the recent decision ( the United States Court

of Appeals for the Eleventh Circuit in Pelphrey v. Cobb

County, Georgia, Fad „ 2008 WL 4710693 (11th Cir.

Oct. 28, 2008), which he claims is directly contrary to

the holding of the Fourth Circuit in Turner.

Once again, however, Councilor Turner is mistaken.

As evidence, one needs only to consider the words of

the Pelphrey court itself, which considered Justice

O’Connor’s opinion in Turner and found it to be perfectly

consistent with its own analysis:

This year, Justice Sandra Day O’Connor,

writing for the Fourth Circuit, read Marsh to

allow invocations offered during meetings of

a city council. Turner v. City Council of City

of Fredericksburg, Va., 534 F.3d 352, 356 (4th

Cir. 2008). The city council permitted only

nondenominational prayers at its meetings,

19

and Turner, a member of the council who had

not been allowed to offer a sectarian prayer,

challenged that policy. /d. at 354. The Fourth

Circuit upheld the policy and applied the same

standard from Marsh that we apply today:

“So long as the prayer is not used to advance

a particular religion or to disparage another

faith or belief, courts ought not to ‘parse the

content of a particular prayer.“ Id. at 356

(quoting Marsh, 463 U.S. at 795).

Although it upheld the policy of the council,

the Fourth Circuit expressly declined to hold

that Marsh required a policy of

nondenominational prayers . .. As the Fourth

Circuit recognized, Marsh permits a range of

prayers to be offered during local, state, or

federal legislative meetings.

Pelphrey, at *9.

Moreover, the decisions in Pelphrey and Turner

involved different issues. Specifically, the plaintiffs in

Pelphrey sued to stop legislative prayers that they

deemed impermissibly sectarian. Faced with this claim,

the Eleventh Circuit was forced to determine what sorts

of legislative prayers impermissibly “proselytize or

advance” religion, Marsh, 463 U.S. at 794, thereby

violating the Establishment Clause. See Pelphrey, at *1

(“The taxpayers argue that the Establishment Clause

permits only nonsectarian prayers for the meetings of

the commissions, but we disagree.”).

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In contrast, this case is about the ability of a city

council to control its own speech. The issue is not what

the Establishment Clause requires with respect to the

content of legislative prayer, as nobody has sued

claiming that the Council’s prayers impermissibly

advanced religion. Rather, the issue is whether a city

council can choose to deliver only prayers that are

nonsectarian. As Justice O’Connor noted expressly

below, the Fourth Circuit did not need to, and was not,

deciding what the Establishment Clause required in

terms of the content of a legislative prayer. See Turner’s

App., at p. A-8 (“We need not decide whether the

Establishment Clause compelled thie Council to adopt

their legislative prayer policy, because the

Establishment Clause does not absolutely dictate the

form of legislative prayer.”).

In sum, Councilor Turner’s “circuit split,” see

Turner’s Supp. Pet., at 1, is imaginary.

21

CONCLUSION

Contrary to Councilor Turner’s hyperbole, nothing

in the decision below is inconsistent with any decision of

this Court or any other court of appeals. For this reason,

Respondents respectfully request that the Petition for

Writ of Certiorari be denied.

Date: November 20, 2008

Respectfully submitted,

RosertT M. RoLFE

Counsel of Record

Maya M. EcksTEIN

TERENCE J. RASMUSSEN

Hunton & WILLiams LLP

Riverfront Plaza, East Tower

951 East Byrd Street.

Richmond, Virginia 23219

Telephone: (804) 788-8200

Facsimile: (804) 788-8218

KATHYRN KOLBERT

PEOPLE FoR THE AMERICAN

Way FounpaATION

2000 M Street, N.W., Suiie 400

Washington, D.C. 20036

Telephone: (202) 467-4999

Facsimile: (202) 293-2672

Counsel for the Respondents

la

APPENDIX — EXCERPTED TRANSCRIPT

OF PROCEEDINGS

[commencing at page 25]

April 8, 2002

MAYOR BECK: Thank you all for being here. We

will start the April 8, 2003, meeting of the

Fredericksburg City Council. I will call that to order.

And we will start with a prayer led by Reverend Hashmel

Turner, followed by the Pledge of Allegiance.

HASHMEL C. TURNER, JR.: Mayor, our City

Council, before I go in prayer, I would like to make a

request to all that are here and those that are out there

in TV land. I believe that our land is in need of much

prayer, and we would invite all of you that know the word

of prayer, that know that there is a God that created

this universe that we live in that sets high and looks low

and hears and answers prayers, we would ask that

whether you are seated or whether you are standing

tonight, that if you would go to God in prayer, because

there is war and rumors of war in our land and a lot of

violence, a lot of hatred and a lot of malice and a lot of

evil that’s in the land and we need to go to God in prayer.

And I believe that he would hear and answer each and

every one [26] of our prayers.

All wise and all merciful God, our Dear Heavenly

Father. Father God, we come right now to thank you

first of all for your grace, we thank you for your mercy,

we thank you for the love that you continue to shower

down upon each and every one of us. We have gathered

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here in this chamber tonight to address the business

and the concerns of this great city that we live in, but

we ask, Lord, that you would look upon us and that you

would bless us individually and collectively, that each

and every household is represented and that’s out there

in TV land, whatever needs there are that they have,

we ask that you would meet those needs right now. We

pray for healing upon the sick and afflicted in the land,

for bereaved families as our minds focus on the Garnett

family, as they have buried a loved one today. We pray

that you would continue to be with them and lift them

up. And not only them, but others in the community.

Families that are enduring a time of bereavement and

sorrow, that you would be with them and give them the

strength [27] that they need. As our nation is in war

and there is rumors of other conflicts flaring up, but

you know all about that because in your word you said

that there would be a time when there would be wars

and rumors of wars, and we are living in perilous times,

which are known as very dangerous times because if we

turn on our TV sets or we pick up the paper, turn on

the radio, we hear so much that is going on. But I realize

that you are still in charge, so we ask that you would

address those concerns and those needs that we have.

Forgive us all for our sins, lead, guide and direct us is

our prayer in Jesus’ name. Amen.

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May 13, 2003

MAYOR BECK: Thank you very much. I would like

to call the May 13, 2003, meeting of the Fredericksburg

City Council to order. Thank you. We will start with a

prayer led by councilman Matt Kelly, followed by the

Pledge of Allegiance.

MATTHEW J. KELLY: Most merciful Father, be

with us here tonight to comfort those in need,

* * *

[9] * * *

encourage us to share the blessings we receive with

those less fortunate than ourselves. All of this we ask

with praise and thanksgiving for this opportunity to

serve. Amen.

August 13, 2002

HASHMEL C. TURNER, JR.: All wise and all

mereiful God, Our Dear Heavenly Father, we gather

Lord God in this hour of the evening and we realize,

Father, that you are in our presence. We thank you for

your grace, thank you for your mercy. Lord we just

thank you for all the love that you continue to shower

down upon us. As we are about the business of this

locality, we ask Lord God, that you will cleanse our hearts

and our minds that we make the right decisions that’s

best suited for this locality and we ask that you would

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bless our leaders from the state wide offices and for the

national offices and the world wide leaders. We are in

some turbulent times. There is war and rumors of war

is going on around us. We are much concerned, Lord

God, and we realize that it’s all in your care. We ask

that you would [10] be with us through this session, that

we would do those things that are pleasing in your sight.

Thank you for what you have done in our lives. Lord,

we thank you for what you are going to do in Jesus’

holy name we pray. Amen.

August 27, 2002

MAYOR BECK: Good evening, I would like to call

the August 27, 2002, meeting of the Fredericksburg City

Council to order. We will start with a prayer led by

Councilman Thomas Fortune followed by the Pledge of

Allegiance.

THOMAS FORTUNE: We ask God to give this

counsel the energy to look at all sides of the issues that

come before it. We ask that we be given the integrity to

decide matters on the basis of what’s best for all the

people of the city and not on the basis of what might be

good for us personally. And we ask for the patience to

listen to public criticism with humility when we are in

the wrong, and with forbearance when that criticism is

petty, foolish or mean spirited. Amen.

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[33] + + a

city’s business tonight, help us make decisions that

benefit all the residents of Fredericksburg, in your name

we pray. Amen.

July 22, 2000

HASHMEL C. TURNER, JR.: — we are concerned

about those that are less fortunate, we pray that you

will continue to bless families that are going through a

period of bereavement. Please be with them right now

and give them guidance and help them through their

time of sorrow. We are concerned about our men and

our women around the world that are serving in our

Armed Forces. We ask that you will continue to bless

and protect them, keep them ever before you, and we

ask, Lord God, that you would help us to always be

mindful that we are about doing those things that are

pleasing in your sight. Continue to give us guidance and

direction as we address the concerns of this city tonight,

for we thank you for what you have done. Lord, we thank

you for what you are doing right now. And in the name

of Jesus Christ, we thank you for what you are going to

do. [34] Amen.

August 12, 2003

MAYOR BECK: Thank you, I would like to call the

August 12, 2003, meeting of the Fredericksburg City

Council to order. We will start with a prayer led by Vice

Mayor Scott Howson, followed by the Pledge of

Allegiance.

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Appendix

W. SCOTT HOWSON, III: Heavenly Father, we

thank you for this opportunity to serve. And humbly

ask your blessing on those gathered here tonight. Guide

us through inevitable conflicts. Help us to keep our

minds on the job before us. Instill in us the confidence

to pursue the best solutions, and the wisdom to know

when we have reached that point. Keep our eyes and

ears ever focused on the needs of the individuals and

families who very selected us for this task, and who trust

us with this responsibility. And as we work together, we

are thankful for the strength, dedication and knowledge

of the men and women who comprise the city staff,

without who’s efforts our work would mean nothing.

* * *

138] * * *

especially those still suffering from the effeets of

Hurricane Isabel. As always, we also ask that you be

with our men and women in uniform, both in the Armed

Forces, as well as law enforcement and emergeney

services. Their sacrifices and those of their families

insure the safety and freedom that we enjoy. Let us not

forget that we are here to serve and not be served. And

as we conduct the city’s business tonight, help us make

decisions that benefit all the residents of

Fredericksburg. In your name we pray. Amen.

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Appendix

October 14, 2003

MAYOR BECK: Thank you all for being here. I

would like to call the October 14, 2003, meeting of the

Fredericksburg City Council to order. We will start with

a prayer led by councilman Hashmel Turner, followed

by the Pledge of Allegiance.

HASHMEL C. TURNER, JR.: Heads bowed, eyes

closed. The hymnologist one day picked up a pen and

he put these words to penmanship. “Must Jesus bear

the cross alone and all the world go [39] free. No, there

is a cross for everyone, surely there is one for me.”

All wise and all merciful God, out there, Heavenly

Father, we come at this hour today to say thank you for

grace, thank you for mercy. Lord we thank you for all

the love that you continue to shower down upon each

and every one of us. Lord we are concerned about the

things of the city, and we are here this evening to

address the business of this dear city. We are concerned,

Lord God, about our families. We pray your blessings

upon them, family members far and near. We ask your

blessings upon them from the oldest to the youngest.

We realize, Lord God, that our nation is going through

some terrible times. We turn on the TV, we turn on the

radio, we pick up the newspaper, we hear war and

rumors of war. We ask, Lord God, that you would bless

our service personnel world wide as they defend the

freedom that we cherish so dearly. We are just so

thankful now for another opportunity to stand before

you and to acknowledge that you are the God, the

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creator of heaven and earth. We pray [40] Lord God,

that you would just look at our hearts and our minds,

search them. If you find anything there that shouldn’t

be, we pray Lord God, that you would remove it. We

pray Lord God, that you would continue to instill in our

leaders, starting with the local, the state, the national,

and the world wide leaders, that they may seek peace,

that they have an understanding heart to be concerned

about the creation, your prized creation, mankind. Lord,

we ask these blessings in Jesus’ name. Amen.

October 28, 2003

MAYOR BECK: Thank you very much. I would like

to call the October 28, 2003, meeting of the

Fredericksburg City Council to order. We will start with

a prayer led by councilman Vice Mayor Scott Howson,

followed by the Pledge of Allegiance.

W. SCOTT HOWSON, III: Heavenly Father, we

come here tonight thankful for the privilege of serving

our citizens of the city. Grant us patience and wisdom as

we work together to find

* * * *

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