Petition for Writ of Certiorari — Constangy v. North Carolina Civil Liberties Union

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

a -

~ .. && i

®1- i176 JAN 2 1 1992

No, ——--——-

OFFICE OF THE Cite

———

IN THE

Sigireme Court of the United States

OCTOBER TERM, 1991

THE HONORABLE H. WILLIAM CONSTANGY,

Petitioner,

NoRTH CAROLINA CIVIL LIBERTIES UNION

LEGAL FOUNDATION, et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

THOMAS PATRICK MONAGHAN JAY ALAN SEKULOW

WALTER M. WEBER (Counsel of Record)

6375 New Hope Road JORDAN W. LORENCE

New Hope, KY 40052 JAMES M. HENDERSON, SR.

(502) 549-5454 1000 Thomas Jefferson

Street, N.W.

Suite 520

Washington, D.C. 20007

(202) 337-2273

Attorneys for Petitioner

CHARLES E. RICE

Notre Dame Law School

Notre Dame, IN 46556

(219) 239-5667

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Does an “offended observer” of an alleged violation

of the Establishment Clause of the First Amendment have

standing under Article III to challenge that alleged viola-

tion?

2. Does the custom of a state district judge to open

each daily courtroom session with a nonsectarian invoca-

tion violate the Establishment Clause of the First Amend-

ment?

PARTIES

The petitioner in this case is the Honorable H. William

Constangy. Judge Constangy was the defendant-appellant

below.

The respondents in thise case are Ronald Everhart,

Kathleen M. Arundell, James Gronquist, Philip F. Hower-

ton, Jr., Sharon Samek, and the North Carolina Civil

Liberties Union Legal Foundation. Each of the respond-

ents was a plaintiff-appellee below.

There were no other parties to this proceeding in the

court of appeals.

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES .

TABLE OF AUTHORITIES

DECISIONS BELOW

JURISDICTION ..

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

A. Statement of Facts

Course of Proceedings

REASONS FOR GRANTING THE WRIT

IIT.

THE CONCEPT OF “OFFENDED = OB-

SERVER” STANDING UPON WHICH RE-

SPONDENTS’ SUIT RESTS CONFLICTS

WITH THE DECISIONS OF THIS COURT

A. The Organizational Respondent Lacks Stand-

ing oi rare psy ane :

B. The Individual Respondents Lack Standing

THE DECISION OF THE COURT OF AP-

PEALS CONFLICTS WITH THE DECISION

OF THIS COURT IN MARSH v. CHAMBERS

A. The Historical Record Supports the Practice

of Opening Court with an Invocation of

Divine Assistance

B. Judicial Invocations Pose No Greater Threat

of Establishment than Legislative Invoca-

tions eeroren

THIS CASE RAISES IMPORTANT AND UN-

SETTLED QUESTIONS REGARDING THE

“LEMON TEST” UNDER THE ESTABLISH-

MENT CLAUSE

(iii)

Page

Cc Ww

IV.

TABLE OF CONTENTS—Continued

A. Does the Lemon Test Strictly Forbid Any

Action with Religious Significance on the

Part of Government Officials? ....0000000.0000000....

1. The court below construed the “purpose”

prong to forbid subjective religious moti-

SII ccaceie binaseh mcaieh net eea tanec eer

2. The court below construed the “primary

effect” prong to confer a “heckler’s veto”’

on offended observers ....................-.----------

3. The court below construed the “entangle-

ment” prong as forbidding government

officials from engaging in any activity

with religious significance -.......................

B. Is the Lemon Test a Valid Interpretation of

the Establishment Clause? .............................-

IN THE ALTERNATIVE, THIS COURT

SHOULD GRANT REVIEW, VACATE THE

DECISION BELOW, AND REMAND FOR

FURTHER CONSIDERATION IN LIGHT OF

RE i STI dace ics tisneicecnchnsensithnieeseaniemcinces

SRNR RTIINET sepsin.cuicncnasdeinantduatelaasisabientntianneninheinntdoumabaines

APPENDICES:

Opinion, U.S. Court of Appeals for the Fourth

CRORE CCIE, TB, BE nav vcecncvccncececcrcnsccccnsccceseceess

Findings of Fact and Conclusions of Law, U.S.

District Court for the Western District of North

oe ee eee een

Order, U.S. District Court for the Western Dis-

trict of North Carolina (Nov. 15, 1990) _..........

. Judgment, U.S. District Court for the Western

District of North Carolina (Jan. 29, 1991) __..

. Complaint and Motion for Preliminary Injunc-

Page

Cases

TABLE OF AUTHORITIES

Board of Education o

Schools v.

Page

f Westside Community

Mergens, 110 S. Ct. 2356 (1990)...

Bowen v. Kendrick, 487 U.S. 589 (1988) _.... 22, 24, 25, 26

Corporation of Presiding Bishop v. Amos, 483 U.S.

327 (1987)

County of Allegheny v.

Union Greater Pittsburgh Chapter, 492 U.S. 573

(1989)

American Civil Liberties

Doremus v. Board of Educ.. 342 U.S. 429 (1952) ..

Edwards v. Aguillard, 482 U.S. 578 (1987) _...........

Flast v. Cohen, 392 U.S. 83 (1968) ............00.

Lee v. Weisman, U.S. No. 90-1014 (argued Nov. 6,

..10, 26, 27, 28, 29

1991)

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

...7, passim

Los Angeles v. Lyons, 461 U.S. 95 (1983) _.......... 11

Lynch v. Donnelly, 465 U.S. 668 (1984) _........ sn Soe

Marsh v. Chambers, 463 U.S. 783 (1983) ...........7, passim

McDaniel v. Paty, 435 U.S. 618 (1978)... ; 22

North Carolina Civil Liberties Union v. Constangy,

751 F. Supp. 552 (W.D.N.C. 1990), aff’d, 947

F.2d 1146 (4th Cir. 1991) .............................-.--..--. 1,7, 8

North Carolina Civil Liberties Union Legal Foun-

dation

1991)

Schlesinger

Street »

Constangy,

947 F.2d 1145 (4th Cir.

1, passim

. Reservists Committee to Stop the

War, 418 U Ss. 208 (1974) . Rokk

School District of Abington Tow nship ‘ v. Schempp,

374 US.

. New York, 394 U.S. 576 (1969)

203

United State $v.

Valley Forge

United for Separation of Church and State, 454

Cid PG CRIED einer idackewenes 10, 11,

Wallace v.

(1963) _..

Ric hardson, 418 US. 166 (1974).

Christian

Jaffree, 472 U.S

College v. Americans

Constitutional and Statutery Provisions

28 U.S.C.

42 U.S.C.

1343

Co OO ba

TABLE OF AUTHORITIES—Continued

Page

Ur. Geom, Gah. Bais we tk Oke © nncrnssatavbntsactnoonsecensers 2, passim

ie Gt Fe, eS RR CUE mamma Nae NACo h 21

ee Be SRE ENCE ae 2, passim

Cee, GOMINN. SORRI., FEA Oo OES sin vccncchucectucapeiicecamcemania ————

Other Authorities

The Documentary History of the Supreme Court

of the United States, 1789-1800 (1988) .....16, 17, 18, 19

FI BT asin cesccantscchccnseaviannnectaeiceauaanaadone 16

POs FO Ge wicniianisiticssnrintaridstentenennsaaliaenaeneecneme 19

C. Warren, The Supreme Court in United States

FEUNGOG CUED ccccacciassianccnstancanhcgunaniaaiadecnomoten 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No.

THE HONORABLE H. WILLIAM CONSTANGY,

Petitioner,

NORTH CAROLINA CIVIL LIBERTIES UNION

LEGAL FOUNDATION, et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

DECISIONS BELOW

The decision of the district court is reported as North

Carolina Civil Liberties Union v. Constangy, 751 F. Supp.

552 (W.D.N.C. 1990). The decision of the court of ap-

peals is reported as North Carolina Civil Liberties Union

Legal Foundation v. Constangy, 947 F.2d 1145 (4th Cir.

1991).

JURISDICTION

The United States Court of Appeals for the Fourth Cir-

cuit entered its judgment in this case on October 23,

1991. This Court has jurisdiction, under 28 U.S.C. § 1254

(1), to review the judgment of the court of appeals,

CONSTITUTIONAL PROVISIONS

The second section of Article III of the United States

Constitution provides in pertinent part as follows:

The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or

which shall be made, under their Authority ;—to all

Cases affecting Ambassadors, other public Ministers

and Consuls;—to all Cases of admiralty and mari-

time jurisdiction;—to Controversies to which the

United States shall be a Party;—to Controversies

between two or more States:—between a State and

Citizens of another State;—between Citizens of dif-

ferent States:—between Citizens of the same State

claiming Lands under the Grants of different States,

and between a State, or the Citizens thereof, and

foreign States, Citizens or Subjects.

U.S. Const. art. III, § 2, cl. 1.

The first amendment to the United States Constitution

provides as follows:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to as-

semble, and-to petition the Government for a redress

of grievances.

U.S. Const. amend. I.

The first section of the fourteenth amendment to the

United States Constitution provides as follows:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

‘)

—

out due proces of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

U.S. Const. amend. XIV, § 1

STATEMENT OF THE CASE

The respondents in this case brought suit in federal!

district court under 42 U.S.C. § 1983, seeking declara-

tory and injunctive relief against the practice of peti-

tioner, a state trial judge, of opening each daily court

session with an invocation. Respondents asserted federal

jurisdiction under 28 U.S.C. § 1343)

A. Statement of Facts 2

Petitioner, the Honorable H. William Constangy, has

been a duly appointed Judge of the District Court of the

Twenty-Sixth Judicial District of North Carolina since

March 3, 1989.

Judge Constangy holds court regularly during approxi-

mately 45 weeks each year. Since May of 1989, the bailiff

opens Judge Constangy’s court in the morning with the

cry, “Everyone rise; this Court is now in session, Honor-

able William Constangy, Judge, presiding. Please be

seated.”

During and after the bailiff’s cry, people in the court-

room come and go, walk around, talk. and engage in

courtroom business. Plaintiffs’ Ex. 13 (Deposition of

Judge William Constangy) at 7; Defts. Ex. 16 (Depo. of

Sharon Samek) at 15-16.

1 Respondents also alleged a parallel claim, based upon pendent

jurisdiction, under the state constitution of North ( irolina. How-

ever, both the district court and the court of appeals based their

decision exclusively upon the federal Establishment Clause, with-

out addressing the state constitutional claim

“Where no citation is given, the facts stated were either stipu-

lated, see Defts. Ex. 22 (Stipulations) (Ay p. dla), or were otherwise

uncontested.

After the bailiff’s opening cry, Judge Constangy regu-

larly seats himself behind the bench, turns on the light at

the bench, and says, “Let us pause for a moment of

prayer.” He then recites the following invocation aloud:

O Lord, our God, our Father in Heaven, we pray

this morning that you will place your divine guiding

hand on this courtroom and that with your mighty

outstretched arm you will protect the innocent, give

justice to those who have been harmed and mercy to

us all. Let truth be heard and wisdom be reflected in

the light of your presence here with us today. Amen.

This invocation is a part of the opening of court. Judge

Constangy always says the same invocation, with the

same introduction, each morning at the opening of court,

whether civil or criminal, except when presiding over

civil commitment hearings, which are conducted in the

mental health clinic. ,

People are free to come and go—and talk—at any

time before or during the invocation (and after, as well,

unless their case is before the court). Plaintiffs’ Ex. 13

(Depo. of Judge Constangy) at 9; Defts. Ex. 16 (Samek

Depo.) at 19 (continued conversing with prosecutor dur-

ing invocation); Defts. Ex. 18 (Everhart Depo.) at 6

(walked out during invocation). During the invocation,

Judge Constangy bows his head and closes his eyes. Tr."

64-66. Judge Constangy does not observe whether any

particular people are present—or how they behave—dur-

ing the invocation. Plaintiffs’ Ex. 13 (Depo. of Judge

~Constangy) at 10; Defts. Ex. 21 (same) at 69. Judge

“ Constangy has never noticed or even mentioned, much

less criticized, the presence, absence, or behavior of any

individual during the invocation. Defts. Ex. 21 (Depo. of

Judge Constangy) at 70; Defts. Ex. 16 (Samek Depo.) at

11-12, 19; Defts. Ex. 17 (Arundell Depo.) at 6-7; Defts.

§ The abbreviation “Tr.” refers to the transcript of the trial of

May 16, 1990.

——

Ex. 18 (Everhart Depo.) at 6-8; Defts. Ex. 19 (Gron-

quist Depo.) at 7-8.

The bailiff reopens court in the afternoon with his

customary cry. Judge Constangy does not repeat his in-

vocation when court is reopened in the afternoon.

Since becoming a judge, Judge Constangy has presided

most frequently over misdemeanor criminal cases. De-

fendants in custody are not brought into the courtroom

until the invocation has been completed. Judge Constangy

has never held juvenile court.

Judge Constangy composed the invocation himself. He

did not consult any prayer books or other religious writ-

ings in drafting it, nor did he consult members of the

clergy or other individuals or religious institutions.

Judge Constangy testified without contradiction that

in North Carolina, state district court “is an unusually

hectic type of court,” Tr. 24. Judge Constangy expressed

his concern that “one of the perceptions I think that the

public has about our court system is that frequently it

tends to be very hectic, very disorganized,” id., and that

the public may perceive that “the court system and law-

yers are involved in a lot of tricks and games,” id. at 25.

Judge Constangy explained that he uses the opening in-

vocation primarily “to set the proper tone and atmosphere

for the court.” Jd. (Respondent Ronald Everhart con-

firmed that the opening invocation effectively suspended

the “normal commotion” in district court. Defendant’s

Ex. 18 (Everhart Depo.) at 18.) Judge Constangy testi-

fied that the dpening invocation served as well “to pre-

serve the American tradition of opening deliberative

bodies with an invocation and also to express a reverence

for God.” Tr. 25.

At least several other trial judges in North Carolina

open their daily courtroom sessions with invocations.

Defts. Ex. 10 (Affidavit of Senior Resident Superior

Court Judge James C. Davis) at 1; Defts. Ex. 11 (Aff. of

District Court Judge William G. Ijames) at 1; Defts.

Ex. 13 (Aff. of retired/recall District Judge Leonard H.

Van Noppen) at 1. One of these judges testified that he

has followed this practice for twenty years, Defts. Ex.

13 (Van Noppen) at 1.

The individual respondents are attorneys licensed to

practice in Judge Constangy’s court. Each individual re-

spondent was an assistant public defender at the time

of the filing of this lawsuit. Plaintiffs’ Exs. 8-12... Each

individual respondent has been present for at least one

recitation of Judge Constangy’s court-opening invocation.

Respondent North Carolina Civil Liberties Union is a

non-profit North Carolina corporation which holds itself

out as being devoted to securing and defending the rights,

privileges and immunities guaranteed by the United

States Constitution and the Constitution of North Caro-

lina, and as having a special interest in the rights pro-

tected by the First Amendment. A number of its mem-

bers live in Charlotte and may be subject to being ordered

to attend Judge Constangy’s courtroom as witnesses or

defendants in the same manner as any other citizen or

group of citizens.

Immediately before saying the invocation, Judge Con-

Sstangy always says, “Let us pause for a moment of

prayer.” No other verbal or written announcement is

made that the court will be opened with an invocation.

Judge Constangy would be willing to announce that he

will say a prayer and to allow anyone in the courtroom

who wished to leave the room an opportunity to do so.

Judge Constangy intended at the time of trial to con-

tinue indefinitely his practice of opening each session of

court with an invocation.

+ One of the respondents, James Gronquist, left this position prior

to the trial of this case and entered private practice. Plaintiffs’

Ex. 8 (Partial Direct Testimony of James Gronquist) at 1, § 1.

There is no evidence in the record that respondent Gronquist any

longer has occasion to appear in Judge Constangy’s court.

<< —<“‘ ; hté=‘<=‘ zs

It is undisputed that state and federal courts at all

levels, including this Court, commonly open their daily

sessions with an invocation of God’s assistance in the form

of a ery, “God save the United States (or a given state)

and this Honorable Court.”

B. Course of Proceedings

On November 21, 1989, respondents filed suit against

Judge Constangy in the United States District Court for

the Western District of North Carolina. The case went to

trial on May 16, 1990, and on October 18, 1990, the dis-

trict court entered its findings of fact and conclusions of

law.

The district court held that Judge Constangy’s court-

room invocation violated the Establishment Clause of the

First Amendment. North Carolina Civil Libertics Union

v. Constangy, 751 F. Supp. 552 (W.D.N.C. 1990)

(App. 17a).

The district court rejected Judge Constangy’s argument

that the controlling precedent was Marsh v. Chambers,

463 U.S. 783 (1983), in which this Court upheld the

practice of the Nebraska state legislature to open each

legislative day with a prayer by an official, paid chaplain.

Limiting the Marsh decision to situations where the chal-

lenged activity reflects a “200 year-old ‘unambiguous and

unbroken history,” 751 F. Supp. at 554 (App,. 22a)

(quoting Marsh, 463 U.S. at 792), the district court per-

ceived “no comparable evidence in this case,” 751 F. Supp.

at 554 (App. 22a).

Applying the three-pronged Lemon test, id. at 553-54

(App. 20a-21a),® the district court held that Judge Con-

5 Under Lemon v. Kurtzman, 403 U.S. 602 (1971), government

action must have a “secular purpose,” id. at 612, must have a

“principal or primary effect” that “neither advances nor inhibits

religion,” id., and must not produce “excessive government entangle-

ment with religion,” id. at 6138.

stangy’s invocation failed all three prongs of that stand-

ard, id. at 554 (App. 20a). The court held that the invo-

cation had a religious “purpose,” “advanced” religion, and

impermissibly fused governmental and religious functions

so as to produce “excessive government entanglement with

religion.” Jd. (App. 21a). The district court concluded

that the challenged invocation violated the Establishment

Clause.°

The district court entered an order declaring Judge

Constangy’s practice of “opening court with prayer” to

be unconstitutional and enjoining that practice. App. 24a.

The court subsequently entered a judgment to the same

effect. App. 25a.

Judge Constangy appealed to the U.S. Court of Appeals

for the Fourth Circuit, but that court affirmed the judg-

ment of the district court. North Carolina Civil Liberties

Union Legal Foundation v. Constangy, 947 F.2d 1145 (4th

Cir. 1991) (App. la).

The court of appeals, like the district court, confined the

Marsh precedent to the “particular historical circum-

stances presented in that case,” id. at 1148 (App. 7a).

Perceiving “no similar long-standing tradition of opening

courts with prayer,” id., the court of appeals held Marsh

inapplicable to the case at bar.

The court of appeals held that Judge Constangy’s invo-

cation ran afoul of all three prongs of the Lemon test.

Td. at 1149-52 (App. 9a-15a). Treating the “purpose”

prong as a factual question of “Judge Constangy’s actual

intent,” id. at 1150 (App. lla), the court of appeals held

® The district court’s opinion coneludes by announcing that the

federal district judge’s own religious affiliation is Scotch Presby-

terian and this religion teaches a faith in “God Almighty as Father

of us all and as Mentor and Protector and Law Giver of us all.”

Id. at 555 (App. 23a). The court did not attempt to explain why,

under its view of the Lemon test, the court’s inclusion of this per-

sonal profession of faith, in its official, published opinion, would

not also run afoul of the Establishment Clause.

that the district court’s conclusion that “Judge Con-

stangy’s purpose was actually religious and not secular”

was not “clearly erroneous,” id. Treating the “primary

effect” prong as a factual question of how others “per-

ceived” Judge Constangy’s invocations, id. at 1151 (App.

12a), the court noted the existence of testimony at trial

that “persons who have heard Judge Constangy’s prayer

in court felt that the judge wanted those present to pray

with him and felt that the judge was endorsing religion,”’

id. (App. 13a). The court of appeals “agree[d]” with

the district court’s “finding” of a primary effect to

“advance and endorse religion.” Jd. Finally, the court

held that judicial invocations “necessarily” produce “an

excessive entanglement of the court with religion,” id.,

because a daily invocation “results in an ongoing, day-to-

day merging of judicial and religious functions,” id. at

1152 (App. 15a). The court added that the evidence that

“many people . . . are offended” at the invocation demon-

strated the potential for political “divisiveness along re-

ligious lines.”’ Jd.

REASONS FOR GRANTING THE WRIT

The court below held unconstitutional the practice of a

state trial judge to open court each day with an invoca-

tion. Respondents’ standing to bring this lawsuit rests

upon their status as “offended observers,” a status that

this Court has never held sufficient to confer standing

under Article JII of the Constitution. On the merits, the

decision of the court below conflicts with the decision of

this Court in Marsh v. Chambers, 463 U.S. 783 (1983),

which upheld the practice of opening legislative sessions

with a prayer. The court below employed a sweepingly

broad construction of the so-called Lemon test, see Lemon

v. Kurtzman, 403 U.S. 602, 612-13 (1971). raising im-

portant and unsettled questions about the scope and valid-

ity of that standard for evaluating Establishment Clause

claims,

This Court is currently reviewing a case presenting con-

stitutional issues largely identical (with the exception of

the standing issue) to those presented in the case at bar.

See Lee v. Weisman, U.S. No. 90-1014 (argued Nov. 6,

1991). This Court should grant the present petition and

either give plenary consideration to this case subsequent

to Lee v. Weisman or, in the alternative, vacate the judg-

ment below and remand this case for further considera-

tion in light of the decision in Lee.

I. THE CONCEPT OF “OFFENDED OBSERVER”

STANDING UPON WHICH RESPONDENTS’ SUIT

RESTS CONFLICTS WITH THE DECISIONS OF

THIS COURT.

Respondents challenge, under the Establishment Clause,

the custom of petitioner Judge Constangy to recite an

invocation each day at the opening of court. Respondents’

lawsuit ultimately rests, as a threshold matter, on the

claim that anyone who takes offense at a perceived viola-

tion of the Establishment Clause has standing to sue

under Article III of the Constitution. This proposition is

entirely at odds with the precedents of this Court.

None of the respondents (plaintiffs in the district

court) have standing to sue in the case at bar.

A. The Organizational Respondent Lacks Standing.

The organizational respondent, the North Carolina Civil

Liberties Union Legal Foundation (NCCLU), asserts a

“special interest in the rights protected by the First

Amendment,” Complaint at 2, 15 (App. 27a), but alleges

no injury to itself as an organization. As a result, this

respondent can claim no standing apart from the standing

of its members. Valley Forge Christian College v. Amer-

icans United for Separation of Church and State, 454

U.S. 464, 476 n.14 (1982). The NCCLU alleges that some

of its members reside in Charlotte and are “subject to

attending Judge Constangy’s courtroom and being forced

to listen to his prayer.” Complaint at 2, 75 (App. 27a).

But the purely speculative prospect that some NCCLU

member may be involved in court proceedings, that those

proceedings may be in district court, that Judge Con-

stangy may preside, and that the NCCLU member may be

present for the invocation at the opening of court in the

morning, is patently insufficient to support standing for

any given NCCLU member. Los Angeles v. Lyons, 461

U.S. 95 (1983). The NCCLU therefore cannot claim

standing on the basis of representation of such hypo-

thetical interests.’

B. The Individual Respondents Lack Standing.

The respondent individuals are assistant public de-

fenders who practice in the court in which Judge Con-

stangy sits.* These respondents aver that they are state

taxpayers, but respondents make no explicit claim to tax-

payer standing.” Rather, these individuals allege that

they are “offended” by, or “disagree” with, the content of

7 One of the individual respondents, Sharon Samek. is a member

of the NCCLU, Plaintiffs’ Ex. 10 (Partial Direct Testimony of

Sharon Samek) at 1, § 1. As discussed below, she lacks standing in

her own right, and thus the NCCLU cannot ride piggyback on her

claim.

5 One of the respondents has left his position as publie defender

and is now in private practice. Plaintiffs’ Ex. 8 (Partial Direct

Testimony of James Gronquist) at 1. There is no evidence that

this respondent any longer has occasion to appear in Judge

Constangy’s court or has any other even colorable claim to standing.

® Nor would respondents have standing as state taxpayers. A tax-

payer’s action meets the standing requirements of Article III “only

when it is a good-faith pocketbook action.” Doremus v. Board of

Educ., 342 U.S. 429, 484 (1952). Accord Flast v. Cohen, 392 U.S.

83, 102 (1968) (taxpayer must challenge an exercise of the spending

power); Valley Forge, 454 U.S. at 478, 480 (same). Judge

Constangy’s invocation is plainly not an expenditure of state funds

within the meaning of Doremus: hence, respondents’ “pvrievance .. .

is not a direct dollars-and-cents injury but is a religious difference,”

Doremus, 342 U.S. at 434, and taxpayer standing is unavailable to

respondents.

Judge Constangy’s daily invocation. These assertions are

insufficient to confer standing.

The respondents allege that they “object” to Judge Con-

stangy’s practice of opening court with an invocation,

Complaint at 2, 7 (App. 27a), that they “believe” this

practice is unconstitutional, id. at 3, 17 (App. 27a), and

that they are “offended” by this practice, id. (App. 28a).

This is no more than an assertion of ‘offended observer”

status. As “offended observers,” respondents have as-

serted no greater “injury” than that which any citizen

suffers who takes offense at, or disagrees with, some

allegedly illegal government action—be it the conduct of

CIA activities in Central America, for example, or the

administration of a national welfare system.

This Court has never held that an adult ' individual

who takes offense at, or disagrees with, the action of a

government official has, on that basis alone, standing to

challenge that action. The “psychological consequence

presumably produced by observation of conduct with

which one disagrees . . . is not an injury sufficient to

confer standing under Article III, even though the dis-

agreement is phrased in constitutional terms.” Valley

Forge, 454 U.S. at 485-86.

Respondents allege that they have inconvenienced them-

selves in order to avoid hearing the challenged invocation.

Complaint at 3-4, 7 8-12 (App. 28a). But an “offended

observer” cannot manufacture standing simply by taking

steps to alleviate the subjective ‘offense’ in question.

Altering one’s schedule, changing one’s route, engaging

in competing activities, or simply wilfully ignoring the

'0 Different concerns arise when impressionable youth are the

captive audience of an adult authority figure—e.g., in a classroom—

at least in the absence of a neutralizing parental presence. The

injury in such a situation, for purposes of Article III standing, is

not merely subjective “offense” but a direct invasion of the right

of parents to direct the upbringing of their children. The case at

bar, however, does not involve children.

disagreeable activity are all steps which respondents are

free to take. These voluntary maneuvers, however, do

not constitute “injury” but rather efforts to mitigate or

avoid the perceived “injury.”

Respondents may argue that unless they can enjoy “of-

fended audience” standing, no one can bring an Establish-

ment Clause challenge to religious speech by government

officials. But “[t]he assumption that if respondents have

no standing to sue, no one would have standing, is not a

reason to find standing.” Schlesinger v. Reservists Com-

mittee to Stop the Way, 418 U.S. 208, 227 (1974) (cita-

tion omitted).

In a very real sense, the absence of any particular

individual or class to litigate these claims gives sup-

port to the argument that the subject matter is com-

mitted to the surveillance of [the elected branches

of government], and ultimately to the political proc-

cess. Any other conclusion would mean that the

Founding Fathers intended to set up something in the

nature of an Athenian democracy or a New England

town mecting to oversee the conduct of [government]

by means of lawsuits in federal courts.

United States v. Richardson, 418 U.S. 166, 179 (1974).

The concept of ‘offended observer” standing, moreover,

knows no bounds. Nor would an “exception” for the

Establishment Clause be any exception at all. If re-

spondents were to have standing to challenge Judge

Constangy’s invocation simply because they heard and

objected to the content of that invocation, then govern-

ment sound and camera crews, secret service agents,

pages, teleprompter technicians, and countless other peo-

ple whose employment places them within earshot of

public officials would also have standing to challenge per-

ceived Establishment Clause infractions in the speeches of

federal and state officials, from President Bush on down.

There is nothing so inherently extraordinary about an

Establishment Clause claim that would warrant such a

wholesale departure from normal principles of standing."

This is not a case in which a taxpayer complains of

the misuse of funds extracted from him by mandatory

taxation. Nor is this a case of parents complaining on

behalf of captive children exposed to objectionable indoc-

trination. The instant lawsuit presents a case of “of-

fended observers”—nothing more.

This Court should grant the present petition to review

the dramatic expansion of standing entailed in the deci-

sion of the court below.

Il. THE DECISION OF THE COURT OF APPEALS

CONFLICTS WITH THE DECISION OF THIS

COURT IN MARSH v. CHAMBERS.

The court below held unconstitutional the practice of

petitioner Judge Constangy to open daily sessions of court

with an invocation. This decision conflicts with the deci-

sion of this Court in Marsh v. Chambers, 463 U.S. 783

(1983).

In Marsh, this Court upheld the practice of a state

legislature to open each legislative day with a prayer by

a paid chaplain. This Court relied heavily upon the fact

that the “opening of sessions of legislative and other de-

liberative public bodies with prayer is deeply embedded

in the history and tradition of this country.” 463 U.S. at

786. “In this context, historical evidence sheds light not

only on what the draftsmen intended the Establishment

Clause to mean, but also on how they thought that Clause

11 This Court gives no credence whatever to “offended observer”

arguments under the Free Speech Clause of the First Amendment.

E..g., Street v. New York, 394 U.S. 576, 592 (1969) (“It is firmly

settled that ... the public expression of ideas may not be prohibited

merely because the ideas are themselves offensive to some of their

hearers’). It would be highly ironic, to say the least, were such

audience offense or disagreement nevertheless to constitute a

cognizable injury for purposes of Article III standing.

applied . . . —their actions reveal their intent.” Jd.

at 790.

This Court observed in Marsh that the framers of the

Mirst Amendment “did not consider opening prayers as

a proselytizing activity or as symbolically placing the

government’s official seal of approval on one religious

view,” id, at 792 (internal quotation marks and citation

omitted); rather, the framers merely considered “invoca-

tions as conduct whose [sic] effect harmonized with the

tenets of some or all religions,” id. (internal quotation

marks, ellipses, and citation omitted). Thus, this Court

“conclude|d| that legislative prayer presents no more

potential for establishment” than practices previously up-

held, such as grants for higher education at religious

institutions and tax exemptions for religious organiza-

tions. Id. at 791 (citations omitted).

The court of appeals in the present case viewed Marsh

as limited to the “particular historical circumstances pre-

sented in that case.” 947 F.2d at 1148 (App. 7a). Per-

ceiving “no similar long-standing tradition of opening

courts with prayer,” id., the court below held that Marsh

does not govern courtroom invocations. The court of

appeals added that, in its view, “judicial prayer” has a

“greater potential for an establishment of religion than

legislative prayer.” Jd. at 1149 (App. 8a).

The court of appeals erred on both counts.

A. The Historital Record Supports the Practice of

Opening Court with an Invocation of Divine Assist-

ance.

As a historical matter, the invocation of God’s assist-

ance is not a practice foreign to the judiciary. “There

is an unbroken history of official acknowledgment by al/

three branches of government of the role of religion in

American life from at least 1789.” Lynch ». Donnelli.

465 U.S. 668, 674 (1984) (emphasis added). All who

attend sessions of this Court are familiar with the daily

invocation of Divine Aid in the opening cry, “God save

the United States and this Honorable Court.” See Marsh,

463 U.S. at 786. And very early historical records con-

firm that it was a common practice for federal courts

to open official business with invocations delivered by

clergymen.

In early 1790, in anticipation of the arrival of Supreme

Court Justices travelling around the new United States

as Circuit Justices, federal district judge Richard Law of

Connecticut wrote inquiring whether the Circuit Justices

“would wish to have a Clergiman attend as Chaplin, as

has been generally the Custom in the New England States,

upon such Occasions.” Letter from Richard Law to John

Jay (Feb. 24, 1790), in The Documentary History of the

Supreme Court of the United States, 1789-1800 |hereafter

Documentary History] at 11 (1988). Chief Justice John

Jay responded as follows: “The custom in New England

of a clergyman’s attending, should in my opinion be ob-

served and continued.” Letter from John Jay to Richard

Law (Mar. 10, 1790), in Documentary History at 13.

Recorded instances of this practice of opening federal

circuit court sessions with clergy invocations are plentiful:

a. On May 3, 1790, Cireuit Court opened in Boston,

Massachusetts, with Chief Justice Jay and Associate Jus-

tice Cushing in attendance. After the grand jury was

sworn in and Chief Justice Jay gave the jurors their

charge, “the throne of grace was addressed in a well

adapted prayer by the Rev. Dr. Howard” (a minister of

the Congregational Church).' The court then entertained

bar admissions. Herald of Freedom, May 4, 1790, in Doc-

umentary History at 60-61. |

12 This practice dates back at least to the tenure of Chief Justice

Marshall. See C. Warren, The Supreme Court in United States His-

tory 468 (1926) (describing argument session in 1827).

13 The phrase “throne of grace” apparently derives from the New

Testament. See Heb. 4:16.

b. On November 3, 1790, Circuit Court opened in Bos-

ton, again with Chief Justice Jay and Associate Justice

Cushing in attendance. “After the usual forms were gone

through with, and the Grand-Jury impanelled, an excel-

lent CHARGE was given them, by the Chief Justice, and

the Throne of Grace was addressed in prayer, by the Rev.

Dr. Stillman” (a Baptist pastor). Documentary History

at 104-05 (internal quotation marks and _ footnote

omitted). See also Letter from Henry Jackson (one of

the jurors! to Henry Knox (Nov. 7, 1790) (“Doct [or]

Stillman gave us a most sublime Prayer on the ovcasion’’),

in Documentary History at 106.

ec. On May 12, 1791, Circuit Court opened in Boston,

again with Chief Jvstice Jay and Associate Justice Cush-

ing in attendance. The Chief Justice opened with “a

short and elegant extempore Charge,” and “{t]he Throne

of Grace was then addressed in prayer, by the Rev. Mr.

West.” The court then entertained bar admissions. Co-

lumbian Centinel, May 14, 1791, in Documentary History

at 164-65.

d. On May 24, 1791, Cireuit Court opened in Ports-

mouth, New tiampshire, with Chief Justice Jay and As-

sociate Justice Cushing in attendance. After the charge

to the grand jury, “the throne of Grace was addressed by

the Rev. Dr. Haven” (a Congregationalist minister).

Documentary History at 192.

e. On November 14, 1791, Circuit Court opened in Bos-

ton with Chief Justice Jay in attendance. After the

charge to the grand jury, “the Rev. Mr. Belknap ad-

dressed the Throne of Grace in prayer.” Columbian

Centinel, Nov. 16, 1791, in Docume ntary History at

99 9s)

at 2 Oe

re |

f. On May 12, 1792, Cireuit Court opened in Boston

with Chief Justice Jay and Associate Justice Cushing it

attendance. After the grand jury charge on May 14,

1792, “|t|he prayer was made by the Rev. Dr. Parker”

(minister of Boston’s Trinity Church). The Vice Presi-

dent of the United States was present. Documentary

History at 276-77.

g. On October 15, 1792, Circuit Court opened in Bos-

ton, with Associate Justice Iredell in attendance. “After

the Rev. Dr. Lathrop had addressed the throne of Grace,

in prayer, the Hon. Judge Iredell gave an elegant charge

to the jury, and the business of the session commenced.”

Columbian Centinel, Oct. 17, 1792, in Documentary His-

tory at 317 (footnoted omitted).

h. On June 7, 1793, Circuit Court opened in Boston

with Associate Justice Wilson in attendance. “After the

Charge, the Rev. Dr. Thacher addressed the throne of

Grace, in prayer.” Columbian Centinel, June 8, 1793, in

Documentary History at 406,

i. On June 19, 1793, Circuit Court opened in Newport,

Rhode Island, with Associate Justice Wilson in attendance.

“When the Rev. Mr. Patten addresed the Throne of Grace

in Prayer—After which the Hon. Judge Wilson delivered

to the Grand Jury a Charge... .” Newport Mercury,

June 25, 1793, in Documentary History at 412 (footnote

omitted).

j. On November 14, 1793, Circuit Court opened in

Providence, Rhode Island, with Associate Justice Wilson

in attendance. “The Throne of Grace was addressed in

a Prayer well adapted to the Occasion, by the Rev. James

Wilson, Co-Pastor of the Congregational Church on the

West Side of the River,” after which the grand jury re-

ceived its charge. Providence Gazette, Nov. 16, 1793, in

Documentary History at 430 (footnote omitted).

k. On June 19, 1794, Cireuit Court opened in Newport,

Rhode Island, with Associate Justice Wilson in attendance.

“On June 20, the Court was opened with Prayer, by the

Rev. Mi. Patten,” after which Justice Wilson charged

the grand jury. Documentary History at 475.

1. On November 7, 1794, Circuit Court opened in Provi-

dence, Rhode Island, with Associate Justice Cushing in

attendance. “The Rev. Dr. Hitchcock addressed the

Throne of Grace in a Prayer,” after which Justice

Cushing charged the grand jury. Providence Gazette,

Nov. 8, 1794, in Documentary History at 496.

m. On May 19, 1800, Circuit Court opened in Ports-

mouth, New Hampshire, with Associate Justice Patterson

in attendance. “After the Jury were empaneled, the

Judge delivered a most elegant and appropriate Charge

. . —eligion & Morality were pleasingly inculeated

and enforced, as being necessary to good government, good

order and good laws, for ‘when the righteous are in au-

thority, the people rejoice.” '* United States Oracle,

May 24, 1800, in Documentary History at 436. “After

the Charge was delivered, the Rev. Mr. Alden addressed

the Throne of Grace, in an excellent, well adapted prayer.”

Id. (footnote omitted).

Plainly, the members of this Court sitting immediately

after the adoption of the Constitution and the Bill of

Rights considered clergy invocations at the opening of

federal court sessions entirely consistent with the Estab-

lishment Clause of the First Amendment. The court of

appeals erred in distingushing Marsh v. Chambers on

historical grounds.

B. Judicial Invocations Pose No Greater Threat of

Establishment than Legislative Invocations.

The court below also erred in concluding that judicial

invocations possess an inherently greater potential for

establishment of religion than legislative invocations.

First of all, in both cases there is simply “no real threat

to the Establishment Clause arising from a practice of

prayer similar to that now challenged.” Marsh, 463 U.S.

at 791. The “danger” posed by opening invocations is

'* The quotation comes from the Old Testament. See Prov. 29:2.

“mere shadow,” not “real threat,” id. at 795, and it there-

fore makes no sense to compare “mere shadows” to see

which is more insignificant.

Second, the judgment expressed in the text of the First

Amendment is, if anything, precisely the opposite of that

reached by the court below. “Congress shall make no law

respecting an establishment of religion... .” U.S. Const.

amend. I (emphasis added). The constitutional text ex-

plicitly focuses on the legislature, not the executive or the

judiciary. This makes perfect sense in a system, like that

of this nation, in which the legislature is the sole law-

making authority. If a court may only interpret and

apply laws (subject to correction by the legislature), and

if the executive may only enforce and apply laws (subject

to restraint by the legislature), then the only true threat

of a “law respecting an establishment of religion’ rests

with the legislature. Even a judge who wanted to make

a law establishing a religion would simply lack the insti-

tutional capacity to do so.

The court of appeals had no valid basis for distinguish-

ing Marsh v. Chambers. The decision of the court below

_ therefore squarely conflicts with Marsh.

Ill. THIS CASE RAISES IMPORTANT AND UNSET-

TLED QUESTIONS REGARDING THE “LEMON

TEST” UNDER THE ESTABLISHMENT CLAUSE.

The court below employed the three-pronged test of

Lemon v. Kurtzman, 403 U.S. 602 (1971), in holding

unconstitutional petitioner Judge Constangy’s practice of

opening court with a brief, nonsectarian invocation. The

decision of the court of appeals therefore raises two sub-

stantial and unsettled questions: first, whether the Lemon

test forbids any action with religious significance by a

government official; and second, whether the Lemon test

is a valid means of applying the Establishment Clause.

A. Does the Lemon Test Strictly Forbid Any Action

with Religious Significance on the Part of Govern-

ment Officials?

The Lemon test provides that government action chal-

lenged under the Establishment Clause, to be constitu-

tional, must have a “secular purpose,” 403 U.S. at 612,

must have a “principal or primary effect” that “neither

advances nor inhibits religion,” id., and must not produce

“excessive government entanglement with religion,” id. at

613.

The court of appeals in the present case interpreted

the Lemon test in a manner that would essentially forbid

any action with religious significance by a government

official.

1. The court below construed the “purpose” prong

to forbid subjective religious motivation.

The court of appeals construed the “purpose” prong of

Lemon to require a factual inquiry into “Judge Con-

Stangy’s actual intent,” 947 F.2d at 1150 (App. lla).

The court upheld as not “clearly erroneous” the district

court’s finding that “Judge Constangy’s purpose was ac-

tually religious and not secular.” Jd.

For the purpose prong of the Lemon test to make any

sense, however, the re’evant inquiry must be into the ob-

jective purpose of the activity in question, not the sub-

jective motivations of the actors. An otherwise unobjec-

tionable practice does not become unconstitutional just

because the actor happens to possess religious motivations.

For the truly religious person, every act—including the

fulfillment of public duties—will have a “religious pur-

pose.” But if Lemon forbids such motivations, then it wil]

be impossible for a devout individual to hold public office.

Lemon, in short, would impose an absolute bar to public

service by religious individuals, in direct contradiction of

the Constitution. See U.S. Const. art. VI, cl. 3 (no reli-

gious test for public office); id. amend. I (no law pro-

hibiting free exercise of religion). See also McDaniel v.

Paty, 435 U.S. 618 (1978) (unconstitutional to bar min-

isters from holding public office).

The constitutionality of a statute does not depend upon

a psychoanalysis of the legislators: “what is relevant is

the legislative purpose of the statute, not the possibly

religious motives of the legislators who enacted the law.”

Board of Education of Westside Community Schools v.

Mergens, 110 S. Ct. 2856, 2371 (1990) (plurality). In

the same way, the constitutionality of Judge Constangy’s

invocation does not depend upon a dissection of his soul.'®

The court of appeals went on to suggest that an invoca-

tion, as a form of prayer, is “intrinsically religious” and

therefore virtually per se unconstitutional under Lemon’s

purpose prong. 947 F.2d at 1150 (App. lla). This posi-

tion, however, directly contradicts this Court’s holding in

Marsh, which upheld legislative prayer.

Judge Constangy articulated a clearly legitimate, secu-

lar purpose for his invocation: a desire to “preduce a

calm, quiet, serious atmosphere in the courtroom for the

day.” Tr. 54. His invocation, like all invocations at

public events, serves the obvious secular purposes of

“solemnizing public occasions, expressing confidence in

the future, and encouraging the recognition of what is

worthy of appreciation in society.” Lynch v. Donnelly,

465 U.S. 668, 693 (1984) (O’Connor, J., concurring).

This is enough to satisfy the “purpose” prong, which bars

government action “only if it is motivated wholly by an

impermissible purpose,” Bowen v. Kendrick, 487 U.S.

589, 602 (1988) (emphasis added).

18 The invasive personal cross-examination of Judge Constangy by

respondents’ counsel demonstrates clearly why the purpose prong

cannot legitimately require a subjective inquiry. See Plaintiffs’ Ex.

13 (Depo. of Judge Constangy) at 21-38. Any “test” that requires

a public official to give his personal definition of religion, id. at 24,

to identify and describe God, id. at 27-29, to give his views on the

merits of religion, td. at 31-32, and to define religious terms, id. at

33-89, is itself both deeply offensive and patently unconstitutional.

2. The court below construed the “primary effect”

prong to confer a “heckler’s veto” on offended

observers.

The court of appeals construed the “primary effect”

prong of Lemon to reqrire a factual inquiry into how

Judge Constangy’s invocation “was perceived” by others.

947 F.2d at 1151 (App. 12a). The court upheld the

district court’s “finding” of a primary effect to “advance

and endorse religion” because “testimony at trial showed

that persons who have heard Judge Constangy’s prayer

in court felt that the judge wanted those present to pray

with him and felt that the judge was endorsing religion.”

Id. (App. 18a).

A challenged action will always violate the “effect”

prong, however, if all that is necessary is for a sufficiently

fastidious nonbeliever to perceive the challenged action

as an endorsement of religion. Indeed, under this ‘“‘heck-

ler’s veto” version of the “effect” test, any plaintiff rais-

ing an Establishment Clause claim will automatically pre-

vail unless the court is prepared to dismiss the plaintiff’s

objections as incredible, dishonest, or somehow not worthy

of consideration. The assurance of the court below that

the ery, “God save this Honorable Court,” and the motto,

“In God We Trust,” are secure from attack because they

have “no theological . . . impact,” id. (internal quotation

marks and citation omitted), is disingenuous—there is

no principled way of distinguishing the complaint of the

scrupulous atheist who takes offense at these traditional

invocations.

In a society like this one, in which invocations and bene-

dictions are standard fare at public occasions, it is un-

realistic to view the nonsectarian invocation of a North

Carolina trial judge as having an objective “primary

effect” of advancing religion. To hold otherwise would be

to incorporate a strict atheistic perspective into the First

Amendment.

3. The court below construed the “entanglement”

prong as forbidding government officials from

engaging in any activity with religious signifi-

cance.

The court of appeals construed the “entanglement”

prong of Lemon to forbid identifiably religious activity by

a public official, particularly a judge. The court held that

Judge Constangy’s daily invocation unconstitutionally

produced “an ongoing, day-to-day merging of judicial and

religious functions.” 947 F.2d at 1152 (App. 15a). The

court further held that because “many people... are

offended’ by the invocation, there is an unconstitutional

“potential for entangling the state in divisiveness along

religious lines,” id.

The Lemon test, however, forbids “excessive entangle-

ment between church and state,” Bowen v. Kendrick, 487

U.S. 589, 602 (1988) (emphasis added), not between

“religion and state.” The court of appeals applied the

wrong test when it held that Judge Constangy’s prayer

produced an “excessive entanglement of the court with

religion,” 947 F.2d at 1151 (App. 13a) (emphasis added).

In the name of “complete neutrality,” id., the court below

insisted upon what Justice Kennedy has described as “a

relentless extirpation of all contact between government

and religion.” County of Allegheny v. American Civil

Liberties Union Greater Pittsburgh Chapter, 492 US.

573, 657 (1989) (Kennedy, J., concurring and dissent-

ing). As Justice Goldberg warned nearly thirty years

ago, “untutored devotion to the concept of neutrality can

lead to . . . a brooding and pervasive devotion to the

secular and a passive, or even active, hostility to the

religious. Such results are not only not compelled by the

Constitution but, it seems to me, are prohibited by it.”

School District of Abington Township v. Schempp, 374

U.S. 208, 306 (1963) (Goldberg, J., concurring).

The present case involves no church, parochial school,

or other religiously affiliated institution. There is accord-

ingly no possibility that Judge Constangy’s invocation

will “intrude unduly in the day-to-day operation of .. .

religiously affiliated |entities],” Bowen, 487 U.S. at 616,

or that such entities will intrude into Judge Constangy’s

official business. The “entanglement” prong simply has

no relevance to the case at bar.

The court of appeals also held that an “entanglement”

violation arose from potential political “divisiveness along

religious lines.” 947 F.2d at 1152 (App. 15a). But this

Court has repeatedly held that, aside from the case of a

direct subsidy to a religious institution, “no inquiry into

political divisiveness is even called for.” Corporation of

Presiding Bishop v. Amos, 483 U.S. 327, 339 n.17 (1987)

(internal quotation marks and citation omitted). The

present case involves no subsidy, and hence no “divisive-

ness” inquiry ever arises.

As the foregoing discussion illustrates, the court of

appeals in the case at bar expanded the Lemon test be-

yond all recognizable proportions. Under this super-

Lemon test, the action of a government official is uncon-

stitutional if: 1) the official has any personal religious

motivations (the “purpose” prong); 2) any observer, even

a hypersensitive viewer, perceives an offensive endorse-

ment of religion (the “effect” prong); or, 3) the review-

ing court or any other observer perceives religious sig-

nificance in the challenged action (the “entanglement”’

prong).

Under this strict separationist version of Lemon, any

public invocation—including the legislative prayer up-

held in Marsh—would be clearly unconstitutional. Presi-

dential proclamations that mention God (such as Thanks-

giving proclamations and declarations of national days

of prayer) would violate at least two and possibly all

three prongs of this super-Lemon test. Any judge or

other government official who dared to wear a Jewish

yarmulke, or ashes on Ash Wednesday, or any other reli-

gious garb, jewelry, or the like, would violate all three

prongs of the test. Even scheduling judicial or legisla-

tive hearings to accommodate the observance of religious

Eee

holidays would violate all three prongs of this super-

Lemon test.'®

This extreme nature of this construction cof Lemon

(and the First Amendment) calls for review by this

Court.

B. Is the Lemon Test a Valid Interpretation of the

Establishment Clause?

The extreme application of the Lemon test by the court

below raises the recurrent, important, and unsettled ques-

tion whether the Lemon test in fact comports faithfully

with the Establishment Clause of the First Amendment.

Criticism of the Lemon test among the members of this

Court has grown steadily over the two decades since its

original formulation. See, e.g., Wallace v. Jaffree, 472

U.S. 38, 68-69 (1985) (O’Connor, J., concurring in judg-

ment) (“the standards announced in Lemon should be

reexamined and refined’); 7d. at 91 (White, J., dissent-

ing) (“I would support a basic reconsideration of our

precedents”); id. at 91-114 (Rehnquist, J., dissenting)

(thorough historical critique of Lemon and “wall of

separation” metaphor); Edwards v. Agquillard, 482 U.S.

578, 636-40 (1987) (Sealia, J., dissenting) (urging

abandonment of Lemon “purpose” prong); Bowen v.

Kendrick, 487 U.S. 589, 616 (1988) (and eases cited)

(noting heavy criticism of Lemon “entanglement” prong) ;

County of Allegheny v. American Civil Liberties Union

Pittsburgh Chapter, 492 U.S. 578, 655-56 (1989) (Ken-

nedy, J., concurring and dissenting) (and cases cited)

(noting criticism of Lemon framework). Currently, the

Court is reviewing a case, Lee v. Weisman, U.S. No. 90-

1014 (argued Nov. 6, 1991), that may provide the ocea-

sion for a revision or rejection of the Lemon test.

16 Indeed, under the rationale of the court below, it would be

unconstitutional for Judge Constangy to recite the invocation, “God

save the State and this Honorable Court.” It would therefore also

be unconstitutional for the bailiff—a government official—to cry a

similar invocation, whether in North Carolina or in this Court.

The case at bar presents an opportunity for this Court

to clarify the status and scope of the Lemon test under

the Establishment Clause. As illustrated in the preceding

section, the decision below rests upon an expansive and

extreme interpretation of the Lemon test; the scope and

validity of the Lemon test is directly at issue.

This Court should grant review to examine the status

and scope of the Lemon test under the Establishment

Clause.

IV. IN THE ALTERNATIVE, THIS COURT SHOULD

GRANT REVIEW, VACATE THE DECISION BE-

LOW, AND REMAND FOR FURTHER CONSIDERA-

TION IN LIGHT OF LEE v. WEISMAN.

Aside from the important threshold standing question,

which independently merits review, the present petition

raises issues that substantially overlap the issues pending

before this Court in the case of Lee v. Weisman, U.S.

No. 90-1014 (argued Nov. 6, 1991). This Court should

therefore either grant plenary review in the instant case

or, in the alternative, grant the present petition, vacate

the decision below, and remand this case for further con-

sideration in light of Lee v. Weisman.

The petition for certiorari in the case at bar raises the

question whether the Establishment Clause forbids a state

trial judge from opening court with a daily invocation.

Crucial to the resolution of this case is the relevance,

seope, and status of the three-part Lemon test for evaluat-

ing claims under the Establishment Clause. See Lemon

vu. Kurtzman, 403 U.S. 602, 612-13 (1971). See also 947

F.2d at 1149-52 (App. 9a-15a) (application of Lemon

test by court of appeals).

The pending case of Lee v. Weisman presents largely

overlapping constitutional questions. Lee involves the per-

missibility, under the Establishment Clause, of a clergy

invocation at a public school graduation ceremony. The

questions presented in Lee are the following:

(1) Do school authorities violate Establishment

Clause by allowing speaker at a public school or high

school graduation ceremony to offer invocation and

benediction that acknowledge deity?

(2) Is direct or indirect government coercion neces-

sary element of Establishment Clause violation?

This Court’s disposition of the Lee case will obviously

have very significant implications for the present litiga-

tion. The decision in Lee will likely provide a clarification,

and possibly a revision, of the Lemon test. In addition,

Lee will specifically consider the status of public invoca-

tions under the Establishment Clause.

In short, the forthcoming decision of this Court in Lee

v. Weisman should provide the most recent, authoritative

statement on the meaning of the Establishment Clause,

particularly as applied to public invocations. Given that

the present case also involves the application of the Estab-

lishment Clause to public invocations, resolution of the

case at bar should not be divorced from the pending Lee

case.

This Court should hold the present petition pending dis-

position of Lee, and thereupon either grant plenary con-

sideration of the present case or simply grant the petition,

vacate the decision of the Fourth Circuit, and remand this

case for further consideration in light of the decision of

this Court in Lee v. Weisman.

CONCLUSION

‘or the foregoing reasons, this Court should grant the

petition to review the judgment of the United States Couri

of Appeals for the Fourth Circuit or, in the alternative,

grant the petition, vacate the decision of the court of ap-

peals, and remand this case for further consideration in

light of the decision of this Court in Lee v. Weisman, U.S.

No. 90-1014 (argued Nov. 6, 1991).

Respectfully submitted,

THOMAS PATRICK MONAGHAN JAY ALAN SEKULOW

WALTER M. WEBER (Counsel of Record)

6375 New Hope Road JORDAN W. LORENCE

New Hope, KY 40052 JAMES M. HENDERSON, SR.

(502) 549-5454 1000 Thomas Jefferson

Street, N.W.

Suite 520

Washington, D.C. 20007

(202) 337-2273

CHARLES E. RICE

Notre Dame Law School

Notre Dame, IN 46556

(219) 239-5667

Attorneys for Petitioner

January 21, 1992

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

nee ene

No. 90-1880

NorRTH CAROLINA CIVIL LIBERTIES UNION LEGAL Founpa-

TION; PHILIP F. HOWERTON, JR.: KATHLEEN M. ARUN-

DELL; SHARON SAMEK: ,ONALD EVERHART: JAMES

TRONQUIST, are”

GRONQUIS! Plaintiffs-A ppellees,

H. WILLIAM CONSTANGY,

Defendant-A ppc llant,

THE CATHOLIC LEAGUE FoR RELIGIOUS AND CIVIL RIGHTs;

THE RUTHERFORD INSTITUYE; CONCERNED WOMEN FOR

AMERICA LEGAL FoUNDAT!] l1ON; THE AMERICAN JEWISH

CONGRESS; THE ANTI-DEFAMATION LEAGUE,

Amici Curiae.

No. 90-1881

NoRTH CAROLINA CiIviL LIBERTIES UNION LEGAL Founpa-

TION; PHILIP F. HOWERTON, JR.: KATHLEEN M. ARUN-

DELL; SHARON SAMEK: RONALD EVERHART; JAMES

GRONQUIST, Plaintiffs-A ppellees,

H. WILLIAM CONSTANGY,

De fendant-A ppellant,

THE CATHOLIC LEAGUE FOR net LIGIOUS AND CIviIL RIGHTS

THE RUTHERFORD INSTITU (E; CONCERNED WoMEN FOR

AMERICA LEG AL Fou NDATION: THE AMERICAN JEWISH

CONG! THE ANTI-DEFAMATION LEAGUE.

Amici Curiae.

Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.

James B. McMillan, Senior District Judge.

(CA-89-438-C-C-M )

Argued: May 6, 1991

Decided: October 23, 1991

sefore MURNAGHAN and SPROUSE, Circuit Judges,

and MURRAY, Senior United States District Judge for

the District of Maryland, sitting by designation.

Affirmed by published opinion. Senior Judge Murray

wrote the opinion, in which Judge Murnaghan and Judge

Sprouse joined,

COUNSEL

ARGUED: Norma S. Harrell, Special Deputy Attorney

General, Raleigh, North Carolina; Robert Adams Singer,

Brooks, Pierce, MCLENDON, HUMPHREY & LEONARD,

Greensboro, North Carolina, for Appellant. George Daly,

Charlotte, North Cerolina, for Appellees. ON BRIEF:

Lacy H. Thornburg, Attorney General of North Carolina,

faleigh, North Carolina; James Thomas Williams, Jr.,

Brooks, Pruserck, MCLeNpbON, HUMPHREY & LEONARD,

Greensboro, North Carolina, for Appellant. Charles E.

Johnson, Moore & VAN ALLEN, Charlotte, North Caro-

lina; James Wyatt, Charlotte, North Carolina; William

Simpson, Legal Director, NortTH CAROLINA CIVIL LIBER-

TIES UNION LEGAL FOUNDATION, INC., Raleigh, North

Carolina, for Appellees. Jay Alan Sekulow, James M.

Henderson, Sr., Walter Weber, FREE SPEECH ADVOCATES,

Washington, D.C.; Mark N. Troobnick, Jordan W.,

Lorence, Cimron Campbell, CONCERNED WOMEN FOR

AMERICA, Washington, D.C., for Amicus Curiae Concerned

Women for America Legal Foundation. Larry L. Crain,

Brentwood, Tennessee, for Amicus Curiae The Rutherford

Institute. Douglas W. Davis, Virginia Beach, Virginia;

Stephen H. Galebach, General Counsel, CATHOLIC LEAGUE

FOR RELIGIOUS AND CIVIL RIGHTS, Washington, D.C.:

Thomas Patrick Monaghan, New Hope, Kentucky; Charles

ki. Rice, NorRE DAME LAW SCHOOL, Notre Dame, Indiana,

for Amicus Curiae The Catholic League for Religious and

ivil Rights. Mare D. Stern, Amy Adelson, Lois C. Wald-

man, AMERICAN JEWISH CoNGress, New York, New York,

for Amicus Curiae The American Jewish Congress. Mur-

ray J. Janus, BREMNER, BABer & JANUS, Richmond, Vir-

ginia; Ruth L. Lansner, Jeffrey P. Sinensky, Steven M.

Freeman, Tamar Sadeh_ Ellison, ANTI-DEFAMATION

LEAGUE, New York, New York, for Amicus Curiae Anti-

Defamation League.

OPINION

MURRAY, Senior District Judge:

Plaintiffs, the North Carolina Civil Liberties Union and

several individual attorneys, brought this Establishment

Clause challenge against the Honorable H. William Con-

stangy, a judge of the Twenty-Sixth Judicial District of

North Carolina, to permanently enjoin him from opening

court with prayer. After a bench trial, the district court

enjoined the prayer, ruling that Judge Constangy’s prac-

tice violated the Establishment Clause. Appellant the

Honorable H. William Constangy appeals the district

court’s ruling.

The stipulations and the uncontested facts established

at trial reveal that after the bailiff would ery him on,

Judge Constangy would sit down, turn on a light at his

bench, and say, “Let us pause for a moment of prayer.”

The judge would then bow his head and recite aloud the

following prayer:

O Lord, our God, our Father in Heaven, we pray this

morning that you will place your divine guiding hand

on this courtroom and that with your mighty out-

stretched arm you will protect the innocent, give

justice to those who have been harmed and mercy to

us all. Let truth be heard and wisdom be reflected

in the light of your presence with us here today.

Amen.

App. 78, 114, 310. Judge Constangy sits in state court

and handles primarily criminal misdemeanors. He has

been a judge since March, 1989, and has opened court

with this prayer since May, 1989.

The district court ruled that the Supreme Court’s deci-

sion in Marsh v. Chambers, 463 U.S. 783 (1983), uphold-

ing legislative prayer did not apply to this case. The

district court applied the three part test of Lemon v.

Kurtzman, 403 U.S. 602 (1971). Under Lemon, a practice

that fails any part of the following three part test is

unconstitutional :

First, the statute must have a secular legislative pur-

pose; second, its principal or primary effect must be

one that neither advances nor inhibits religion; fi-

nally, the statute must not foster ‘an excessive gov-

ernment entanglement with religion.’

Id. at 612-613 (citations omitted). The district court held

that Judge Constangy’s prayer failed all three parts of

the Lemon test: the purpose of Judge Constancy’s prayer

was religious rather than secular, the prayer did advance

religion; and the prayer excessively entangled the govern-

ment with religion. We agree that the Lemon test should

be applied to this case and that the prayer at issue

violates that test.

II.

The Establishment Clause of the First Amendment,

made applicable to the states through the Fourteenth

Amendivent, commands that a state “shall make no law

ee 2

— an establishment of religion.” U.S. Const.

amend. “Every analysis in this area must begin with

consider ote of the cumulative criteria developed by the

Court over many years.” Lemon, 403 U.S., at 612.

At the outset, we consider whether the reasoning of

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

to this case. In Marsh v. ee the Supreme Court

was presented with the question of whether the Ne-

braska legislature’s long-standing practice of opening its

legislative sessions with a prayer by a ‘chaplain paid by

the State violated the Establishment Clause. The Court

noted that sessions of Congress have opened with prayer

for over two hundred years, and that the Nebraska legis-

lature has opened with prayer for over one hundred years.

Moreover, the Court found that in this ease historical

evidence shed light on the Framers’ intent in drafting the

Establishment Clause. In particular, the Court observed

that the First Congress established the practice of open-

ing Congress with prayer soon after the Constitution and

the Establishment Clause were drafted. Thus, the Court

reasoned:

This unique history leads us to accept the interpreta

tion of the First Amendment draftsmen who saw no

threat to the Establishment Clause arising from a

practice of prayer similar to that now challenged.

We conclude that legislative prayer presents no more

potential for establishment than the provision for

school transportation, beneficial grants for higher

education, or tax exemptions for religious organiza-

tions.

Marsh, 463 U.S., at 791 (citations omitted). The Su-

preme Court reasoned that “[in] light of the unambigu-

ous and unbroken history of more than 200 years, there

can be no doubt that the practice of opening legislative

sessions with praver has become part of the fabric of our

ety.” Id. at 792. Thus, legislative prayer is not an

establishment of religion but rather, “it is simply a

tolerable acknowledgment of beliefs widely held among

the people of this country.” /d.

Judge Constangy argues that prayer by a judge is anal-

ogous to legislative prayer, and under the holding of

Marsh it does not violate the Establishment Clause. In

support of his argument, Appellant points out that the

Supreme Court said:

The opening of sessions of legislative and other de-

libe rative public hodies with prayer is deeply em-

bedded in the history and tradition of this country.

Id. at 786 (emphasis added). However, the next sentence

states that “the practice of legislative prayer has co-

existed with the principles of disestablishment of religion

and religious freedom.” /d. The opinion in Marsh clearly

focuses on legislative prayer and its “unique history.” In

a later decision, the Supreme Court explained its reason-

ing in Marsh:

The Lemon test has been applied in all cases since its

adoption in 1971, except in Marsh v. Chambers, 463

U.S. 783 (1983), where the Court held that the Ne-

braska Legislature’s practice of opening a_ session

with prayer by a chaplain paid by the State did not

violate the Establishment Clause. The Court based

its conclusion in that case on the historical acceptance

of the practice.

Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987). The

Court did not apply the Lemon test because it “did not

... consider that analysis relevant in Marsh v. Chambers.”

Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (citation

omitted). While the Supreme Court has “repeatedly em-

phasized our unwillingness to be confined to any single

test or criterion in this sensitive area,” id., the Lemon

“trilogy of tests has been applied regularly in the Court’s

later Establishment Clause cases.” County of Allegheny

Die masini

v. American Civil Liberties Union, Greater Pittsburgh

Chapter, 492 U.S. 578, 592 (1989).

In its most recent Establishment Clause decision, a

majority of the Court held in Allegheny County that a

creche display bearing a patently Christian message in

the Allegheny County Courthouse failed the Lemon test.

Justice Kennedy’s opinion, concurring in part and dis-

senting in part, which was joined by Chief Justice Rehn-

quist, and Justices White and Scalia, also applied the

Lemon test, while pointing out that it should not be the

primary guide in this area, but concluded that the display

did not violate the Establishment Clause. The various

opinions in Allegheny shed light on the Marsh decision.

The opinion of the Court, written by Justice Blackmun

and joined by Justices Brennan, Marshall, O’Connor, and

Stevens, states:

In Marsh, the Court relied specifically on the fact

that Congress authorized legislative prayer at the

same time that it produced the Bill of Rights. Justice

Kennedy, however, argues that Marsh legitimates all

“practices with no greater potential for an establish-

ment of religion” than those “accepted traditions

dating back to the Founding.” . . . Marsh plainly

does not stand for the sweeping proposition Justice

Kennedy apparently would ascribe to it, namely, that

all accepted practices 200 years old and their equiva-

lents are constitutional today.

fd. at 602-603 (citation omitted). Thus, the Supreme

Court sees the holding of Marsh to be predicated on the

particular historical circumstances presented in that case.

Unlike legislative prayer, there is no similar long-standing

tradition of opening courts with prayer. Nor is there any

evidence regarding the intent of the Framers of the Bill

of Rights with regard to the opening of court with prayer.

Appellant states that certain other state court judges in

North Carolina open court with prayer. App. 187, 189.

Appellant also cites several cases in which judges had

prayed in court but where no First Amendment challenge

was presented. However, a few examples of judges who

open court with prayer is hardly comparable to the com-

mon practice of opening sessions of legislatures with

prayer.

Even under Justice Kennedy’s broader reading of

Marsh it would be difficult to say that prayer by a judge

in the courtroom is comparable to legislative prayer. In

his opinion in Allegheny, Justice Kennedy states:

Marsh stands for the proposition, not that specific

practices common in 1791 are an exception to the

otherwise broad sweep ef the Establishment Clause,

but rather than the meaning of the Clause is to be

determined by reference to historical practices and

understandings. Whatever test we choose to apply

must permit not only legitimate practices two cen-

turies old but also any other practices with no greater

potential for an establishment of religion.

Allegheny, 492 U.S., at 670 (citation omitted) (Ken-

nedy, J.. concurring in part and dissenting in part).

Judicial prayer in the courtroom is not legitimated under

the Establishment Clause by past history or present prac-

tice. Moreover, it cannot be said that judicial prayer has

no greater potential for an establishment of religion than

legislative prayer. A judge opening court with prayer

presents an issue that is markedly different from a chap-

lain opening legislative sessions with prayer. First, legis-

lative prayer is primarily directed at the legislators them-

selves, who have decided to have prayer. The Supreme

Court commented in Allegheny:

It is worth noting that just because JJarsh sustained

the validity of legislative prayer, it does not neces-

sarily follow that practices like proclaiming a Na-

tional Day of Prayer are constitutional. See post,

at 672-673. Legislative prayer does not urge citizens

to engage in religious practices, and on that basis

could well be distinguishable from an exhortation

from government to the people that they engage in

religious conduct.

Allegheny, 492 U.S., at 603 n.52. In contrast to legisla-

tive prayer, a judge’s prayer in the courtroom is not to

fellow consenting judges but to the litigants and their

attorneys. Moreover, a judge presiding over a court is

the court. For a judge to engage in prayer in court

entangles governmental and religious functions to a much

greater degree than a chaplain praying before the legisla-

ture. Most importantly, unlike judges, legislators do not

have an obligation to be neutral. A legislature is by its

very nature partisan and political. Legislators are elected

representatives and have a duty to support the interests

and viewpoints of their constituents. Thus, in marked

contrast to a judge, a legislator has the role of advocate.

Because a judge must be a neutral decisionmaker, prayer

in court by a judge has far more potential for establish-

ing religion than legislative prayer.

ITT.

Having concluded that the decision in Marsh v. Cham-

bers does not require a ruling that judicial prayer does

not violate the Establishment Clause, we proceed to ana-

lyze this case under the principles of Lemon v. Kurtzman.

Under the Lemon analysis, to be permissible under the

listablishment Clause, the practice must have a secular

purpose, must neither advance nor inhibit religion in its

primary or principal effect, and must not foster an ex-

cessive entanglement with religion. 403 U.S., at 612-613.

We first look to the question of whether the challenged

action has a secular purpose. “In applying the purpose

test, if Is appropriate to ask ‘whether the government’s

actual purpose is to endorse or disapprove of religion.’ ”

10a

Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (citation

omitted). Judge Constangy contends that the primary

purpose of his prayer was to solemnify and dignify the

atmosphere in court and to remind those in attendance

of the court’s search for truth and justice. Observing

that Judge Constangy only recited the prayer in the

morning session of court and not in the afternoon ses-

sions, the district court found that the purpose of the

prayer was not to solemnify the proceedings. The dis-

trict court concluded that the prayer was religious in na-

ture and did not serve a secular purpose.

Judge Constangy’s position is supported by the follow-

ing language in the Supreme Court’s Lynch v. Donnelly

decision:

The Court has invalidated legislation or governmental

action on the ground that a secular purpose was

lacking, but only whei it has concluded there was no

question that the statute or activity was motivated

wholly by religious considerations.

Lynch, 465 U.S., at 680 (citations omitted). Thus, it is

not required that the primary purpose of the action be

secular. However, “even though [state action] that is

motivated in part by a religious purpose may satisfy the

first criterion” of the Lemon test, the action must have

“a clearly secular purpose.” Wallace v. Jaffree, 472 U.S..,

at 56. Moreover, “it is required that the statement of

such purpose be sincere and not a sham.” Edwards v.

Aguillard, 482 U.S., at 586-587. Judge Constangy has

stated that he composed his courtroom prayer after at-

tending a conference for new judges, where there was a

discussion about ways to open court and establish the

proper decorum. During this discussion, another North

Carolina district court judge mentioned that he opened

court with prayer. Affidavits from other judges who at-

tended the conference confirm Judge Constangy’s account.

Testimony at trial established that the bailiff recited the

courtroom ery at both morning and afternoon sessions.

The court heard different cases in the afternoon. More-

SBR i

lla

over, there was no evidence that the morning sessions

were different from the afternoon sessions with regard

to the atmosphere or level of noise in the courtroom. Nor

was the atmosphere in Judge Constangy’s courtroom dif-

ferent from that of other courtrooms. Based on these

facts, the district court concluded that Judge Constangy’s

purpose was actually religious and not secular. While

we recognize that the facts present a close question as

to Judge Constangy’s actual intent, we cannot say that

the district court’s finding is clearly erroneous.

Moreover, controlling caselaw suggests that an act so

intrinsically religious as prayer cannot meet, or at least

would have difficulty meeting, the secular purpose prong

of the Lemon test. For example, the Supreme Court held

in Wallace v. Jaffree that an Alabama statute authoriz-

ing a period of silence for “meditation or voluntary

prayer” in publie schools was intended to convey a mes-

sage of state approval of prayer activities. In Stone v.

Graham, 449 U.S. 39 (1980), the Supreme Court held

that a posting of the Ten Commandments in the public

schools violated the first prong of the Lemon test despite

the legislature’s requirement that each of the Ten Com-

mandments be printed with the words: “The secular

application of the Ten Commandments is clearly seen in

its adoption as the fundamental legal code of Western

Civilization and the Common Law of the United States.”

Id. at 41 (citation omitted). The Supreme Court ruled:

The preeminent purpose for posting the Ten Com-

mandments on schoolroom walls is plainly religious

in nature. The Ten Commandments are undeniably

a sacred text in the Jewish and Christian faiths, and

no legislative recitation of a supposed secular pur-

pose can blind us to that fact.

Id. at 41 (footnote omitted). Similarly, the fact that

prayer is “undeniably religious”, Hall v. Bradshaw, 630

F.2d 1018, 1020 (4th Cir. 1980), lends less credence to

Judge Constangy’s stated secular purpose.

12a

Even assuming, arguendo, that Judge Constangy’s ac-

tions survive the first prong of the Lemon test, we would

still find that the prayer violates the Establishment

Clause because it fails the second and third prongs of

Lemon v. Kurtzman. See Edwards v. Aguillard, 482

U.S., at 583 (a practice violates the Establishment

Clause if it fails any of the three Lemon tests).

The second question under Lemon is whether the pri-

mary effect of the practice is to advance cr inhibit re-

ligion. “The effect prong asks whether, irrespective of

government’s actual purpose, the practice under review

in fact conveys a message of endorsement or disapproval

lof religion].” Wallace v. Jaffree, 472 U.S., at 56 n.42

(quoting Lynch v. Donnelly, 465 U.S., at 590 (O’Connor,

J., concurring)). Thus, under the second prong of

Lemon, Judge Constangy’s intent is irrelevant. Rather,

we must focus on how his prayer was perceived.

When a judge sits on the bench, says “Let us pause

for a moment of prayer,” and proceeds to recite a prayer

in court, clearly the court is conveying a message of en-

dorsement of religion. ‘Such an endorsement is not con-

sistent with the established principle that the government

must pursue a course of complete neutrality toward re-

ligion.” Wallace v. Jaffree, 472 U.S., at 60 (footnote

omitted). Judge Constangy argues that the prayer he

delivers is his personal prayer and thus it does not re-

sult in government endorsement of religion. We find

Judge Constangy’s argument wholly unpersuasive.* A

judge wearing a robe and speaking from the bench is ob-

viously engaging in official conduct.

Judge Constangy also argues that his prayer is no more

an endorsement of religion than the phrase, “In God We

Trust,” on coins or the announcement made when many

* Of course, Judge Contangy is free to recite a personal prayer

in the privacy of his home or chambers before he goes on the bench.

13a

courts are opened, “God save the United States and this

Honorable Court.” Appellant notes that in Marsh v.

Chambers, the Supreme Court observed that its own

session had onened with the announcement, “God save

the United States and this Honorable Court.” Marsh,

463 U.S., at 786. However, these brief references to God

have been repeated so often that their religious meaning

has diminished so that they are merely examples of “cere-

monial deism.” Allegheny, 492 U.S., at 620 (O’Connor,

J., concurring}. The words, “In God We Trust,” on coin

and currency have been upheld as a “patriotic and cere-

monial” motto with “no theological or ritualistic impact.”

Aronow v. United States, 432 F.2d 242 (9th Cir. 1970).

As we have stated before, “|rlJeferences to the Deity in

our ceremonies and on our coinage and seals do not vio-

late the Establishment Clause because they merely reflect

this fact of our history and no longer have any poten-

tially entangling theological significance.” Hall v. Brad-

shaw, 630 F.2d, at 1023 ‘footnote omitted). In contrast,

prayer in the courtroom by a judge is a religious act by

a government official with little historical support. It

cannot be considered mere “ceremonial deism’”’. The tes-

timony at trial showed that persons who have heard

Judge Constangy’s prayer in court felt that the judge

wanted those present to pray with him and felt that the

judge was endorsing religion. We agree with the district

court’s finding that the primary effect of Judge Con-

stangy’s prayer was to advance and endorse religion.

The third prong of the Lemon test asks whether the

challenged practice results in excessive entanglement of

the government with religion. It is the view of this court

that when a judge prays in court, there is necessarily an

excessive entanglement of the court with religion. ‘{!T|he

rovernment must pursue a course of complete neutrality

toward religion.” Wallace «. Jaffree, 472 U.S... at 60

(footnote omitted). This principle applies with even

l4a

greater force to the judicial branch because judges are

sworn to be neutral arbiters and must apply the law

even-handedly without letting bias or personal feeling en-

ter into the decision. For the judge to start each day with

a prayer is to inject religion into the judicial process and

destroy the appearance of neutrality. In particular, the

prayer that Judge Constangy recited gave the appearance

of seeking divine intervention in the courtroom proceed-

ings. We have recently held in United States v. Bakker,

925 F.2d 728 (4th Cir. 1991), that it is impermissible for

a judge’s personal religious views to enter into a sentenc-

ing procedure. In that decision, we explained:

Our Constitution, of course, does not require a person

to surrender his or her religious beliefs upon the

assumption of judicial office. Courts, however, can-

not sanction sentencing procedures that create the

perception of the bench as a pulpit from which judges

announce their personal sense of religiosity and si-

multaneously punish defendants for offending it.

Whether or not the trial judge has a religion is

irrelevant for purposes of sentencing.

Id. at 740. While the case before us concerns the Estab-

lishment Clause and does not involve the issue of actual

prejudice to a party due to a judge’s religious views, the

Bakker decision is nevertheless instructive as it reflects

the dangers of allowing a judge’s religious views to enter

the courtroom.

Appellant argues that there is no excessive govern-

mental entanglement with religion here because there is

no expenditure of government funds toward religion.

While the involvement of government funds is a factor

to consider in deciding whether there is entanglement,

see Lynch v. Donnelly, 465 U.S., at 684, we do not believe

that expenditure of government funds is a requirement

for finding a violation of the third prong of Lemon. “En-

tanglement is a question of kind and degree.” Jd. In

deciding questions of entanglement, the Supreme Court

icant

l5a

has been particularly concerned about “ongoing, day-to-

day interaction between church and state.” Jd. The instant

case does not apparently present a problem of government

involvement with the affairs of a particular religious

organization. However, Judge Constangy’s daily deliver-

ance in court of a prayer that he himself composed

certainly results in an ongoing, day-to-day merging of

judicial and religious functions.

Another kind of entanglement may result when the

challenged practice leads to diviseness along religious

lines. Lemon v. Kurtzman, 403 U.S., at 622. “[PJoliti-

cal division along religious lines was one of the principal

evils against which the First Amendment was intended

to protect.” Jd. (citation omitted). We have stated before

that “|bl]y placing its imprimatur on the particular kind

of belief embodied in any prayer, the state necessarily

offends the sensibilities not only of nonbelievers, but of

devout believers among the citizenry who regard prayer

‘as a necessarily private experience.’” Hall v. Bradshaw,

630 F.2d, at 1021 (quoting Abington School District v.

Schempp, 874 U.S. 208, 288-85 (1963) (Brennan, J.,

concurring) !}. The in-court recitation by the judge of a

prayer written by the judge puts the court’s approval on

a particular kind of belief. As evidenced by the record,

many people who have come before Judge Constangy are

offended by his prayer, either because they do not share

his beliefs or because they prefer to pray in private and

fee] uncomfortable with public prayer. We are persuaded

on the final element of Lemon that Judge Constangy’s

prayer has the potential for entangling the state in

divisiveness along religious lines.

Thus, as explained above, Judge Constangy’s practice

of praying in court fails the third prong of Lemon by

excessively entangling the government with religion.

l6a

IV.

We conclude that the courtroom prayer at issue in this

case violates the Establishment Clause of the United

States Constitution. Although the barrier between church

and state erected by the Clause is “blurred, indistinct, and

variable,” Lynch v. Donnelly, 465 U.S., at 679 (quoting

Lemon, 403 U.S., at 614), the practice at issue in this case

is clearly unconstitutional under all the tests and criteria

developed by the Supreme Court in the Establishment

Clause area. Judge Constangy’s prayer in the courtroom

violates the tests set forth in Lemon and results in gov-

ernmental endorsement of religion. Accordingly, the

judgment of the district court is

AFFIRMED.

17a

APPENDIX B

IN THE DISTRICT COURT OF THE

UNITED STATES FOR THE

WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

C-C-89-438-M

NORTH CAROLINA CIVIL LIBERTIES UNION, et al..

Plaintiffs,

-VS-

HONORABLE H. WILLIAM CONSTANGY,

Defendan t.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

| Filed Oci. 18, 1990]

FACTS

The undisputed facts of this case are as follows:

The defendant, the Honorable H. William Constangy,

has been duly appointed Judge of the District Court of

the Twenty-Sixth Judicial District of North Carolina since

March 3, 1989. His salary is paid by the State of North

Carolina.

Judge Constangy holds court regularly during approxi-

mately 45 weeks per year. Since May of 1989, his court

has been opened in the morning by the bailiff with the

ery, “Everyone rise; this Court is now in session, Honor-

able William Constangy, Judge, presiding. Please be

seated.’

18a

After the bailiff’s opening cry, Judge Constangy has

regularly seated himself behind the bench, turned on the

light at the bench, and stated, “Let us pause for a moment

of prayer.” He has then recited the following prayer

aloud: ;

O Lord, our God, our Father in Heaven, we pray

this morning that you will place your divine guiding

hand on this courtroom and that with your mighty

outstretched arm you will protect the innocent, give

justice to those who have been harmed and mercy

to us all. Let truth be heard and wisdom be reflected

in the light of your presence here with us today.

Amen.

This prayer is a part of the opening of court. It takes

Judge Constangy about 30 seconds to deliver it. Judge

Constangy always says the same prayer, with the same

introduction, each morning at the opening of court,

whether civil or criminal, except when he presides over

civil commitment hearings, which are conducted in the

mental health clinic.

The bailiff reopens court in the afternoon with his

customary cry. Judge Constangy does not recite his

prayer when court is reopened in the afternoon.

Since becoming a judge, Judge Constangy has presided

most frequently over misdemeanor criminal cases. De-

fendants in custody are not brought into the courtroom

until after the prayer has been completed. Judge Con-

stangy has never held juvenile court.

The prayer was composed by Judge Constangy. He did

not consult any prayer books or other religious writings

in drafting it, nor did he consult members of the clergy

or other individuals or religious institutions.

Plaintiff North Carolina Civil Liberties Union is a non-

profit North Carolina corporation which holds itself out

as being devoted to securing and defending the rights,

19a

privileges and immunities guaranteed by the United

States Constitution and the Constitution of North Caro-

lina, and as having a special interest in the rights pro-

tected by the First Amendment. A number of its mem-

bers live in Charlotte and may be subject to being ordered

to attend Judge Constangy’s courtroom as witnesses or

defendants in the same manner as any other citizens or

group of citizens.

The individual plaintiffs are attorneys licensed to prac-

tice in Judge Constangy’s court. Each individual plain-

tiff has been present for at least one recitation of Judge

Constangy’s court-opening prayer.

Immediately before saying his prayer, Judge Constangy

always says, “Let us pause for a moment of prayer.”

No other verbal or written announcement is made that

the court will be opened with a prayer. Judge Constangy

would be willing to announce that he will say a prayer

and to allow anyone in the courtroom who wishes to leave

the room an opportunity to do so.

Judge Constangy intends to continue indefinitely his

practice of opening each session of court with a prayer.

CONCLUSIONS OF LAW

The “Establishment Clause” of the United States Con-

sttiution, First Amendment, Section 1, adopted in 1791,

says:

“Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof.”

The Supreme Court long ago, in Cantwell v. Connecti-

cut, 310 U.S. 296, 303 (1940), held that the Establish-

ment Clause (though it is phrased as a restriction on

“Congress’”) also restricts action by state governments

and the servants, agents and agencies, of state vovern-

ments.

That includes judges.

20a

State and federal.

Judge Constangy, as a state judge, is required by the

United States Constitution to “make no law” “respecting

an establishment of religion.”

The Supreme Court first confronted official prayer in

Engel v. Vitale, 370 U.S. 421 (1962). In that case, the

Court held that the practice of beginning classes in the

New York public schools with a short, non-denominational

prayer was unconstitutional. The Court found irrelevant

to Establishment Clause analysis the facts that the prayer

was non-denominational and that students were free to

remain silent or to leave the room during its recitation.

Perhaps the most important of the Supreme Court’s

Establishment Clause decisions is Lemon v. Kurtzman,

403 U.S. 602 (1971). In that case, the Court formulated

a three-part test that has been applied, almost without

exception,’ to subsequent Establishment Clause cases

brought before the Court:

“First, the statute must have a secular legislative

purpose; second, its principal or primary effect must

be one that neither advances nor inhibits religion;

finally, the statute must not foster ‘an excessive gov-

ernment entanglement with religion.’ ”’

403 U.S. at 612-13 (citations omitted).

A practice that fails any part of this three-part test

is unconstitutional. Edwards v. Aquillard, 482 U.S. 578,

583 (1987).

Judge Constangy’s prayer fails all three parts of the

Judge Constangy states that his prayer has the secular

purposes of providing a solemn and dignified atmosphere

and of reminding those in attendance of the court’s

1 One notable exception is Marsh v. Chambers, 463 U.S. 783 (1983),

discussed infra.

eee

21a

search for truth and justice. However, Judge Constangy

recites his prayer only in the morning when he opens

court, and not when he re-opens court in the afternoon.

This practice demonstrates that the solemnity and dig-

nity of the courtroom are not dependent upon the recita-

tion of an opening prayer.

Prayer, whether public or private, is a religious act.

The evidence shows that the purpose of Judge Constangy’s

prayer is religious, rather than secular.

Judge Constangy’s prayer also “advances” religion.

When he recites the prayer, Judge Constangy presides

over his courtroom, literally robed in the authority of the

State. Such an official endorsement of religion violates

the second prong of the Lemon test.

Finally, Judge Constangy’s prayer is an “excessive gov-

ernment entangiement with religion.” As the Court ex-

plained in Larkin v. Grendel’s Den, 459 U.S. 116, 126

(1982), “the core rationale underlying the Establishment

Clause is preventing ‘a fusion of governmental and re-

ligious functions.’” When Judge Constangy recites his

prayer, those functions are impermissibly fused.

In Marsh v. Chambers, 463 U.S. 783 (1983), the Su-

preme Court upheld the Nebraska State Legislature’s

practice of having a chaplain, paid by the State, recite

a prayer at the beginning of each legislative session.

Central to its holding was the Court’s finding that:

“Clearly the men who wrote the First Amendment

Religion Clauses did not view paid legislative chap-

lains and opening prayers as a violation of that

Amendment, for the practice of opening sessions with

prayer has continued without interruption ever since

that early session of Congress.”

Id. at 788.

The Court held that, “/i]n light of the unambiguous and

unbroken history of more than 200 years,” id. at 792,

22a

the legislature’s opening prayer did not violate the Es-

tablishment Clause.

There is no evidence in this case of any such 200 year-

old “unambiguous and unbroken history.” The ceremon-

ial practice of opening courts with the phrase, “God save

the United States and this honorable court,” like the

motto “In God We Trust” on coins, is not comparable

to Judge Constangy’s prayer. Such perfunctory acknowl-

edgements of religion have been referred to as aspects of

a “ceremonial deism,” and “have lost through rote repe-

tition any significant religious content.” See Lynch v.

Donnelly, 465 U.S. 668, 716 (1984) (Brennan, J., dis-

senting) ; see also id. at 693 ‘O’Connor, J., concurring).

Presumably because of tic overwhelming historical evi-

dence presented in Marsh v. Chambers, the Marsh Court

did not apply the Lemon test. Because there is no com-

parable evidence in this case, the Lemon test applies.

As is demonstrated supra, Judge Constangy’s prayer can-

not pass the Lemon test.

Judge Constangy’s prayer, uttered in good faith to an

audience that may include people of different faiths (or

no admitted faith at all) is an obvious violation of the

First Amendment.

It tends to promote the “establishment” of religion,

which wise men two centuries ago said that government

should not do.

If the practice is approved over objection as a routine

courtroom procedure, it will ineseapably lead us into com-

petition (probably violent if history is a guide) among

conscientious persons over the choice of people to pray,

the form of the prayer, and the Deity to whom the prayer

is addressed.

These are fair questions for full and open debate among

persons of all faiths.

See

23a

They are not, in our land since the First Amendment,

questions that the government, state or federal, should

lay hands on.

When a judge prays aloud in his courtroom, to an

audience which is overwhelmingly captive, he promotes

the “establishment of religion.” He also skews the

search for truth, and truth should be the prime, day-to-

day aim of all judges and jurors, be they federal or

state.

I, myself, lay claim to a religious faith and practice.

It is Scotch Presbyterian by label and, like Judge Con-

stangy’s, is Christian in origin and tradition. It is a

faith in God Almighty as Father of us all and as

Mentor and Protector and Law Giver of us all, regard-

less of our race, color or creed. It fosters a belief that

people serve God by fair and generous dealings in every-

day life with all people among whom we live.

As a faith (apart from church structure and organiza-

tion), it probably does not differ in any material way

from Judge Constangy’s Catholic faith.

But it does not depend upon nor call upon the au-

thority of local government, or its agents, for its pro-

tection and survival.

That protection and survival are afforded by the First

Amendment to the Constitution of the United States.

With all due respect for Judge Constangy’s sincerity,

I must conclude that his prayer in the courtroom is con-

trary to the law of the land.

Plaintiffs will prepare an appropriate order.

This 18 day of October, 1990.

s/ James B. MeMillan

JAMES B. MCMILLAN

United States District Judge

24a

APPENDIX C

IN THE DISTRICT COURT OF THE

UNITED STATES FOR THE

WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

C-C-89-438-M

NORTH CAROLINA CIVIL LIBERTIES UNION, et al.,

Plaintiffs,

-VS-

HONORABLE H. WILLIAM CONSTANGY,

Defendant.

ORDER

{Filed Nov. 15, 1990]

On October 18, 1990, the court entered its findings of

fact and conclusions of law.

IT IS THEREFORE ORDERED, ADJUDGED and

DECREED:

1. That defendant’s practice of opening court with

prayer violates the First and Fourteenth Amendments to

the United States Constitution;

2. That defendant cease opening court with prayer;

and

3. That plaintiffs recover their costs, counsel fees and

expenses, to be separately determined.

This 13 day of November, 1990.

s/ James B. McMillan

JAMES B. MCMILLAN

United States District Judge

neers

25a

APPENDIX D

IN THE DISTRICT COURT OF THE

UNITED STATES FOR THE

WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

C-C-89-438-M

NorRTH CAROLINA CIVIL LIBERTIES UNION, et al.,

Plaintiffs,

-VS-

HONORABLE H. WILLIAM CONSTANGY,

Defendant.

JUDGMENT

[Filed Jan. 29, 1991]

On October 18, 1990, the court entered its findings of

fact and conclusions of law.

IT IS THEREFORE ORDERED, ADJUDGED and

DECREED:

1. That defendant’s practice of opening court with

prayer violates the First and Fourteenth Amendments to

the United States Constitution ;

2. That defendant cease opening court with prayer;

and

3. That plaintiffs recover their costs, counsel fees and

expenses, to be separately determined.

This 29 day of January, 1991.

s/ James B. McMillan

JAMES B. MCMILLAN

United States District Judge

26a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT

OF NORTH CAROLINA

Charlo.te Division

C-C-89-438-M

THE NORTH CAROLINA CIVIL LIBERTIES UNION,

PHILIP F. HOWERTON, JR., KATHLEEN M. ARUNDELL,

SHARON SAMEK, RONALD EVERHART, and

JAMES GRONQUIST,

Plaintiffs,

Vs.

THE HONORABLE H. WILLIAM CONSTANGY,

Defendant.

COMPLAINT AND MOTION FOR

PRELIMINARY INJUNCTION

[Filed Nov. 21, 1989]

Plaintiffs, complaining of Defendant and moving for

a Preliminary Injunction, say:

1. This Court has subject matter jurisdiction of this

action pursuant to 28 U.S.C. 1343 and the doctrine of

pendent jurisdiction.

2. This is an action pursuant to 42 U.S.C. 1983, to

redress Defendant’s deprivation, under color of state law,

of rights, privileges and immunities secured to Plaintiffs

by the First and Fourteenth Amendments to the United

States Constitution. This is also an action to redress

Defendant’s infringement of Plaintiffs’ liberties guaran-

teed by Art. I, Sec. 13 of the North Carolina Constitution.

27a

3. Defendant is a duly appointed and presently em-

powered Judge of the District Court of the Twenty Sixth

Judicial District of North Carolina. This District is

coterminous with Mecklenburg County, North Carolina.

4. Defendant’s court is regularly opened by the bailiff

in the usual fashion. Defendant then regularly says “Let

us pray.” Defendant then delivers this prayer:

O Lord, our God, our Father in Heaven, we pray

this morning that you will place your divine guiding

hand on this courtroom and that with your mighty

outstretched arm you will protect the innocent, give

justice to those who have been harmed and mercy to

us all. Let truth be heard and wisdom be reflected

in the light of your presence here with us today.

Amen.

5. Plaintiff North Carolina Civil Liberties Union is a

non-profit North Carolina corporation devoted to securing

and defending the rights, privileges, and immunities

guaranteed by the United States Constitution and the

Constitution of North Carolina. This Plaintiff has a spe-

cial interest in the rights protected by the First Amend-

ment. A number of its members reside in Charlotte, and

are subject to attending Judge Constangy’s courtroom and

being forced to listen to his prayer. These members are

or would be offended by his unconstitutional] prayer and

must, therefore, assume special burdens to avoid his un-

constitutional conduct.

6. The individual Plaintiffs are attorneys licensed to

practice in Defendant’s court. Each Plaintiff has been

present upon one or more occasions of Defendant’s court-

opening prayer.

7. All Plaintiffs object to Defendant’s practice of open-

ing court with prayer, and believe that. this practice

violates the First and Fourteenth Amendments to the

United States Constitution. All Plaintiffs are taxpayers

in Mecklenburg County, North Carolina and the State of

28a

North Carolina. All Plaintiffs are of the opinion that

Defendant’s practice of opening his court with prayer is

his attempt as a Judge to symbolize government approval

and endorsement of religion. Each Plaintiff is offended

by Defendant’s practice of opening court with prayer.

All Plaintiffs believe that their liberty to practice their

profession is infringed by Defendant’s practice of opening

court with prayer.

8. Plaintiff Howerton has silently objected to Defend-

ant’s court-opening prayer when subjected to it, and on

other occasions has gone out of his way and altered what

he otherwise would do so as to not be present during

Defendant’s court-opening prayer.

9. Plaintiff Arundell has on occasion bowed her head

without wishing to do so during Defendant’s court-

opening prayer, but more frequently has left the court-

room, or deferred doing what she otherwise would be

doing, on account of Defendant’s court-opening prayer.

She has on occasion gone out of her way to avoid being

present for Defendant’s court-opening prayer.

10. Plaintiff Samek has on occasion left Defendant’s

courtroom, and on occasion gone out of her way io avoid

being present in Defendant’s courtroom, because of De-

fendant’s court-opening prayer.

11. Plaintiff Everhart has on occasion bowed his head

without wishing to do so, but more trequently has left the

courtroom, or deferred doing what he otherwise would be

doing, on account of Defen‘ant’s court-opening prayer.

He has on occasion gone out of his way to avoid being

present for Defendant’s court-opening prayer.

12. Plaintiff Gronquist has on occasion gone out of his

way to avoid being present for Defendant’s court-opening

prayer.

13. Defendant’s court-opening prayer violates the First

and Fourteenth Amendments to the United States Con-

29a

stitution, and Art. I, Sec. 13 of the North Carolina Con-

stitution.

14. Plaintiffs have no plain, adequate or complete rem-

edy at law to redress Defendant’s unconstitutional action,

and have suffered and will continue to suffer great, im-

mediate and irreparable harm until Defendant is enjoined

as requested.

“WHEREFORE, Plaintiffs respectfully “pray”:

1. That the Court advance this matter upon the docket

and, after an evidentiary hearing, enjoin Defendant to

cease publicly praying in his Courtroom, pendente lite;

2. That at final trial the Court declare that Defend-

ant’s publicly praying in his courtroom /s unconstitutional,

and permanently enjoin its continuance; and

3. That Plaintiffs recover their costs, their reasonable

counsel fees, and such other and further relief as is

merited in the premises.

Respectfully submitted, this 21 day of November, 1989.

GEORGE DALY

Suite 226, One North McDowell

101 North McDowell Street

Charlotte, North Carolina 28204

Telephone: (704) 333-5196

FAX: (704) 333-4465

CHARLES E. JOHNSON

Moore & VAN ALLEN

3000 NCNB Plaza

Charlotte, North Carolina 28280

Telephone: (704) 331-1000

By: /s/ GEORGE DALY

Attorneys for Plaintiffs

30a

Of Counsel:

NORMAN B. SMITH, Esq.

SMITH, PATTERSON, FOLLIN,

CURTIS, JAMES & HARKEY

BB&T Building

101 South Elm Street

Greensboro, North Carolina 27401

General Counsel

North Carolina Civil Liberties Union

Legal Foundation, Inc.

Telephone: (919) 274-2992

WILLIAM SIMPSON

Legal Director

NORTH CAROLINA CIVIL LIBERTIES UNION

LEGAL FOUNDATION, INC.

Post Office Box 28004

Raleigh, North Carolina 27611-8904

Telephone: (919) 834-3390

3la

APPENDIX F

DEFENDANT’S EXHIBIT 22

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT

OF NORTH CAROLINA

Charlotte Division

C-C-89-438-M

THE NORTH CAROLINA CIVIL LIBERTIES UNION,

PHILIP F. HOWERTON, JR., KATHLEEN M. ARUNDELL,

SHARON SAMEK, RONALD EVERHART, and

JAMES GRONQUIST,

Plaintiffs,

VS.

THE HONORABLE H. WILLIAM CONSTANGY,

Defendant

STIPULATIONS

[Filed May 14, 1990]

1. Since March 3, 1989, Defendant Judge Constangy

(hereinafter “Judge Constangy”) has been a duly ap-

pointed and empowered Judge of the District Court of

the Twenty-Sixth Judicial District of North Carolina.

His salary has been paid by the State of North Carolina.

2. Judge Constangy holds court regularly during ap-

proximately 45 weeks per year. Since May, 1989, his -

court has been opened in the morning by the bailiff with

the ery, “Everyone rise, this Court is now in session,

Honorable William Constangy, Judge Presiding, please

be seated.” Defendant has then regularly seated himself

behind the bench, turned on the light at the bench, and

82a

stated, “Let us pause for a moment of prayer.” He has

then said the following:

O Lord, our God, our Father in Heaven, we pray

this morning that you will place your divine guid-

ing hand on this courtroom and that with your

mighty outstretched arm you will protect the inno-

cent, give justice to those who have been harmed and

merey to us all. Let truth be heard and wisdom be

reflected in the light of your presence here with us

today. Amen.

This prayer is a part of the opening of court. It takes

Judge Constangy about 30 seconds to deliver it. Judge

Constangy always says the same prayer, with the same

introduction, each morning at the opening of court,

whether civil or criminal, except when he presides over

civil commitment hearings, which are conducted in the

mental health clinic. Judge Constangy has never held

juvenile court.

3. The prayer was composed by Judge Constangy. He

did not copy it from or consult any prayerbooks or other

religious writings in drafting it. He did not consult any

religious organizations or any ministers, rabbis, priests

or other representatives of any churches, temples, or re-

ligious organizations in drafting it. He did not consult

anyone about the wording of the prayer or seek comment

about its language before or while drafting it.

4. In the afternoons, Judge Constangy’s court has been

opened by the bailiff in the usual fashion. Judge Con-

stangy has then commenced to hear the matters presented,

without then or later during this session delivering any

prayer. On occasion cases are carried over from a morn-

ing to an afternoon session.

5. Plaintiff North Carolina Civil Liberties Union is a

non-profit North Carolina corporation which holds itself

out as being devoted to securing and defending the rights,

privileges, and immunities guaranteed by the United

33a

States Constitution and the Constitution of North Caro-

lina, and as having a special interest in the rights pro-

tected by the First Amendment. A number of its mem-

bers reside in Charlotte and may be subject to being or-

dered to attend Judge Constangy’s courtroom as wit-

nesses or defendants in the same manner as any other

citizens or group of citizens. No showing has been made

that members of the North Carolina Civil Liberties Union

are particularly subject to being summoned to appear as

Witnesses or defendants in court generally or in Judge

Constangy’s court specifically.

6. Judge Constangy has, since becoming a judge, held

court in Courtroom No. 203 of the Mecklenburg County

Courthouse more frequently than in any other courtroom.

Plaintiffs’ Exhibit A is a diagram of that courtroom. In

this courtroom he has heard almost entirely misdemeanor

criminal cases. Judge Constangy frequently has more

than 100 cases set before him at a session.

7. In March, 1990, the new Mecklenburg County

Criminal Courts Building was opened. Although Judge

Constangy is moving around between courtrooms more

than he was earlier, he is now holding court most often

in Courtroom 2203 of the new building where he hears

misdemeanor criminal cases.

8. Judge Constangy intends to continue indefinitely

his practice of opening court each morning with prayer.

9. Immediately before saying his prayer, Judge Con-

stangy always say, “Let us pause for a moment of

prayer.” No other verbal or written announcement that

Judge Constangy’s court will be opened with prayer is

made. Judge Constangy would be willing to make an

announcement that he will say a prayer and allow any-

one in the courtroom who wishes to leave an oppor-

tunity to do so.

10. Defendants in custody are not brought into the

courtroom until after the prayer has been completed.

| .

ee ee

34a

11. Judge Constangy has used his power to sanction

for direct contempt only once during his tenure. On that

occasion a defendant slugged a prosecuting witness in

open court.

12. Judge Constangy believes that courts exist to

dispense justice and courts should be conducted in a dig-

nified atmosphere.

13. The time preceding and following the opening of

criminal sessions of District Court is often utilized by

attorneys to discuss cases with the assistant district at-

torney and with police officers who are adverse witnesses,

and to determine at calendar call (done by the assistant

district attorney before the opening of court) which of

one’s clients are present.

14. The North Carolina Trial Judges’ Bench Book,

Second Edition, Superior Court Division, the North Caro-

lina Trial Judges’ Bench Book, District Court Division,

and the North Carolina Clerk of Court Procedures Man-

ual all set cut the appropriate calls for the bailiffs’ open-

ing of court, closing of court, reopening of court, and

adjournment of court. All such calls include the phrase

“God save the state and this honorable court.”

s/ George Dalv

GEORGE DALY

Counsel for Plaintiffs

Suite 226, One North McDowell

101 North McDowell Street

Charlotte, North Carolina 28204

704/335-5196

s/ Norma S. Harrell

NoRMA 8S. HARRELL

Counsel for Defendant

Assistant Attorney General

N.C. Department of Justice

P. O. Box 629

Raleigh, N. C. 27602-0629

919, 733-6026

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.