Opposition Brief — Constangy v. North Carolina Civil Liberties Union
Supreme Court brief1992
Ask Donna
What actually matters in this document.
Text
f EILED.
| FES 2 4 1992
%
No. 91-1176 OFFICE OF THE GLERK
In The
Supreme Court of the United States
October Term, 1991
*
THE HONORABLE H. WILLIAM CONSTANGY,
Petitioner,
NORTH CAROLINA CIVIL LIBERTIES UNION, et al.,
Respondents.
+
Petition For Writ Of Certiorari To The United States
Court Of Appeals For The Fourth Circuit
¢
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
*
GEORGE DALy CHARLES E. JOHNSON
(Counsel of Record)_ 3000 NationsBank Plaza
Suite 226 Charlotte, NC 28280
One North McDowell (704) 331-1000
101 North McDowell Street ¢ W
Charlotte, NC 28204 ee,
(704) 333-5196 ew Dullding
730 East Trade Street
WILLIAM SIMPSON Charlotte, NC 28202
P.O. Box 28004 (704) 331-0767
Raleigh, NC 27611-8004
(919) 834-7026
Attorneys for Respondents
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
Se
_
QUESTIONS PRESENTED
1. Whether the issue of standing is properly pre-
sented in this court, since petitioner (a) failed to raise the
issue in a timely manner, and (b) acquiesced in the
uncontested assumption of standing by both courts
below.
2. Whether respondents have shown the personal
injury required for standing.
3. Whether in ruling that Judge Constangy’s court-
opening prayer violates the Establishment Clause, the
court of appeals followed the applicable decisions of this
Court.
4. Whether this Court should deny review because
Judge Constangy’s court-opening prayer fails any con-
ceivable Establishment Clause test.
PARTIES
The North Carolina Civil Liberties Union is a party in
this court and was a Plaintiff-Appellee below. The North
Carolina Civil Liberties Union Legal Foundation was mis-
takenly denominated a party in the caption of the circuit
court opinion. Appendix to Petition for Certiorari, at 1a.
The circuit court has been requested to correct this cleri-
cal error.
ill
TABLE OF CONTENTS
Page
eg eS eee i
ER ee ii
pe 8s |. ee iv
Dae eemren GF TEE CASE... 0... cesccecesvnens 1
RUE E GPO BEUE PARED... cece sete eee nena 3
ee eee ee ee ee 3
2. Facts as to Religious Purpose, Effect and Entan-
Eg Ae ae a oe
REASONS FOR DENYING THE WRIT............. 7
I. THE ISSUE OF STANDING IS NOT PROPERLY
PRESENTED IN THIS COURT, SINCE PETI-
TIONER (A) FAILED TO RAISE THE ISSUE IN
A TIMELY MANNER AND (B) ACQUIESCED
IN THE UNCONTESTED ASSUMPTION OF
STANDING BY BOTH COURTS BELOW ...... 8
Il. RESPONDENTS HAVE SHOWN THE PERSONAL
INJURY REQUIRED FOR STANDING......... . &9
II. IN RULING THAT JUDGE CONSTANGY’S
COURT-OPENING PRAYER VIOLATES THE
ESTABLISHMENT CLAUSE, THE COURT OF
APPEALS FOLLOWED THE APPLICABLE
Ce GP RERI R ARID oie ieee renee 10°
IV. THIS COURT SHOULD DENY REVIEW
BECAUSE JUDGE CONSTANGY’S COURT-
OPENING PRAYER FAILS ANY CONCEIV-
ABLE ESTABLISHMENT CLAUSE TEST....... 27
iV
TABLE OF AUTHORITIES
Page
CasES
Abington School Dist. v. Schempp, 374 U.S. 203
SOMES S45 eK o eds 5259S ARENT OER Re 10, 18
County of Allegheny v. American Civil Liberties
SENG, GR Nie. SF o COMPO 655 iss Seca ris cna x ees passim
Doremus v. Board of Education, 342 U.S. 429 (1952)..... 8
Edwards v. Aguillard, 482 U.S. 578 (1987) . 10, 11, 13, 22
Engel v. Vitalie, 370 US. 421 (1962) ............ 6, 10, 28
Everson v. Board of Education, 330 U.S. 1 (1947)...... 27
Gitlow v. New York, 268 U.S. 652 (1925).............. 27
Larkin v. Grendel’s Den, 459 U.S. 116 (1982)....... 18, 19
Lemon v. Kurtzman, 403 U.S. 602 (1971).......... passim
Lynch v. Donnelly, 465 U.S. 668 (1984)
IEEE ERLE EET. COTS ee ee ee ey. F, ty 04 89, eee ae
Marsh v. Chambers, 463 U.S. 783 (1983)
ee ee ak Pe a pe, ae hee nA) soe en es 5) 2, 21, 22, 24 2
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .... 27
North Carolina Civil Liberties Union v. Constangy,
POE ee PR OREN nbs Ssh Sova uies mente a, 21a
Princeton University v. Schmid, 455 U.S. 100 (1982)..... 8
Steagald v. United States, 451 U.S. 204 (1981).......... 8
Stone v. Graham, 449 U.S. 39 (1980)........... 10, 12, 13
Texas Monthly, Inc. v. Bullock, 489 U.S. __, 109 S.
ee ee SE id oi ei bi eS ee esc ee ee ee 16
TABLE OF AUTHORITIES - Continued
Page
Valley Forge College v. Americans United, 454 USS.
i tn) Se ARP a ot Gn dN Ny corned. 8, 9
Wallace v. Jaffree, 472 U.S. 38 (1985)
[CTEERDS ELEREERME SECA Reed Oe ER 10, 12, 13, 14, 15, 16
Walz v. Tax Commission, 397 U.S. 664 $y) 18
Wyoming v. Oklahoma, __ US. __, 60 US.L.W.
4t19 (U.S., January 22, 1992)... ooo. occ occa nccecucs, 8
OTHER
The Documentary History of the Supreme Court of the
United States, 1789-1800, Vol. Il................... 23
No. 91-1176
¢
In The
Supreme Court of the United States
October Term, 1991
+
THE HONORABLE H. WILLIAM CONSTANGY,
Petitioner,
V.
NORTH CAROLINA CIVIL LIBERTIES UNION, et al.,
Respondents.
+
Petition For Writ Of Certiorari To The United States
Court Of Appeals For The Fourth Circuit
:
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
»
STATEMENT OF THE CASE
Judge Constangy’s Answer pleaded that respondents
“have failed to allege a case or controversy.” J.A. 14.!
Lack of standing was not thereafter asserted by Judge
Constangy, by pleading or argument, until next asserted
in the Petition for Certiorari. Respondents’ Pre-Trial Brief
expressly argued that respondents had standing. Docket
No. 15. Judge Constangy’s Brief in Opposition in the
district court made no mention of standing. Docket No.
' “J.A.” refers to the Joint Appendix on appeal.
26. In his Opening Statement, respondents’ counsel
stated:
The two principal arguments which are pre-
sented are, first, whether the Plaintiffs [respon-
dents] have standing, that is, whether they are
appropriate persons to bring the case, and that
matter will be entirely presented on written tes-
timony, and I do not think it is controverted.
Tr. 6.2 Judge Constangy’s attorney made no mention of
standing in his Opening Statement. Tr. 8-10. Eight days
before trial respondents had served Partial Direct Testi-
mony of each respondent. J.A. 91-108. This testimony was
obvious!y directed at standing. At trial this testimony
was admitted without objection. At each of the five sepa-
rate offers, respondents’ counsel characterized the testi-
mony as having to do principally with standing. Tr. 11,
68-69, 76, 85. There was no impeachment or contradiction
of this testimony. Standing was not mentioned in closing
arguments. Judge Constangy’s Opening Brief in the court
of appeals raised no issue of standing. Respondent’s Brief
stated:
Judge Constangy does not dispute that Plaintiffs
have standing. Plaintiffs briefed the issue of
standing in the district court, Dkt. No. 15, and
Judge Constangy made no response.
Judge Constangy’s Reply Brief took no issue with this
representation.
2 “Tr.” refers to the trial transcript.
STATEMENT OF FACTS
1. Facts as to Standing
Judge Constangy’s Statement of Facts enlarges upon
the findings of the courts below with numerous asser-
tions of fact culled from the testimony and exhibits. Peti-
tion for Writ of Certiorari, at 3-5. Most of these culls
relate to the issue of standing. Judge Constangy has
asserted that business was conducted very casually in his
courtroom, id., and that he took no notice of the behavior
of others during his prayer, id., at 4-5. Judge Constangy
later uses these assertions to argue that respondents
therefore absent themselves gratuitously when he prays,
and are mere “offended observers” who suffer no injury
in fact. Petition, at 11.
There is substantial uncontradicted testimony that
bears on the issue of standing, and it shows that respon-
dents are injured in fact. Respondent Arundell testified
without impeachment or contradiction that after hearing
Judge Constangy’s prayer for the first time, she thereafter
sought to leave the courtroom whenever he entered to
start a morning session. Unless she could exit before he
entered, she remained, because she felt intimidated about
walking out once he had entered. Shortly after he started
opening court with prayer she told him, outside court,
that she did not think it was appropriate. He said,
“[T]hank you for letting me know.” Respondents Samek
and Everhart testified to the same effect. J.A. 93, 101-02.
Respondents Howerton and Gronquist testified that they
had on one occasion been present for the prayer, and on
one or more occasions particularly avoided appearing
hee neseer ner ener
Pre ke aee nEa Reaiemy eolagr ont, ieee, SAL A he ae en ee. a ee Mer rn
until the prayer was finished. Respondents Samek, Arun-
dell and Everhart testified, without impeachment or con-
tradiction:
The time preceding and following the opening
of court is often utilized by attorneys to discuss
cases with the Assistant District Attorney and
with police officers who are adverse witnesses,
and to determine at calendar call (usually done
by the Assistant District Attorney) which of
one’s clients are present. To the extent that |
have been absent for periods of time before,
during and after Judge Constangy’s prayer, on
account of his prayer, his prayer has interfered
with my opportunity to handle my cases at that
time. There is usually a line of attorneys waiting
to talk to the Assistant District Attorney, and on
occasion I have lost my place in line on account
of leaving the courtroom to avoid being present
for Judge Constangy’s prayer. This has on occa-
sion resulted in a delay in the handling of my
cases.
J.A. 98, 102, 106. Each of these respondents was assigned
by the Public Defender to attend Judge Constangy’s
court. J.A. 98, 101, 105.
Litigants in Judge Constangy’s courtroom, many of
whom are present under compulsion of legal process,
have no realistic opportunity to escape hearing his
prayer. No announcement is made that he will open court
with prayer. His usual courtroom, which is typical of
district courtrooms, has a center aisle, and the benches on
either side seat 7 or 8 people. The courtroom is often full
(150 people) at the beginning of a session. His prayer
lasts 30 to 40 seconds. A person seated near the wall in
the middle of the courtroom could hardly exit before the
prayer was finished, especially since most persons pre-
sent bow their heads. If she did exit in time, she would
then have no way of knowing when the prayer con-
cluded, short of defeating her objective by listening to it
at the door. If her case were called immediately after the
prayer, she would be passed over and would then wait an
hour or more until her case was recalled. If Judge Con-
stangy were holding jury court, the objecting lawyer or
litigant would have to make an unexplained and embar-
rassing exit and re-entry to avoid hearing the prayer. J.A.
62-64, 89, 112-21.
2. Facts as to Religious Purpose, Effect and Entan-
glement
Judge Constangy has asserted that his secular pur-
pose in opening court with prayer was to “set the proper
tone” so that there would be no “tricks and games” by
the lawyers. Petition, p. 5. The district court expressly
rejected this assertion and found to the contrary. Appen-
dix to Petition, at 20a-2la. The circuit court expressly
affirmed this finding. Id., at 10a-11a. At his deposition
Judge Constangy refused, until he was compelled by the
district court, to answer whether he had a religious pur-
pose in delivering his prayer. J.A. 129-31. He then denied
having any religious purpose because he interpreted reli-
gious purpose to mean only having a purpose to prosely-
tize. J.A. 132. He did then admit that religion could also
appropriately be defined as “a person’s relationship with
God,” but he continued to maintain that his prayer was
not religious even if this definition were applied. J.A.
133-34. Finally, he agreed that one of his purposes in
delivering his prayer was “to express a reverence for
God,” but he still denied that this was a religious pur-
pose. J.A. 135. He repeated this position at trial. J.A.
43-45. He was then presented with the prayer from Engel
v. Vitale, 370 U.S. 421 (1962), and told that the Supreme
Court had characterized this prayer as a religious activity.
He persisted in testifying that his prayer, though not
theologically distinguishable, was not religious. J.A. 44,
line 19 through J.A. 50, line 25. This disingenuous testi-
mony informed the district court’s finding of fact that
Judge Constangy had a religious purpose in delivering
his prayer.
Judge Constangy admitted that numerous other
courts establish a proper tone and atmosphere without
being opened with prayer. J.A. 34-35. The circuit court
found that the atmosphere in Judge Constangy’s court
was not different from that of other courtrooms. Appen-
dix to Petition, at lla. Judge Constangy does not open
afternoon court with prayer, even though there is a com-
pletely new docket in the afternoon and in his view the
normal court-opening invocation is not sufficient to cre-
ate the proper tone and atmosphere. J.A. 113, 128-29.
Judge Constangy admitted that a Judge held a sym-
bolic position and that when he prayed in court he did so
as a governmental official. J.A. 155, 158. The individual
respondents testified to serious religious objections to the
prayer. Respondent Sar ek, a Jewish person, felt that the
prayer sought to proselytize her away from her faith. Tr.
18. Respondent Arundell, a Christian, testified that she
felt that public displays of religiosity were demeaning to
her religious beliefs. Tr. 77. Respondent Everhart testified
_that the prayer promoted a concept of a patriarchal God
not shared by atheists, agnostics, and many world reli-
gions. He also objected to Judge Constangy calling on his
God to intervene into respondent Everhart’s personal life.
J.A. 77-79.
REASONS FOR DENYING THE WRIT
Judge Constangy has improperly raised the issue of
standing in this court, not having asserted it since filing
Answer. He should be estopped from raising it now. If
properly raised, it is meritless. Respondents, Assistant
Public Defenders in Judge Constangy’s court, are injured
in fact by Judge Constangy’s prayer. They have absented
themselves from court during the prayer because of reli-
gious objections to it, and they thereby lost their position
in line to discuss their cases with the Assistant District
Attorney. The organizational respondent is injured in fact
because its members are subject to being compelled to
attend Judge Constangy’s prayer.
The court of appeals applied well-established doc
trine in concluding that Judge Constangy’s prayer vio
lated each of the three tests of Lemon v. Kurtzman, 403 U.S.
602 (1971). The Petition should be denied even if the
court contemplates reformulation of Lemon, because this
case was correctly decided even under the proposed
reformulations of Lemon. Judge Constangy’s court-open
ing prayer is an endorsement of religion, and so offends
Justice O’Connor’s proposed reformulation in Lynch v.
Donnelly, 465 U.S. 668, 680 (1984) (O’Connor, J., concur-
ring). It is coercive, there being no realistic opportunity to
escape it, and so offends Justice Kennedy’s proposed
reformulation in County of Allegheny v. American Civil
Liberties Union, 492 U.S. 573, 670 (1989) (Kennedy, J.,
concurring in part and dissenting in part).
This case also presents no conflict with Marsh v.
Chambers, 463 U.S. 783 (1983). There is only sparse and
anecdotal history of opening courts with prayer. Opening
court with prayer by a judge contaminates the neutrality
of the court. A legislature is perceived as partisan, not
neutral, so opening a legislature with prayer by a chap-
lain does not so strikingly identify it with religion.
I. THE ISSUE OF STANDING IS NOT PROPERLY
PRESENTED IN THIS COURT BECAUSE JUDGE
CONSTANGY (A) FAILED TO RAISE THE ISSUE
IN A TIMELY MANNER AND (B) ACQUIESCED IN
THE UNCONTESTED ASSUMPTION OF STAND-
ING BY BOTH COURTS BELOW.
Standing is an aspect of justiciability and cannot be
waived. Valley Forge College v. Americans United, 454 U.S.
464, 476 (1982). Standing may be raised for the first time
in this court, see, e.g., Princeton University v. Schmid, 455
U.S. 100, 103 (1982), although typically that occurs in
cases arising from the state courts, id.; Doremus v. Board of
Education, 342 U.S. 429 (1952); and of course in original
jurisdiction cases, Wyoming v. Oklahoma, __ U.S. ___, 60
U.S.L.W. 4119 (U.S., January 22, 1992). In cases arising
from federal courts a party may lose his right to challenge
findings or assumptions of standing made by the courts
below “when it has acquiesced in contrary findings by
those courts, or when it has failed to raise such questions
in a timely fashion during the litigation.” Steagald v.
United States, 451 U.S. 204, 209 (1981) (lack of expectation
of privacy not raised in Fourth Amendment case).
Respondents repeatedly asserted standing. Judge
Constangy never asserted lack of standing in either court
below, except perfunctorily in his Answer. Judge Con-
stangy has secretly laid in wait, ever since filing his
answer, and now seeks to ambush respondent. He should
be estopped to do so. Id.
II. RESPONDENTS HAVE SHOWN THE PERSONAL
INJURY REQUIRED FOR STANDING
Judge Constangy now having emerged from ambush,
it appears that his gun is not loaded. Judge Constangy
asserts that respondents are merely “offended observers”
who do not suffer the injury in fact required for standing.
Judge Constangy conveniently omits numerous pertinent
facts bearing on the issue: that respondents are assigned
to Judge Constangy’s courtroom; that they are forced to
leave a place that they have a right to be or delay going
there because of his prayer; and that they lose their place
in line to talk to the Assistant District Attorney on this
account. That is injury in fact, traceable to Judge Con-
stangy’s conduct, redressable by injunction. Valley Forge
College v. Americans United, 454 U.S. 464, 472 (1982).
The individual respondents have felt intimidated or
offended by Judge Constangy’s prayer. Members of the
audience, including members of the respondent organiza-
tion or other objectors, are essentially held captive for the
duration of this prayer because there is no effective
opportunity to exit nor realistic way to know when to
return if one does manage to exit.
10
Court opens with a command to rise. Very shortly
there follows a command to be seated. Judge Constangy
then immediately says: “Let us pause for a moment of
prayer.” In context his words are coercive. One is judi-
cially ordered to pause and observe his prayer. Respon-
dents are compelled participants in his prayer.
The facts of this case are well within the ambit of
numerous recent comparable cases in which this court
has found standing without discussion of the issue. See,
e.g., Abington School District v. Schempp, 374 U.S. 203
(1963); Stone v. Graham, 449 U.S. 39 (1980); Lynch v. Don-
nelly, 465 U.S. 668 (1984); Wallace v. Jaffree, 472 U.S. 38
(1985); Edwards v. Aguillard, 482 U.S. 578 (1987); Allegheny
County v. American Civil Liberties Union, 492 U.S. 573
(1989). The present case is closest to, but even stronger
than, Abington. There parents were given the option to
have their children excused from religious exercises. Here
children are subject to being compelled to attend Judge
Constangy’s court as witnesses, but given no realistic
opportunity to leave.
Ill. IN RULING THAT JUDGE CONSTANGY’S
COURT-OPENING PRAYER VIOLATES THRE
ESTABLISHMENT CLAUSE, THE COURT OF
APPEALS FOLLOWED THE APPLICABLE DECI-
SIONS OF THIS COURT.
In holding unconstitutional Judge Constangy’s prac-
tice of opening the morning, but not the afternoon, ses-
sions of his court with prayer, the court of appeals
faithfully followed the line of decisions of this Court from
Engel v. Vitale, 370 U.S. 421 (1962), through County of
11
Allegheny v. American Civil Liberties Union, 492 U.S. 573
(1989). The court of appeals held that Judge Constangy’s
courtroom prayer violates all three prongs of the Estab-
lishment Clause test of Lemon v. Kurtzman, 403 U.S. 602
(1971), and correctly concluded that “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.” North Carolina Civil Liberties
Union v. Constangy, 947 F.2d 1145, 1152-53 (1991).
A. The Court of Appeals Fairly and Faithfully
Followed the Decision in Lemon as Inter-
preted by this Court.
The court of appeals fairly applied the test of Lemon
v. Kurtzman in a manner consistent with the subsequent
decisions of this Court. Judge Constangy’s characteriza-
tion of the circuit court’s application of a “super-Lemon”
test is mere hyperbole and demonstrably false.
A practice that fails any prong of the Lemon test is
unconstitutional. Edwards v. Aguillard, 482 U.S. 578, 583
(1987). Judge Constangy’s prayer fails all three prongs.
1. Judge Constangy’s prayer fails the “secu-
lar purpose test” in fact and as a matter of
law.
In ruling that Judge Constangy’s prayer fails the
“secular purpose test,” the court of appeals upheld the
district court’s factual finding that the prayer was reli-
gious in nature and did not serve a secular purpose. 947
F.2d at 1150. The court below also noted that this Court’s
12
decisions suggest “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.”
Id., citing Wallace v. Jaffree, 472 U.S. 38 (1985), and Stone v.
Graham, 449 U.S. 39 (1980). As this Court did in Wallace
and Stone, the court of appeals held that the religious
practice served no secular purpose despite a purportedly
secular purpose advanced by the official. 947 F.2d at 1150.
The evidence at trial soundly supports the court of
appeals’ determination that Judge Constangy’s prayer
serves no secular purpose. While Judge Constangy con-
tends that his primary purpose was to “produce a calm,
quiet, serious atmosphere in the courtroom for the day,”
his actions belie his words. As the district court found:
[Jludge 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 dignity of
the courtroom are not dependent upon the reci-
tation of an opening prayer.
751 F. Supp. 552, 554 (W.D.N.C. 1990). The court of
appeals noted that even though Judge Constangy heard
different cases in the afternoon, there was no evidence of
a difference between the morning and afternoon sessions
with regard to the atmosphere or the level of noise in the
courtroom. “Nor was the atmosphere in Judge Con-
stangy’s courtroom different from that of other court-
rooms.” 947 F.2d at 1150. In light of these facts, no secular
purpose can justify Judge Constangy’s practice of open-
ing morning but not afternoon court by reciting a prayer.
13
This Court has rejected similar claims of secular pur-
pose in numerous Establishment Clause cases. For exam-
ple, in Wallace v. Jaffree, the Court held that an Alabama
statute authorizing a minute of silence for “meditation or
voluntary prayer” in public schools lacked any secular
purpose. 472 U.S. at 56. In making its determination, the
Court properly considered the statute’s legislative history
and the testimony of an Alabama legislator.
In Stone v. Graham, the Court rejected as clearly erro-
neous the trial court’s finding that Kentucky’s statute
requiring the posting of the Ten Commandments on
schoolroom walls had a secular purpose. The Court
stated: “The pre-eminent purpose for posting the Ten
Commandments 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 purpose can
blind us to that fact.” 449 US. at 41.
Likewise, in Edwards v. Aguillard, the Court rejected
Louisiana’s assertion of the secular purpose of its law
requiring that the public schools either not teach evolu-
tion or teach both evolution and “creation science.” 482
U.S. at 593. Louisiana claimed that this law furthered the
secular purpose of teaching both points of view on the
subject. 482 U.S. at 586. Just as the Court concluded that
the primary purpose of the Creationism Act was “to
advance a particular religious belief,” the court of appeals
here concluded the primary purpose of Judge Con-
stangy’s prayer is to further his religious beliefs.
Judge Constangy’s assertions of secular purpose are
no more convincing than the fine print beneath the Ten
14
Commandments or Louisiana’s disingenuous claim of
academic freedom. The need for solemnity and dignity
does not disappear after lunch.
The argument regarding secular purpose advanced in
Judge Constangy’s petition is disingenuous, if not mis-
leading. The petition criticizes the district court and court
of appeals for considering Judge Constangy’s personal
“subjective motivations” for opening court with prayer
instead of the “objective purpose” of the prayer. Judge
Constangy contends that his “otherwise unobjectionable
practice” of courtroom prayer “does not become uncon-
stitutional just because the actor happens to possess reli-
gious motivations.” Petition, at 21. But Judge Constangy
then abandons his focus on “objective purpose” and con-
tends that his avowed secular purpose in opening court
with prayer shields him from further scrutiny under the
Establishment Clause. Id. at 22. Under any “objective”
standard, prayer is a religious act, wholly lacking in
secular purpose. An otherwise objectionable religious act,
such as Judge Constangy’s prayer, does not become con-
stitutional just because the actor professes a lack of reli-
gious motivation.
In applying the secular purpose test, this Court dis-
tinguishes not between “objective” and “subjective,” but
rather asks “ ‘whether the government’s actual purpose is
to endorse or disapprove of religion.’ ” Wallace v. Jaffree,
472 U.S. at 56 (emphasis added and citation omitted).
Thus, in Judge Constangy’s language, the court of
appeals’ determination of no secular purpose was appro-
priately “objective” and “subjective.” Recognizing that
the “objective” purpose of prayer is “intrinsically reli-
gious,” the court of appeals considered — and rejected -
Judge Constangy’s “subjective” contention that his
15
avowed personal purpose in praying somehow negates
this “objective” religious purpose.
Under the ruling of the court below, Judge Constangy
is free to hold any religious beliefs he chooses and to
exercise those beliefs at all times, including while in the
courtroom. The ruling below simply prevents him, as a
governmental official, frorn engaging in a public, ceremo-
nia! act with a religious purpose.
2. Judge Constangy’s prayer has the effect of
endorsing religion.
The court of appeals also correctly applied the sec-
ond Lemon test in concluding that “the primary effect of
Judge Constangy’s prayer was to advance and endorse
religion.” 947 F.2d at 1151. In so concluding, the court
asked “whether, irrespective of government’s actual pur-
pose, the practice under review in fact conveys a message
of endorsement or disapproval [of religion].” Id. (quoting
Wallace v. Jaffree, 472 U.S. at 56 n.42 (quoting Lynch v.
Donnelly, 465 U.S..668, 690 (1984) (O’Connor, J., concur-
ring))). Regardless of Judge Constangy’s avowed pur-
pose, his prayer unequivocally conveys a message of
endorsement of religion.
Judge Constangy’s petition mischaracterizes the rul-
ing of the court of appeals and the findings of the district
court on the issue of primary effect. Far from focusing
solely on the atheistic cavils of a “sufficiently fastidious
nonbeliever,”? the court of appeals and the district court
3 In light of his petition’s strident denunciation of non-
believers, one might question whether Judge Constangy
(Continued on following page)
16
carefully considered the effect of court-opening prayer on
a reasonable person as well as on persons actualiy pres-
ent in the courtroom and concluded that the prayer’s
primary effect was to endorse religion.
The court of appeals first considered the official
nature and surroundings of Judge Constangy’s prayer
from the standpoint of the reasonable observer. “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 endorsement
of religion.” 947 F.2d at 1151. Judge Constangy is not
merely accommodating religion, as do Sunday closing
laws and military chaplains; he is affirmatively advancing
it. When he prays to open court, Judge Constangy is the
government itself affirmatively promoting religion. He is
compelling others to worship in his religion.
Unlike the ceremonial deism of the phrase “In God
We Trust” on coins or the announcement opening many
courts, “God save the United States and this Honorable
Court,” the court below found that “prayer in the court-
room by a judge is a religious act with little historical
support.” 947 F.2d at 1151. Like the Supreme Court, the
(Continued from previous page)
realizes that it is precisely the nonbeliever that the Establish-
ment Clause exists to protect. The Court has held that the
Establishment Clause means “no official preference even for
religion over nonreligion.” County of Allegheny v. American Civil
Liberties Union, 492 U.S. 573, 109 S. Ct. 3086, 3107 (1989) (citing
Texas Monthly, Inc. v. Bullock, 489 U.S. 1, __, 109 S. Ct. 890, 896
(1989)). It is “an established principle that the government
must pursue a course of complete neutrality toward religion.”
Wallace v. Jaffree, 472 U.S. at 60.
17
court of appeals distinguished between the religious
effect of prayer and deistic references that have lost their
religious meaning. Id. See County of Allegheny v. American
Civil Liberties Union, 492 U.S. at 602-03, 109 S. Ct. at 3106;
Lynch v. Donnelly, 465 U.S. 668, 692-93 (O’Connor, J.,
concurring). Such a distinction flows naturally from the
principle that a government official “may not engage in a
practice that has the effect of endorsing religious beliefs,”
as determined by a “reasonable observer.” County of Alle-
gheny v. American Civil Liberties Union, 492 U.S. at __, 109
S. Ct. at 3715.
Contrary to Judge Constangy’s contention, neither
the court of appeals nor the district court based its deter-
mination of primary religious effect exclusively on the
plaintiffs’ trial testimony. The court of appeals simply
cited testimony that the witnesses “felt that the judge
wanted those present to pray with him and felt that the
judge was endorsing religion.” 947 F.2d at 1151. Such
testimony supports, but is not the basis for, the conclu-
sion that the primary effect of Judge Constangy’s prayer
is to endorse religion.
3. Judge Constangy’s courtroom prayer exces-
sively entangles government and religion
by destroying the appearance of judicial
neutrality.
The court of appeals held that Judge Constangy’s
court-opening prayer violates the third Lemon test of
“excessive entanglement” because the ineluctable effect
of such a daily prayer “is to inject religion into the
18
judicial process and destroy the appearance of neu-
trality.” Excessive entanglement, the court reasoned,
inevitably results from such “an ongoing, day-to-day
merging of judicial and religious functions.” 947 F.2d at
1152.
This holding fits squarely within the language and
rationale of the “excessive entanglement” test as stated in
Lemon v. Kurtzman: “the statute must not foster ‘an exces-
sive government entanglement with religion.’ ” 403 U.S. at
613 (quoting Walz v. Tax Commission, 397 U.S. 664, 674
(1970)) (emphasis added). Judge Constangy flatly mis-
tates this test when he argues that Lemon forbids exces-
sive entanglement only between church and state, not
between religion and state. This Court has never
restricted the “excessive entanglement” test to relation-
ships between the state and a church.
In Larkin v. Grendel's Den, 459 U.S. 116 (1982), the
Court invalidated a Massachusetts statute that gave
churches the right to veto applications for liquor licenses
from businesses located within 500 feet of the church. The
Court held that this statute excessively entangled the
government with religion because it violated the core
rationale underlying the Establishment Clause, which is
“preventing a ‘fusion of governmental and religious func-
tions.” Id. at 127 (quoting Abington School District v.
Schempp, 374 U.S. 203, 222 (1963)). Judge Constangy’s
practice of prayer fuses government and religion at the
most visible point of the court system.
Relying on the specific language and holding of
Lemon, the court of appeals also noted “that Judge Con-
stangy’s prayer has the potential for entangling the state
19
in divisiveness along religious lines.” 947 F.2d at 1152. In
holding that prayer leading to such divisiveness may
constitute another kind of entanglement, the court again
quoted Lemon: “[P]olitical division along religious lines
was one of the principal evils against which the First
Amendment was intended to protect.” 403 U.S. at 622
(citation omitted).
While this Court often has considered religious
divisiveness in the context of direct governmental sub-
sidies to religious institutions, Lynch v. Donnelly, 465 U.S.
at 684, its holding in Larkin v. Grendel's Den demonstrates
that it may consider religious divisiveness engendered by
other forms of governmental action. Thus Judge Con-
stangy errs when he contends that state-sponsored reli-
gious divisiveness is relevant to an “excessive
entanglement” inquiry only when the state provides
direct subsidies to churches. To the contrary, as this Court
stated in Lynch v. Donnelly: “Entanglement is a question
of kind and degree.” 465 U.S. at 684. There is no reason
why the court should not consider potential political and
religious divisiveness as part of the kind and degree of
the entanglement present here.
Under the rationale of Lemon, Larkin and Lynch, Judge
Constangy’s courtroom prayer results in an excessive
entanglement of government with religion. By opening
his morning court sessions with prayer, Judge Constangy
forfeits the appearance of neutrality that is central to our
judicial system and entangles the state’s administration
of justice with the judge’s personal religious views. That
entanglement violates the Establishment Clause.
The court of appeals fairly and faithfully applied the
three prongs of the Lemon test in holding that Judge
20
Constangy’s courtroom prayer violated the Establishment
Clause. Nothing in the court of appeals’ application of
the Lemon test or its ruling in the instant case would
constitutionally prohibit Thanksgiving proclamations, the
government’s accommodation of persons who wish to
observe religious holidays, or any religious practices pre-
viously permitted by this Court. Rather, the lower court’s
opinion is restricted to the facts of a particular courtroom
prayer. Just as this Court has applied the Lemon test to
prohibit prayer in the schoolroom, the court of appeals
has applied it to invalidate Judge Constangy’s prayer in
the courtroom.
B. The Court of Appeals’ Decision Does Not Con-
flict with this Court’s Decision in Marsh v.
Chambers.
In the singular case of Marsh v. Chambers, 463 U.S. 783
(1983), the Court held that the Establishment Clause did
not forbid the long-standing practice of the Nebraska
legislature of paying a Presbyterian chaplain to open its
sessions with prayer. The Court pointed out that the First
Congress, three days before reaching final agreement on
the language of the Bill of Rights, authorized the appoint-
ment of paid chaplains who opened its sessions with
prayer. 463 U.S. at 789. Since that time, Congress has
continued this practice without interruption, and most
states have consistently followed the practice. 463 U.S. at
789-91. Relying on this “unambiguous and unbroken his-
tory of more than 200 years,” 463 U.S. at 793, the Court
concluded that legislative prayer was not a practice
respecting an establishment of religion.
21
Unlike the legislative prayer permitted in Marsh v.
Chambers, 463 U.S. 783 (1983), Judge Constangy’s court-
opening prayer lacks an unbroken 200-year historical tra-
dition or explicit sanction by the framers of the Bill of
Rights. Moreover, as the court of appeals noted, “it can-
not be said that judicial prayer has no greater potential
for an establishment of religion than legislative prayer.”
North Carolina Civil Liberties Union v. Constangy, 947 F.2d
at 1149. Thus the court of appeals correctly concluded
that the Establishment Clause exception articulated in
Marsh v. Chambers does not apply to Judge Constangy’s
court-opening prayer.
1. Court-opening prayer is not sanctioned by
historical tradition.
The court of appeals distinguished legislative prayer
from other unconstitutional official prayers because of
legislative prayer’s “unique history”:
The [Marsh] Court noted that sessions of Con-
gress have opened with prayer for over two
hundred years, and that the Nebraska legisla-
ture has opened with prayer for over one hun-
dred years. Moreover, the Court found that in
this case 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
opening Congress with prayer soon after the
Constitution and the Establishment Clause were
drafted.
North Carolina Civil Liberties Union v. Constangy, 947 F.2d
at 1147. See Marsh v. Chambers, 463 U.S. at 789-93.
22
Later decisions of this Court emphasize the unique
historical circumstances of legislative prayer in refusing
to apply the Marsh rationale to other Establishment
Clause cases.
The Lemon test has been applied in all cases
since its adoption in 1971, except in Marsh v.
Chambers . . . , where the Court held that the
Nebraska 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). See
Lynch v. Donnelly, 465 U.S. at 674 (Congress’ authorization
of legislative prayer contemporaneously with adoption of
Bill of Rights was distinguishing feature in Marsh).
The Court also declined to apply the Marsh rationale
on historical grounds in its most recent Establishment
Clause decision, County of Allegheny v. American Civil
Liberties Union. Writing for the Court, Justice Blackmun
explained that “[iJn Marsh, the Court relied specifically
on the fact that Congress authorized legislative prayer at
the same time that it produced the Bill of Rights.” 492
U.S. at 602, 109 S. Ct. at 3106.
Congress, however, has never authorized judicial prayer.
“There is no evidence regarding the intent of the Framers of
the Bill of Rights with regard to the opening of court with
prayer.” North Carolina Civil Liberties Union v. Constangy, 947
F.2d at 1148. Moreover, there is no “unambiguous and
unbroken history of more than 200 years” of opening either
federal or North Carolina courts with prayer.
At trial, Judge Constangy offered no evidence or
argument regarding a historical practice of opening court
ya
with prayer. His evidence indicated only that three other
North Carolina judges recently have opened their courts
with prayer. Tr. 102-04; J.A. 187, 189, 193. As the court of
appeals in the instant case stated, “a few examples of
judges who open court with prayer is hardly comparable
to the common practice of opening sessions of legisla-
tures with prayer.” 947 F.2d at 1149.4
In his petition to this Court, Judge Constangy cites a
mere 13 instances of prayer, all in the Eastern Circuit
Court, between the years of 1790 and 1800, and involving
only five justices.> More than half of the instances he cites
occurred before the ratification of the Bill of Rights. Judge
Constangy cites no instance of prayer in any federal court
after 1800. His archaic, anecdotal references to prayer in
the earliest years of the circuit court prove neither histori-
cal precedent nor acceptance by the courts. Their scarcity
proves the contrary. Whatever the colonial practice, there
is no record of any federal court opening with prayer for
almost 200 years.
4 North Carolina has seven supreme court justices, 12
court of appeals judges, 82 regular superior court judges and
164 regular district court judges, as well as various emergency
and retired judges available for duty. N.C. Gen. Stat. §§ 7A-10,
-16, -41-57. The practice of four North Carolina judges among
more than 265 North Carolina judges is aberrational.
5 Except for one instance with Justice !redell and another
with Justice Patterson, all instances of prayer occurred with
Chief Justice Jay, Justice Cushing or Justice Wilson. Thus there
is no record of prayer in the circuit courts of Justice Blair
(1789-96), Justice Rutledge (1789-91), Chief Justice Ellsworth
(1795-1801), Justice Chase (1796-1811) or Justice Moore
(1799-1804). See The Documentary History of the Supreme Court of
the United States, 1789-1800, Vol. II.
24
Thus the district court and the court of appeals prop-
erly limited the exceptional case of Marsh v. Chambers to
legisiative prayer as an instance of long-standing histori-
cal acceptance. Court-opening prayer has no similar
“unambiguous and unbroken” history. On _ historical
grounds alone, the holding of Marsh is inapplicable to the
instant case.
2. Court-opening prayer has far greater poten-
tial for establishment of religion than legis-
lative prayer.
The court below also properly declined to apply the
holding in Marsh because judicial prayer has “greater
potential for an establishment of religion than legislative
prayer.” 947 F.2d at 1149. Indeed, the circumstances sur-
rounding Judge Constangy’s court-opening prayer are
fundamentally coercive.
Court-opening prayer is inherently coercive. As the
court of appeals explained, the potentially coercive qual-
ity of courtroom prayer differs markedly from a chaplain
opening legislative sessions with prayer. Legislators pri-
marily direct legislative prayer “at the legislators them-
selves, who have decided to have prayer.” Id. Such
legislative prayer does not urge citizens or litigants to
engage in religious practices, as a majority of this Court
stated in Allegheny, “and on that basis could well be
distinguishable from an exhortation from government to
the people that they engage in religious conduct.” 492
U.S. at 603 n. 52.
25
In striking contrast to legislative prayer, Judge Con-
stangy directs his courtroom prayer “not to fellow con-
senting judges but to the litigants and their attorneys.”
947 F.2d at 1149. Unlike legislators, who are free to leave
or object to the prayer, litigants and attorneys in Judge
Constangy’s courtroom have no realistic opportunity to
escape hearing his prayer. The courtroom is often full at
the beginning of a session. Judge Constangy’s prayer
lasts 30 to 40 seconds. A litigant seated in the middle of
the courtroom could hardly exit before the prayer was
finished, especially since most persons present bow their
heads. If the litigant’s or witness’ case were called imme-
diately after the prayer, he or she would be passed over
and would then wait an hour or more until the case was
recalled. Moreover, Judge Constangy frequently holds
criminal district court, where many litigants and wit-
nesses, including children, are compelled to be present
under court order or subpoena. J.A. 62-64, 89, 112-21.
Would a criminal defendant free on bond feel at liberty to
exit when the prayer began and then re-enter after the
prayer (when Judge Constangy has his eyes open)?
The exigencies of criminal court practice also require
attorneys in Judge Constangy’s court to be present during
his prayer. Each individual plaintiff testified without
rebuttal that the time preceding and following the court-
opening prayer is often utilized by attorneys to discuss
cases with the assistant district attorney and police offi-
cers, and to determine the presence of their clients.
Absenting oneself from Judge Constangy’s prayer inter-
feres with an attorney’s ability to handle cases and on
occasion results in delays. J.A. 98, 102, 106.
26
Judge Constangy thus compels the litigants and
attorneys who appear before him to worship his God, just
as if he were compelling them to attend church. They
may silently object, or a few lawyers may exit the court-
room, but all others are effectively forced to participate in
his form of worship. Even those who leave are forced to
acknowledge his prayer by their leaving. No one is liter-
ally forced to kneel in prayer, but the message is implicit
in the scene that one should bow the head and pray to
Judge Constangy’s God.
Legislatures function as political bodies, openly and
properly so. Their practices are perceived to be respon-
sive to majority will. “Most importantly, unlike judges,
legislators do not have an obligation to be neutral. A
legislature is by its very nature partisan and political.”
947 F.2d at 1149. The partisan, political, activist duties of
legislators pointedly distinguish them from judges, who
must be neutral and reactive.
That profound distinction between courts and legisla-
tures and the particular coercive circumstances of Judge
Constangy’s practice compel the conclusion of the court
below: “Because a judge must be a neutral decision-maker,
prayer in court by a judge has far more potential for estab-
lishing religion than legislative prayer.” Id. Thus even ignor-
ing its unique requirement of long-standing historical
acceptance, Marsh does not validate the public prayer in the
instant case. The court of appeals’ decision is consistent not
only with this Court’s 30-year history of Establishment
Clause decisions, but with the decision in Marsh.®
¢ Judge Constangy cannot be serious in contending that
the Establishment Clause applies only to acts of Congress.
(Continued on following page)
27
IV. THIS COURT SHOULD DENY REVIEW BECAUSE
JUDGE CONSTANGY’S COURT-OPENING
PRAYER FAILS ANY CONCEIVABLE ESTABLISH-
MENT CLAUSE TEST.
Judge Constangy’s court-opening prayer is a purely
religious act by a public official in the coercive environ-
ment of a state criminal district courtroom, which must
be open and neutral. His prayer thus fails not only the
Lemon test, but any conceivable Establishment Clause
test. Because the prayer would violate any actual or con-
ceivable Establishment Clause standard, this Court need
not review the lower court’s decision, nor should it delay
denial of the petition until it has decided the case of Lee v.
Weisman, U.S. No. 90-1014.
The court of appeals recognized that Judge Con-
stangy’s prayer was unconstitutional under any formula-
tion when it stated that “the practice at issue in this case
is clearly unconstitutional under all the tests and criteria
(Continued from previous page)
Petition for Writ of Certiorari, at p. 20. That contention contra-
venes dozens of Supreme Court decisions. This Court has
applied the First Amendment to actions by state governments
since 1925, Gitlow v. New York, 268 U.S. 652, 666 (1925), and first
applied the Establishment Clause to state and municipal action
in 1947, Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).
For more than 60 years, this Court often has held that state and
local governmental actions — including actions of the courts -
violate the First Amendment. E.g., County of Allegheny v. Ameri-
can Civil Liberties Union, 492 U.S. 573 (1989) (county’s religious
practice violates Establishment Clause); New York Times Co. v.
Sullivan, 376 U.S. 254, 265 (1964) (state court’s application of
state rule of law violates free press clause).
KK
28
developed by the Supreme Court in the Establishment
Clause area.” 947 F.2d at 1152-53.
Even under the standard proposed in Justice Ken-
nedy’s dissenting opinion in Allegheny County v. American
Civil Liberties Union, Judge Constangy’s prayer clearly
violates the Establishment Clause. Justice Kennedy’s
opinion identifies two absolute prohibitions under the
Establishment Clause: “government may not coerce any-
one to support or participate in any religion or its exer-
cise,” and government may not directly benefit religion.
492 U.S. at _, 109 S. Ct. at 3136. Under his formulation,
coercive religious practices are always unconstitutional.
Like the school prayer in Engel v. Vitale, Judge Con-
stangy’s prayer is inherently coercive; hence no further
inquiry is required under Justice Kennedy’s formulation.
492 U.S. at___, 109 S. Ct. at 3137 n.1 (Kennedy, J., concur-
ring in part and dissenting in part).
Likewise, Judge Constangy’s prayer violates the
“endorsement test” first suggested by Justice O’Connor
in her concurrence in Lynch v. Donnelly. Under Justice
O’Connor’s analysis, “government endorsement or disap-
proval of religion” violates the Establishment Clause
because “[e]ndorsement sends a message to nonadherents
that they are outsiders, not full members of the political
community, and an accompanying message to adherents
that they are insiders, favored members of the political
community.” 465 U.S. at 688 (O’Connor, J., concurring).
Applying this standard, Justice O’Connor concluded that
Pawtuckett’s Christmas display, including both secular
symbols and a creche, in a privately owned park was not
constitutionally objectionable, but that placement of a
nativity scene in the lobby of the Allegheny County
Re ors in tie QRESE CE Ser at aa weirs 3 ora eel tea
29
Courthouse “has the unconstitutional effect of conveying
a government endorsement of Christianity.” County of
Allegheny v. American Civil Liberties Union, 492 US. at a
109 S. Ct. at 3119 (O’Connor, J., concurring). She stated
that the display of a religious symbol in a courthouse
“runs a special risk of ‘mak[ing] religion relevant, in
reality or public perception, to status in the political
community.’ ” Id. (quoting Lynch v. Donnelly, 465 U.S. at
692 (O’Connor, J., concurring)).
Judge Constangy’s religious act of prayer — in a court-
room where citizens and attorneys are compelled to attend
~ creates an untenable risk of making religion relevant,
whether in the reality of a nonbelieving criminal defen-
dant who feels compelled to join in prayer, or in the
perception of a public that may doubt the court’s neu-
trality. In the context of the courtroom, Judge Constangy’s
prayer is an overt and unconstitutional endorsement of
religion.
Like state-sponsored prayer in the public schools,
Judge Constangy’s court-opening prayer violates all three
Lemon tests, the prohibition against coercion or pros-
elytizing theorized by Justice Kennedy, and the endorse-
ment test proposed by Justice O’Connor. Such prayer,
therefore, fails any test imposed or suggested by this
Court for determining a violation of the Establishment
Clause.
Respectfully submitted, this 24th day of February,
1992.
Of Counsel:
Norman B. SmitH
General Counsel
30
GeorGE DALy
Grorce Da ty, P.A.
Suite 226, One North McDowell
101 North McDowell Street
Charlotte, North Carolina 28204
Telephone: (704) 333-5196
CHARLES E. JOHNSON
Moore & VAN ALLEN
3000 NCNB Plaza
Charlotte, North Carolina 28280
Telephone: (704) 331-1000
James Wyatt
James Wyatt, P.A.
716 Law Building
730 East Trade Street
Charlotte, North Carolina 28202
Telephone: (704) 331-0767
WILLIAM SIMPSON
Legal Director
North Carolina Civil Liberties
Union Legal Foundation, Inc.
Post Office Box 28004
Raleigh, North Carolina
27611-8004
Telephone: (919) 834-7026
Attorneys for Respondents
By: George Daly
George Daly
North Carolina Civil Liberties Union
SMITH, PATTERSON, FOLLIN,
Curtis, James & Harkey
BB&T Building
101 South Elm Street
Greensboro, North Carolina 27401
“SA th uf ;
eS LY Fi wf ie é
ba fe
j
asl ve
i.
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.