Government Liability Update

Parents May Not Attempt to Control School Curricula on Religion by Bringing Constitutional Challenges

In CAPEEM V. Torlakson, published September 3, 2020, the 9th Circuit Court of Appeals affirmed  judgment in favor of the State Board of Education and State Department of Education against a challenge brought by parents of Hindu children in California state schools.  The state defendants developed model curriculum outlines concerning the history of the world's first major religions.  The plaintiffs contended that the outlines carry a hostile and denigrating message about the origins of Hinduism when compared with similar provisions relating to other religions of the world.  They brought challenges to the outlines as violating their rights under Due Process, Equal Protection, and the Establishment and Free Exercise clauses of the First Amendment.  The district court dismissed all claims except an Establishment Clause claim, and then granted summary judgment on that claim.

The appellate court affirmed.  The Equal Protection claims fail because precedent bars attempts to control school curricula through Equal Protection challenges absent evidence of unlawful discriminatory intent.  The plaintiffs failed to articulate any discriminatory intent. Nor do their challenges to the adoption of the outlines show violation of Equal Protection because the drafters allegedly did not accept their proposed edits while accepting proposed edits from other religions.  Absent discriminatory intent, they cannot challenge the content of the curricula based on Equal Protection.  The court properly dismissed the Free Exercise challenge because the plaintiffs failed to articulate any burden on their exercise or practice of their religion.  They allege no penalty or coerced conduct.  The parents' Substantive Due Process rights to make decisions in their children's upbringing do not extend beyond the school door.  In regard to the Establishment Claim, the district court properly excluded the plaintiffs' expert declaration interpreting the outlines, because the issue was how a reasonable person, rather than an expert, would view them.  The court rejected the argument that the outlines established other religions by treating them better than Hinduism.  An objective reading of the material did not establish anything from the other religions as historically accurate, and did not denigrate Hinduism.

School Board's Policy of Opening Meetings with Prayer Violates Establishment Clause

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, published July 25, 2018, the 9th Circuit affirmed the district court's grant of summary judgment and injunctive relief against the defendant school board.  The board instituted a policy of beginning each meeting with a prayer.  A rotating set of presenters, from a list, delivered the invocations.  Usually invited clergy delivered the prayers.  On some occasions, board members led the prayers. School board members made proselytizing remarks concerning Christianity in relation to the invocations.  Minor students, from grade school to high school age, took part in the school board meetings.  The injunction barred the board members from conducting, permitting, or endorsing school-sponsored prayers in board meetings.

The 9th Circuit agreed that under the circumstances the prayer policy violated the Establishment Clause of the First Amendment.  The court ruled that the prayer did not fall under the legislative-prayer tradition that permits certain types of prayers to open legislative sessions:  solemnizing and unifying prayers aimed at the legislators themselves, conducted before an audience of mature adults.  Instead, they are delivered before a group of minor students whose presence is not voluntary and whose relationship to board members (unlike a constituent's relationship to a legislature) is not one of full parity.  Further, the historical tradition of legislative prayer does not apply to school board prayer; at the time of the framing, free public education was virtually nonexistent.  The framers therefore could not have contemplated whether opening prayers at a government-run school board's meeting would violate the Establishment Clause.  The Lemon v. Kurtzman test for determining impermissible establishment of religion therefore applies.  The prayer policy fails that test, because it lacks a secular legislative purpose.  Government action violates that prong of Lemon when the government's predominant purpose is to advance or favor religion.  In evaluating purpose, the court takes the statements of public officials into account.  Shortly after the policy was adopted, a board member stated the policy's purpose was to further Christianity.  Further, there is no secular ground for limiting solemnization of meetings to prayers or presuppose the solemnizers will be religious leaders.  The expressed purpose of demonstrating tolerance for religious diversity fails, because there are many non-Christian faiths in California whose membership lacks a "critical mass" in the district to sustain a community there.  The invocation policy therefore reinforces the dominance of particular religious traditions.  Further, the policy does not embrace nonreligious belief systems.  Further, the policy fosters an impermissible entanglement between religion and government. 

Police Interruption of Prayer for Valid Law Enforcement or Investigation Purpose Does Not Violate First Amendment

In Sause v. Bauer, published June 28, 2018, the U.S. Supreme Court, per curiam, reversed a Circuit Court decision affirming dismissal of a suit against police officers under 42 U.S.C. section 1983.  The plaintiff, suing pro se, alleged that officers investigating a noise complaint gained entrance to her apartment and engaged in abusive behavior.  One allegation was that when the plaintiff knelt and began praying, one of the officers ordered her to stop.  The complaint alleged violation of the plaintiff's rights under the First and Fourth Amendments.  The district court dismissed the complaint based on qualified immunity.  On appeal, the plaintiff, represented by counsel, argued only that the officers interfered with her right to free exercise of religion.  The circuit court affirmed on the ground of qualified immunity.

The court ruled that while prayer is the exercise of religion, there are circumstances where an officer may lawfully prevent a person from praying at a particular time and place.  For instance, a suspect ordered to enter a police vehicle during an arrest cannot delay transport to jail by praying.  Where a police officer's order to stop praying occurs during a police investigation, the First and Fourth Amendment rights may become inextricable.  Here, the plaintiff's complaint did not explain whether the officers were in the plaintiff's apartment with or without her consent, whether they had a legitimate law enforcement ground for being there, or what if anything the officers wanted her to do when they ordered her to stop praying.  Although the plaintiff proceeded only on her First Amendment claim on appeal, that claim could not be analyzed without considering whether the officers had valid grounds under the Fourth Amendment for their actions.

First Amendment Establishment Clause Does Not Bar Sectarian Prayers at City Council Meetings

In Town of Greece v. Galloway (2014) __U.S.__, 134 S.Ct. 1811, published May 5, 2014,   the U.S. Supreme Court upheld summary judgment granted for the defendant town in a lawsuit that challenged the prayers delivered at city council meetings. Because most of the houses of worship in the town were Christian, most of the volunteer clergy who delivered the prayers were Christian. Some of the clergy delivered prayers that were sectarian. The plaintiffs alleged that this conduct violated the Establishment Clause of the First Amendment to the United States Constitution.

All of the justices held that the Establishment Clause permits sectarian prayer at city council meetings. The court applied the Establishment Clause test formulated in Marsh v. Chambers (1983) 463 U.S. 783, which held that opening state legislature sessions with a prayer by a chaplin did not violate the Establishment Clause. Under Marsh, the Establishment Clause is interpreted by reference to historical practices and understandings.

Justices Kennedy, Roberts, Alito, Scalia, and Thomas held that the history of the Establishment Clause does not support barring sectarian prayers, and that involving government as supervisors and censors of religious speech would violate the Clause. Absent a pattern of prayers that over time denigrates other faiths, proselytizes, or betrays an impermissible government purpose, the majority held, a challenge based solely on the content of a prayer is unlikely to establish a constitutional violation. The majority further held that so long as the town maintained a policy of nondiscrimination, and made reasonable efforts to permit any faith to provide a prayer, it did not contravene the Establishment Clause by inviting a predominantly Christian set of ministers to deliver prayers. Kennedy, Roberts, and Alito also rejected the argument that the prayers were unduly coercive because citizens coming before the council who did not participate in prayers might feel singled out. If town board members had directed the public to participate in the prayers, singled out dissidents, or indicated that their decisions might be influenced by whether the person prayed, the result might be different. Offense the dissenters might feel did not equate to coercion. A pattern of prayers might show coercion that might violate the Establishment clause.Justices Alito and Scalia wrote separately to emphasize that the Establishment Clause does not call for generic prayers.

JusticesThomas and Scalia wrote separately to opine that the Establishment Clause does not apply to cities; and that in any event the prayers were not coercive in the sense of the prayers that the founding fathers found objectionable.

Justices Breyer, Kagen, Ginsberg, and Sotomayor, dissenting, opined that the prayers in this case were too sectarian, that too little effort was made to locate non-Christian clergy, and that under the circumstances the prayers were coercive.

It is unclear how Town of Greece will be applied in California courts, in light of the California Constitution’s broader provisions guaranteeing “free exercise and enjoyment of religion without discrimination or preference” (art. I, § 4) and prohibiting governmental aid to religion (art. XVI, § 5.) See Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863. Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194, which holds that the First Amendment of the U.S. Constitution bars sectarian invocations at city council meetings, seems unlikely to survive the ruling in Town of Greece.

Ninth Circuit Rules Privately-Led Prayers Opening City Government Meetings That Mention Jesus Do Not Violate First Amendment

In Rubin v. City of Lancaster, published March 26, 2013, the Ninth Circuit Court of Appeals rejected a First Amendment challenge to a city's practice of inviting clergy from the community to lead prayers at the opening of city council meetings.  The plaintiffs argued that a majority of the prayer leaders were Christian, as were the council members, and that a prayer had mentioned Jesus.  After reviewing the history of case law on the subject, the court concluded that in light of the safeguards the city took (inviting prayer leaders without regard to their religion, and asking that they not attempt to proselytize or criticize other religions), neither the invocation of Jesus nor the fact that most of the speakers were Christian (a consequence of the city's demographics) amounted to unconstitutional establishment of religion.  In so ruling, it joined a divide between federal circuits on the subject.  It also ruled that the prayers did not violate the California Constitution.