Neutral Government Policy for Privately Led Prayers at City Council Meetings Does Not Violate the Establishment Clause of the First Amendment or the California Constitution

On March 26, 2013, the Ninth Circuit affirmed a district court ruling upholding the constitutionality of the City of Lancaster’s policy and practice of allowing local congregations of any denomination to give an invocation at the beginning of City Council meetings.  Plaintiffs challenged the policy and practice as a violation of the Establishment Clause of the U.S. Constitution and the California Constitution because the invocations used sectarian references and because a majority of invocations were given by Christian denominations, which they contended had the effect of promoting one religious sect over others.  The Ninth Circuit disagreed, finding that neither the City’s policy nor practice promoted any particular religion in violation of the Establishment Clause or the California Constitution (which employs the same language and standards as the Establishment Clause). 

The City’s policy provides opportunities for religious congregations or assemblies of any faith within the City to open a City Council meeting with an invocation so long as they do not attempt to convert others or disparage other faiths.  The City Clerk is required to actively seek out all religious organizations within the City and invite them to participate.  Scheduling those organizations who request an opportunity to give the invocation is done on a first-come, first-served or random basis and each congregation is limited to three, nonconsecutive invocations per year.  The policy states that it is not the City’s intent to affiliate with or express a preference for any faith or religious denomination.  Applying the standards set forth in the seminal case addressing legislative prayer, Marsh v. Chambers, 463 U.S. 783 (1983), the Court found the City’s policy to be facially neutral and constitutionally sound.  Plaintiffs argued that the City should have prohibited all sectarian reference in the invocations, but the Court rejected this suggestion, finding that this act itself would be a violation of the Establishment Clause which prohibits the government from controlling the content of prayers.    

The Court next examined the City’s implementation of the policy.  No person who has volunteered to deliver an invocation has been turned down and no government official has been involved in the City’s Clerk’s selection or scheduling of volunteers.  While the majority of the invocations have been Christian in focus, the Court found this was due to the nature of the demographics of the local population, not a choice by the City to favor or affiliate with a particular religion.  Since the City had not taken steps to affiliate itself with a particular religion, there was no violation of the Establishment Clause. 

This detailed opinion provides significant guidance for municipalities in the Ninth Circuit as to the history of legislative prayer in this country and its role and limitations in today’s society.