Loading...
11-23-2010 CC Rpt A09 COUNCIL AGENDA STAFF REPORT CITY CLERK USE ONLY RECEIVED 475Fies, Meeting Date: November 23. 2010 2010 NOV 16 AM 10: 35 kitv ;fir .:.;mss Public Hearing: ❑ /' OFFICE UI CIT I CLERK Discussion Item: CHINO HILLS Consent Item: ❑ November 16, 2010 TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: CITY MANAGER CITY ATTORNEY SUBJECT: CONSIDERATION OF COUNCIL POLICY THAT CURRENTLY ALLOWS FOR NONSECTARIAN INVOCATIONS AT CITY COUNCIL MEETINGS RECOMMENDATION: Continue current policy that allows for nonsectarian prayers at City Council meetings. BACKGROUND/ANALYSIS: In June 2003, our office advised the City that if it were to continue its practice of starting City Council meetings with an invocation that the invocation be nonsectarian (avoid referring to any particular god, religion, deity or religious symbol). This advice was based upon a 2002 City of Burbank Case (discussed below) that found that it was unlawful to allow sectarian prayers at Council Meetings. The Council adopted an invocation policy consistent with this advice. Council at its September 14, 2010 meeting, directed that staff bring this matter back to Council for further consideration. Prior to June 2003, the City's policy was to allow all faiths to participate in the invocation process. Accordingly, the City was not favoring one religion over another and this practice was consistent with the City of Burbank's invocation policy which was found to be unlawful. It does not appear at this time that there has been any change in California law or directly applicable federal law (published case from a California Federal District Court or by the Ninth Circuit Court) that would alter the precedent set by the City of Burbank case. The City of Lancaster is currently in litigation regarding allowing sectarian prayer. The electorate of Lancaster passed a ballot measure that requires that the City Council provide for sectarian prayers at its meetings. Given the Burbank case is still good law, it appears that(1)the Court of Appeal will need to overturn its prior decision in the Burbank case, (2) the California Supreme Court will need to grant review of the Lancaster case and overrule the Burbank decision, or (3) a federal court with proper jurisdiction will have to rule in Lancaster's favor in order for Lancaster to prevail in the litigation. The litigation could take years before it is concluded. It appears that Lancaster is going to defend the case based upon a different interpretation than the Burbank Court reached with regard to a United States Supreme Court case (Marsh case discussed below) and rely upon decisions from other federal circuit courts as the basis for this interpretation. AGENDA DATE: NOVEMBER 23, 2010 PAGE 2 SUBJECT: CONSIDERATION OF COUNCIL POLICY THAT CURRENTLY ALLOWS FOR NONSECTARIAN INVOCATIONS AT CITY COUNCIL MEETINGS Below is a summary of the applicable cases involving legislative prayers The staff report and attachments thereto that were provided to Council in 2003 are also attached for your review, including an article from Western Cities regarding invocations at council meetings. Given that (1) there has not been any direct precedent that the City could rely on for changing its current invocation policy, and (2) the legal costs associated with defending a change in the policy could be significant, staff recommends that Council not change the current invocation policy at this time. Should the City of Lancaster prevail in its litigation, or another case addresses the issue that would provide the City with an enhanced ability to defend a change in the current invocation policy, staff will bring this matter back to the Council for further consideration. I. Summary of Invocation Cases A. In 1983 the U.S. Supreme Court, Marsh v. Chambers,l, recognized and analyzed the tradition of legislative prayer. The Marsh Court recognized invocations at legislative sessions as being a long standing tradition "The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom."2 The Marsh Court was specifically reviewing whether the Nebraska Legislature's invocation practice was lawful. In reviewing the legality of the practice the Court considered several factors to determine whether the Nebraska legislative prayers had been exploited to advance one faith. The Court weighed the chaplain's religious affiliation, his tenure, and the overall nature of his prayers.3 The Court also considered "first, that a clergyman of only one denomination-Presbyterian-has been selected for 16 years; second,that the chaplain is paid at public expense; and third,that the prayers are in the Judeo-Christian tradition."4 Thus, the "nonsectarian" nature of the chaplain's prayers was but one factor in this fact- intensive analysis; the Marsh decision did not form the basis for a bright-line rule. However, the Court recognized that"legislative prayers that have the effect of affiliating the government with any one specific faith or belief' violate the Establishment Clause. The Marsh Court also specifically noted that all references to Jesus Christ, after a 1980 complaint, were removed.5 The Court concluded that "[w]eighed against the historical background, these factors do not serve to invalidate Nebraska's practice." 6 1 (1983)463 U.S.783. 2 7d at 786. 3 Id. at 792-95. 4 Id. 5 Id. at 793, fn.l4. 6 Id. AGENDA DATE: NOVEMBER 23, 2010 PAGE 3 SUBJECT: CONSIDERATION OF COUNCIL POLICY THAT CURRENTLY ALLOWS FOR NONSECTARIAN INVOCATIONS AT CITY COUNCIL MEETINGS B. In 2002, the California Court of Appeal in Rubin v. City of Burbank,7 held that a prayer by a chaplain at a city council meeting which invoked "the name of Jesus Christ" violated the Establishment Clause of the First Amendment of the United States Constitution, where the invocation conveyed the message that the council was a Christian body advancing a particular religious belief. Since 1953, the City of Burbank began its city council meetings with an invocation, which was usually provided by the Burbank Ministerial Association, a non-denominational organization of clergy and representatives of other organizations that included various religions. Burbank allowed all faiths to participate in the invocations at Council Meetings. The Plaintiff, who was of the Jewish faith, was present at a city council meeting where a minister from the Church of Latter Day Saints gave the invocation and concluded with"[w]e are grateful heavenly Father for all that thou has poured out on us and we express our gratitude and our love in the name of Jesus Christ. Amen." The City of Burbank court reasoned that the reference to"Jesus Christ"and "Our heavenly Father" in the invocation violated the Establishment Clause because the invocation conveyed the message that the Burbank City Council was a Christian body, and it could be inferred that the council was advancing a religious belief. The court distinguished the City of Burbank invocations with the specific references to Jesus Christ from the prayer before the Supreme Court in Marsh, in which all reference to a specific religion were excised. Thus, the City of Burbank court concluded that the prayer was sectarian because it had been exploited to advance one faith, Christianity, over another. C. Post- Burbank cases No California court has decided a case involving legislative prayers since the Rubin case in 2002. However, a number of other courts have examined the issue and have reached varied results. The 11th Circuit in Pelphrey v. Cobb County, Ga, 547 F.3d 1263, 1278 (11th Cir. 2008) reviewed an invocation practice by Cobb County's (Georgia) planning commission. The County's Planning Commission opened its meetings with a prayer offered by volunteer clergy, who are invited by County personnel, from a variety of faiths, including Christian, Jewish, Unitarian Universalist, and Muslim. A majority of the prayers were Christian and included references to "our Heavenly Father" or "in Jesus' name we pray." Prayers also contained occasional references to the Jewish and Muslim faiths, such as references to Passover, Hebrew prayers, Allah, and Mohammed." Reaching a contrary interpretation from the Burbank decision of the Marsh case,the court excepted legislative prayer from the Court's traditional analysis under the Establishment Clause. The court also noted that the issue of the constitutionality of sectarian references in legislative prayers has not yet decided by the Fifth, Seventh, and Ninth Circuit Courts of Appeals. The court found that there was "no clear error in the findings that the prayers of the County Commission were not exploited to advance one faith or belief,"the court declined to evaluate the content of such prayers. The court then concluded that "the prayers of the County Commission do not violate the Establishment Clause." However, the court found the Commission's 7(2002) 101 Cal.App.4th 1194. AGENDA DATE: NOVEMBER 23, 2010 PAGE 4 SUBJECT: CONSIDERATION OF COUNCIL POLICY THAT CURRENTLY ALLOWS FOR NONSECTARIAN INVOCATIONS AT CITY COUNCIL MEETINGS practice during the time period of 2003 through 2004 when it excluded a variety of faiths (Islam, Judaism, Jehovah Witnesses, etc.) from giving the invocation. The Tenth Circuit in Snyder v. Murray City Corp. (1998) 159 F.3d 1227 also considered the issue of legislative prayers. The Tenth Circuit reasoned that Marsh does not categorically prohibit prayers that invoke "particular concept[s] of God." In Synder, the Tenth Circuit considered a case involving a private citizen who drafted a prayer that calls on public officials to cease the practice of using religion in public affairs. The Court of Appeals, held that city council did not violate Establishment Clause by denying the citizen permission to recite his proposed prayer. The Snyder court reasoned that a legislative body does not violate the Establishment Clause when it chooses a particular person to give the invocation. Similarly, it found that there is no Establishment Clause violation if a legislative body chooses not to appoint a certain person to give its prayers. The court concluded that since "Snyder's prayer both proselytizes for his own particular brand of religion and disparages other contrary religious views," "it falls outside the type of legislative prayer authorized by Marsh, and Murray City did not violate the Establishment Clause in rejecting it." II. Conclusion As can be seen from the above list of published cases regarding invocations, courts across the Country are divided regarding the type of invocations that are allowed for legislative meetings. The cases also raise a difficult issue, assuming a legislative body allows for sectarian prayers, regarding the point at which prayers are considered to be advancing a particular religion or disparaging a religion. Given the Burbank case is still the controlling precedent in California, changing the City's current policy could subject the City to a successful legal challenge. If the policy is changed to allow for sectarian prayer and it is successfully challenged in court,the City would likely be responsible for paying not only its own legal fees but also for paying the challenging party's legal fees. Given that the City of Lancaster is currently litigating the issue, the City could opt to want to wait until that case is decided before it makes a determination as to whether to amend its current policy on invocations. Respectfully submitted, Recommended by: MichaefFleager, C Manager Mark D. Hens)al, Giy'Attorney MSF:MDH:ssr Attachment