Opinion
C/A No. 0:01-3409-22
August 21, 2003
ORDER
INTRODUCTION
Plaintiff, Darla Kaye Wynne, filed this action pro se on August 20, 2001. Plaintiff alleges that Defendants invoke the name of Jesus Christ in prayers to open and/or close Town Council meetings in violation of the First Amendment to the United States Constitution. Plaintiff seeks to enjoin such references in the Town Council's prayer.
On March 15, 2002, Defendants filed a motion for summary judgment. A Roseboro order was issued on March 20, 2002. On April 22, 2002, Plaintiff filed a memorandum and affidavit in opposition to Defendants' motion for summary judgment. Defendants filed a reply on May 9, 2002. On May 20, 2002, Plaintiff filed a supplemental affidavit in response to Defendants' reply, and additional materials on June 18, July 29, July 31, and August 26, 2002. By written order entered March 26, 2003, the court denied Defendants' motion for summary judgment.
With the elevation of then United States District Judge Dennis W. Shedd to the Fourth Circuit of Appeals, this case was reassigned to the undersigned on December 6, 2002.
A bench trial was held on July 11, 2003. Plaintiff was represented by Herbert E. Buhl, III, Esq., who had filed a notice of appearance on July 3, 2003. After careful consideration of all the evidence, including the testimony of witnesses and the exhibits, as well as the legal arguments presented by the parties both orally and in writing, the court makes the following findings of fact and conclusions of law:
After trial, Plaintiff filed affidavits on July 25 and 31, 2003, describing events that allegedly occurred at the July 21, 2003 Town Council meeting, as well as a videotape of the prayer given to open the meeting. On August 1, 2003, Defendants moved to strike Plaintiff's affidavits and videotape. On August 12, 2002, Plaintiff filed a motion for new trial and for taking of additional testimony. In light of the court's ruling herein, the court finds it unnecessary to consider the additional proffered evidence and, accordingly, concludes that these motions are moot.
FINDINGS OF FACT
1. Defendant, Town of Great Falls, South Carolina, is a municipality organized and existing under the laws of the State of South Carolina. Defendants John Broom, Henry Stevenson, Barbara Hilton, and Raymond H. Baker are duly elected Council Members of the Town of Great Falls, South Carolina. Defendant Henry Clayton Starnes is the Mayor of the Town of Great Falls.2. Plaintiff is a resident of the Town of Great Falls.
3. Plaintiff practices the Wiccan faith, an earth-based religion reconstructed from ancient Pagan beliefs.
4. The Mayor and all Council Members are Christian.
5. Plaintiff has attended approximately forty (40) Town Council meetings or approximately eight (8) Town Council meetings a year since moving to Great Falls in 1998.
6. The Great Falls Town Council meetings always open with prayer, which often is led by Defendant Broom. Defendant Broom frequently refers to Jesus, Jesus Christ, Christ or Savior in the opening or closing portion of the prayer.
7. A typical prayer given to open a meeting is as follows:
Our Heavenly Father, we are here tonight to discuss town business. We ask that you would clear up our minds and our hearts from animosity that we might face these issues and address them with an open mind tonight. We pray that all decisions made tonight would be most beneficial for the town and the citizens. In Christ's name we pray. Amen.
Plaintiff's Exhibit 2.
8. When the Town Council member gives this invocation, citizens attending the meetings customarily stand and bow their heads.
9. When Plaintiff first attended a Council meeting in 1999, she stood and bowed her head during the prayer. Plaintiff continued to attend Council meetings, but the references to Savior, Christ, Jesus, or Jesus Christ in the prayers continued, and she ultimately stopped bowing her head during the prayer.
10. Prior to one meeting Plaintiff was questioned by three Town Council members about her Wiccan beliefs. When Plaintiff arrived several minutes late to another meeting to avoid the prayer, she was not allowed to participate in the meeting although she had signed up to speak at the meeting and was listed on the agenda.
11. In late 2000, Plaintiff raised an objection to Town Council's reference to Jesus, Christ, or Jesus Christ in its prayers. She proposed that the prayer's references be limited to "God" or, alternatively, that members of different religions be invited to give prayers. Mayor Starnes responded to the effect that: "This is the way we've always done things and we're not going to change."
12. Thereafter, members of several Christian churches and Christian ministers presented letters and petitions to Town Council, indicating that the church members supported and encouraged a Council decision to continue its practice of opening Town Council meetings with "Christian" prayer. The letters also noted that the church members were in opposition to allowing "an alternative prayer to a self-proclaimed `witch.'" Plaintiff's Exhibit 1.
13. At its February 19, 2001 meeting, Town Council decided to continue with the customary prayer. Many church members and ministers were in attendance and "hallelujahs" were heard following the prayer by Councilman Broom.
14. Plaintiff filed the instant action on August 20, 2001.
15. On March 26, 2003, the court denied Defendants' motion for summary judgment. A non-jury trial was scheduled for July 11, 2003.
16. On June 23, 2003, Town Council enacted a resolution adopting a policy governing the prayer given at Council meetings. Defendants' Exhibit 1.
17. As to the content of any Town Council prayer, Section 2 of the Resolution states:
The content of the invocation shall be determined by the member of the Great Falls Town Council designated by the Town Council as having the responsibility for giving the invocation. The content of the invocation shall be subject to the following guidelines:
(a) The invocation shall be brief, preferably not exceeding approximately one minute in length.
(b) No specific invitation to participate in the invocation may be made.
(c) The invocation may request divine guidance for the Town of Great Falls and its officials and citizens in the conduct of the business of the Town. The invocation shall not contain or address any specific beliefs, creeds, teachings, or tenents of any specific religion, although it may follow a Judeo-Christian format.
(d) In keeping with the purpose of seeking divine guidance, the invocation may include a specific reference to a deity.
(e) The invocation shall not be used for the purpose of promoting or advancing any one set of religious beliefs nor shall the invocation be used for the purpose of disparaging any religious beliefs.
Defendants' Exhibit 1 § 2.
18. As to the public's participation in the prayer, the Resolution states:
4. No person shall be required to participate in the invocation.
5. Persons who wish to attend and participate in the meetings of the Town Council but do not wish to be present during the invocation will be permitted to leave the Council chambers during the invocation and/or will be permitted to arrive after the invocation has been completed. Those persons shall be allowed to fully participate in the Council meetings.
6. After the invocation is given, a short pause shall be taken in the proceedings to allow any persons who chose not to be present for the invocation to enter the Council chambers.Id. §§ 4-6
19. Following the adoption of the Resolution, Plaintiff was told by Councilman Stevenson that "things would stay the same."
20. Mayor Starnes testified at the trial that the Resolution would not prohibit any Town Council member from making specific reference to Jesus, Jesus Christ, or Christ in any prayer opening the Town Council meeting. He indicated that because ninety-nine percent of the people in Town are Christian, unless someone from a different religion were elected they would probably continue to follow a Judeo-Christian format.
CONCLUSIONS OF LAW
Although the parties have not raised this issue, the court has considered whether the Town Council's June 23, 2002 Resolution mooted Plaintiff's claim for injunctive relief. The Resolution states: "The invocation shall not contain or address any specific beliefs, creeds, teachings, or tenents of any specific religion, although it may follow a Judeo-Christian format. . . . In keeping with the purpose of seeking divine guidance, the invocation may include a specific reference to a deity." Defendants' Exhibit 1 § 2(c)-(d).
Mayor Starnes, however, testified at trial that he did not know of any language in the Resolution which would change the Council's practice of referring to Christ, Jesus, or Jesus Christ. Defendants have argued in their briefs that this type of prayer (with specific reference to Jesus Christ) follows a "Judeo-Christian" format and is thus a valid form of legislative prayer. In light of this testimony and argument, as well as evidence demonstrating that Town Council has frequently prayed in the name of Christ, Jesus, or Jesus Christ in the past, the court has concluded that Plaintiff's claim for injunctive relief was not mooted by the Resolution. See United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953) (holding request for injunctive relief does not become moot when Defendants have changed policy or practice, unless they can prove that "there is no reasonable expectation that the wrong will be repeated"); Otter Point Dev. Corp. v. U.S. Army Corps of Eng'rs, Baltimore, 116 F. Supp.2d 648, 651 (D. Md. 2000) (holding request for injunctive relief becomes moot "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome," meaning defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979), and United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953)).
"The very first command of our Bill of Rights, as it applies to the states through the Fourteenth Amendment, is that state and local governments `shall make no law respecting an establishment of religion.'" Snyder v. Murray City Corp., 159 F.3d 1227, 1230-31 (10th Cir. 1998) (citing U.S. Const., amend. I, cl. 1). The Establishment Clause safeguards a core value of our democracy: religious liberty. See Reynolds v. United States, 98 U.S. (8 Otto.) 145, 164 (1878) (discussing the history of the Establishment Clause and quoting Jefferson's letter to the Danbury Baptist Association on the purpose of the clause to "build[ ] a wall of separation between church and State"). It ensures that the government may not "aid one religion, aid all religions, or prefer one religion over another." Lee v. Weisman, 505 U.S. 577, 600 (1992) (Blackmun, J., concurring).
Although there are many kinds of Establishment Clause claims, this case concerns "legislative prayer." The United States Supreme Court has held "legislative prayer" constitutional, distinguishing it as a special type of governmental religious activity. See Marsh v. Chambers, 463 U.S. 783, 791 (1983) (creating exception in Establishment Clause law for prayer given before opening of legislative sessions because history demonstrated that draftsmen of First Amendment "saw no threat to the Establishment Clause arising from a practice of prayer similar to that . . . challenged" in Marsh). See also Mellen v. Bunting, 327 F.3d 355, 368-70 (4th Cir. 2003) (rejecting application of Marsh in higher educational setting and explaining that Marsh must be narrowly applied to legislative prayer cases); Snyder, 159 F.3d at 1233 (reading Marsh as establishing that legislative prayer, including the practice of selecting a particular person or hence choosing not to appoint a particular person to give an invocation, does not violate the Establishment Clause).
In Marsh, however, the Court recognized constitutional limits to legislative prayer. The Court tested legislative prayer by the following standard: "The content of [legislative] prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." 463 U.S. at 794-95. The Marsh Court explained that the "First Amendment draftsmen . . . saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged." Id. at 791. Referring to the prayer challenged in Marsh, the Court noted that the chaplain delivering the prayers had removed all references to Christ. Id. at 793 n. 14 (noting the chaplain who was hired to give legislative prayers "characterize[d] his prayers as `nonsectarian,' `Judeo-Christian,' and with `elements of the American civil religion.' Although some of his earlier prayers were often explicitly Christian, [the chaplain had] removed all references to Christ after a 1980 complaint from a Jewish legislator.").
Further, in Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, the Supreme Court elaborated that in Marsh:
Allegheny concerned a First Amendment Establishment Clause challenge to the public display of a créche and a Chanukah menorah during the December holiday season. The Allegheny Court applied the traditional test, first enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971), for Establishment Clause challenges, but discussed the Court's analysis in Marsh at length for purposes of comparison.
[T]he Court recognized that not even the "unique history" of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief. The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had "removed all references to Christ."492 U.S. 573, 603 (1989). Thus, the United States Supreme Court has concluded that even the more relaxed standards applied to legislative prayer cannot justify prayers which have the effect of affiliating the government with any one specific faith or belief.
It is clear that the references to Jesus, Christ, or Jesus Christ in the Great Falls Town Council's prayer have the effect of affiliating the government with the Christian faith and thus violate the Establishment Clause. This type of prayer advances a fundamental belief of Christianity, not shared by those following other faiths. See Merriam-Webster's Collegiate Dictionary 203 (10th ed. 1999) (defining Christianity as "the religion derived from Jesus Christ, based on the Bible as sacred scripture, and professed by Eastern, Roman Catholic, and Protestant bodies"). See also Merriam-Webster's Encyclopedia of World Religions 203 (1999) (defining Christianity as "the religion that traces its origins to Jesus of Nazareth, who it affirms to be the chosen one (Christ) of God").
When the Supreme Court in Marsh approved of legislative prayer of a "Judeo-Christian" format, the court did not sanction prayer espousing a Jewish or Christian faith. See, e.g., Merriam-Webster's Collegiate Dictionary 633 (10th ed. 1999) (defining phrase "Judeo-Christian" as "having historical roots in both Judaism and Christianity") (emphasis added). The Marsh Court emphasized that the prayer challenged was of the type that "has become part of the fabric of our society" [and constitutes a] "tolerable acknowledgment of beliefs widely held among the people of this country." 463 U.S. at 792.
While the Supreme Court in Marsh condoned references to "God" in legislative prayer, references to "Christ" or "Jesus" are of a different genre and do not pass constitutional muster under the Establishment Clause. Id. at 793 n. 14 (quoted supra). See also Allegheny, 492 U.S. at 603 (stating that "not even the `unique history' of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief).
Other courts have similarly held that references to Jesus or Christ in legislative prayer violate the Establishment Clause. See Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., No. 99-57020, 2002 WL 31724273 (9th Cir. Dec. 3, 2002) (unpublished opinion) (finding that school board's prayers "in the name of Jesus" violated the Establishment Clause as interpreted in Marsh and in Lemon); Rubin v. City of Burbank, 124 Cal.Rptr.2d 867 (Cal.Ct.App. 2002) (finding prayers ending "in the name of Jesus Christ" at City Council meetings unconstitutional and upholding order by lower court to enjoin such sectarian prayer).
The two cases cited above are the only cases the court has found which are directly on point; that is, these two cases apply Marsh to legislative prayer that references Christ or Jesus. Other cases address either the constitutionality of nonsectarian prayer or other factual issues involving legislative prayer, such as the constitutionality of permitting a legislative body to choose and/or prevent certain persons from giving the prayer. See, e.g., Marsh, 463 U.S. at 793 n. 14; Snyder, 159 F.3d at 1230-31 (finding constitutional legislative body's denial of private citizen's request to give prayer).
Some courts decline to decide whether the Lemon or Marsh test applies in a particular context and find that certain challenged practices, statutes, or symbols pass or fail to pass constitutional muster under both tests. See, e.g., Am. Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Bd., 243 F.3d 289, 306 (6th Cir. 2001) (en banc) (finding Ohio's state motto, "With God, All things are Possible," passes constitutional muster under Lemon or Marsh test as statute adopting motto has valid, secular legislative purpose in boosting morale and as a symbol of common identity and motto does not have primary effect of advancing any religion); Glassroth v. Moore, 229 F. Supp.2d 1290, 1293 (M.D. Ala. 2002) (finding Chief Justice of the Alabama Supreme Court violated the Establishment Clause under both Marsh and Lemon test when he placed a slightly over two-and-a-half ton granite monument-engraved with the Ten Commandments and other references to God-in the Alabama State Judicial Building with the specific purpose and effect of acknowledging the Judeo-Christian God as the moral foundation of our laws), aff'd, 335 F.3d 1282 (11th Cir. 2003).
In the school context, courts have consistently applied the Lemon test rather than the less stringent Establishment Clause test applied in Marsh. See, e.g., Stone v. Graham, 449 U.S. 39, 42 (1980) (applying Lemon test and holding display of the Ten Commandments on the walls of public classrooms violates the Establishment Clause); Lee v. Weisman, 505 U.S. 577, 599 (1992) (applying Lemon test and finding nonsectarian prayer given at school graduation ceremony violates Establishment Clause); Coles ex rd. Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 380-83 (6th Cir. 1999) (finding sharp line between government-sponsored prayer and the public schools, thus applying Lemon rather than Marsh test to board of education's practice of opening meetings with prayer or moment of silence), reh'g denied, 183 F.3d 538 (6th Cir. 1999); Jager v. Douglas County School Dist., 862 F.2d 824, 834 (11th Cir. 1989) (applying Lemon and finding practice of giving invocation before school football games unconstitutional).
The final category of cases addresses the use of religious symbols on public property, such as in a public park or courthouse. These cases have also applied the Lemon rather than the Marsh test. See, e.g., Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989) (finding display of créche in county courthouse violated Establishment Clause but display of Chanukah menorah next to Christmas tree outside city and county building did not violate Establishment Clause); Lynch v. Donnelly, 465 U.S. 668 (1984) (finding based on record that Christmas display including nativity scene in public park did not violate the Establishment Clause because city had secular purpose to celebrate holiday recognized by Congress and origins of that holiday).
The court, moreover, has not found, nor have Defendants cited, any case condoning a reference to Christ or Jesus in legislative prayer. As the court in Snyder commented: "At its core, the Establishment Clause enshrines the principle that government may not act in ways that `aid one religion, aid all religions, or prefer one religion over another.'" 159 F.3d at 1230-31 (citing Lee, 505 U.S. at 600 (Blackmun, J., concurring)); see also id. at 1233 (commenting that the scope of constitutional legislative prayer falls within the religious genre blessed in Marsh, including "the traditional kind of invocational legislative prayers with which the Court was familiar, as well as similarly traditional governmental invocations such as the cry, `God save the United States and this Honorable Court,' intoned by the Court's bailiff at the beginning of its own sessions").
Defendants advance several arguments. First, Defendants contend that one reference to Jesus, Christ, or Jesus Christ in a prayer, does not "proselytize" or "aggressively advocate" any one religion over another as that word or phrase is understood in plain terms. Second, Defendants claim that because Town Council's opening prayer is primarily for Town Council members, the prayer does not violate the Establishment Clause. Third, Defendants argue that because no resident of Great Falls is compelled to participate or penalized for choosing not to participate in Town Council's opening prayer, there is no violation of the Establishment Clause. Fourth, Defendants contend that the court has misinterpreted the holding in Marsh Defendants claim that the Supreme Court in Marsh clearly indicated prayers in the "Judeo-Christian tradition" were constitutional. Defendants acknowledge the footnote in Marsh which clarifies that the chaplain, who was hired to deliver the legislative prayers at issue, had removed "all references to Christ." Defendants, however, dismiss this clarification as merely dicta, asserting that single references to Christ in legislative prayer are within the Judeo-Christian tradition.
The court finds Defendants' first argument-that a single reference to Christ, Jesus, or Jesus Christ in a prayer does not "proselytize" or "aggressively advocate" Christianity-unpersuasive. First, the Town Council's reference to Jesus, Christ, or Jesus Christ renders the prayer in Christ's name. Second, the evidence shows that this type of prayer, one which prays in Christ's name, is the kind Town Council has used to open a majority of its meetings. Third, when Town Council reconsidered its prayer policy after Plaintiff's objection in late 2000, members of Christian churches and Christian ministers submitted letters and petitions to Town Council in support of continuing its tradition of using "Christian" prayer to open meetings. Fourth, evidence shows that Town Council also rejected Plaintiff's proposition that either the prayer include only references to "God" or rotate references to different deities. Mayor Starnes testified at the trial that the Resolution would not prevent Town Council from continuing to reference Jesus Christ in its prayer. In addition, Mayor Starnes noted that everyone on Town Council is Christian and until someone from another faith is elected to Council, he did not expect that Council's traditional prayer would change. Fifth, there is evidence that Plaintiff's efforts to participate in Town Council's meetings as a member of the public have been adversely affected by her refusal to accept the Christian prayer tradition. For the reasons discussed above, the court finds ample evidence that Town Council's prayer does not have a secular purpose but, instead, proselytizes or advances a particular faith or belief-in this case, Christianity. Defendants' first argument is therefore without merit.
This quoted language is found in the Snyder case. "Thus, the kind of legislative prayer that will run afoul of the Constitution is one that proselytizes a particular religious tenet or belief, or that aggressively advocates a specific religious creed, or that derogates another religious faith or doctrine." Snyder, 159 F.3d at 1233. Defendants argue that the Great Falls Town Council prayer's single reference to Jesus or Christ does not "proselytize" or "aggressively advocate" any particular faith, creed, or belief as that word or phrase is understood in plain terms and used in Snyder.
The court has carefully read the Tenth Circuit's en banc decision in Snyder and finds Defendants' argument unpersuasive. Read in context, the Tenth Circuit notes that sectarian legislative prayer is a form of proselytization or aggressive advancement of particular religious faiths or beliefs. Among other similar statements made in Snyder regarding the constitutional parameters of legislative prayer, the Tenth Circuit explained:
Of course, all prayers `advance' a particular faith or belief in one way or another. The act of praying to a supreme power assumes the existence of that supreme power. Nevertheless, the context of the decision in Marsh — in which the Court considered the constitutionality of a Presbyterian minister's "Judeo Christian," "nonsectarian" invocations for the Nebraska Legislature — underscores the conclusion that the mere fact a prayer evokes a particular concept of God is not enough to run afoul of the Establishment Clause. Rather, what is prohibited by the clause is a more aggressive form of advancement, i.e., proselytization. See Marsh, 463 U.S. at 793 n. 14, 794-95, 103 S.Ct. 3330. By using the term "proselytize," the Court indicated that the real danger in this area is effort by the government to convert citizens to particular sectarian views. See Websters Third New International Dictionary (Unabridged) 1826 (1986) (defining "proselytize" as "to convert from one religion, belief, opinion, or party to another"). As the Court reiterated in Lee, "[I]n the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed." Lee, 505 U.S. at 591-92, 112 S.Ct. 2649.Snyder, 159 F.3d at 1233 n. 10.
The court in Snyder recognizes that a sole reference to "God," a supreme power, advances religion; that is, a belief in monotheism. Snyder, however, contrasts this type of prayer with prayer advancing particular sectarian views. Sectarian legislative prayer, the Snyder Court explains, is a more aggressive form of governmental advancement of religion; that is, the type of aggressive advancement of religion that amounts to proselytization and falls within the dangerous area where government religious activity may be used to convert or indoctrinate to a particular religious faith or belief. Snyder's interpretation of the constitutional scope of legislative prayer, therefore, does not include sectarian prayer, similar to the explicitly Christian prayer used by Great Falls Town Council.
Defendants' second argument-because Town Council's opening prayer is allegedly for its members, the prayer does not violate the Establishment Clause-is also without merit. Defendants point to N.C. Civil Liberties Union Legal Found, v. Constangy, 947 F.2d 1145 (4th Cir. 1991) (holding judge's practice of praying in court violates Establishment Clause), cert. denied, 505 U.S. 219 (1992), to support this argument. In that case, the Fourth Circuit compared legislative and judicial prayer. In so doing, the Fourth Circuit noted that "legislative prayer is primarily directed at the legislators themselves, who have decided to have prayer." 947 F.2d at 1149. In this vein, the Fourth Circuit stated that 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." Id.
In Marsh, the Supreme Court similarly recognized that "[t]o invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an `establishment' of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country." 463 U.S. at 792 (1983) (noting "delegates did not consider opening prayers as a proselytizing activity or as symbolically placing the government's official seal of approval on one religious view. Rather, the Founding Fathers looked at invocations as conduct whose . . . effect . . . harmonize[d] with the tenets of some or all religions.") (internal quotations omitted). The offering of a prayer to begin a legislative session alone therefore does not violate the Establishment Clause. However, the Marsh Court made clear that features of a legislative prayer may violate the Establishment Clause. For example, the Court examined whether facts showing (1) that a Presbyterian clergyman had been selected for 16 years to give the prayer, (2) that the chaplain was paid at public expense, and (3) that the prayer was given in a Judeo-Christian format rendered the legislative prayer at issue in Marsh unconstitutional. Thus, even if Town Council intends the prayer for its members only, its legislative prayer can nonetheless violate the Establishment Clause.
However, the Town Resolution and other evidence show that the opening prayer is not intended for the Council members alone. The Resolution states: "The invocation may request divine guidance for the Town of Great Falls and its officials and citizens in the conduct of the business of the Town." Defendants' Exhibit 1 § 2(c) (emphasis added). Town Council's prayer, moreover, is listed on the written "agenda" as the first matter of business to be conducted at Town Council's meeting. See, e.g., Plaintiff's Exhibit 3. Citizens who attend the meetings also have been invited to and generally stand with Town Council and join in the prayer.
Defendants' third argument-that the Resolution clarifies that no resident of Great Falls is compelled to participate in the prayer or will be penalized for choosing not to participate in the prayer-is to no avail. Defendants' practice of referring to Christ, Jesus, or Jesus Christ in its legislative prayer violates the Establishment Clause whether or not citizens are permitted to choose to participate in the prayer without penalty.
Defendants' fourth argument-that single references to Christ are within the Judeo-Christian tradition-is in conflict with Marsh and, accordingly, rejected. When legislative prayer invokes the name of a specific deity associated with a specific faith or belief, it advances the "establishment of religion" by endorsing one particular religious faith in violation of the First Amendment. As the Supreme Court has noted:
This Nation is heir to a history and tradition of religious diversity that dates from the settlement of the North American Continent. Sectarian differences among various Christian denominations were central to the origins of our Republic. Since then, adherents of religions too numerous to name have made the United States their home, as have those whose beliefs expressly exclude religion.
Precisely because of the religious diversity that is our national heritage, the Founders added to the Constitution a Bill of Rights, the very first words of which declare: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to "the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism."Allegheny, 492 U.S. at 589-90 (citing Wallace v. Jaffree, 472 U.S. 38, 52 (1985)). While the court understands that Town Council's prayer does not likely offend the practices, beliefs, or faiths of a great majority of the citizens in Great Falls, the First Amendment requires that government officials refrain from advancing specific religious beliefs. This principle affords religious liberty to all independent of the authority of a local government or its agents. It ensures that our religious liberty and access to government is not impeded by the popularity of any one religion at a given time. The First Amendment to the Constitution, rather, secures our religious freedom and guarantees its survival.
Accordingly, the court finds that the practice of members of Town Council invoking name(s) specifically associated with the Christian faith at Town Council meetings violates the Establishment Clause of the First Amendment to the United States Constitution. The court therefore grants Plaintiff's request for an injunction, and enjoins the Town of Great Falls, its Mayor, members of the Town Council and any officers, agents, servants, and employees of the town, and those persons in active concert with them who receive actual notice of this injunction, from invoking or permitting another to invoke the name of a specific deity associated with any one specific faith or belief in prayers given at Town Council meetings. The court further orders that the Mayor and members of Town Council advise any other individual who is permitted to give a prayer at Town Council meetings of this court's order.
CONCLUSION
IT IS THEREFORE ORDERED that the Clerk of Court shall enter judgment in favor of Plaintiff, permanently enjoining the Town of Great Falls, its Mayor and members of Town Council, and any officers, agents, servants, and employees of the Town, and those persons in active concert or participation with them who receive actual notice of this injunction, from invoking the name of a specific deity associated with any one specific faith or belief in prayers given at Town Council meetings and requiring that the Mayor and members of Town Council advise any other individual who is permitted to give a prayer at Town Council meetings of this court's order.
The United States Marshal is DIRECTED to personally serve a copy of this final judgment and injunction on the Town of Great Falls (to its Clerk, Julie Blackwell), Mayor Henry Clayton Starnes, and all Town Council members, including John Broom, Henry Stevenson, Barbara Hilton, Raymond Baker, Mike Brunson and Glen Ross.
The Clerk is also directed to note that the post-trial motions by Defendants and Plaintiff are MOOT.
IT IS SO ORDERED.