The Murray City Council had the right to exclude a controversial, non-traditional prayer from its "reverence period," a federal appeals court has ruled yet again.
With two of the 13 judges dissenting, the 10th Circuit Court of Appeals in Denver ruled Tuesday that the city had the right to bar Tom Snyder from offering a prayer to "Our mother who art in heaven" at the opening of a council meeting in 1994.But it may not be the final word on a subject that sharply divided Utahns four years ago and prompted many local governments to abandon the practice of opening prayers. Salt Lake attorney Brian Barnard was meeting with Snyder Wednesday morning to discuss the possibility of taking the case to the U.S. Supreme Court.
"This is a green light to city councils in Utah not only to bring it all back (opening prayers), but to bring it back in a more troublesome and unconstitutional form," Barnard said of the ruling.
At issue, according to Barnard, is whether "prayer police" will be able to sit in judgment and dictate the content of prayer at public meetings. Only generic, mainstream beliefs will be tolerated, while minority viewpoints are stifled, Barnard predicted.
Snyder's prayer called upon a deity in heaven, "if, indeed, there is a heaven," to stop "self-righteous politicians" from misusing God's name in government meetings and preserve the separation of church and state.
Murray's attorney at the time, H. Craig Hall, informed Snyder by letter that the prayer would not be allowed at the council meeting's reverence period, which he said was not the time to express "political views, attack city policies or practices or mock city practices or policies." Hall suggested Snyder could make his point during the citizen comment period or by requesting the issue be placed on the agenda.
Snyder, who was attempting to persuade Utah governmental entities to halt the practice of opening their meetings with prayer, said Murray's decision violated his constitutional rights. He argued that in branding his prayer as "unacceptable," the city had impermissibly preferred one religion over another in violation of the Establishment Clause of the First Amendment.
When the case reached federal court, Judge J. Thomas Greene con-cluded that Snyder's prayer contained political rather than religious content and dismissed the suit.
Synder's appeal was first heard last year by a three-judge panel of the 10th Circuit Court. In a 2-1 decision, the court ruled, "The establishment clause does not give any individual the right to establish his religion by guaranteeing an opportunity to pray during public meetings and certainly does not require Murray City to permit all comers to speak during the reverence portion of its City Council meetings."
But the case raised such fundamental constitutional issues that the appeals court decided it merited a review "en banc," which means by the entire 13-judge bench.
In its latest ruling, the court relied heavily upon the U.S. Supreme Court decision in a 1983 case called "Marsh vs. Chambers," which found no constitutional threat arising from opening a legislative session with prayer.
Writing for the court, Judge David Ebel said the practice allowed by the Marsh decision requires the government to decide who, if anyone, should offer the prayer.
"The act of choosing one person necessarily is an act of excluding others, and as a result, if Marsh allows a legislative body to select a speaker for invocational prayers, then it also allows the legislative body to exclude other speakers," Ebel wrote.
Snyder, however, had also argued that even if legislative prayers are allowed, governments cannot discriminate based on the content of the proposed prayers.
The appeals judges disagreed, saying, "What matters under Marsh is whether the prayer to be offered fits within the genre of legislative invocational prayers `that has become part of the fabric of our society' and constitutes a `tolerable acknowledgement of beliefs widely held among the people.' "
Legislative prayer falls outside the traditions of the genre and "becomes intolerable" when it is "exploited to proselytize or advance any one, or to disparage any other, faith or belief," the court said.
Ebel said there is clearly no "impermissible motive" when a legislative body chooses to reject a government-sanctioned speaker because the tendered prayer falls outside the long-accepted genre of legislative prayer.
"The genre approved in Marsh is a kind of ecumenical activity that seeks to bind peoples of varying faiths together in a common purpose," Ebel wrote.
The judges said Snyder's prayer not only attacked the sanctioned genre of prayer but also disparaged those who believe such prayer is appropriate. More importantly, it aggressively proselytized for his particular religious views, they added.
Judge Mary Beck Briscoe, who dissented in the first ruling last year, dissented again. "Ultimately, I believe the city overstepped its bounds and violated the Establishment Clause by rejecting Snyder's request to speak based on its distaste for the content of his tendered prayer," she wrote.
"In the end, the city cannot have it both ways: It cannot purport to open the reverence period to a broad cross-section of the community without restrictions, while at the same time limiting a particular speaker's access to the reverence period because of its distaste for the speaker's proposed message."
Barnard agreed, saying the appeals judges had taken the Marsh ruling too far. The Supreme Court was careful to say it was dealing only with prayer before a state legislature offered by a chaplain selected by the legislature, Barnard said.
"That's a much different situation than what we have here," Barnard said. "The issue squarely presented in our case is that Murray was promoting a certain type of prayer."