Opinion
Civil Action No. 03-2870 Section "C".
February 23, 2005
Opinion
Laura A. Cisneros, a third year law student at Loyola University of New Orleans School of Law, assisted in the research and preparation of this decision.
This case involves a First Amendment Establishment Clause challenge to the practice of the Tangipahoa Parish School Board ("School Board") of opening each board meeting with a religious invocation. Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201. Plaintiff seeks declaratory judgment that Defendants' action violates the Establishment Clause of the First Amendment and injunctive relief to enjoin Defendants from continuing the practice.
The parties ask this Court to decide which standard applies when analyzing the constitutionality of the School Board's practice of opening board meetings with prayer, and whether, under that standard, such practice violates the Establishment Clause.
This case sits between two opposing lines of constitutional thought. The first holds that officially endorsed prayer in the primary and secondary public school setting is unconstitutional, while the second holds opening a legislative session with prayer is permissible and does not violate the Establishment Clause. Because a school board has features characteristic of both settings, the legal standard to apply in this case is less than obvious.
Plaintiff contends that the analysis must be conducted under the three-part test first articulated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), which held that government action, to comply with the Establishment Clause, must (1) have a secular purpose; (2) have the primary effect of neither advancing nor inhibiting religion; and (3) not foster an excessive governmental entanglement with religion. Conversely, the defense argues that the School Board's practice falls under the legislative prayer exception and should therefore be analyzed under Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), which held that opening prayers are constitutionally permissible at sessions of a state legislature.
This case came before the Court for a bench trial on the stipulations and briefs and was taken under advisement. Having considered the record, the stipulations, arguments of counsel, and the law for the reasons set forth below, the Court declines Defendants' invitation to apply the Marsh exception to prayers delivered at their public school board meetings. Without the benefit of this exception, Defendants' practice of opening each board meeting with a religious invocation must be assessed under the three-part Lemon test, which it fails, resulting in a violation of the Establishment Clause of the First Amendment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are not in dispute and are found in the joint stipulation filed by the parties. The School Board is a political subdivision of the state of Louisiana organized under Louisiana law. In Louisiana, school boards are deliberative bodies constituted to act in the public interest. As its name suggests, the School Board is responsible for the operation and government of the schools comprising the Tangipahoa Parish School System. In performing this role, the School Board supervises over 18,000 students each of who attend one of thirty-five elementary and secondary schools. The Plaintiff in this action is the parent of two children currently enrolled at a high school within the Tangipahoa Parish School System.
The School Board meets twice a month in the boardroom of the Tangipahoa Parish School System Central Office. School Board meetings are open to the public, including students. Since at least April 3, 1973, and continuing through the present, each meeting opened with an invocation delivered by persons selected by the School Board. Such persons included the board president, other board members, the assistant superintendent, teachers, students, or ministers. On numerous occasions, the offered prayers made specific reference to "God," "Heavenly Father," and "Jesus." The following is typical of the prayers delivered at the meetings of the School Board:
Heavenly Father, we thank you for the many blessings we've received. We thank you for our health. We thank you for our strength. We thank you for our peace of mind. We thank you for allowing us to assemble here tonight, and we ask that you give this Board and our Superintendent all the wisdom and the knowledge, and the understanding they need to make the correct decisions for our students and for our parents. Also Lord, we ask that you throw your strong arm of protection around our President and his Cabinet Members, to help him make the right decisions that will affect thousands of U.S. soldiers, airmen, and marines, at this time. We ask that you give him the same wisdom you gave Solomon in making decision [sic] that's best for our country. Also, we thank you for your greatest gift of all — your darling son Jesus Christ. For we all know that He was born, died, and rose again, so that we all may be forgiven for our sins. And Lord, as we leave this meeting tonight, we ask that you guide us safely to our various abodes. These things we ask in your darling son, Jesus Christ's name. Amen.
(R. 16 at 7-8.)
The School Board, on August 3, 2004, considered a written policy that would have permitted it to open its meetings with a brief invocation to solemnize the occasion, provided such invocations were non-sectarian and non-proselytizing. The proposed policy also would have limited presenters of the invocation to board members. However, the Board voted unanimously to reject the proposed policy.
II. THE ESTABLISHMENT CLAUSE
For many Americans, religious faith is the core of their values and the guide to how they live their lives. The First Amendment guarantees to them the freedom to practice their faith in their hearts, their homes, their houses of worship, their neighborhood organizations and in voluntary gatherings with others of like faith. This freedom of religion also guarantees that their faith and their worship will not be interfered with by others who profess a different religion or no faith at all. While the guarantee of religious freedom allows for persons of one faith to proselytize and attempt to convert others of different faiths, it likewise guarantees that no particular religious faith can be forced upon another whose beliefs are different. All faiths, including lack of faith, are entitled to the same respect and liberty.
This protection of religious liberty has historical roots, going back to the original colonists.
A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, nonattendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them. See e.g., Macaulay, History of England (1849) I, cc. 2, 4; The Cambridge Modern History (1908) V, cc. V, IX, XI; Beard, Rise of American Civilization (1937) I, 60; Cobb, Religious Liberty in America (1902) c. II; Sweet, The Story of Religion in America (1939).Everson v. Board of Education, 330 U.S. 1, 8-9, 67 S.Ct. 504, 91 L.Ed. 711 (1947).
A great irony and "unfortunate fact of history" is that the descendants of some of these same groups that fled Europe for religious freedom in the new world repeated the same practices once their own particular religion was sufficiently powerful — "writ(ing) their own prayers into law . . . pass(ing) laws making their own religion the official religion of their respective colonies." Engel v. Vitale, 370 U.S. 421, 427, 82 S.Ct. 1261, 8 L.Ed. 2d 601 (1962). Once again, "Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshipping God only as their own consciences dictated." Everson, 330 U.S. at 10.
It was against this backdrop of history that the recognition spread among the colonists that "one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services." Engel, 370 U.S. at 429. This historical awareness led to the so-called Establishment Clause of the First Amendment which prohibits government from making any laws "respecting the establishment of religion." Government must remain neutral in matters of faith.
The Supreme Court applies the Lemon criteria in almost all Establishment Clause cases. See Lee v. Weisman, 505 U.S. 577, 603, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). "[S]ince 1971, the Court has decided 31 Establishment Clause cases. In only one instance, the decision of Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019, (1983), has the Court not rested its decision on the basic principles described in Lemon." (Blackmun, Stevens, and O'Connor, JJ. concurring).
Establishment Clause cases often turn on a single fact, requiring courts to sift through the evidence presented in each individual case. Lemon, 403 U.S. at 614. For example, in Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) the Supreme Court held that a nativity scene in a town square did not violate the Establishment Clause because it was surrounded by secular Christmas decorations, such as Santa Clause and Christmas trees, while in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 601-02, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), the Supreme Court held that a nativity scene in a town square did violate the Establishment Clause because it stood apart from the other, more secular decorations on display in the square) (emphasis added). Indeed, the Supreme Court has stated, "Establishment Clause jurisprudence remains a delicate and fact-sensitive one." Lee, 505 U.S. at 597. The line between permissible relationships and those barred by the Clause can be no more straight and unwavering than due process can be defined in a single stroke or phrase or test. Lynch, 465 U.S. at 678-79.
Despite the Supreme Court's reluctance to adopt a bright-line rule for evaluating all Establishment Clause cases, it has been unequivocal and consistent when addressing religion in the public school setting. The Establishment Clause prohibits officially endorsed prayer at many school-related functions and recognizes that "[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools." Lee, 505 U.S. at 592. Religious faith is a personal matter and its transmission from parent to child is uniquely personal and private. For a public school to promote its view of prayer and faith interferes with that relationship and abrogates the promise that government will remain neutral in religious affairs. The Supreme Court was well aware of the vulnerability of young people to peer pressure and the feeling of isolation that can flow from being perceived to be different from the norm. See Lee, 505 U.S. at 589-599. This tension would be all the more pronounced in matters so personal as religion, where the young person's faith is likely drawn from his family. For his school to overtly or tacitly endorse a contrary faith puts the student in an untenable position of either distancing from his family faith or enduring a feeling of exclusion from his peers. The Supreme Court has held that government "may not, consistent with the Establishment Clause, place primary and secondary school children in this position." See Lee, 505 U.S. at 593.
This is even more true today as our nation becomes more diverse. In colonial times, the main religions were Protestant denominations, with some Catholics and Jews. School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203, 240, 83 S.Ct. 1560, 10 L.Ed. 2d 844 (1963). In a census survey from 2001, the self-described religious identification of significant populations of Americans included thirty-five separate Christian faiths, and twenty non Christian faiths, as well as several categories of non-religion.
www.census.gov/prod/2004pubs/04statab/pop.pdf.
These included Jewish, Muslim, Buddhist, Hindu, Native American, Scientologist, Baha'i, Taoist, Eckankar, Rastafarian, Sikh, Wiccan, Druid, Santeria and Pagan.
Atheist, agnostic, humanist, secular and "no religion."
On the other hand, the Supreme Court has acknowledged that some religious activity sponsored by government but outside the public school setting does not violate the Establishment Clause. As Justice Douglas noted, "[w]e are a religious people, whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952). The activity relevant here is the practice of opening legislative sessions with prayer.
A. MARSH LEGISLATIVE PRAYER EXCEPTION
In Marsh, the Supreme Court held that the Nebraska state legislature's practice of opening its session with a prayer delivered by a state-paid chaplain did not violate the Establishment Clause. Marsh, 463 U.S. at 793-94. The Marsh court compared the Nebraska legislatures' practice with the "unique history" of the United States Congress, noting that, "the opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country." Id. at 786.
The Marsh court noted that three days before the First Congress adopted the language of the Establishment Clause, it authorized the appointment of paid chaplains to offer invocations at the beginning of each congressional session. Id. at 787-88. The Supreme Court found it untenable that the First Congress "intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable." Id. at 790.
The holding in Marsh is narrow, however, and largely limited to its unique facts, the most important of which is the long-pre-Constitutional history of beginning legislative sessions with prayer. Although repeatedly asked, federal district and circuit courts throughout the country have consistently refused to apply the Marsh exception outside the legislative body context.
The Supreme Court stated, "We granted certiorari limited to the challenge to the practice of opening sessions with prayers by a state-employed clergyman, 459 U.S. 966, 103 S.Ct. 292, 74 L.Ed.2d 276 (1982)." Marsh, 463 U.S. at 786.
The Supreme Court in Lee noted that "[i]nherent differences between the public school system and a session of a state legislature distinguish [the case of prayer at graduation] from Marsh v. Chambers." Lee, 505 U.S. at 596. Such "inherent differences" include the difference between adult and student audiences, the differing degrees of state control, and the differing requirements for attendance. Id. 505 U.S. at 597. In the context of classroom instruction, the Supreme Court has likewise rejected the Marsh analysis. Edwards v. Aguillard, 482 U.S. 578, 583 n. 4, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987) ("such a historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted.").
Thus, the Supreme Court has established jurisprudence both respecting religious tradition in the legislative sphere on the one hand and enjoining activity tending to "establish" a religion when the underlying issue is related to public schools.
B. COLES v. CLEVELAND DETERMINATION OF SCHOOL BOARD AS INTEGRAL PART OF PUBLIC SCHOOL SYSTEM
In the most analogous case to date, the Sixth Circuit in Coles v. Cleveland Board of Education, 171 F.3d 369 (6th Cir. 1999), had to choose between these two clear strands of Establishment Clause jurisprudence: either apply the Marsh exception, as the defendants asked, or rely on Lee and thus apply the Lemon test to the question of prayer at local school board meetings.
In Coles, a former student and teacher filed an action against the Board of Education and Superintendent alleging the board's practice of opening school board meetings with prayer or a moment of silence was unconstitutional. Id. at 374. The Sixth Circuit analyzed the nature of the relationship between the school board and the public schools they govern, finding it is the close relationship between the school board and the school system it governs that removes a defendants' invocation from the logic of Marsh and places it "squarely within the history and precedent concerning the school prayer line of cases." Id. at 381. The Sixth Circuit found that although the meetings of the school board might be of a "different variety" than other school-related activities, the fact remained that they were part of the same "class" as those other activities in that they take place on school property, and are inextricably intertwined with the public school system. Id. at 377.
The Sixth Circuit noted that the Supreme Court has been very careful to prevent government from endorsing religion in the public school setting, stating, "The Supreme Court's Establishment Clause jurisprudence has been remarkably consistent in sustaining virtually every challenge to government-sponsored religious expression or involvement in the public schools." Id. at 377. Unlike Marsh, which the Sixth Circuit characterized as "an historical aberration," the Supreme Court's jurisprudence on religion in public schools is long, clear, and unwavering. Id. at 381-83.
In its analysis, the Coles court disagreed that the Marsh exception supported the proposition that government-sponsored prayer at all "deliberative public bodies" is presumptively valid. Coles, 171 F.3d at 380-81. It questioned, "whether the Cleveland School Board is a `deliberative public body' as that phrase was used in Marsh." Id. (emphasis added). Although the Coles court recognized that the school board is an elected body consisting of adults conducting public business in public meetings, it refused to stop its analysis there. Id. Rather, it found significant that the school board meetings addressed school-related topics and were held in a building located on school property. Id. The court stated, "What actually occurs at the school board's meetings is what sets it apart from the deliberative processes of other legislative bodies." Id.
The defendants argue that Coles determined that a school board is not a deliberative body. On the contrary, the Coles court recognized that it was a deliberative body but with a unique function that brought it under the long established line of school prayer caselaw.
The court similarly disagreed that school board meetings were the equivalent of galleries in a legislature where spectators are incidental to the work of the public body. Id. at 382. It found that students were directly involved in the discussion and debate at school board meetings. Id. Accordingly, it held that the school board, unlike other public bodies, is an integral part of the public school system. Id.
Having determined that a public school board was an integral part of the public school system the Coles court held that the same strict protections and prohibitions that apply to public schools also apply to school boards. Id. at 383. Consequently, it concluded that the School Board's practice must be analyzed under the test normally used to analyze government practices challenged under the Establishment Clause, i.e., the Lemon test. Coles, 171 F.3d at 383.
III. ANALYSIS
The determination that the school board, notwithstanding its statutory definition as a political subdivision or deliberative public body, is also an integral component of the public school system is central to our analysis here. This Court cannot ignore the School Board's obvious connection to public education. A determination based solely on the technical definition of a school board as a deliberative body ignores its functional reality. The School Board sets policy for the schools and oversees their functions. In a very real sense, the Board runs the schools, and serves as the spokesperson of the public school system. In officially promoting a religious practice at its governmental meetings, the Board is doing what its schools and teachers cannot do, favor religion over nonreligion and endorse particular religious faiths.
Neither party proffered evidence specific to the structure and function of the School Board with respect to student participation. However, this Court reasonably infers that school boards in general function in substantially similar ways, thus, the functions attributed to the school board in Coles, namely, the presence of a student representative, adjudication over disciplinary hearings, and invitations to students to attend and receive awards and recognition at school board meetings are understood as substantially comparable to the functions and activities of the School Board in the instant case.
School children regularly and significantly participate in meetings of the School Board, and in direct connection with the government's educational responsibilities. They are not likely to be any less impressionable at School Board meetings than in classrooms, and may in fact be more so, due to the official nature of the business being conducted. Even without student participation, the Board's policy of opening with prayer is an endorsement of religion which undermines the promise made by the Establishment Clause to public school students of all faiths, or no faith, that their schools will remain neutral with respect to the highly personal and private matter of religious belief.
In effect, Defendants are asking this Court to disregard the nature of the School Board's function. To do so, however, would negate many years of binding Supreme Court precedent with regard to public schools.
The defendants cite a number of cases where the Marsh exception was extended to city and town council meetings. As these bodies do not have the unique task of operating the public schools, they are distinguishable.
Defendants further contend that this Court should reject the Coles decision because it conflicts with the Sixth Circuit's decision in Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir. 1987) (finding that an annual graduation exercise was analogous to the legislative sessions referred to in Marsh and should be governed by the same principles) and the Fifth Circuit's decision in Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992) ( Jones II) (holding that a school district's resolution permitting public high school seniors to choose student volunteers to deliver non-sectarian, non-proselytizing invocations at their graduation ceremonies had the secular primary effect of solemnizing the graduation ceremonies and was unlikely to advance religion).
Although the Sixth Circuit applied Marsh to a school function in Stein, it is significant that the Sixth Circuit, when later considering Coles — a case whose facts closely resemble those here — chose not to extend Marsh's application to the school board setting. The Coles court determined that the overwhelming line of authority protecting public school students from government-sponsored religion could not be reversed simply to extend the narrow exception of Marsh into new territory. This Court agrees with the Coles decision.
Similarly, Defendants' contention that the Coles decision conflicts with the Fifth Circuit's holding in Jones II also fails. In Jones v. Clear Creek Independent School Dist., 930 F.2d 416 (5th Cir. 1991) ( Jones I), the court applied the Lemon tripartite test and held that the invocations delivered at graduation did not violate the Establishment Clause. One year later, the Supreme Court in Lee, held that a similar practicedid violate the Establishment Clause under a newly fashioned analytical framework that looked at the level of government coercion. Jones II, 977 F.2d at 965. (emphasis added). The Supreme Court granted certiorari in Jones I, vacated the lower court's judgment, and remanded the issue for further consideration in light of Lee. Id. The Fifth Circuit in Jones I applied Lemon and in Jones II applied all five tests the Supreme Court used from Lemon to Lee, i.e., the three-part Lemon test, as well as the Endorsement and Coercion tests. Id. at 966. Neither Jones I, nor Jones II applied Marsh.
Of even greater significance is that the graduation invocations found constitutional in Jones, I II, were "nonsectarian and nonproselytizing." 977 F.2d at 965. Without those restrictions, the Fifth Circuit would have struck the policy down. See Doe v. Santa Fe Independent School District, et al, 168 F.3d 806, 822 (5th Cir. 1999). The parties in this case have stipulated that a proposal to open the School Board meetings with a "non-sectarian, non-proselytizing invocation" was unanimously voted down. Rec. Doc. 16, Stipulation No. 17. Thus, the defendant expressly rejected the twin requirements of Jones I II that passed constitutional muster.
While not urged by the defendant here, it could be argued that the encroachment on government neutrality by these opening prayers is too minuscule to be of concern. But history has cautioned that "(t)he breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of (James) Madison, `it is proper to take alarm at the first experiment on our liberties . . .'" School District of Abington Township, Pennsylvania, et al. vs. Schempp, et al, 83 S.Ct. 1560, 1573 (1963). Furthermore, considering that the School Board rejected a secular invocation, 7-0, indicates the issue is not insignificant to them.
The Court's opinion finds further support in the numerous cases cited by Plaintiff where federal courts refused to extend the Marsh holding beyond its facts. In Jaeger v. Douglas County School District, 862 F.2d 824 (11th Cir. 1989), the plaintiffs challenged the school district's practice of giving invocations prior to public high school football games. The court refused defendant's request to apply the Marsh exception in lieu of the Lemon test, stating, "Because Marsh was based on more than 200 years of the "unique history" of legislative invocations, it has no application to the case at bar. . . . Such a historical approach is not useful in determining the proper roles of church and state in public schools." Id. at 828-29. See also, Mellen v. Bunting III, 327 F.3d 355, 369 (4th Cir. 2003) (holding that daily supper prayers at military colleges and universities do not share Marsh's unique history).
Even in cases outside the public school setting, courts have been unwilling to extend Marsh beyond its unique historical and factual context. In North Carolina Civil Liberties Union Legal Foundation v. Constangy, 947 F.2d 1145, 1147 (4th Cir. 1991) plaintiffs challenged a state court judge's practice of beginning sessions with a prayer. The defendants argued that prayer by a judge is analogous to legislative prayer, and under Marsh, does not violate the Establishment Clause. Id. at 1148. The Fourth Circuit rejected defendant's argument and held that the unique history supporting the Marsh decision was limited to the legislative context. Id. According to the Fourth Circuit, judicial prayer did not fall within the Marsh exception to the Establishment Clause's standard prohibition against state-sponsored religion. Id. at 1149. Consequently, it analyzed the case under the principles of Lemon v. Kurtzman. Id.
As shown above, the Jaeger, Mellen, and Constangy, decisions emphasized the unique fact patterns of Marsh, explaining that the legislative prayer at issue in that case had a long history within the Republic — a history not shared by most other legislative bodies, and certainly not by public school boards. For this reason, the courts in Jaeger, Mellen, and Constangy refused to extend Marsh's prayer exception into other public arenas. This Court sees no cause to disregard the reasoning in this line of cases.
Public education was virtually nonexistent in the 1780's and did not take root until the 1820's and 1830's. See Abington, 374 U.S. at 237, fn 5 and 239, fn 7.
IV. THE LEMON TEST
Having determined that the School Board is an integral part of the school system such that it falls outside the scope of Marsh's legislative prayer exception, the Court must analyze the School Board's practice of opening each meeting with a prayer under the three-part Lemon test.
Under Lemon, a government-sponsored activity will not violate the Establishment Clause if: (1) it has a secular purpose, (2) its principal or primary effect neither advances nor inhibits religion, and (3) it does not create an excessive entanglement with religion. Lemon, 403 U.S. at 612-13. If the challenged practice violates any part of the three-part test, then it violates the Establishment Clause. See Edwards, 482 U.S. at 583; Stone v. Graham, 449 U.S. 39, 40-41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980).
1. Secular Purpose
Under the Lemon standard, a court must invalidate a statute if it lacks "a secular purpose." Lemon, 403 U.S. at 612. In determining purpose, courts look to whether the government subjectively intended to convey a message of endorsement or disapproval of religion. Lynch, 465 U.S. at 690 (O'Connor, J. concurring). It is not enough for defendants to merely say that they had a secular purpose. Edwards, 482 U.S. at 586-87 (stating, the government's statement of secular purpose cannot be a mere "sham."). The School Board's action cannot stand if its real purpose was religious. Wallace v. Jaffree, 472 U.S. 38, 56, 86 L.Ed.2d 29, 105 S.Ct. 2479 (1985) (quoting Lynch, 465 at 690).
In determining the purpose of the opening invocation, one need look no further than the text of the invocations. The record shows for example, on September 3, 2003, one individual, Joseph Bosch, a former teacher, principal, interim superintendent, and personnel director, read a tribute to the dead in which, he frequently referenced "God" and "Jesus Christ." (R. 16 at 7.) Mr. Bosch then read a tribute to teachers entitled, "God Created the First Teacher," in which "God" was mentioned at least twelve times. (R. 16 at 7.) After this recitation, Mr. Bosch read a self-authored selection entitled "Lament for an Ancient Teacher," in which he gave thanks to "God for Jesus who came to die for all our sakes." (R. 16 at 7.)
Defendants assert that they had a secular purpose — to solemnize the occasion. But this secular purpose is overwhelmed by the strongly religious — indeed denominational — tone of the prayers. The overtly religious purpose of Defendants' invocations dominate any secular purpose the invocations might serve. The repeated references to "Jesus," "Jesus Christ," and "Jesus as the Son of God," are clearly Christian beliefs meant to venerate the Christian faith.
Furthermore, the School Board specifically refused to adopt a written policy that would provide nonsectarian and non-proselytizing prayers. Accordingly, this Court holds that the School Board's practice of opening each meeting with a prayer lacks a secular purpose.
Although not required to show a violation of the Establishment Clause, the Court considers the School Board's practice relative to parts two and three of the Lemon test.
2. Primary Effect
Even if a secular purpose had been shown, the School Board's practice fails the Lemon test. The second part of the Lemon test looks to whether, "irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval." Lynch, 465 U.S. at 690. This Court must make an objective determination about whether a reasonable observer would conclude that the opening invocations endorse a religious message or belief. County of Allegheny, 492 U.S. at 592.
The Court finds that a reasonable person attending a School Board meeting would not construe the opening invocation as merely solemnizing the democratic process. This finding is supported by the text of the prayers. Each prayer references decidedly Christian views and beliefs. They are replete with invocations to "God" and end with the affirmation "Amen." Further confusion arises when religious members of the community lead the prayers. The Court finds that the School Board's practice has the effect, to a reasonable observer, of conveying a religious message.
3. Excessive Entanglement
The last part of the Lemon test looks to "the character and purpose of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority." Lemon, 403 U.S. at 614. The essence of this inquiry focuses on "excessive entanglement." Id. at 615.
Here, the School Board decided to include prayer in its public meetings, chose which member from the local religious community would give those prayers, and has had the board president, board members, superintendent, and students compose and deliver the prayers to those in attendance. The Court finds that based on the stipulated facts, the School Board's practice of opening its meetings with prayer leads to excessive entanglement in religious matters and thus fails this third part of the Lemon test.
V. CONCLUSION
Having considered the record, the memoranda of counsel, and the law, the Court concludes that the School Board's intimate relationship with the public school system compels stricter scrutiny of Establishment Clause evaluation consistent with school-prayer cases. This Court holds that the Lemon test is the appropriate standard by which to analyze Defendants' practice of opening each School Board meeting with a religious invocation. Further, this Court concludes that Defendants' practice fails the Lemon test. Because Defendants' practice violates the Establishment Clause of the First Amendment, it is constitutionally prohibited.
Accordingly,
IT IS SO ORDERED that judgment is hereby entered in favor of Plaintiff declaring that the Defendants' practice of opening each Tangipahoa Parish School Board meeting with a religious invocation violates Plaintiff's rights under the Establishment Clause of the First Amendment to the United States Constitution as made applicable to the States through the Fourteenth Amendment to the United States Constitution. The Court permanently enjoins the Tangipahoa Parish School Board from opening their school board meetings with such an invocation.