Snyder v. Murray City Corp., 96-4087

Page 1227

159 F.3d 1227

1999 CJ C.A.R. 59

Tom SNYDER, Plaintiff-Appellant. v. MURRAY CITY CORPORATION, a municipal corporation; H. Craig Hall, City Attorney for Murray City Corporation Defendants-Appellees United States of America, Intervenor. ¹

No. 96-4087.

United States Court of Appeals Tenth Circuit.

Oct. 27, 1998.

Brian M. Barnard (Andrea Garland of the Utah Legal Clinic, with him on the briefs), Cooperating Attorneys for Utah Civil Rights & Liberties Foundation, Inc., Salt Lake City, Utah, for Plaintiff-Appellant.

Allan L. Larson (Richard A. Van Wagoner, with him on the brief) Snow, Christensen & Martineau, Salt Lake City, Utah, for Defendants-Appellees.

Before SEYMOUR, Chief Judge, HOLLOWAY, Senior Circuit Judge, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

This court has agreed to rehear this case en banc ² to consider whether the Establishment Clause of the First Amendment prevents a city council from denying a request from a private citizen to give a prayer at the opening of the council's meeting when the denial is made on the basis of the content of the proposed prayer. The Supreme Court of the United States has previously held in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), that the United States Constitution is not violated if a legislative or other deliberative body chooses to speak prayerfully when it opens its meetings. Applying Marsh, we now hold that no violation of the Establishment Clause arises when a city chooses who may offer the invocational prayer to open a city council meeting.

Background

The background of this case is reported in the district court and original panel opinions, see Snyder v. Murray City Corp. 902 F.Supp. 1444 (D.Utah 1995) ["Snyder I "] and Snyder v. Murray City Corp., 902 F.Supp. 1455 (D.Utah 1995) ["Snyder II "], aff'd in part & rev'd in part, Snyder v. Murray City Corp., 124 F.3d 1349 (10th Cir.1997) ["Snyder III "]. We provide only those details that are germane to the Establishment Clause issue that we deal with here.

In 1993, the Utah Supreme Court held that the religion clauses of Utah's state constitution do not prohibit a city council from opening its meetings with a prayer. See Society of Separationists, Inc. v. Whitehead, 870 P.2d 916 (Utah 1993). In the wake of that decision, the municipal council of Murray City resumed a practice it had maintained since 1982--but suspended during the pendency of the appeal in Separationists--of opening each of its meetings with a prayer. Those prayers had been offered by members of the religious communities in and around Murray City, including various members of Judeo-Christian congregations, Zen Buddhists, and Native Americans. Each of those offering prayers during Murray City's council meetings did so at the initial request of the City Council, usually in response to a form letter the council circulated to local religious communities. Prior to the events at issue in this case, the city had never received an unsolicited request from a private individual to give a prayer at a council meeting. In light of this historical practice, Murray City had no written policy on its council prayers, and it had no formal guidelines for the content of its council prayers.

The decision in Separationists, and the ensuing resumption of legislative prayers by city councils throughout Utah, prompted Tom Snyder, plaintiff-appellant here, to draft a prayer that calls on public officials to cease the practice of using religion in public affairs. ³ Although Snyder's putative prayer is unusual and iconoclastic, because this case was decided on summary judgment we will assume without deciding that it is an invocational prayer. ⁴ See Engel v. Vitale, 370 U.S. 421, 424, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (noting that a "solemn avowal of divine faith and supplication for the blessings of the Almighty" is a "prayer" with an explicitly religious character); Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir. Unit A Aug.1981) ("Prayer is an address of entreaty, supplication, praise, or thanksgiving directed to some sacred or divine spirit, being, or object."). Although Snyder's supposed prayer can perhaps as easily be characterized as political harangue, the political aspect of a religious supplication does not necessarily invalidate the invocation's prayerful character. See Karen B., 653 F.2d at 901 ("That [a prayer] may contemplate some wholly secular objective cannot alter the inherently religious character of the exercise."). Nevertheless, the Establishment Clause speaks only to the religious aspect of Snyder's prayer, which we presume for purposes of this appeal, and as a result, we are not called in this case to evaluate the prayer's political overtones. By assuming the religious content of Snyder's prayer, we expressly reserve for another day the very difficult issue of attempting to discern the line between prayer and secular speech masquerading as prayer.

Snyder first presented this prayer, and his request to recite it, to the city council in Salt Lake City, prompting media coverage of the proposed prayer including publication of extensive excerpts. See, e.g., Jon Ure, S.L. Man Wants to Ask Mother in Heaven to End Public Prayer, Salt Lake Trib., Jan. 19, 1994, at B1. Rather than allowing Snyder to recite the prayer, officials in Salt Lake City decided to discontinue that city's practice of opening their city council meetings with a prayer.

Snyder next contacted officials in Murray City with a letter on March 23, 1994, expressing his interest in presenting a prayer at one of the council's upcoming meetings and asking for information on guidelines for such prayers and how a person is selected to give such prayers. This letter gave no hint as to the text of Snyder's proposed prayer. When Snyder received no response to his first letter, he sent a second letter on May 9, 1994, again expressing interest in giving a prayer at a city council meeting. This second letter again included no mention of the text of his proposed prayer.

On June 1, 1994, City Attorney H. Craig Hall responded to Snyder's letters by explaining that the city council had established an explicit policy that "all council meetings will start with prayer," but the council had not established "formal policies regarding the nature and/or content of this reverence portion of their agenda." Hall's letter continued:

The purpose of the "prayer" is to allow individuals that opportunity to express thoughts, leave blessings, etc. It is not a time to express political views, attack city policies or practices or mock city practices or policies.

Comments on present city practices or policies may be made at city council meetings by one of two methods; either by requesting to be placed on the agenda, or, taking up to three minutes during the "citizen comment" portion of the meeting. The later [sic] method requires no prior arrangements to be made. ⁵

Nowhere in his June 1 letter did Hall respond to Snyder's particular request for permission to give a prayer at a city council meeting.

On June 9, 1994, Snyder sent a third letter to Murray City, again repeating his request for permission to give a prayer at a city council meeting and this time including a copy of the text of his proposed prayer.

Three weeks later, Hall responded to Snyder's third letter, this time explicitly denying permission for Snyder to give a prayer at a city council meeting:

The text of the proposed prayer is unacceptable. It does not follow the guidelines set forth in my letter dated June 1, 1994. Until your proposed prayer satisfies these guidelines, an invitation to participate in our opening ceremonies will not be forthcoming.

Snyder received Hall's denial letter on July 1, 1994, and filed the original complaint in this case the same day.

Snyder's subsequently amended complaint sought compensatory and punitive damages, as well as injunctive and declaratory relief, on the basis of Murray City's alleged violations of Snyder's First Amendment and procedural due process rights under the United States Constitution and the Utah Constitution, as well as his rights under the Religious Freedom Restoration Act of 1993. Following discovery and cross-motions for summary judgment, the district court ruled against all of Snyder's claims. See Snyder I, 902 F.Supp. at 1455 (granting summary judgment to Murray City); Snyder II, 902 F.Supp. at 1458 (denying Snyder's motion for new trial). On appeal, a divided panel of this court affirmed the district court's resolution of Snyder's federal claims but instructed the district court to dismiss, without prejudice, Snyder's state-law claims for want of adequate supplemental jurisdiction. See Snyder III, 124 F.3d at 1353-55. This court subsequently agreed to rehear only Snyder's federal Establishment Clause claim en banc. ⁶

Discussion ⁷

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." U.S. Const., amend. I, cl. 1. 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." See Lee v. Weisman, 505 U.S. 577, 600, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (Blackmun, J., concurring). As Justice Black declared for the Supreme Court more than fifty years ago, "Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. " Everson v. Board of Educ., 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947). This core understanding of our notion of religious liberty stretches back to the very genesis of the First Amendment. See Reynolds v. United States, 98 U.S. (8 Otto.) 145, 164, 25 L.Ed. 244 (1878) (discussing the...