MIAMI (CN) – The 11th Circuit on Tuesday tackled the question of whether it is unconstitutional for county officials in Florida to ban people who don't believe in God from delivering prayers at government meetings.
A three-judge panel heard oral arguments in a case that pits atheists and secularist groups against Brevard County, Fla., where officials passed a local regulation that prohibits nonbelievers in God from giving the opening prayer speech -- the invocation -- for county commission meetings.
Brevard County argues that while nonbelievers are barred from performing the invocation, they could speak their peace during other portions of the county meetings including the public comment section.
Attorney Alexander Luchenitser of Americans United for Separation of Church and State called that stance a "discriminatory policy that treats atheists and humanists as second-class citizens." He argued the policy violates the Establishment Clause and Free Speech Clause among other Constitutional protections.
The proceedings in the 11th Circuit’s Miami division touched on everything from metaphysics to Supreme Court case law. Up for debate are whether the secular philosophy known as humanism can be considered a religion, and whether the Supreme Court's 2014 decision in Town of Greece v. Galloway cleared the way for Brevard County's exclusionary policy.
At the center of the litigation is Brevard County's 2015 resolution that allows only "persons from the faith-based community" to give invocation speeches at county commission meetings. The resolution states that letting atheists or agnostics do the speech "could be viewed as county hostility" towards traditional religions.
In a 2014 letter denying a humanist speaker's request to do an invocation speech, then-Commissioner Trudie Infantini wrote: "I am willing to have most anyone offer an invocation. However, by definition, an invocation is seeking guidance from a higher power. Therefore, it would seem that anyone without a 'higher power' would lack the capacity to fill that spot."
The county said in the resolution that it was wary of letting members of one organization now in the litigation, Central Florida Freethought Community, perform the invocations since the group has -- as the county sees it -- advocated for satirical speeches that make a mockery of prayer.
For example, in one archived invocation on Central Florida Freethought Community's web site, the speech ends with, "Thank you, Satan."
The group counters that "inclusion of an invocation on that [web] page does not mean that the Freethought Community approved or was involved with the invocation."
"Plaintiffs would deliver solemn and respectful invocations that do not proselytize or disparage any faith," a brief to the 11th Circuit reads.
The brief points to an invocation speech given by one of the appellee organizations' members in Longwood, Fla., which avoided satire and quoted astronomer Carl Sagan, “For small creatures such as we, the vastness is bearable only through love.”
By all accounts, some Brevard County commissioners have been firmly on the record as being unreceptive not only to atheists, but to non-Christian religions as well.
Social media posts by a commissioner not named in the court documents allegedly called Islam a "religion of hatred" and recited the meme slogan, “It’s either ‘One Nation Under God,’ or bite my ass and just leave!”
Commissioner Curt Smith once stated that invocation speeches were meant to honor "the one and only true God," the "God of the Bible.”
And Commissioner Jim Barfield testified he would not invite a Rastafarian, a deist, or a polytheist to deliver an opening invocation because these groups were “not representative of [his] community."
At Tuesday’s hearing, U.S. Circuit Judge Stanley Marcus prodded the county's attorneys on apparent religious bias in deposition statements from at least three commissioners.
The judge noted that selection of prayer speakers boiled down to simple rotating picks by the commissioners based on their personal preference rather than a written policy.
"Don't you have a problem with the selection process because your commissioners say they would bar some religions?" the judge asked.
Brevard County's attorney Michael Roper responded that setting aside the deposition testimony, the record does not show that the commissioners exercised religious bias in their actual decisions on who to pick to do the speeches. He attributed the deposition testimony to "quite a bit of confusion" on the part of the commissioners.
Roper maintained the county acted in accordance with a tradition of legislative prayer upheld by the Supreme Court.
The attorney is fighting on behalf of Brevard County to overturn a decision from the Middle District of Florida, which found largely in favor of the plaintiff atheists and the plaintiff secularist groups.
That court ruled in 2017 that by “intentionally discriminating against potential invocation-givers based on their beliefs, the county runs afoul of the Establishment Clause.”
"[The county] is clearly entangling itself in religion by vetting the beliefs of those groups with whom it is unfamiliar before deciding whether to grant permission to give invocations," the lower court wrote.
The Middle District in November 2017 recorded an agreed-upon judgment, enjoining the county from discriminating against atheists in the selection of invocation speakers.
The court's decision did grant the county a victory in finding that its commissioners were not engaged in unconstitutional coercion by asking spectators to stand during the prayers. That finding is being challenged in a cross-appeal in the 11th Circuit.
The Supreme Court's reasoning in Town of Greece v. Galloway could play a central role in the general outcome of the litigation. In that case, secularists claimed the Town of Greece, New York's practice of opening each legislative session with a prayer was unconstitutional. The Supreme Court ruled 5-4 in favor of the municipality.
The Florida case plaintiffs proffer a distinction: "Because [Brevard] County’s policy expressly draws religious lines to determine eligibility to deliver opening invocations, the facts here are diametrically different from those in Greece."
It is unclear when the federal appeals court will issue a ruling in the case.
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