(CN) – The question of whether the en banc Ninth Circuit should take a new look a California school district’s appeal over its policy of beginning school board meetings with prayer ended with a no vote Wednesday. But the decision drew a sharp rebuke from several judges who said the appellate panel’s finding runs contrary to the U.S. Supreme Court.
Since 2010, the Chino Unified School District board in Southern California has included prayer or an invocation as part of its public meetings. The public prayer sessions drew fire from an advocacy group, which prevailed in federal court after a judge found the practice unconstitutional.
On appeal, a three-judge Ninth Circuit panel agreed the school district’s policy violates the First Amendment’s prohibitions on governments establishing religion – particularly since students are occasionally at board meetings and could be impermissibly exposed to religious expression in a school setting. The school district then sought an en banc rehearing, which was denied for lack of support by the court’s judges on Wednesday.
But that denial drew fire from several Ninth Circuit judges who lamented the opportunity to “correct our own error” and resolve its splits with both the Fifth Circuit and the U.S. Supreme Court.
Senior U.S. Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee who once ran as Republican to represent Oregon in Congress, noted with respect to the denial to rehear the case that the Supreme Court has reaffirmed several times in the last 35 years that opening legislative sessions with prayer is constitutional.
“Nonetheless, a panel of our court has now concluded that the practice of including prayer at the beginning of the open session of a public legislative body is a violation of the Establishment Clause and is no longer constitutional,” O’Scannlain wrote. “In doing so, the panel rejected the clear instruction of the Supreme Court and created a circuit split in the process. And today, the full court has failed to correct our own error.”
He added: “I believe our court’s refusal to hear this case en banc is a needless mistake. The practice of Chino Valley Unified School District Board of Education to begin its regular public meetings with prayer does not constitute an establishment of religion in any sense of that term.”
While O’Scannlain noted children may be present at board meetings, which the plaintiff Freedom From Religion Foundation said made the practice unconstitutional since prayer in schools was abolished years ago, he said a board meeting isn’t a classroom. Control is exerted on children in the classroom and is not at a school board meeting where students are participating voluntarily, he said.
“Quite simply, a Board of Education meeting is not a ‘school setting,’ whether or not students might find some benefit in observing the proceedings,” wrote O’Scannlain.
He blasted the panel – which included U.S. Circuit Judges M. Margaret McKeown and Kim McLane Wardlaw and U.S. District Judge Wiley Daniel of the District of Colorado – and called their decision to affirm “plainly flawed.”
“The board, as a governing body, exists in order to legislate – not in order to educate. Such a manufactured distinction cannot justify the panel’s outright disregard for Supreme Court instruction and guidance,” O’Scannlain wrote. “The panel’s view of the legislative prayer tradition recognized by the Supreme Court is ominously narrow, and its conclusion is inconsistent with the Supreme Court’s clear instruction that invocations may be offered before ‘legislative and other deliberative public bodies.’”
U.S. Circuit Judges Johnnie Rawlinson, Jay Bybee, Consuelo Callahan, Carlos Bea, Sandra Ikuta, Mark Bennett and Ryan Nelson joined O’Scannlain’s portion of Wednesday’s order. Both Bennett and Nelson are Donald Trump appointees. Rawlinson was appointed by Bill Clinton, and Bybee, Callahan, Bea and Ikuta were appointed by George W. Bush.
Additionally, Nelson dissented from the denial to rehear en banc, joined by Bybee, Callahan, Bea, Ikuta and in part Bennett. Nelson said the panel misapplied the Supreme Court test laid out in Lemon v. Kurtzman, which he said the high court has largely abandoned anyway, by discounting the board’s stated secular purposes for beginning its meetings with prayer.
“The board expressed two secular purposes for the policy, both of which pass constitutional muster: (1) solemnizing the board meetings and (2) supporting religious diversity,” Nelson wrote. “These stated secular purposes are generally entitled to deference absent a showing that they are ‘motivated wholly by an impermissible purpose’ or are a sham. As this court has cautioned, a ‘reviewing court must be “reluctant to attribute unconstitutional motives” to government actors in the face of a plausible secular purpose.’ The board policy here is not the ‘unusual’ case where the government purposes should be considered a sham.”
Nelson also noted the prayers are led by different members of community and by people of various faiths and religious outlooks, take place before the meetings start and aren’t included in the meeting minutes.
“In finding a predominantly religious purpose, the panel relies on record evidence that does not bear on the purported purpose of the board’s prayer or invocation policy,” Nelson wrote.
The school district’s attorney, Bob Tyler with Tyler & Bursch in Murrieta, California, said one goal of the en banc petition was to get at least one dissenting opinion to the panel’s ruling.
“To find out we have numerous judges who have joined Judge O’Scannlain and Nelson in their two dissenting opinions – it sounds like it was a huge success,” Tyler, who had not yet read the entire opinion, said. “The response we got far surpasses what we expected.”
Tyler said the school district will now decide whether to take its case to the U.S. Supreme Court for review.
The Freedom From Religion Foundation’s legal director Rebecca Markert said her group is pleased with the denial for a rehearing and is not overly concerned with the lengthy dissents. She said the matter of legislative prayer and school prayer are very different matters and there is no guarantee that the Supreme Court will take up the matter.