PASADENA, Calif. (CN) - How would a prayer at city council meetings in California hold up if the invocation mentioned Tom Cruise or Scientology, a 9th Circuit judge asked.
"What if someone has an objection, not to Jesus Christ, but to Abraham or Mohammed or Martin Luther, Confucius, Buddha?" Judge Diarmuid O'Scannlain asked. "I mean we can make a long list, Tom Cruise and Scientology. Where do we draw the line?"
The judge put the amusing hypothetical to a lawyer fighting the recitation of prayers referring to Jesus at the start of every City Council meeting in Lancaster, Calif.
Shelly Rubin and Maureen Feller filed suit over the practice in 2010, but a federal judge in Los Angeles ruled last year that the prayer survived the test laid out by the Supreme Court in 1983.
Claims about a prayer that makes a single reference to Jesus would require the court to analyze the content of the prayer, but that is barred under Marsh v. Chambers, according to the court.
"Because plaintiffs do not even claim the April 27 invocation was 'exploited to proselytize or advance any one, or to disparage any other, faith or belief,' this court cannot properly perform such an analysis," U.S. District Judge Dale Fischer wrote.
Rubin and Feller's attorney, Roger Diamond of Santa Monica, fine-tuned the claim last week before a three-judge panel of the 9th Circuit.
Saying that a pre-meeting invocation is fine, generally, the plaintiffs say that Lancaster violated the establishment clause by more commonly choosing Christian prayers over those of other denominations.
"In a period of about a year, and the council meets every two weeks, 20 prayers were given in the name of Jesus Christ," Diamond said. "If it were an isolated situation then we might have a different case."
He added that the appeal does not challenge an isolated event, but rather a city practice that led to repeated references to Jesus Christ.
Diamond said he thought the California Court of Appeals had gotten it right in its resolution of Rubin v. City of Burbank, which said that references to religious figures during public meetings cannot be made as part of a prayer.
The 2002 ruling found an establishment clause violation in an invocation given at a Burbank City Council meeting that ended with an expression of gratitude and love "in the name of Jesus Christ."
Shelley Rubin, one of the plaintiffs in suit against Lancaster case, is the widow of Irv Rubin, who was a plaintiff in the Burbank case.
Diamond, her attorney, insisted that the court should consider the invocation as government speech, rather than private speech.
The council controls the agenda, and people cannot come to a council meeting and say anything they want, he said.
"The government controls the communication there," Diamond said. "You are there for particular city business and the invocation is part of the process."
Because the council sets the agenda, the invocation is not free speech, Diamond said.
Someone with business before the council who does not share the beliefs reflected in the invocation may feel marginalized or excluded, resulting in a violation of the First Amendment, regardless of the city's intent.
U.S. District Judge Jack Zouhary, sitting on the 9th Circuit by designation from the Northern District of Ohio, asked whether it would cure the problem to read invocations that reflect the religious makeup of the community.
Diamond said that the diversity of religious beliefs in a community simply shows that a First Amendment violation occurs when an official reference is made to a particular religious figure during a public meeting.
The attorney for Lancaster, Allison Burns of Stradling Yocca Carlson & Rauth, called Diamond's reading of Marsh very narrow.
It would require "Lancaster to dictate how third-party volunteers pray to their god or gods," she said.
Under Marsh, the content of the prayer is irrelevant, Burns told the court.
Lancaster has had different beliefs represented at the invocations, including "a metaphysicist praying to the good trees in the park, an occasion with an Islamic invocation and a Sikh invocation."
Lancaster does not run afoul of precedent or the U.S. Constitution because Lancaster does not promote any particular religion, she added.
The city sends out invitations to a variety of congregations for speakers, and that the invitations ask that the "prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocational speaker nor to disparage any faith or belief different from the invocational speaker," Burns said.
Diamond said he wants a ruling that "the reference to Jesus Christ renders this a sectarian prayer, and under Rubin v. City of Burbank that's a violation by itself."
"Or, in the alternative, your opinion can say that the reference to Jesus Christ alone was not sufficient by itself, but the fact that over time that prayers continue to be primarily and significantly Christian in nature, that tips the scale in favor of the plaintiffs, requiring that the city disband its practice," he added. "Or you can give the city the option of ordering the speakers to refrain from giving overtly Christian prayers."
Diamond said that an overtly religious prayer that favors one religion over another "forces people who have business before the city council to feel they are excluded, to feel that, 'Gee, I'm not part of the mainstream here, I don't think I'm going to get a fair hearing before the city council if I'm not part of it."