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Saturday, January 20, 2007

Courts - Motion to reconsider filed by both sides re local Louisiana school board prayer decision by the 5th Circuit

David J. Mitchell of The Advocate of Baton Rouge, Louisiana today reports:

In court petitions filed Friday in the three-year legal battle over prayers at Tangipahoa Parish School Board meetings, both sides asked the 5th U.S. Circuit Court of Appeals to reconsider its divided decision.

On Dec. 15, a three-judge appeals court panel left open the possibility for nonsectarian prayer at board meetings but ruled that four sample School Board prayers were unconstitutional. Three of the four prayers mentioned “Jesus.”

But the lead opinion by Judge Rhesa Barksdale didn’t decide which legal precedent should apply and only “assumed” one for the purposes of the case. The other two judges, Carl Stewart and Edith Brown Clement, were divided in the 2-1 decision.

In their motions, the American Civil Liberties Union, which represents the plaintiffs, and the School Board each have asked the entire court to determine which legal standard should apply.

“Essentially, the split opinion has left everyone in a quandary respective to the constitutionality of prayer at the beginning of board meetings,” ACLU attorneys Ronald Wilson and Katie Schwartzmann wrote.

The School Board had appealed a February 2005 decision by U.S. District Judge Helen G. Berrigan that blocked all religious prayers at board meetings.

In October 2003, the ACLU sued the board over its prayer practices on behalf of an unnamed parent and his two children.

As the litigants are, the appeals court panel was divided over whether and how one of two Supreme Court cases should apply: Lemon v. Kurtzman or Marsh v. Chambers.

The first case, decided in 1971, lays out the three-part “Lemon” test, which sets forth when government action meets First Amendment muster.

Berrigan used it to determine sectarian prayers at School Board meetings violate the First Amendment’s Establishment Clause by excessively entangling government activity with religion. The ACLU and Stewart support this view, court filings show.

The second case, Marsh, which dates from 1983, found that the Nebraska Unicameral Legislature’s use of a paid chaplain to lead opening prayers was constitutional.

The opinion cited more than 200 years of congressional history of similar practices and held that sectarian prayers were fine in that instance if the government didn’t advance or proselytize religion.

The School Board and Brown support this view and want it applied to school boards.

Neither side went with the reasoning of Barksdale, who determined the board prayers were overly sectarian and unconstitutional so he didn’t need to say whether Marsh applied, court filings show.

School Board attorney A. Kirk Gasperecz said Friday the appeals court generally considers quickly whether to rehear a decision. If it does, he said, the court may require parties to resubmit briefs, which could take time.

[Thanks to How Appealing for the link.]

The ILB wasn't aware of the original Dec. 15, 2006 5th Circuit opinion. Here is an AP report at the time. Some quotes:

NEW ORLEANS — A divided federal appeals court panel has issued a ruling that may allow the Tangipahoa Parish School Board to begin its meetings with a nonsectarian prayer, and opened up a new chapter in a long dispute between school officials and the American Civil Liberties Union.

The three-judge panel of the 5th U.S. Circuit Court of Appeals ruled Dec. 15 in Doe v. Tangipahoa Parish School Board that the school board should be treated like other elected bodies, which are allowed to invoke nonsectarian and non-proselytizing prayers at their meetings.

But the panel upheld a district judge's view that the Tangipahoa board's previous practice of prayer violated the constitutional ban on government promotion of religion. Since that ruling in February 2005, the school board has not opened its meetings with a devotional.

"In so holding, this opinion takes no position on whether another form of prayer is permissible at Board meetings," U.S. Judge Rhesa Barksdale wrote for the majority. "Instead, it holds only that prayers of the type included in the stipulations do not pass constitutional muster."

The panel sent the case back to U.S. Judge Helen G. Berrigan, who had barred the school board from opening its meetings with prayers. The appellate court told Berrigan to amend her injunction considering the new ruling. * * *

"If it is like it seems, you can pray, but only generally," said Sandra Bailey-Simmons, the school board president. "It looks like censorship."

She said the majority of people in Tangipahoa are Christians and want the board to be able to invoke Christianity at its meetings. She said she was interested in appealing the decision.

Likewise, Joe Cook, the executive director of the Louisiana branch of the ACLU, said the ACLU might seek a rehearing or appeal.

He said the panel "avoided dealing with the central issue of whether school boards in general" should be allowed to hold prayers. The ACLU has argued that school boards are not like legislative bodies because they are an extension of the school system they oversee.

"How can they do something that they don't allow anywhere else in the school system?" Cook said. "They're supposed to be role models for the students, teachers and administrators in the system."

Oral arguments were held in Indiana's legislative prayer lawsuit on Sept. 7, 2006, in Hindricks v. Bosma, before the 7th Circuit . The ILB is anticipating a decision by the 3-judge panel any day now.

Posted by Marcia Oddi on January 20, 2007 01:18 PM
Posted to Ind. (7th Cir.) Decisions