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City Council Interoffice Communication
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To: Honorable Mayor and City Council Members r
From: Connie Boardman, City Council Member
Date: February 9, 2004 -Q Q)��;
Subject: H-ITEM FOR FEBRUARY 17, 2004, CITY COUNCIL MEETING'r?
COUNCIL POLICY REGARDING CELL PHONE USE AT
MEETINGS
STATEMENT OF ISSUE:
I propose that the Council adopt a policy of Council Members turning cell phones off
during all Council Meetings, both closed and open sessions as well as Council
committee meetings. Family members can still reach us in an emergency by calling the
phone in the caucus room or in the case of a committee meeting, calling our
Administrative Assistant.
RECOMMENDED ACTION:
To adopt a policy that Council Members turn cell phones off during all Council Meetings
and Council committee meetings.
CB:cf
xc: Ray Silver
Bill Workman
Connie Brockway
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CITY OF HUNTINGTON BEAC
N Mayors Memo -
To: Honorable Mayor Pro Tern & City Council Members
From: Cathy Green, Mayor�Yp
Date: December 10, 2003
Subject: H-Item - Procedure for Invocations on the City Council Agendas
STATEMENT OF ISSUE: Whether the Mayor or City Council should determine if the
City Council meetings should open with an invocation.
RECOMMENDED ACTION:
MOTION:
That the Mayor has the prerogative to determine whether the meeting will open
with an invocation.
ATTACHMENT: Memorandum from Dina Nam dated,July 29, 2003
Xc: Ray Silver, City Administrator
Jennifer McGrath, City Attorney
Connie Brockway, City Clerk
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MEMORANDUM
To: John Eastman
From: Dina Nam
Date: July 29, 2003
Re: City Council Invocations
FACTS:
The incoming Mayor of the City of Huntington Beach, Cathy Green, would like
to reinstate and maintain invocations given at the opening of city council sessions,
particularly at the session at which she will be installed as Mayor. The City of Huntington
Beach has not had invocations since at least 2002, but the Council's archives indicate that
invocations had been part of the official City Council Agenda as far back as 1960.
ISSUES:
1. Does legislative prayer violate the Establishment Clause?No. Marsh v.
Chambers, 463 U.S. 783 (1983), held that legislative prayer is not per se violative
of the Establishment Clause.
2. Do the procedures of the legislature violate the Establishment Clause?This is the
question that needs to be examined closely in each particular circumstance when
legislative invocations are challenged. As the Supreme Court has held that
legislative prayers are not per se violative of the Establishment Clause, the
challenges have come mainly from a procedural standpoint. The short answer is,
or so it appears,that as long as the City is neutral in its selection of who gives the
invocation the invocation is permissible. The ambiguity arises when the name of a
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particular deity(e.g. Jesus Christ) is invoked and if that violates the Establishment
Clause.
DISCUSSION:
The first issue is whether legislative prayer violates the Establishment Clause.
The Supreme Court addressed legislative prayer in Marsh v. Chambers, 463 U.S. 783
(1983).'
The Marsh test arose when a taxpayer, also a state legislator, brought an action
challenging the practice of the Nebraska legislature of opening each session with a prayer
by a chaplain paid from public funds. Marsh v. Chambers, 463 U.S. 783 (1983). The
Court's opinion focused heavily on the "history and tradition" of"opening [] sessions of
legislative and other deliberative public bodies with prayer" and found that such prayers
did not violate the Establishment Clause. Id. at 786.
As legislative prayers are not per se violative of the Establishment Clause, the
second question is whether any features of the practice violate the Establishment Clause.
Here,the Courts tend to focus more on the nature and procedure used to give invocations
during legislative sessions.
In Marsh, three points of the Nebraska practice were being challenged: (1) a
clergyman of the Presbyterian denomination had been selected for the past 16 years; (2)
the chaplain was paid out of public funds; and (3)the prayers were in the Judeo-Christian
tradition. Id. at 793. In response to the first challenge, the Court held that the Nebraska
The Court has also developed other tests in Establishment Clause cases: The Lemon test,from Lemon v.
Kurtzman,the Non-Endorsement Test from Lynch v. Donnelly,465 U.S. 668,692(1994)(O'Connor,J.,
concurring),and the Non-Coercion Test from Lee v. Weisman,505 U.S.577(1992). In Marsh,the Court
expressly declined to apply the Lemon test in the context of legislative prayer. The Non-Coercion test from
Lee v. Weisman,which dealt with impressionable youth at a middle school graduation ceremony,has not
been extended to legislative prayer. The Non-Endorsement Test,however,as discussed below,has been
applied in the context of legislative prayer.
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Legislature's chaplain's long tenure does not have "the effect of giving preference to his
religious views" nor does it "advance[] the beliefs of a particular church."Id. Instead,
there was evidence that his long tenure was due to his"performance and personal
qualities"—factors that were neutral with respect to religion. Id. Further,the practice was
not invalidated simply because the chaplain was paid out of public funds as it was
"grounded in historic practice...by the same Congress that adopted the Establishment
Clause of the First Amendment."Id. at 794. Finally, with respect to the prayers being in
the Judeo-Christian tradition, the Court has specifically stated that "[t]he content of the
prayer is not of concern to judges where...there is no indication that the prayer
opportunity has been exploited to proselytize or advance any one, or to disparage any
other, faith or belief."Id. at 794-795. But the Court also noted in a footnote that the
chaplain had ceased making reference to a particularly deity—Jesus Christ in the Marsh
case—after a Jewish legislator had complained. Id.
Although the Marsh test should control in situations concerning legislative prayer,
some courts have looked to the "endorsement"test from Justice O'Connor's concurring
opinion in Lynch v. Donnelly, 465 U.S. 668, 692 (1994), as a gloss on the Marsh Court's
insistence that the legislative prayer not be "exploited to proselytize or advance any one,
or to disparage any other, faith or belief." The "endorsement" test asks if a reasonable
observer would understand the prayer to communicate a message of governmental
endorsement or disapproval of religion. Id.
In Lynch, members of the Rhode Island affiliate of the ACLU, also residents of
Pawtucket, R.I., brought suit against the city for including a Nativity scene in an annual
Christmas display which also included figures of Santa Claus, reindeer, carolers, and
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various other holiday figures that had been used for the past 40 years. The lower courts
held that the Nativity scene amounted to an endorsement of religion and was also an
excessive entanglement of church and state.Id. at 672. However,the Supreme Court
reversed, noting that Constitution does not"require complete separation of church and
state; it affirmatively mandates accommodation, not merely tolerance, of all religions,
and forbids hostility toward any."Id. at 673. In fact, the Court discussed several
examples of historical religious practices, emphasizing "our religious heritage" and the
long-standing tradition of government and religious interaction. Id. at 676.
Lower Court Decisions Employing the Marsh Test
In Snyder v. Murray City Corp.,the plaintiff contended that city council violated
the Establishment Clause of the First Amendment when it refused his request to open a
city council meeting with a so-called prayer that called on public officials to cease the
practice of using religion in public affairs. 159 F.3d 1227 (10`l' Cir. 1998). On rehearing
en banc, the Court of Appeals held that the plaintiff's claim failed as a matter of law
because his proposed prayer fell well outside the genre of legislative prayers that the US
Supreme Court approved in Marsh.
The plaintiff's proposed prayer explicitly attacked the appropriateness of
legislative prayer and disparaged those who believed that legislative prayer was
appropriate. Because Marsh allowed a legislature to select a speaker for its invocational
prayers, it necessarily allowed the legislature to exclude other speakers. The city council
was well within its rights to deny permission for the plaintiff to recite his proposed prayer
because it was proselytizing in that it sought to convert the audience to citizen's belief in
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the sacrilegious nature of governmental prayer. Therefore,the prayer would have violated
the Establishment Clause.
In a New Jersey case from 1978, an atheist who brought suit challenging the
constitutionality of the practice of a nondenominational invocation, which was sometimes
a silent meditation of about a minute at the start of regular meetings of the city council.
Marsa v. Wernik, 395 A.2d. 530(N.J. Super. Ch. 1978). There, the New Jersey trial court
found that the legislative prayer did not violate did not violate the establishment clause
because: (1) any entanglement of the council with religion was minimal; (2) the council
was not advancing religion with impressionable youth; and (3) there was no compulsion
on any council member or member of the audience to participate or stand during the
invocation or meditation. Id. Though this is not a New Jersey Supreme Court decision, it
has not been overruled and the New Jersey Supreme Court denied cert.
The most recent California case on the subject is Rubin v. Burbank, 101 Cal. App.
4' 1194 (2002). Since 1953, the City of Burbank has had a practice of beginning each
city council meeting with an invocation usually given by a member of the Burbank
Ministerial Association(BMA). In Rubin,the plaintiff objected to a particular invocation
given at the Burbank City Council meeting that ended with the expression, "we express
our gratitude and our love in the name of Jesus Christ." The California Court of Appeal
held that the concluding expression violated the Establishment Clause because it was a
sectarian prayer that "conveyed the message that the Burbank City Counsel was a
Christian body, and from this it could be inferred that the council was advancing a
religious belief."Id. at 1203-04. The Court relied on the footnote in Marsh discussed
above.
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Although Rubin might be read to foreclose any invocation that makes reference to
particular sectarian beliefs, Rubin actually involved an invocation that embraced a
particular sectarian belief as if it was the belief of the council itself. That,the court held,
amounted to government advancing a particular religious belief.
But the Rubin case does not address whether an invocation needs to be excised of
all sectarian reference in order to be constitutionally permissible. Indeed, such an exercise
would be contrary to the Supreme Court's express admonition in Marsh that it is not for
the courts "to embark on a sensitive evaluation or to parse the content of a particular
prayer." 463 U.S. at 795. In Marsh,the Supreme Court specifically approved a
legislative prayer that had consistently been given in the Judeo-Christian tradition. Id. at
793. What the Court was concerned with was circumstances in which the prayer
opportunity was exploited to proselytize one faith or disparage another: "The content of
the prayer is not of concern to judges where ... there is no indication that the prayer
opportunity has been exploited to proselytize or advance any one, or to disparage any
other, faith or belief."Id. at 794.
In other words,Rubin stands for the proposition that, under Marsh, sectarian
references are prohibited if they amount to proselytizing (or disparagement of other
religions). Whether non-proselytizing (and non-disparaging) sectarian references are also
prohibited is beyond the holding of Rubin, and such a rule would be inconsistent with
Marsh, in any event. Thus, while Rubin held unconstitutional an invocation which
invokes a particular sectarian belief on behalf of the legislative body itself—"we" in the
conclusion of the invocation at issue in that case, "we express our gratitude and our love
in the name of Jesus Christ"—an invocation that references merely the particular beliefs
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of the person giving the invocation would be valid under Marsh. The invocation in Rubin
itself would likely have been constitutional, then, had it closed instead with the
following: "In this country there are people of many different faiths. I express my own
gratitude and love for the Almighty in the name of Jesus Christ."
CONCLUSION:
A city such as Huntington Beach, which has a history of beginning city council
sessions with an invocation, falls within the scope of the Supreme Court's decision in
Marsh v. Chambers, upholding legislative prayer that did not proselytize one faith or
disparage others. Thus, an invocation at the outset of a city council that has been
proposed will not violate the Establishment Clause as long as it does not amount to an
endorsement by the City Council itself of any one religion
QUESTIONS: The following are some questions the clients may need to answer and
which may be important in determining if the invocation violates the Establishment
Clause..
1. Does the city have any formalized policy regarding legislative invocation or
prayers?
2. What is the general procedure regarding invocation?
3. Who gives the invocation and how is that person selected?
4. When is the invocation specifically in relation to the other events on the
meeting agenda?
5. Is the invocation mandatory or voluntary?
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