HomeMy WebLinkAbout02/01/2011 04B-6 Minutes 01-12-2011 Council Rules and Procedures Committee if8 -
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RULES AND PROCEDURES COMMITTEE
Wednesday, January 12, 2011
12:15 p.m.
Mayor's Office — City Hall •
Committee Members Present Staff Present
Micah Cawley — Chair Michael Morales, Acting City Manager
Kathy Coffey Mark Kunkler, Senior Assistant City Attorney
Dave Ettl • Debbie Kloster, City Clerk
Others
Chris Bristol, Yakima Herald- Republic •
•
The meeting convened at 12:17 p.m.
Agenda
1. •Invocation at City Council meetings •
•
Mayor Cawley explained the purpose of the meeting was to discuss options on .
dealing with the recent challenge from the "Freedom from Religion Foundation"
regarding invocations at Council meetings.
• Senior Assistant City Attorney Kunkler stated that the right to have an invocation at
11 public meetings has been upheld by the courts. ln some cases, the invocation has
been generic and not used the name of a divinity, i.e. Jesus Christ. In other cases,
leaders from various religious organizations in the community have been invited to
give the invocation on a rotational basis.
Mayor Cawley outlined options for the Committee to consider: 1) Continue the
invocation without any change; 2) Continue the invocation but do not name a
specific divinity; and 3) Invite clergy from the community to sign up to offer the
invocation on a scheduled basis.
•
After some discussion about the possible legal ramifications and associated costs to
continue the Council's current practice, the Committee discussed adding a
statement or disclaimer to the business agenda clarifying that the Council invocation •
is a body seeking wisdom, is strictly voluntary and is not intended to promote a
particular denomination.
Committee Action: Assistant Mayor Coffey moved that the committee recommend
to the full Council three options: 1) Continue the invocation with modifications;
include a.statement of clarification and reserve the right to invite members of the •
• local clergy to give the invocation on special occasions; 2) Invite local clergy to give
the invocation on a scheduled basis; and 3) Continue invocations by Council •
• Members but use nondenominational prayers.
The motion was seconded by Council Member Ettl. The vote was 3 -0 in favor of the
motion.
•
The meeting adjourned at 1:13 p.m.
_
Mayor Micah Cawley — Comm' t air
CITY OF YAKIMA
0 LEGAL
DEPARTMENT
200 South Third Stiet,Ya1dm, Washington 98901 (509)575.6030 Fax (509)575-6160
MEMORANDUM
January 27, 2011
TO: Honorable Mayor and City Council
Michael Morales, Acting City Manager
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Council Invocations — Rules and Procedures Committee
Recommendations
0 On January 12, 2011 the City Council Rules and Procedures Committee met to discuss
options regarding . City Council invocations. After discussion, the Committee
recommended that the full Council consider three options, stated below in order of
preference.
Option 1. Retain Traditional Invocation with Modifications. The first preference
was to retain the current traditional practice with certain modifications. The .suggested
modifications include:
(a) Adding a statement to the Agenda advising that participation in the
invocation is purely voluntary.
(b) Reserving the right of the City Council to invite members of the local clergy
to give the invocation on special occasions as scheduled by the City
Council.
Option 2. Open the Invocation to Members of the Clergy in the Community.
This option includes adoption of a policy changing the format from invocations offered
by Council members, to extending an invitation to leaders of religious congregations
with an established presence in the community to give the invocation. Typically, in this
format, an invitation is sent out once per year to many religious congregations with a
request that, if any clergy member desires to give an invocation, please contact the City
is Clerk. Invocation speakers are then scheduled on a first -come, first serve basis.
In this format, the City Clerk typically has recourse to community listings of religious
congregations in the community. These lists can be drawn from the Yellow Pages,
Memorandum to Honorable Mayor and Members of the City Council
January 27, 2011
Page 2
information and publications of the Chamber of Commerce, internet listings, pastoral
associations and other sources. The intent is that the "invitation" be mailed to a broad
pool of religious congregations.
Option 3. Retain Invocations by Council Members, But Use Nondenominational
Prayers. This third option was included as a possible alternative, but without the
stronger recommendations given to Option 1 and Option 2, respectively. It was felt that
this option does not reflect the community values as closely as the first two options.
CONCLUSIONS: In light of the above, I would ask that the issue be scheduled for
presentation to and discussion by the full Council February 1, 2011.
Second, upon Council selection of any option, I recommend that a Council Policy be
drafted for Council review and adoption on February 15, 2011.
Third, if Option 1 is selected, it will be necessary to draft the appropriate language to
place on the Agenda. It may also be the desire of Council to revise the Agenda to
place the Invocation so that it occurs prior to gaveling the meeting to order. Both of
these items can be included and explained in the formally adopted Policy.
S
4 04) 401
POLICY OF THE CITY COUNCIL
CITY OF YAKIMA . 1A 4 14,
CITY COUNCIL INVOCATIONS
WHEREAS, the City Council of the City of Yakima is an, elected legislative and
deliberative public body, serving the citizens of the City of Yakima; and
WHEREAS, the City Council has an established tradition of solemnizing its
proceedings by allowing for an opening prayer before each meeting for the benefit and
blessing of the City Council; and
WHEREAS, the City Council desires to adopt this policy regarding its invocation
practices; and
WHEREAS, our country's Founders recognized that we the people are endowed
with certain unalienable rights as stated in the Declaration of Independence:
We hold these truths to be self- evident, that all men are created equal, that they
are endowed by their Creator with certain unalienable Rights, that among these
are Life, Liberty and the pursuit of Happiness;
d a and
WHEREAS, these rights cannot be awarded, surrendered, nor corrupted by
human power, and are vested in us by our Creator. These rights are promoted,
protected and served through our forms of self - government, including our legislatures
and local governments, and it is the desire of the City Council to invoke divine guidance
and blessing upon the City Council, its deliberations and proceedings; and
WHEREAS, such prayer before legislative and deliberative bodies has been
consistently upheld as constitutional by our courts, including the United States Supreme
Court; and .
WHEREAS, in Marsh v. Chambers, 463 U.S. 783 (1983), the United States
Supreme Court upheld the Nebraska Legislature's practice of opening each day of its
sessions with a prayer by a chaplain paid with taxpayer dollars, and specifically
concluded, "The opening of sessions of legislative and other deliberative public bodies
with prayer is deeply embedded in the history and tradition of this country. From
colonial times through the founding of the Republic and ever since, the practice of
legislative prayer has coexisted with the principles of disestablishment and religious
freedom;" and
WHEREAS, the invocations practiced by the City Council serve the secular
purposes of solemnizing public occasions, expressing confidence in the future, and
encouraging the recognition of what is worthy of appreciation in society; and
WHEREAS, the City Council intends to follow an invocation practice that does
not proselytize or advance any particular faith, or show any purposeful preference of
one religious view to the exclusion of others; and
1
WHEREAS, the City Council intends to follow an invocation . practice affirming
that participation of citizens, attendees at Council meetings, employees, Council
members and all others, is entirely voluntary, and that any person's decision to not
stand, acknowledge or otherwise participate in the invocation shall not affect that
person's rights and abilities to fully participate in all aspects of the Council meeting, city
services and city government; and
WHEREAS, the City Council intends that the prayer opportunity shall not be
exploited as an effort to convert others to a particular faith, nor to disparage any faith or
belief different than that of the invocation speaker; and
WHEREAS, the City Council desires to reserve the rig_ ht to invite leaders of
religious congregations with an established presence in the community to provide
invocations at Council meetings the City Council may designate from time to time, which
list of religious congregations with an established presence in the community may be
compiled by the City Clerk from a broad pool of local clergy using any appropriate
community source or listing, including but not limited to, those religious congregations
listed in local telephone directories, or community information sources such as the
Chamber of Commerce publications or consultations, with those responding to such
invitation being scheduled on a first -come, first serve rotating basis; and
WHEREAS, neither the City Council nor any employee of the City shall engage in
any prior inquiry, review of, or involvement in, the content of any prayer to be offered by
an invocation speaker; and
WHEREAS, the City Council finds and determines that invocations offered
pursuant to this stated practice will preserve, promote and protect the general health
safety and welfare; now, therefore
THE CITY COUNCIL OF THE CITY OF YAKIMA ADOPTS THE FOLLOWING AS ITS
POLICY REGARDING CITY COUNCIL INVOCATIONS:
1. It is the practice and policy of the City Council of the City of Yakima to allow
Council members to voluntarily give an invocation prayer after Roll Call but prior
to the commencement of, the official business of all regular Council meetings.
The prayer opportunity shall not be exploited as an effort to convert others to a
particular faith, nor to disparage any faith or belief different than that of the
invocation speaker.
2. Participation of any Council member in the invocation is voluntary. One Council
member may give an invocation prior to commencement of the official business
of the Council meeting. Each Council member is eligible to give the invocation,
but participation of any Council member is voluntary and any Council member
choosing not to give an invocation shall not be required to do so. .
2
3. Participation of any person in the invocation is voluntary. No person, including'
but not limited to Council members, employees, citizens, or any other person
attending or viewing the proceedings of the City Council, shall ever be required to
participate in the invocation. Any person's decision to not stand, acknowledge or
otherwise participate in the invocation shall, not affect that person's rights and
abilities to fully participate in all aspects of the Council meeting, city services and
city government. .
4. The City Council reserves the right to invite leaders of religious congregations
with an established presence in the community to provide invocations at Council
meetings the City Council may designate from time to time, which list of religious
congregations with an established presence in the community may be compiled
by the City Clerk from a broad pool of local clergy using any appropriate
community source or listing, including but not limited to, those religious
congregations listed in local telephone directories, or community information
sources such as the Chamber of Commerce publications or consultations, with
those responding to such invitation being scheduled on a first -come, first serve
rotating basis.
5. The City Council reserves the right to adopt and implement further and additional
policies supplementing the practices described herein and above.
6. This policy and the preamble and procedures stated herein, together with actions
implementing and using such policies and practices, are not intended, and shall
not be implemented or construed in any way, to affiliate the City' Council with, nor
express the City Council's preference for, any faith or religious denomination.
Rather, this policy and the procedures herein are intended to acknowledge and
express the City Council's respect for the diversity of religious denominations and
faiths represented and practiced among the citizens of Yakima.
7.. A written statement corresponding to this policy shall be added to the Yakima
City Council Agenda at the Agenda Item listed for invocation. The statement
shall read:
4110 The Invocation is for the benefit of the City Council and serves the
purposes of solemnizing the proceedings and invoking the wisdom and
3
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• blessing of our Creator who has endowed each of us with the unalienable
al
rights of life, liberty and the pursuit of happiness. The invocation is not
intended to affiliate the City Council with, or express the City Council's
preference for, any faith or religious denomination. Participation is
voluntary. Any person's decision to not stand, acknowledge or otherwise
participate in the invocation shall not affect that person's rights and
abilities to fully participate in all aspects of the Council meeting, city
services and city government.
8. This Policy shall become on the date of adoption stated below.
ADOPTED BY THE CITY COUNCIL this day of ,
2011.
Micah Cawley, Mayor
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). BOX 750 MADISON, WI 53701 (608) 256 - 8900 WWw. FFRF.ORG
RECEIVED
January 19, 2011 CITY OF YAKIMA
Mark A Kunkler JAN 2 5 2011
Senior Assistant City Attorney
City of Yakima / a 9 _ r OFFICE OF CITY COUNCIL
Legal Department"`
200 South Third St
Yakima WA 98901 -2830
Re: Unconstitutional and Inappropriate Council Invocations
Dear Attorney Kunkler:
This serves as a follow -up letter to our previous request to the Yakima City Council
( "Council ") urging you to discontinue the inappropriate practice of praying as part of
your governmental meetings. The Freedom From Religion Foundation is a 501(c)(3)
educational charity that works to educate the public about nontheism, and to safeguard
the constitutional principle of the separation between state and church. We wish to draw
your attention to the fundamental American tradition of secularism, as well as to refute
arguments from theocratic groups that seek to influence legislative bodies across the
country to adopt constitutionally problematic prayer policies. It is not in the best interests
of the citizens of Yakima for the Council to continue unconstitutional prayer practices.
Removing prayer from government meetings is the wisest policy and the only way to
alleviate constitutional concerns.
Citizens are frequently compelled to come before you on important civic matters, to seek
licenses, permits, to participate in important decisions affecting their livelihood, their
property and quality of life, etc. These citizens should not be made to feel offended,
excluded and like political outsiders because the local government they support with their
taxes oversteps its power by imposing religious ritual at secular government meetings.
Local government should not be in the business of performing religious rituals, or
exhorting all citizens regardless of beliefs to participate in a Christian prayer, or
minimally to demonstrate obeisance to such prayer.
We understand that the Alliance Defense Fund ( "ADF ") is one organization that regularly
pressures government bodies to sponsor Christian invocations. Unfortunately, much
propaganda by religious -right groups, such as ADF, is inaccurate, misleading and
requires a thorough response.
Sectarian Government Prayers Are Unconstitutional
We understand that ADF routinely claims, "legislative prayers —even sectarian ones —are
clearly constitutional" and that in hosting sectarian prayers, "government officials run no
risk of violating the Constitution." These claims are also made by other organizations
Dan Barker and Annie Laurie Gaylor, Co- Presidents
seeking to institute Christian prayers at government meetings. However, the cases
analyzed by courts on this issue tell a different story.
The Supreme Court has said, "The defining principle of Establishment Clause
jurisprudence is that the `First Amendment mandates government neutrality between
religion and religion, and between religion and nonreligion. "' McCreary County v.
ACLU, 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104
(1968)).
As discussed in our previous letter, government- sponsored prayers that do not fit the
narrow exception in Marsh v. Chambers violate the U.S. Constitution. In Marsh, the
Supreme Court ruled that a legislative practice confined to a nonsectarian, non -
denominational prayer, led by an officiant who had not been selected based upon any
impermissible motive, and which was addressed to the body of legislators present and no
one else, was permissible. Marsh v. Chambers, 463 U.S. 783 (1983).
The Supreme Court's ruling in County of Allegheny v. ACLU Greater Pittsburgh
Chapter, 492 U.S. 573 (1989), limited Marsh in a significant way. The Court said, "not
even the `unique history' of legislative prayer, can justify contemporary legislative
prayers that have the effect of affiliating the government with any one specific faith or
belief." Id. at 603. Significantly, the Court's limitation in Allegheny comes after Lynch v.
Donnelly, 465 U.S. 668 (1984), upon which ADF relies. Even in Lynch, Justice
O'Connor's concurrence merely expresses the permissibility of "legislative prayers of the
type approved in Marsh." Id. at 693. Justice O'Connor was talking about practices
411
considered to have secular, rather than religious importance. She said, "those practices
are not understood as conveying government approval of particular religious beliefs." Id.
Here, the Council's prayer practice does convey government approval for the Christian
views expressed in the sectarian prayers.
Courts have ruled against government prayers in a number of cases, either finding
outright that they were unconstitutional or affirming the impermissibility of sectarian
prayers: •
• Wynne v. Town of Great Falls, S.C., 376 F.3d 292 (4th Cir. 2004) (Frequent
references to Jesus Christ in prayers at Town Council meetings violated
Establishment Clause)
• Bacus v. Palo Verde Unified School Dist. Bd. of Educ., 52 Fed.Appx. 355, 2002
WL 31724273, (9 Cir. 2002) (unpublished) (Prayers offered "in the Name of
Jesus" advanced Christianity in violation of the Establishment Clause)
• Joyner v. Forsyth County, N.C., No. I :07CV243, 2009 WL 3787754, (M.D.N.C.,
2009), appeal docketed, No. 10 -1232 (4th Cir. March 1, 2010) (References to
Jesus Christ in prayers prior to Board meetings promoted one religion over others
violating Establishment Clause.)
• Rubin v. City of Burbank, 101 Cal.App.4th 1194, (Cal. App. 2 Dist., 2002) (City
Council prayer ending "in the name of Jesus Christ" violated the Establishment
Clause; even when only 20% of prayers had such references, Marsh precludes
prayers that advance any one religious belief or faith)
• Doe v. Tangipahoa Parish School Bd., 473 F.3d 188 (5th Cir. 2006) (Sectarian
prayers before Board meetings violated the Establishment Clause because
2
observer would affiliate the Board with Christianity) (later dismissed en bane for
411111 lack of standing)
• Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006) (Declined to stay an injunction
against opening legislative sessions with prayer, finding that Marsh precludes
sectarian legislative prayer) (later dismissed for lack of standing)
° Simpson v. Chesterfield County Bd. of Sup'rs, 404 F.3d 276 (4th Cir. 2004) (Non-
sectarian government prayer policy was constitutional)
• Turner v. City Council of City of Fredericksburg, 534 F.3d 352 (4th Cir. 2008)
(Policy requiring prayers to be nondenominational did violate council member's
First Amendment rights)
These cases demonstrate that repeated sectarian prayers before deliberative bodies are
unconstitutional. The analysis of the Fourth Circuit Court of Appeals is telling. In Wynne,
the Court said:
In Marsh, the approved prayer was characterized as "nonsectarian" and "civil "; indeed,
the chaplain had affirmatively "removed all references to Christ." Here, on the other
hand, the prayers sponsored by the Town Council "frequently" contained references to
"Jesus Christ," and thus promoted one religion over all others, dividing the Town's
citizens along denominational lines.
376 F.3d at 298 -299 (citations omitted).
In letters to some communities, ADF cites Simpson, 404 F.3d 276, in support of its claim
that prayers invoking Jesus are constitutional. That case affirms, rather than contradicts
Wynne. The Court said:
Indeed, Marsh requires that a divine appeal be wide- ranging, tying its legitimacy to
common religious ground...As Marsh and other cases recognize, appropriately
ecumenical invocations can be "solemnizing occasions" that highlight "beliefs widely
held." See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 124 S.Ct. 2301,
2322, 159 L.Ed.2d 98 (2004) (O'Connor, J., concurring in judgment); Allegheny, 492
U.S. at 625 (O'Connor, J., concurring in part); Lynch, 465 U.S. at 693, 104 S.Ct. 1355
(O'Connor, J., concurring)....[O]ur expressions evoke common and inclusive themes and
forswear, as Chesterfield has done, the forbidding character of sectarian invocations.
Simpson, 404 F.3d at 287. Despite ADF's claims to the contrary, federal courts have
examined the content of government prayers and ruled that references to Jesus create
unconstitutional advancement of one belief.
Limits on Government Prayer Uphold, Rather Than Abridge Individual Rights
Advocates for government- sponsored prayer frequently imply that limits on the prayers
of legislative bodies somehow would violate individual rights. These claims have no
basis in law or logic.
Under the First Amendment's Free Exercise Clause, citizens have a right to the free
exercise of religion. Under the First Amendment's Establishment Clause, the
. government has no such right to practice a religion. The Establishment Clause exists
precisely to limit government actions relating to religion, to maintain governmental
3
neutrality on the subject of religion. No government official has the "right" to use his or
her governmental office, power or position to conduct a religious exercise at a
government meeting. Private citizens, including governmental officials in their personal
capacities, are free to practice their religion. That liberty is strengthened, rather than
weakened, by keeping government out of the business of religion.
When legislative bodies schedule and host officiants to pray as part of government
meetings, courts consider the government to be the "speaker." (For further discussion
please see: Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious
Endorsements, 94 Minn. L. Rev. 972 (2010)). In Turner v. City Council of City of
Fredericksburg, 534 F.3d 352, 353 (4''' Cir. 2008), the Court held that the prayers were
government speech and found that there was no violation of Free Speech and Free
Exercise rights of an individual who was barred from imposing sectarian prayers at
government meetings. When the government is the speaker, it has a duty to avoid taking
action that advances one religious belief.
Separating personal and privately held religious beliefs from government business
protects religious liberty.
"A determination that the government may not endorse a religious message is not a
determination that the message itself is harmful, unimportant or undeserving of
dissemination. Rather, it is part of the effort to `carry out the Founders' plan of
preserving religious liberty to the fullest extent possible in a pluralistic society.'
Freedom From Religion Foundation v. Obama, No. 08 -588, 2010 WL 1499451, at *31
(W.D. Wis. 2010), appeal docketed, No. 134 (7th Cir. April 22, 2010). "When the
government associates one set of religious beliefs with the state and identifies
nonadherents as outsiders, it encroaches upon the individual's decision about whether and
how to worship." McCreary, 545 U.S. at 833 (O'Connor, J., concurring). Whether to pray
and whether to believe in a god who answers prayer is an intensely precious and personal
decision which is a paramount matter of conscience.
Misquoting History
Supporters of the problematic invocation policies frequently claim that such policies are a
part of "our religious heritage." In making such claims, they overstate and erroneously
cite historical quotations.
1) Misquoting Justice Douglas
In letters to government officials, ADF often quotes Justice Douglas, saying, "We are a
religious people whose institutions presuppose a Supreme Being..." Zorach v. Clausal,
343 U.S. 306, 313 (1952). In context, and as Justice Douglas later explained in his dissent
in McGowan v. Maryland, 366 U.S. 420, 563 (1961), this is a reference to his view that
the U.S. founders believed God gave Americans certain unalienable rights. As Justice
Douglas said in the very next sentences following the quotation, "We guarantee the
freedom to worship as one chooses. We make room for as wide a variety of beliefs and
creeds as the spiritual needs of man deem necessary." Zorach, 343 U.S. at 313 -314.
4
Given the context, Justice Douglas was not espousing a declaration that our government
d l supports belief in God. Justice Douglas explained his statement in McGowan:
"Mt a religious leaven is to be worked into the affairs of our people, it is to be done by
individuals and groups, not by the Government. This necessarily means, first, that the
dogma, creed, scruples, or practices of no religious group or sect are to be preferred over
those of any others...
The First Amendment commands government to have no interest in theology or ritual; it
admonishes government to be interested in allowing religious freedom to flourish —
whether the result is to produce Catholics, Jews, or Protestants, or to turn the people
•
toward the path of Buddha, or to end in a predominantly Moslem nation, or to produce in
the long run atheists or agnostics. On matters of this kind government must be neutral."
366 U.S. at 563 -564.
• 2) Stretching George Washington's Words
ADF also quotes George Washington's Farewell Address in support of its view that
government bodies should perform Christian prayer. Yet, Washington clearly avoided
using sectarian Christian language in his many writings. Washington deleted
Congressional references to "Jesus Christ" in Thanksgiving Day proclamations, showing
his concern to avoid sectarian preference. (Moral Minority: Our Skeptical Founding
Fathers, Brooke Allen, pgs. 26 -48.) Additionally, Washington was not known to
0 . regularly observe religious practices and some historians credibly argue that Washington
was a Deist. (The Religious Beliefs of Our Presidents, From Washington to FDR,
Franklin Steiner, pgs 14 -41). More importantly, Washington was keenly aware of the
. divisiveness of religion. President Washington wrote:
Of all the animosities which have existed among mankind, those which are caused by a
difference of sentiments in religion appear to be the most inveterate and distressing, and
ought most to be deprecated. I was in hopes that the enlightened and liberal policy which
has marked the present age would at least have reconciled Christians of every
denomination so far that we should never again see their religious disputes carried to such
a pitch as to endanger the peace of society.
(Letter to Sir Edward Newenham; October 20, 1972). His letters to religious minorities at
the time, such as Jews, Catholics, and Quakers, reiterate the intent of the founders to form
a government that would refrain from taking action adverse to religious minorities.
It is regrettable that support for government prayers rests on selective historical
quotations. Even when "examining historical quotations, there are ample statements that
demonstrate that the government should refrain from prayer because it is divisive and
violates the Establishment Clause. More importantly, as the Supreme Court said in
Allegheny, "not even the `unique history' of legislative prayer, can justify contemporary
legislative prayers that have the effect of affiliating the government with any one specific
faith or belief." 492 U.S. at 603.
ill .
5
"Model" Government Prayer Policies are Fundamentally Flawed
We understand that ADF often sends a "model olic " regarding prayer to legislative
P Y g gp Y b
bodies. We would like to address several provisions of these policies and ask the Council
to reject the policy proposed by ADF. A nearly identical policy was ruled
unconstitutional by a district court in North Carolina. See Joyner v. Forsyth County,
N.C., No. 1:07CV243, 2009 WL 3787754, (M.D.N.C., 2009), appeal docketed, No. 10-
1232 (4th Cir. March 1, 2010). The ADF policy is based on misinformation and is being
challenged in courts around the country and likely will continue to be challenged.
It is important to consider that the ADF policy is drafted with the intent to further ADF's
fundamentalist Christian mission. ADF describes itself as "a servant organization that
provides the resources that will help keep the door open for the spread of the Gospel
through the legal defense and advocacy of religious freedom, the sanctity of human life,
and traditional family values." ADF's "statement of faith" says, "We believe the Bible to
be the inspired, infallible, authoritative Word of God." It appears that ADF takes on a
number of controversial positions, such as opposition to gay rights ( "the homosexual
agenda ") and embryonic stem cell research, which has the support of an overwhelming
number of Americans. ADF continues to try to influence government bodies to support
Christian symbols on public lands and support government prayer policies that ensure
Christian prayers will permeate government meetings.
Governmental bodies may not promote religion or prefer one religion over another. The
Supreme Court has said:
The `establishment of religion' clause of the First Amendment means at least this:
Neither a state nor the Federal Government can set up a church. Neither can pass laws
which aid one religion, aid all religions, or prefer one religion over another. Neither can
force nor influence a person to go to or to remain away from church against his will or
force him to profess a belief or disbelief in any religion. No person can be punished for
entertaining or professing religious beliefs or disbeliefs, for church attendance or non-
attendance. No tax in any amount, large or small, can be levied to support any religious
activities or institutions, whatever they may be called, or whatever form they may adopt
to teach or practice religion. Neither a state nor the Federal Government can, openly or
secretly, participate in the affairs of any religious organizations or groups and vice versa.
In the words of Jefferson, the clause against establishment of religion by law was
intended to erect `a wall of separation between Church and State.'
Everson v. Board of Ed. of Ewing Tp., 330 U.S. 1, 15 -16 (1947).
We understand that ADF advocates a policy that provides an invitation to local clergy to
conduct prayers at government meetings. In letters to legislative bodies, ADF has referred
to such a practice as providing an "open forum." This terminology is legally incorrect and
is designed to further ADF's false claim that not including Christian prayers at
government meetings is "censorship." To be clear, a practice of inviting clergy to give a
prayer does not create an "open forum" or "limited forum," and disallowing the prayer
practice does not constitute unconstitutional "censorship." We are not aware of any court
anywhere in the country that has ruled otherwise.
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Federal courts that have examined the speech issue have held that prayers offered by
invited clergy constitute government speech. See Turner, 534 F.3d at 353 ( "the prayers at
issue here are government speech "); Simpson, 404 F.3d at 288 ( "the speech...was
government speech. "). Joyner v. Forsyth County, N.C., No. I :07CV243, 2009 WL
3787754 *5, (M.D.N.C., 2009) ( "Defendant's invocation prayers are government
speech. ").
The only appellate court to address ADF's censorship claims found that such claims had
no merit. In an opinion by retired Justice Sandra Day O'Connor, the Fourth Circuit said,
"Because the prayers at issue here are government speech, we hold that Fredericksburg's
prayer policy does not violate Turner's Free Speech and Free Exercise rights." Turner,
534 F.3d at 353. A disclaimer on the Council agenda will not magically transform the
invocation practice into a public forum for private speech. A government body that has a
policy of selecting speakers for an official government prayer at an official meeting
cannot claim that it has created an open forum. That is affirmed by the fact that the
proposed policy provides that the government maintains control over who speaks (clergy
only) and what they may say (prayer that doesn't "disparage any faith or belief'). The
prayers are government speech. Of course, "government speech must comport with the
Establishment Clause." Pleasant Grove City, Utah v. Summum, 129 S.Ct. 1125, 1127
(2009).
Another key problem with the ADF prayer policy is the proposal that the invocations will
not be listed as an agenda item and take place before the opening gavel. It would seem
do that ADF views these steps as somehow making the government prayers less official. It is
quite a self - contradiction to adopt an official prayer policy that removes invocations from
the agenda but still regularly schedules prayers before meetings. This ruse by ADF has
been rejected by a court examining the practice. See Joyner v. Forsyth County, N.C., No.
1:07CV243, 2009 WL 3787754. Not only is such a practice contrary to openness and
transparency in government, it lacks any support that would make the policy stand on
firmer legal ground. In fact, the district court in Joyner found that Forsyth County's
implementation of the ADF prayer policy was unconstitutional.
The policy also claims that it is for the benefit of the Council. Certainly, if any council
members wanted to gather in prayer on their own time they could do so. It is at least
suspect to have an official prayer policy if the only intended audience is a small group of
council members. The reality is that such a policy impacts all citizens wanting or needing
to participate in City of Yakima affairs. Any Council practice that uses microphone
for all to hear, that spends staff time on inviting and arranging speakers, that asks citizens
to stand, bow their heads, or to remain silent is clearly directed at the entire audience and
is intended to send a message of religious endorsement.
The divisiveness that government prayer creates must raise concern. The Council may
consider incorporating provisions of our enclosed alternative policy. The best policy is to
avoid religious ritual at government meetings and thereby permit all citizens to choose if
and in what ways to practice and express individual freedom of conscience in their
personal lives, rather than as an act of government.
•
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Conclusion
Official government prayers are divisive, unnecessary, and constitutionally p roblematic.
The Council respects all citizens by removing prayers from official government business.
Yakima City Council members and citizens may freely engage in prayer and religious
practices outside of government business, which ensures that elected officials run no risk .
of violating the Constitution. Please respect the freedom of conscience of all Yakima
citizens. By ensuring that government does not take sides on a matter that must be left to
the individual conscience, the Council strikes a blow for, not against, religious liberty.
Sincerely,
/ C )4 -I-- .
Rebecca S. Markert
Staff Attorney
cc: The Honorable Micah Cawley, Mayor
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RECEIVED
CITY OF YAKIMA
• JAN 2 1 2011
OFFICE OF CITY COUNCIL
P. 0. Box 183
Harrah, WA 98933
January 18, 2011
Micah Cawley, Mayor
Yakima City Council
129N 2 St.
Yakima, WA 98901
Dear Mayor Cawley:
Thank you for opening the Yakima city council meetings with prayer. Although I'm not
a resident of Yakima, I'm very concerned about the situations not only in Yakima, but in
all of the towns in the Yakima Valley. All of our towns have a desperate need for prayer.
I'm not up to date on the current situation regarding prayer at your meetings, whether or
not you've been called to court. I talked with my son, who is an attorney, about all of
this. He suggested that if you are taken to court that you contact the Alliance Defense
Fund, a law firm based in Scottsdale, Arizona, for help. This firm has been very active in
recent years in defending the constitutional rights of city councils throughout the United
States to open their meetings with prayer: Their services are free of charge.
The e -mail address of the Alliance Defense Fund is AllianceDefenseFund.org.
Sincerely;
Mrs. Linda Walker