473 F.3d 188 (5th Cir. 2006), 05-30294, Doe v. Tangipahoa Parish School Bd.

Docket Nº:05-30294.
Citation:473 F.3d 188
Party Name:John DOE, Individually and as next friend of his minor children James Doe and Jack Doe, Plaintiff-Appellee, v. TANGIPAHOA PARISH SCHOOL BOARD; Jimmie Richardson, Reverend, School Board Member, District A; Robert Potts, School Board Member, District B; Leonard Genco, School Board Member, District C; Al Link, School Board Member, District D; Don Will
Case Date:December 15, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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473 F.3d 188 (5th Cir. 2006)

John DOE, Individually and as next friend of his minor children James Doe and Jack Doe, Plaintiff-Appellee,

v.

TANGIPAHOA PARISH SCHOOL BOARD; Jimmie Richardson, Reverend, School Board Member, District A; Robert Potts, School Board Member, District B; Leonard Genco, School Board Member, District C; Al Link, School Board Member, District D; Don Williams, School Board Member, District E; Robert Caves, School Board Member, District F; Maxine Dixon, School Board Member, District G; Sandra Bailey-Simmons, School Board Member, District H; Carl Bardwell, School Board Member, District I; Louis Joseph, Superintendent, Tangipahoa Parish School System, Defendants-Appellants.

No. 05-30294.

United States Court of Appeals, Fifth Circuit.

December 15, 2006

Page 189

[Copyrighted Material Omitted]

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Ronald Lawrence Wilson (argued), New Orleans, LA, Joshua Simon Force, Sher, Garner, Cahill, Richter, Kelin & Hilbert, New Orleans, LA, Emma E. Daschbach, Siller Wilk, New York City, for Plaintiff-Appellee and Anti--Defamation League, Amicus Curiae.

Thomas J. Stein, Proskauer Rose, New York City, for Americans United for Separation of Church & State, Amicus Curiae.

Louis C. LaCour, Jr., Albert Kirk Gasperecz (argued), Adams & Reese, New Orleans, LA, Robert N. Markle, Adams, & Reese, Baton Rouge, LA, James Allen Keith, Adams & Reese, Jackson, MS, James Michael Johnson (argued), Ylliance Defense Funds, Shreveport, LA, Christopher M. Moody, Moody & Moody, Hammond, LA, Kevin, Hayden Theriot, Alliance Defense Fund, Olathe, KS, for Defendants-Appellants.

Edward Lawrence White, III, Thomas More Law Center, Ann Arbor, MI, for Thomas More Law Ctr., Amicus Curiae.

Benjamin David DuPré, Law Offices of Benjamin D. DuPré, Montgomery, AL, for Foundation For Moral Law, Amicus Curiae.

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Roy A. Mongrue, Jr., Asst. Atty. Gen., Katherine Whitney, Uma Subramanian, Baton Rouge, LA, for State of Louisiana, Amicus Curiae.

Kenneth F. Sills, Hammonds & Sills, Baton Rouge, LA, for Louisiana Sch. Boards Ass'n, Amicus Curiae.

Appeal from the United States District Court for the Eastern District of Louisiana

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This appeal presents an Establishment Clause issue of first impression in our circuit. The Tangipahoa Parish School Board, its Board members, and the Tangipahoa Parish School System's superintendent (collectively, the Board) challenge a permanent injunction against the Board's opening its meetings with prayer. Consistent with the long-standing rule of deciding a constitutional issue on its most narrow basis, the injunctive relief must be narrowed greatly. This disposition is reached through differing opinions by each panel member.

The Board's having conceded the prayers are unconstitutional under the test employed in Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), this opinion assumes, without deciding, that Marsh v. Chambers' legislative/deliberative-body exception applies. 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). Under Marsh, the four prayers at issue are unconstitutional; the balance of the injunction is vacated. Applying a Lemon, rather than Marsh, analysis, Judge Stewart concurs in these four prayers being unconstitutional, but would affirm the injunction. Judge Clement would vacate the injunction, opining the prayers at issue fit within Marsh's ambit of protection.

As a result, the portion of the injunction relating to the four prayers in the parties' joint stipulations is AFFIRMED; the remainder of the injunction is VACATED. This matter is REMANDED to the district court for entry of an injunction consistent with this opinion. AFFIRMED in PART; VACATED in PART; and REMANDED.

I.

In October 2003, John Doe, a resident and taxpayer of Loranger, Tangipahoa Parish, Louisiana, filed this action against the Board, including on behalf of his two minor sons. The Board is a "[p]olitical subdivision" of the State, La. Const. Art. 6, § 44(2), and a statutorily defined "[p]ublic body", La. Rev. Stat. Ann. § 42:4.2.

Doe challenged several prayer events permitted by the School System: pre-game prayers over the public-address system at athletic events; prayers including student athletes prior to, and after completion of, such events; prayers by students to the student body over the public-address system; and the Board's opening its meetings with a prayer (prayer practice). All but the challenge to the Board's prayer practice were resolved by a consent judgment in August 2004. It enjoined those other prayer events, except for prayers given by students at graduation ceremonies to the extent permitted by Jones v. Clear Creek Independent School District, 977 F.2d 963, 972 (5th Cir. 1992) (permitting student-initiated prayers at graduation ceremonies so long as they do not have a coercive effect), cert. denied, 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993).

Regarding the Board's prayer practice, the parties in September 2004 entered into

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the following joint stipulations, the sole evidence presented in district court. The Board is a deliberative body that acts in the public interest. It is responsible for operating and governing the School System's 35 schools, including the high school attended by Doe's two sons. The Board meets twice each month in the School System's central office. The Board's president normally presides; the vice-president presides in his absence. The meetings are open to the public, and students may attend. (Although it is possible under Louisiana law for a student to be a Board member, La. Rev. Stat. Ann. § 17:52(E)(1), the stipulations are silent as to whether there is a student member on the Board.)

Each meeting begins with a prayer, followed by a recitation of the Pledge of Allegiance. This prayer practice has been followed since at least 1973; prayers have been offered by Board members, the Board president, the School System's assistant superintendent, School System teachers and students, and ministers. An individual may present a prayer only after being selected by a Board member. In a sampling of prayers delivered between January 2002 and August 2004, ten were by Board members, nine by students or former students, four by principals or assistant principals, three each by teachers and the assistant superintendent, and one each by the Board president and a minister.

The stipulations contained four of the prayers given; each contained a reference to "Jesus Christ" or "God" and "Lord". The School System's assistant superintendent presented the following prayer on 18 February 2003:

Heavenly Father, we thank you for the many blessings we've received. We thank you for our health. We thank you for our strength. We thank you for our peace of mind. We thank you for allowing U.S. to assemble here tonight, and we ask that you give this Board and our Superintendent all the wisdom and the knowledge, and the understanding they need to make the correct decisions for our students and for our parents.

Also Lord, we ask that you throw your strong arm of protection around our President and around his Cabinet Members, to help him make the right decisions that will affect thousands of U.S. soldiers, airmen, and marines, at this time. We ask that you give him the same wisdom that you gave Solomon in making decisions that's [sic] best for our country. Also, we thank you for the greatest gift of all — your darling son, Jesus Christ. For we all know that He was born, died, and rose again, so that we all may be forgiven for our sins. And Lord, as we leave this meeting tonight, we ask that you guide U.S. safely to our various abodes. These things we ask in your darling son, Jesus Christ's[,] name. Amen.

A Board member's son presented the following prayer on 23 September 2003:

Almighty God, we make our earnest prayer that Thou wilt keep the United States in thy holy protection, that Thou wilt incline in the hearts of the citizens to cultivate a spirit of subordination and obedience to government, and entertain a brotherly affection and love for one another and for their fellow citizens of the United States at large.

And finally that Thou wilt most graciously be pleased to dispose U.S. all to do justice, to love mercy, and to demean ourselves with that charity, humility, and pacific temper of mind which were the characteristics of the Devine [sic] Author of our blessed religion, and without an [sic] humble imitation of whose example in these things, we can never hope to be a happy nation.

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Grant our supplications, we beseech Thee, through Jesus Christ our Lord. Amen.

A School System elementary-school principal presented the following prayer on 18 May 2004:

Heavenly Father, we thank you for all the blessings that you have given us. Let U.S. not take for granted that each breath that we take is a blessing from you, and even though we don't understand the hardships that are put before U.S. at different times in our lives, let U.S. always remember that the experiences that we go through have a purpose and even though we don't understand the purpose, it is your desire that we have each and every experience on this earth, for without you we have nothing.

Watch over our soldiers that are overseas. Please keep them safe. Please soften the hearts of our adversaries and help them see that we are trying to do what we believe is good and right and to bring freedom to people that have been oppressed.

Please guide all the people in this room that are in charge of setting the education of our children and setting the future of our children. Let all of U.S. keep in mind that we have one focus and that is what...

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