Pelphrey v. Cobb County, Ga.

• Decision Date: 28 October 2008
• Docket Number: No. 07-13611.,07-13611.
• Citation: 547 F.3d 1263
• Parties: Gary PELPHREY, a.k.a. Bats, Edward Buckner, Roberto Moraes, Jeffrey Selman, Roberta Goldberg, a.k.a. Bobbi, Marie Shockley, Plaintiffs-Appellants-Cross-Appellees, Wesley Crowe, Plaintiff, v. COBB COUNTY, GEORGIA, Sam Olens, in his official capacity as Chairman of the Cobb County Commission and in his individual capacity, Murray Homan, in his official capacity as Chairman of the Cobb County Planning Commission and in his individual capacity, Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

547 F.3d 1263

Gary PELPHREY, a.k.a. Bats, Edward Buckner, Roberto Moraes, Jeffrey Selman, Roberta Goldberg, a.k.a. Bobbi, Marie Shockley, Plaintiffs-Appellants-Cross-Appellees, Wesley Crowe, Plaintiff, v. COBB COUNTY, GEORGIA, Sam Olens, in his official capacity as Chairman of the Cobb County Commission and in his individual capacity, Murray Homan, in his official capacity as Chairman of the Cobb County Planning Commission and in his individual capacity, Defendants-Appellees-Cross-Appellants.

No. 07-13611.

United States Court of Appeals, Eleventh Circuit.

October 28, 2008.

Richard B. Katskee, Ayesha N. Khan, Americans United for Separation of Church & State, Daniel Mach, Lane Dilg, ACLU, Washington, DC, for Appellants.

David F. Walbert, Larry Hugh Chesin, Parks, Chesin & Walbert, P.C., William J. Atkins, Atkins & Attwood, LLC, Atlanta, GA, Mark A. Adelman, Cobb Cty. Atty's Office, Marietta, GA, for Appellees.

Benjamin David DuPré, Foundation for Moral Law, Montgomery, AL, for Amicus Curiae.

Appeal from the United States District Court for the Northern District of Georgia.

Before WILSON and PRYOR, Circuit Judges, and MIDDLEBROOKS,^* District Judge.

PRYOR, Circuit Judge:

The key issue in this appeal is whether the practice of two county commissions that allow volunteer leaders of different religions, on a rotating basis, to offer invocations with a variety of religious expressions violates the Establishment Clause. Both the Cobb County Commission and the Cobb County Planning Commission have a long tradition of opening their meetings with a prayer offered by volunteer clergy or other members of the community. The clergy have represented a variety of faiths, including Christianity, Islam, Unitarian Universalism, and Judaism, and their diverse prayers have, at times, included expressions of their religious faiths. Those expressions ordinarily have been brief and often have occurred in the concluding phrase of the prayers. The prayers have included references to "Jesus," "Allah," "God of Abraham, Isaac, and Jacob," "Mohammed," and "Heavenly Father." Seven Cobb County taxpayers filed suit to enjoin the prayers.

The taxpayers argue that the Establishment Clause permits only nonsectarian prayers for the meetings of the commissions, but we disagree. Marsh v. Chambers makes clear 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." 463 U.S. 783, 794-95, 103 S.Ct. 3330, 3337-38, 77 L.Ed.2d 1019 (1983). The district court applied this standard, found that the practice of the County Commission had not been exploitive, and refused to parse the content of the prayers. The district court also found that the practice of the Planning Commission had been exploitive during 2003 and 2004 and declared that practice unconstitutional. Because there is no clear error in either finding by the district court, we refuse "to embark on a sensitive evaluation or to parse the content of a particular prayer." Id. at 795, 103 S.Ct. at 3338. Whether invocations of "Lord of Lords" or "the God of Abraham, Isaac, and Mohammed" are "sectarian" is best left to theologians, not courts of law. We affirm.

I. BACKGROUND

The Cobb County Commission and the Cobb County Planning Commission have a long tradition of opening their meetings with prayer by volunteer clergy invited by County personnel on a rotating basis. The prayers are offered by clergy of a variety of faiths, including Christian, Jewish, Unitarian Universalist, and Muslim. The majority of the speakers are Christian, and the commissions assert that this presence reflects the composition of the religious institutions in Cobb County. The taxpayers contend that, between 1998 and 2005, 96.6 percent of the clergy, to the extent their faith was discernable, were Christian. During the same period, adherents to the Jewish, Unitarian Universalist, Muslim, and Baha'i faiths also provided invocations.

The commissions do not compose or censor the prayers. Over the past decade, 70 percent of prayers before the County Commission and 68 percent of prayers before the Planning Commission contained Christian references. Often the prayers ended with references to "our Heavenly Father" or "in Jesus' name we pray." Prayers also contained occasional references to the Jewish and Muslim faiths, such as references to Passover, Hebrew prayers, Allah, and Mohammed. Many prayers lacked what the taxpayers identify as sectarian references.

The commissions do not compensate those invited to pray, but the County expends municipal funds, in the form of materials and personnel time, to select, invite, and thank the invocational speakers. The County Commission employs an administrative specialist, and the Planning Commission employs a deputy clerk to select the clergy. Both employees have autonomy in the selection of speakers, and each has used a different method for selection.

Beverly Martin, the administrative specialist of the County Commission, compiles a list of religious organizations in Cobb County from several sources, including the Yellow Pages, the internet, and business cards. The list is organized by denomination or faith and then by individual congregations. A majority of the congregations on the list are Christian. Martin randomly selects the speaker and avoids having speakers from the same religious group at consecutive meetings. Several congregations are in Martin's files, but are not included on the list. Other congregations are not included in Martin's files, but these congregations do not appear in the Yellow Pages. Martin testified that she does not take into account the beliefs held by a religious group when deciding whom to include on her list.

Sandra Richardson served as the deputy clerk of the Planning Commission and applied a different method for selection of clergy that relied primarily on her copy of the Yellow Pages. She has also relied on clergy who volunteer as part of the chaplain program for the police and fire departments. A copy of the phone book used by Richardson during 2003-2004 shows a dark, continuous line drawn through the categories surrounding the "Churches" category in the Yellow Pages. The line crosses through the "Chiropractors," "Church Furnishings," and "Church Supplies" categories, among others. There is a similar, lighter line drawn through several subcategories of churches: "Churches-Islamic," "Churches-Jehovah's Witnesses," "Churches-Jewish," and "Churches-Latter Day Saints." No clergy from those subcategories were asked to provide the invocation during 2003-2004. Richardson's Yellow Pages for 2005 does not have similar notations, and Richardson contacted both a mosque and a synagogue that year.

These practices later changed. After the commencement of this action, the County consolidated the selection procedures of the Planning Commission and the County Commission. Both commissions now use a master list to select randomly a speaker to offer the prayer at a meeting.

Gary "Bats" Pelphrey, Edward Buckner, Roberto Moraes, Wesley Crowe, Jeffrey Selman, Roberta "Bobbi" Goldberg, and Marie Shockley are taxpayers of Cobb County who have attended meetings of the County Commission and Planning Commission and have witnessed the invocations that begin each meeting. The taxpayers complained to the commissions about the invocation practice, and Selman provided a list of several other potential speakers to Commissioner Tim Lee and Planning Commissioner Bob Ott. Neither commissioner provided this list to administrative personnel.

The commissions also received a request from the American Civil Liberties Union to remove all "sectarian" references from the invocations. The commissions refused to comply with the request, and this lawsuit ensued. In their complaint, the taxpayers objected to sectarian prayers at commission meetings as unconstitutional and asked the district court to enjoin the practice.

The district court issued three orders about the merits of this controversy. The district court first denied the taxpayers' motion for a preliminary injunction. The court later entered findings of fact and conclusions of law and denied the taxpayers' request for a permanent injunction. The district court upheld the invocations of the County Commission. The district court ruled that the Planning Commission violated the Establishment Clause in 2003 and 2004 because of its selection procedure, but the court upheld the remaining invocations. In a third order, the district court held that the taxpayers had standing to challenge the selection procedures used by the Planning Commission in 2003-2004 and awarded them nominal damages. Both parties appealed. Crowe was dismissed from the action during the pendency of this appeal.

II. STANDARDS OF REVIEW

We review de novo the legal conclusions of the district court. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir.2000). Because the parties consented to resolution of the factual issues by the district court, factual findings are reviewed for clear error. Fed.R.Civ.P. 52(a). "[A]s we have explained, `[w]e cannot hold a district court's finding of fact clearly erroneous unless, in view of the entire record, we are left with a definite and firm conviction that a mistake has been committed.'" Glassroth v. Moore, 335 F.3d 1282, 1291 (11th Cir.2003) (quoting Eng'g Contractors Ass'n v. Metropolitan Dade County, 122 F.3d 895, 904 (11th Cir.1997) (internal quotation marks omitted)).

III. DISCUSSION

The Establishment Clause, which applies to the states through the Fourteenth Amendment, provides that the government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." U.S. Const. Amend. I; Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). "The clearest command of the...