Atheists of Fla., Inc. v. City of Lakeland

• Decision Date: 26 March 2013
• Docket Number: No. 12–11613.,12–11613.
• Parties: ATHEISTS OF FLORIDA, INC., Ellenbeth Wachs, Plaintiffs–Appellants, v. CITY OF LAKELAND, FLORIDA, Gow Fields, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

713 F.3d 577

ATHEISTS OF FLORIDA, INC., Ellenbeth Wachs, Plaintiffs–Appellants,

v.CITY OF LAKELAND, FLORIDA, Gow Fields, Defendants–Appellees.

No. 12–11613.

United States Court of Appeals,Eleventh Circuit.

March 26, 2013.

Eric Otto Husby, Law Office of Eric Husby, Tampa, FL, for Plaintiffs–Appellants.

Mark Nelson Miller, Kristie Hatcher–Bolin, Gray Robinson, PA, Lakeland, FL, Edwin Ayers Scales, III, Edwin A. Scales, III, PA, Key West, FL, for Defendants–Appellees.

Gregory M. Lipper, Ayesha N. Khan, Americans United for Separation of Church and State, Washington, DC, for Amicus Curiae Americans United for Separation of Church and State.

Brett Harvey, Alliance Defending Freedom, Scottsdale, AZ, for Amicus Curiae Alliance Defense Fund.

Deborah Jane Dewart, Swanboro, NC, John Thomas Stemberger, Law Office of John Thomas Stemberger, Orlando, FL, for Amici Curiae Alan Hays, Steve Wise, Dennis Baxley, Chris Dorworth, Eric Eisnaugle, Steve Precourt, and Kelli Stargel, Florida State Representatives.

Kenneth Alan Klukowski, Kenneth A. Klukowski, Washington, DC, for Amici Curiae Members of Congress and Family Research Council.

Jeffrey Carl Mateer, Justin E. Butterfield, Liberty Institute, Plano, TX, for Amici Curiae Mark L. Bailey, M.D., Darrell L. Bock, M.D., C. Stephens Evans, M.D., Wayne Grudem, M.D., Peter A. Lillback, M.D., J. Michael Thigpen, M.D. and H. Wayne House, M.D.

Luke William Goodrich, Diana Verm, The Becket Fund for Religious Liberty, Washington, DC, Louis F. Hubener, III, Tallahasee, FL, for Amici Curiae The Becket Fund for Religious Liberty and State of Florida.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, Chief Judge, and BLACK and ALARCÓN,^* Circuit Judges.

ALARCÓN, Circuit Judge:

Atheists of Florida and Ellenbeth Wachs, Director of the Lakeland Chapter of the Atheists of Florida, (collectively “AOF”), appeal from the district court's order denying their motion for summary judgment and granting summary judgment in favor of the City of Lakeland, Florida and its mayor, Gow Fields, (collectively “Lakeland” or “Lakeland City”) in this action filed by AOF pursuant to 42 U.S.C. § 1983. AOF alleged in their complaint that Lakeland's practice of opening each Lakeland City Commission legislative session with a sectarian prayer violates the Establishment Clause of the First Amendment and Article I, Section 3 of the Florida Constitution.

Lakeland maintains that Resolution 4848, adopted a few months after AOF complained in March 2010 about its practices in selecting invocation speakers, does not violate the Establishment Clause of the First Amendment or Article I, Section 3 of the Florida Constitution because it requires that invitations to participate be extended to all religious groups. It also asserts that this Court should not consider the merits of AOF's claim that Lakeland's pre-March 2010 practices were unconstitutional because that issue became moot with the codification of Lakeland's practices in Resolution 4848.

We affirm the district court's order granting summary judgment in favor of Lakeland and Mayor Fields, in part, because we conclude that AOF has failed to demonstrate that the adoption of Resolution 4848 resulted in proselytizing or advancing the Christian religion over all others solely because the speakers who were selected included sectarian references in their prayers. We also conclude that we lack jurisdiction to decide AOF's challenge to the Lakeland City Commission's pre-March 2010 speaker selection practice as violative of the Establishment Clause of the First Amendment or Article I, Section 3 of the Florida Constitution because that issue is moot. Because the district court also lacked jurisdiction, we vacate and remand that portion of the district court's order and direct the district court to dismiss the challenge to the pre-March 2010 prayer practice as moot.

I

A

The relevant facts are undisputed in this appeal. The parties only disagree as to the inferences that can be drawn from them. The Lakeland City Commission has a longstanding practice of opening each of its bi-monthly legislative sessions with an invocation. Speakers who led the prayers for the twenty-five year period between September 1985 and May 2010, were all of the Christian faith, including Mayor Fields, who led the prayer on December 21, 2009. Similarly, the Lakeland City Commission's meeting minutes reflect that between 1951 and 1979, all the prayers were led by invocational speakers of the Christian faith. The minutes reflect that between August 1979 and September 1985, a Rabbi of the Jewish faith from Temple Emanuel provided the invocation on fifteen occasions.

Prior to August 2, 2010, the Lakeland City Commission had not adopted an official policy for the selection of invocational speakers. The practice between 1980 and March 2010 was for administrative employees to contact religious leaders whose names were on a list that originated in the Mayor's office, and invite them to offer the legislative prayer at the Lakeland City Commission meetings.¹ This list of invocational speakers was developed some time prior to 1980 and was handed down to each of the succeeding administrative employees tasked with securing speakers between 1980 and 2010. No other practice was utilized by these employees between 1980 and March 2010. Between 2002 and 2010, a yearly invocation schedule was generated that listed solely Christian denominations that were to be contacted for purposes of performing the invocations at the Lakeland City Commission meetings.

On March 1, 2010, and March 15, 2010, some members of AOF, including Wachs, attended the Lakeland City Commission meetings. At those meetings, they stated their “opposition to the practice of prayer rituals, particularly citing the exclusivity of the Christian Protestant prayer rituals, and the conspicuous absence of non-Protestant invocations,” and asked that the invocation be replaced by “a silent moment of reflection as a way to give each and every citizen the personal choice to pray or not (as they prefer).” AOF members also viewed video recordings of other meetings over the Internet. Video recordings of the Lakeland City Commission meetings held in 2009 and 2010 reflect that, when speakers and clergy of the Christian faith led the prayers, they were customarily offered “in the name of Jesus Christ.” Other prayers referred to “our Savior” or “the King of Kings” or “the Father, Son and Holy Spirit.”

On March 15, 2010, a letter signed by Rob Curry, Executive Director of AOF, was delivered to Mayor Fields asking that the invocation be replaced with a moment of silent reflection to solemnize Lakeland City Commission's meetings.² In March of 2010, a few days after AOF complained about the existing practice of selecting invocational speakers, Lakeland City Attorney Tim McCausland asked Traci Terry, a Lakeland City employee, “to refresh” the list of invocational speakers by “research[ing] the Yellow Pages and the Internet for established places of worship or religious centers and to include in that search most of the common permutations of churches or synagogues or mosques or temples or worship centers.” Terry searched the Yellow Pages and identified several hundred congregations that were not included in Lakeland's existing list of potential speakers. On March 17, 2010, she mailed out letters inviting those congregations to offer an invocation before a Lakeland City Commission meeting. The vast majority of the congregations on the updated list were Christian;³ however, it also included the Islamic Center of Polk County, Temple Emanuel of Lakeland, Shoresh David Messianic Synagogue, the Swaminarayan Hindu Temple, several Jehovah's Witnesses Halls, and a Unitarian congregation.

In a letter to AOF dated March 18, 2010, Mayor Fields explained that “[t]he practice of opening Lakeland City Commission meetings with an invocation has a long history and will continue unless the City Commission decides it should be changed.” Mayor Fields also stated that “[e]very effort is made to ensure that those offering an inspirational message [are] representative of Lakeland's diverse religious community.”

On May 6, 2010, based on the responses to her invitations, Terry printed out a new “invocation schedule” for the period April 5, 2010 through the rest of the year.⁴ The updated invocation schedule reflects that for the remainder of the year 2010, all the prayers were to be offered by Christian clergy, with the exception of a Jewish Cantor who delivered the invocation on May 3, 2010.

Mayor Fields delivered the invocation on June 7, 2010. He invited the Commission members and the members of the public to stand and bow their heads as he delivered the invocation. On June 21, 2010, Pastor Don Steiner, a member of Wings of Eagles, International, delivered a prayer that lasted five minutes. He stated in his invocation that “it is the responsibility of the citizens of Lakeland and its leadership to seek the face of God Almighty, ... looking to Jesus to fulfill the destiny of this great central Florida city by moving in our churches, parishes and the individual lives of its citizens.” On July 6, 2010, Jackie Davis, of His Ministry Central, Inc., delivered an invocation that included the following statement: “Father, we pray for wisdom and revelation to be given to these men and women you have selected to govern the affairs of Lakeland. Not only do you know Lakeland, but you have a plan for Lakeland, even as you have plans for our lives .... In Jesus name, we ask this. Amen.”

B

AOF filed this action on July 12, 2010. It alleged that the “policy, practice and custom relative to prayers at City of Lakeland government meetings” violate the Establishment Clause of the First Amendment and Article I, Section 3 of the Florida Constitution “through ... sponsorship of Protestant Christian prayers at Lakeland City government meetings because such sponsorship of the...