Society of Separationists, Inc. v. Whitehead, 920233

CourtSupreme Court of Utah
Citation870 P.2d 916
Docket NumberNo. 920233,920233
PartiesSOCIETY OF SEPARATIONISTS, INC., a Maryland nonprofit corporation, Richard Andrews, and J. Walker, Plaintiffs and Appellees, v. Ron WHITEHEAD, Tom Godfrey, Nancy Pace, Alan Hardman, Roselyn Kirk, and Don Hale, Salt Lake City Council members, Defendants and Appellants.
Decision Date10 December 1993

Page 916

870 P.2d 916
SOCIETY OF SEPARATIONISTS, INC., a Maryland nonprofit
corporation, Richard Andrews, and J. Walker,
Plaintiffs and Appellees,
v.
Ron WHITEHEAD, Tom Godfrey, Nancy Pace, Alan Hardman,
Roselyn Kirk, and Don Hale, Salt Lake City Council
members, Defendants and Appellants.
No. 920233.
Supreme Court of Utah.
Dec. 10, 1993.

Page 917

Brian M. Barnard, John Pace, Salt Lake City, for plaintiffs.

Roger F. Cutler, Bruce R. Baird, Salt Lake City, for defendants.

Paul D. Lyman, Richfield, for amicus Utah League of Cities & Towns and amicus Richfield City.

Kathryn D. Kendell, Salt Lake City, for amicus American Civ. Liberties Union.

ZIMMERMAN, Justice:

Defendants Ron Whitehead, Tom Godfrey, Nancy Pace, Alan Hardman, Roselyn Kirk, and Don Hale, members of the Salt Lake City Council as of September 1991 (collectively referred to as "City Council" or "Council"), appeal from a district court order denying their motion for summary judgment and granting summary judgment to plaintiffs Richard Andrews, J. Walker, and the Society of Separationists (collectively referred to as "Separationists"). The district court ruled that the City Council had violated the portion of article I, section 4 of the Utah Constitution which provides, "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment." Specifically, the district court held that the Council had impermissibly expended public money and had used public property to support religious exercise when it permitted prayer to be given during that portion of City Council meetings set aside for opening remarks. The district court permanently enjoined the Council from making further expenditures

Page 918

for such purposes and from allowing prayer before its meetings.

We conclude that the City Council's practice does not offend article I, section 4 of the Utah Constitution. Therefore, we reverse the district court's ruling and direct entry of judgment for the City Council.

The material facts are not in dispute. On January 8, 1980, members of the newly constituted Salt Lake City Council unanimously agreed on a policy of opening each meeting with the Pledge of Allegiance and prayer. 1 In September 1987, an assistant city attorney advised the council by letter that opening ceremonies which included prayer were probably permitted by the United States Constitution as interpreted by the United States Supreme Court in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The letter also indicated, however, that in light of a subsequent opinion by the United States Court of Appeals for the Fifth Circuit, any prayers offered should be nondenominational. See Stein v. Plainwell Community Sch., 822 F.2d 1406, 1410 (5th Cir.1987). In other words, the prayers should not attempt to proselytize or prefer one religion over another.

The city attorney suggested that two procedures be implemented to achieve the goal of nondenominational prayer. First, the invitations should be extended to a variety of community members, including not only ministers and religious officials, but representatives of civic organizations as well. Second, those selected should be advised to offer invocations that were nondenominational and nonproselytizing if at all possible.

As a result of the city attorney's opinion, opening prayers were suspended for several months while the issue was debated. On May 17, 1988, the practice was reinstated, but only pursuant to a policy consistent with the city attorney's opinion. During 1990 and 1991, this policy resulted in opening remarks by civic community leaders and representatives of the Greek Orthodox Church, the Baha'i Faith, the Japanese Church of Christ, the Church of Scientology, and the Eckankar Faith, among others.

In September 1991, the Society of Separationists, a nonprofit Maryland corporation dedicated to preserving and maintaining separation of church and state, requested that the City Council stop the practice of permitting opening prayers. The Council discussed the matter at its September 19th meeting and decided to continue the practice. In a letter dated September 25, 1991, the city attorney advised the Separationists that the opening remarks would continue and include, but would not be limited to, prayer. A draft policy was submitted to the group for review and comment.

On September 26, 1991, the Separationists filed this action in Third District Court, alleging that the City Council had expended public funds for a religious exercise in violation of article I, section 4 of the Utah Constitution. The Separationists sought a permanent injunction to forbid the Council and its members from allowing or having prayers at meetings or from expending any public funds, resources or property in support of such prayers. 2 Subsequently, both parties filed motions for summary judgment.

On March 2, 1992, the district court denied the City Council's motion and granted that of the Separationists. The court concluded that

Page 919

the Council had violated article I, section 4 of the Utah Constitution, which provides:

The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment. No property qualification shall be required of any person to vote, or hold office, except as provided in this Constitution.

Utah Const. art. I, § 4 (emphasis added).

Using a "plain language" analysis, the district court found that prayer before meetings was a "religious exercise" and that city "money" and "property" were being used to present those exercises. The court stated:

The inclusion of prayers in City Council meetings results in the expenditure of public funds, assets and resources of Salt Lake City Corporation. City facilities (meeting rooms, etc.), City equipment (microphones, podiums, stages, etc.), City resources (electricity, printing of programs, etc.), and City employees' time (in supervising, attending, etc.), are used and expended in programming, witnessing and/or reciting said prayers. Said funds, assets and resources of Salt Lake City Corporation are utilized to aid in the recitation of said prayers with the knowledge, approval, concurrence and ratification of the defendants.

On the basis of these undisputed facts, the district court declared that the policy violated article I, section 4, and it enjoined the City Council from continuing the practice. The City Council now appeals.

Page 920

We first state the standard of review. When no material facts are in dispute, a challenge to summary judgment presents only conclusions of law for review. See Utah R.Civ.P. 56(c); Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1111 (Utah 1991). We give the district court's legal conclusions no deference. Schurtz, 814 P.2d at 1112.

The City Council argues that we should uphold its practice unless the Separationists show that the practice is unconstitutional "beyond a reasonable doubt." 3 We agree with the Council that the burden of showing the unconstitutionality of the practice is on the Separationists. See State v. Rio Vista Oil, Ltd., 786 P.2d 1343, 1349 (Utah 1990). However, we do not agree that the showing must be made "beyond a reasonable doubt" as that phrase has been interpreted in the criminal law context, despite language to that effect in Salt Lake City v. Savage, 541 P.2d 1035, 1037 (Utah 1975), cert. denied, 425 U.S. 915, 96 S.Ct. 1514, 47 L.Ed.2d 766 (1976). We think that the City Council has read the Savage standard out of context and without reference to the cases upon which it was grounded 4 or our decisions since then. 5 We therefore restate the burden to be met by one who challenges an enactment on constitutional grounds: The act is presumed valid, and we resolve any reasonable doubts in favor of constitutionality. In re Criminal Investigation, 754 P.2d 633, 640 (Utah 1988); Snow v. Keddington, 113 Utah 325, 336, 195 P.2d 234, 240 (1948).

With this standard in mind, we examine the City Council's claim that the district court's legal conclusion of unconstitutionality was in error. The parties do not agree on the proper approach to be taken in determining the meaning of article I, section 4. The Council argues that the district court erred when it looked only to the article's language, asserting that an examination of the history and textual context of the provision is appropriate and shows that the framers did not intend to prohibit prayer before public meetings.

The Separationists claim that any resort to history is inappropriate and contend that it is entirely proper to examine the constitutional language alone. They focus on the two sentences in article I, section 4 that provide:

There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.

The Separationists make two claims based on this language: (i) that the City Council's policy constitutes a union of church and state; and (ii) that the city's use of public funds and property in effecting the Council's policy violates the prohibition against the use of such for the religious exercise of prayer.

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