APPELLANTS’ OPENING BRIEFpolklawblog.com/wp-content/uploads/2012/05/atheists-initial-brief.pdf ·...

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No. 07-13611-JJ ______________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ______________________________________________________________

ATHEISTS OF FLORIDA, INC, and

ELLENBETH WACHS,

Plaintiffs-Appellants,

v.

CITY OF LAKELAND, FL, and

MAYOR GOW FIELDS,

Defendants-Appellees.

On Appeal from the United States District Court

for the Middle District of Florida, No. 8:10-CV-1538-T-17-MAP

Honorable Judge Elizabeth A. Kovachevich, U.S. District Judge

APPELLANTS’ OPENING BRIEF

Eric O. Husby, Esq.

2001 W. Cleveland St.

Tampa, FL 33606

Tel.: (813) 251-3337

Fax: (813) 283-4949

Counsel for Plaintiffs-Appellants

ORAL ARGUMENT REQUESTED

Case: 12-11613 Date Filed: 05/07/2012 Page: 1 of 52

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AoF, Inc. v. Lakeland, Case No. 12-11613-BB

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1, the

Plaintiffs submit this Certificate of Interested Persons and Corporate Disclosure

Statement, which lists the trial judge, all attorneys, persons, associations of

persons, firms, partnerships, or corporations that have an interest in the outcome of

this case or appeal, including subsidiaries, conglomerates, affiliates, and parent

corporations, including any publicly held company that owns ten percent or more

of the party's stock, and other identifiable legal entities related to a party.

Atheists of Florida, Inc., Plaintiff

Bondi, Pam, Attorney General, State of Florida

Gray Robinson, LLP, Defendant’s Counsel

Hatcher-Bolin, Kristie, Defendant’s Counsel

Husby, Eric O. Attorney for Plaintiff

Kovachevich, Judge Elizabeth A. – US District Judge, Middle District,

Florida

Miller, Mark N. Defendant’s Counsel

Wachs, EllenBeth, Plaintiff.


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STATEMENT REGARDING ORAL ARGUMENT

Plaintiffs-Appellants believe that oral argument would assist the Court in

addressing the important questions of constitutional law raised in this case.


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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES…………………………………ii.

AND CORPORATE DISCLOSURE STATEMENT…………………………..iii.

STATEMENT REGARDING ORAL ARGUMENT…………………………...iv.

TABLE OF CONTENTS…………………………………………………………v.

TABLE OF CITATIONS…………………………………………………………vi.

STATEMENT OF JURISDICTION………………………………………………1.

STATEMENT OF ISSUE…………………………………………………………1.

STATEMENT OF THE CASE…………………………………………………....3.

Procedural History…………………………………………………………………3.

Statement of Facts…………………………………………………………………5.

A. The Pre-August 2, 2010 Selection Process…………………………..7.

B. The Post-August 2, 2010, Selection Process………………………..10.

C. Virtually All Prayers Given at Defendants’ Government Meetings

Were and Are Sectarian, Christian, and Were Used to

Proselytize and/or to Advance Religion…………………………….15.

Standard of Review………………………………………………………………21.

SUMMARY OF ARGUMENT…………………………………………………..22.

ARGUMENT/CITATION OF AUTHORITIES…………………………………24.

A. The City of Lakeland’s Sectarian Prayer Polices Both Before and After the

Adoption of Resolution 10-041/4848, are Unconstitutional Under the

Establishment Clauses of the U.S. Constitution…………………………..24.


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B. The Defendants’ Pre-August 2, 2010, Practices and Customs Are Sufficient

to Support Liability Under 42 U.S.C. § 1983…………………………….38.

C. The Defendants’ Prayer Practices Are Unconstitutional Under

the Florida Constitution…………………………………………………..40.

CONCLUSION………………………………………………………………….42.

CERTIFICATE OF COMPLIANCE…………………………………………….43.

CERTIFICATE OF SERVICE…………………………………………………..44.


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TABLE OF CITATIONS

Statutes & Constitutional Provisions:

42 U.S.C. Sec.1983……………………………………………………….1, 38, 42.

28 U.S.C. Sec. 1331……………………………………………………………….1.

28 U.S.C. Sec. 1343……………………………………………………………….1.

28 U.S.C. Sec. 1291……………………………………………………………….1.

U.S. Constitution, Amd. 1………………………………………………………2,3.

Florida Constitution, Article I., Sec. 3……………………………………….2,3, 40.

42 U.S.C. Sec. 1988…………………………………………………………….42.

Case Law:

Atheists of Florida, Inc. v. City of Lakeland, 2012 US Dist. LEXIS 21763

(U.S. Dist Ct. M.D. Fla, Feb. 22, 2012)…………………………………………1.

Marsh v. Chambers, 463 U.S. 783 (1983)……………3, 22, 26, 27, 28, 29, 30, 31.

Johnson v. Booker T. Wash. Broad. Serv., Inc., 234 F.3d 501 (11th Cir. 2000)…21.

CCAC v. Sch. Bd., 193 F.3d 1285 (11th Cir. 1999)………………………………21.

Pelphrey v. Cobb County, Ga,

547 F.3d 1263 (11th Cir. 2008)………………………………..… 22, 23, 26, 30, 32.

Joyner v. Forsyth County, 2001 U.S. Appl., LEXIS 15670 (4th Cir.

2011)…………………………………………………………………...…22, 23, 32.

Reynolds v. United States, 98 U.S. 145 (1878)………………………………….24.


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Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947). ………………………..24, 25, 31.

Larson v. Valente, 456 U.S. 228 (1982)…………………………………….…..25.

Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003)……………………………..25.

Lynch v. Donnelly, 465 U.S. 668 (1984)………………………..……………….25.

McCreary County v ACLU, 545 U.S. 844 (2005)……………………………...25.

Epperson v. Arkansas, 293 U.S. 97 (1968)……………………………………..25.

Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004)………………………….25.

Wallace v. Jaffree, 472 U.S. 38 (1985)…………………………………………26,

Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003)………………………………..26.

Liberties Union Legal Found. V. Constangy, 947 F.2d 1145 (4th Cir. 1991)……26.

Hall v. Bradshaw, 630 F.2d 1018 (4th Cir. 1980)………………………………..26.

County of Alleghany v. ACLU, 492 U.S. 573 (1983)……………….27, 29, 30, 31.

Ogden v. Perry, 545 U.S. 677 (2005)…………………………………………..28.

Hinrichs v. Bosna, 440 F.3d 393 (7th Cir. 2006)………………………………..29.

Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004)……………….29, 33.

Simpson v. Chesterfield County Bd., 404 F.3d 276 (4th Cir. 2005)…….……29, 33.

Bacus v. Palo Verde Unified Schools, 52 Fed. Appx. 355 (9th Cir. 2002)……....29.

Snyder v. Murry City Corp., 159 F.3d 1227 (10th Cir. 1998)…………………….30.

Rubin v. City of Burbank, 101 Cal. App. 4th 1194 (2002)…..…………………..30.

Society of Separationists v. Whitehead, 870 P.2d 916 (Utah 1993)………..…...30.


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Monell v. New York City Department of Social Serv., 436 U.S. 658 (1978)……38.

Bush v. Holmes, 886 So. 2d 340 (Fla. 1st DCA 2004)……………………….…..38.

Council for Secular Humanism v. McNeil, 2010 Fla. App.

LEXIS 5546 (2010)……………………………………………………………...38.


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STATEMENT OF JURISDICTION

This action arises under 42 U.S.C. § 1983 and the First and Fourteenth

Amendments to the U.S. Constitution. The district court had jurisdiction pursuant

to 28 U.S.C. §§ 1331 and 1343. This Court has jurisdiction under 28 U.S.C. §

1291 to review the final judgment of the district court, issued on February 22,

2012, Order on Motions for Summary Judgment (Doc. 54), which disposed of all

claims, Atheists of Florida, Inc. v City of Lakeland, 2012 U.S. Dist. LEXIS 21763

(U.S. Dist. Ct. M.D. Fla., Feb. 22, 2012), and the district court’s March 15, 2011,

Order on Motion to Dismiss (Doc. 25).

STATEMENT OF ISSUE

From the inception of the challenged prayer practice in the distant past

(testimony in this case has shown that the challenged prayer practices go back at

least until the early 1980s), through March of 2010, the Defendants’ prayers were

delivered exclusively by Christian clergy (with only vague recollections of

possibly one or two exceptions over those nearly three decades). During that

period, the available prayers were delivered with explicitly Christian language, and

not a single non-Christian faith tradition was represented or acknowledged, until

after the Plaintiffs’ complained about the process. Then, under the threat of this

lawsuit — which was filed in July of 2010 —the Defendants allowed one non-

Christian (a Jewish “cantor,” not a rabbi) to deliver the prayer on one occasion in

April, 2010. Later, after suit was filed, the Defendants adopted a new written


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prayer policy which the Defendants did not follow, and which the person who was

tasked with implementation only “skimmed” and put the new policy in her desk.

The Defendants then promptly violated their own newly adopted policy in at least

half-a-dozen ways (discussed below).

Lakeland’s practice of presenting sectarian invocations as part of official

government meetings violates the Establishment Clause of the First Amendment of

the U.S. Constitution and/or Article I, Sec. 3, of the Florida Constitution, and

Plaintiffs are entitled to summary judgment on its claims for a declaratory

judgment, nominal damages, and injunctive relief.

Defendants’ Motions for Summary Judgment should have been denied by

the district court because there existed at all times pertinent hereto, policies,

practices and customs relative to the Defendants’ prayers and invocations at

Lakeland City Commission meetings which were unconstitutional under the First

Amendment of the U.S. Constitution, and Article I, Sec. 3, of the Florida

Constitution.


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STATEMENT OF THE CASE

This case concerns the constitutionality of government-sponsored sectarian

prayer at sessions of the Lakeland City Commission in the City of Lakeland,

Florida. The Lakeland City Commission is the principle governing body of the

City of Lakeland, Florida. The city commission conducts its government business

through public meetings, which, as a matter of well-established policy, custom and

practice, has consistently and systematically opened its meetings with prayers

given by local Christian clergy members selected by City of Lakeland employees.

The vast majority of the City of Lakeland sponsored prayers at Lakeland City

Commission meetings contained sectarian Christian references and invoked the

name of Jesus Christ or other Christian references. Such sectarian legislative

prayers fall outside of the narrow confines of Marsh v. Chambers, 463 U.S. 783,

103 S.Ct. 3330 (1983), and therefore violate the Establishment Clause of the First

Amendment of the U.S. Constitution and Article I, Sec. 3, of the Florida

Constitution. The district court’s decision to the contrary should be reversed.

Procedural History

On July 12, 2010, the Plaintiffs filed a Verified Complaint for declaratory

and injunctive relief and nominal damages against the City of Lakeland, Florida,

and Mayor Gow Fields. See Verified Complaint, Doc. 1. On August 18, 2010,

Plaintiffs filed an Amended Verified Complaint. See Amended Verified

Complaint, Doc. 10. On September 8, 2010, Defendants filed a Motion to Dismiss


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First Amended Verified Complaint (Doc. 15). On October 7, 2010, Plaintiffs filed

a Response to Defendants’ Motion to Dismiss First Amended Complaint (Docs. 20

and 21).

On March 10, 2011, the district court denied in part and granted in part the

Defendants’ Motion to Dismiss (Doc. 25). The court dismissed counts III (Equal

Protection Clause) and IV (Speech Clause). However, the court denied the

Defendants’ Motion to Dismiss as to Plaintiffs’ First Amendment Establishment

Clause claim, and Plaintiffs’ claim under Article I, Sec. 3, of the Florida

Constitution.

The following depositions were filed below: Deposition of Ellenbeth Wachs

(Doc. 32), Deposition of John A. Kieffer (Doc. 33), Deposition of Gow Fields

(Doc. 35), Deposition of Kelly Koos (Doc. 36), Deposition of Jennifer Stovall

(Doc. 37), Deposition of Timothy McCausland (Doc. 38), Deposition of Carol

Hoffman (Doc. 39), Deposition of Tracy Terri (Doc. 4), Deposition of Douglas

Thomas (Doc. 41), Deposition of Cheryl Gill (Doc. 42).

On October 14, 2012, Defendants filed motions for summary judgment (Docs.

30 and 34). Also on October 14, 2012, Plaintiffs filed a motion for summary

judgment (Doc. 46). On October 28, 2012, all parties filed responses to their

respective motions for summary judgment (Docs. 49, 51, 52). On February 22,

2012, the court granted Defendants’ motions for summary judgment and denied

Plaintiffs’ motions for summary judgment (Doc. 54).


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Appeal was noticed herein on March 21, 2012 (Doc. 59).

Statement of Facts

The Defendants hold sectarian, religious prayers before every city government

meeting.1 Amended Complaint ¶ 13, 26-27, 33, 127-129 (Doc. 10). Plaintiffs

objected to the Defendants’ practice on, among other occasions, March 1, and

March 15, 2010 (Id.); Curry dep. 106 (Doc. 31). For as long as records are

available, the Defendants’ prayer practices are dominated by Christian clergy and

overtly Christian prayers, making emphatic, sectarian and repeated references to

Christ, Jesus Christ, Lord and the Christian God. The Defendants’ prayer practices

advance Christianity over other religions, and nonreligion, and the prayers are

exploited to proselytize.

This case involves two distinct versions of Defendants’ policies, practices and

customs. The Defendants followed one policy regarding religious prayers at City

Commission meetings up to approximately August 2, 2010 (“Old

Policy/Practice”). After the Plaintiffs complained to the City of Lakeland in

March, 2010, and filed their verified complaint in this action on July 12, 2010, the

Defendants purported to modify and/or correct their unconstitutional practices.

Defendants’ attempted correction is set forth in a resolution dated August 2, 2010.

See Proposed Resolution No. 10-041/Resolution No. 4848 (See Amended

1 Defendants’ meetings can be viewed as a matter of public record at the Defendants’ website located at the

following URL: http://www.lakelandgov.net/news/newcommmeetings.html.


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Complaint, ¶¶ 88-106, Doc. 10) (hereinafter “New Policy/Practice” or “Resolution

10-041/4848”).

The Defendants hold public city government meetings twice each month

(Id., ¶33). The meetings are broadcast on television and over the internet, and

videos remain on the Defendants’ website for later public viewing. Id. ¶ 13, 26-27,

127-29. Defendant Fields is the Chairman of the Lakeland City Commission. Id. ¶

13. During every city commission meeting, the Defendants present religious

prayers. Id. ¶ 1, 3, 12, 38. Plaintiffs attend Defendants’ city government meetings,

and watch the video recordings on the Defendants’ website. Plaintiffs, like every

other attendee, are effectively forced to participate in the prayer ritual. Id. ¶ 20, 23,

26-27, 126-27, 214. Defendants have instructed meeting attendees to stand during

the prayers. Id. ¶ 65, 148, 200.

For as many years as records have been kept and can be accessed through the

City of Lakeland, up through the filing of the present civil action, with only one

exception, all prayers given at Defendants’ City Commission meetings were

sectarian, religious and almost exclusively Christian, often with specific references

to Christ, Jesus Christ, the Lord, the Christian God, and other detailed Christian

references. Id. ¶ 42, 81. All of the prayers are part of the official agenda of the

Lakeland City Commission, and serve the primary purpose of advancing religion.

Id. ¶ 35.


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A. The Pre-August 2, 2010 Selection Process

At all times pertinent to this matter, Defendants have sought out, retained,

invited, sponsored and endorsed sectarian religious figures to prepare and present

sectarian prayers. Id. ¶ 35-40. Until the adoption of the New Policy/Practice, the

Old Policy/Practice entailed an unwritten selection process involving maintenance

of a list of “churches.” Id. ¶ 41, 103 (See January, 2009, list of churches, Doc. 46,

Exh. 5). Under the January, 2009, list, the only possible prayer givers were the

following: Assembly of God, Baptist, Catholic, Christian, Chaplains (all

Christian), Church of God, Episcopal, Lutheran, Methodist, Nazarene, Non-

Denominational, Pentecostal, Presbyterian, Salvation Army, and Wesleyan (Doc.

46, Exh. 5). No other religions were included on the list. For prior years, the list of

“churches” from which the Defendants drew speakers from 2003 through 2008,

include the same denominations (Doc. 46, Exh. 5). No non-Christian

denominations were included. All non-Christian and non-religious organizations

were categorically excluded because they were simply not on the lists of potential

prayer givers.

From 2003 through 2010, Exhibits 5 and 6 attached to Doc. 46 were used to

locate and contact the Christian clergy who were to give prayers at each meeting.

A rotating list of Christian denominations (“Invocation Schedule”) was created

from Exhibits 5 and 6. See 2002 through 2009 Invocation Schedules (Doc. 46,

Exh. 7). For example, the 2005 Invocation Schedule included the following


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denominations in order: Methodist, Pentecostal, Non-Denominational Christian,

Presbyterian, Baptist, Assembly of God, Presbyterian, Catholic, Christian,

Lutheran, Wesleyan, Baptist, Chaplain (from First Alliance Church – Christian),

Methodist, Church of God, Baptist, Presbyterian, Chaplain, Wesleyan, Non-

Denominational, Pentecostal, Salvation Army, Baptist, Lutheran. Id. Similar

schedules of exclusively Christian denominations applied every year from 2002

until May, 2010, when a Jewish cantor (not a rabbi) from Temple Emanuel was

included.2 Initially, in 2010, the Defendants’ Invocation Schedule did not include

any reference to a Jewish religious figure, but the Invocation Schedule was revised

in or around April, 2010, to include the Cantor, after the Plaintiffs complained

about the exclusively Christian prayers (March, 2010). See 2010 Invocation

Schedules (Doc. 46, Exh. 8).

The lists used from 2002 to April, 2010 (Doc. 46, Exh. 5, 6, 7 and 8)

necessarily and categorically excluded non-Christian religions. They were not on

the lists. Secular beliefs, agnostics and atheists were likewise categorically

excluded. Amd. Compl. ¶ 42, 95-97, 136 (Doc. 10). Not surprisingly, since the

Defendants only sought out Christian churches (Doc. 46 Exh. 5-7), the Defendants

2 Temple Emanuel had previously written to Mayor Gow Fields expressing that “The Jews of the south, in

particular, have never wanted to “rock the boat” and have opted to stay “under the radar” for generations, and

perhaps that is one reason for my tempered response to Mr. McMullen’s questions. (It took 30 years for the

members of Temple Emanuel to agree to place a sign with our name on it, on our front lawn). My preferred option

is to express the true feelings of the Jewish community in a less public, more constructive manner…Our true feeling

is that it would show a great deal of respect, to not only the Jewish community of Lakeland but to all non-Christian

religions, if the invocations would merely refer to God. See February 11, 2010, email from Temple Emanuel to

Defendant Fields. (Doc. 46, Exh. 9) Other religious groups also express resistance to the idea of government

prayers. See correspondence from the Unitarian Universalist church to Mayor Gow Fields, Doc 46, Exh. 10).


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prepared invocation schedules which listed solely Christian religious figures. Id. ¶

43; Exh. 7-8). Non-Christian beliefs were not represented at any point in the

selection process, or among those actually presenting invocations. Id. ¶ 42, 95-97,

136.

In 2003, Defendants’ employee Cher Gill was in charge of arranging for prayer

givers at Defendants’ meetings (Doc. 42, Gill Dep. 12). Prior to Ms. Gill, a

woman named “Joy” had handled the process, although no further records of “Joy”

were available through Defendants. Ms. Gill received a congregation list (Doc. 46,

Exh. 6) from “Joy,” along with instructions on how to handle the prayer policy,

and used it as is (Doc. 42, Gill Dep. 13-34 and Doc. 46, Exh. 11). Ms. Gill testified

that every prayer giver was Christian, except that she was “not sure” about one that

was labeled “nondenominational.” Id. When Ms. Gill left, an employee of

Defendants, Traci Terry took over the responsibility for carrying out the

Defendants’ policies, practices and customs relative to arranging for persons to

present religious prayers at City Commission meetings. In November, 2005, Ms.

Terry was provided with the list of churches (Doc. 46, Exhibits 5-6), which she

referred to as a “congregations list.” (Doc. 43,Terry Dep. 62-64). She did not

update the congregation lists in any way. Id. No written invitations were ever

sent. Id.

Ms. Terry testified that the established procedure was to review the list,

“…according to each congregation, and call and ask if they were interested in


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coming to do the invocation.” Id. at 66; Doc. 46, Exh. 5-6. The result of the

practice utilizing Exhibits 5, 6, 7 and 8 (Doc. 46), was that the same Christian

ministers from the same Christian denominations were the exclusive prayer-givers

for the City of Lakeland, and other religions and the nonreligious were excluded.

Terry Dep. at 67-68 (Doc. 43). In March, 2010, after the Plaintiffs lodged their

objections to the prayer practice at a City Commission meeting, Ms. Terry was

instructed to “compile an updated list…and mail[] out letters…that was the first

time” she was asked to update the congregation list. Terry Dep. at 65 (Doc. 43).

B. The Post-August 2, 2010, Selection Process

On August 2, 2010, the Defendants prepared, proposed and approved the New

Policy/Practice by enacting the New Policy/Practice. Verified Amd. Complaint ¶

89 (Doc. 10). Defendants’ city attorney openly described this as a “litigation

strategy.” Id. ¶ 100 (Doc. 10); McCausland Dep. 32 (Doc. 38; Doc. 46, Exh. 12).

The city attorney stated on the record at a Lakeland City Commission meeting that

the New Policy/Practice reflected Defendants’ then existing policy with the

exceptions of: (a) removing the invocation from the official meeting agenda, and

(b) providing a disclaimer to be placed on the on the meeting agenda. Verified

Amd. Compl. ¶ 90 (Doc. 10).

According to the Resolution, it was to be implemented by the Secretary to the

City Commission, who was to do certain tasks, including researching religious

institutions, creating a congregations list, mailing out invitation letters, and


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scheduling prayer givers (Doc. 46, Exh. 4). The Secretary to the City Commission

is Chris Chadwell. Terry Dep. 96, 115 (Doc. 43); Fields Dep 85 (Doc. 35). Tracy

Terry, however, testified that she was charged with implementing the policies’

selection processes, not Chris Chadwell (Doc. 43).

Although a disclaimer was placed on the meeting agenda, in practice the

prayers have remained part of the official meetings. Verified Amd. Compl. ¶ 101;

See October 4, 2010 Full Agenda (Doc. 46, Exh. 13-14). The prayers are still said

at or after 9:00a.m. Verified Amd. Compl. ¶ 108 (Doc. 10); Terry Dep. 93 (Doc

43). The post-August 2 meetings are indistinguishable from the pre-August 2

meetings. Verified Amd. Compl. ¶ 108 (Doc. 10). During the prayers, whether

post-August 2 or pre-August 2, the video recording displays the words “City

Commission Meeting” over the image of the prayer giver expressly stating that the

speaker is speaking during the city commission meeting. If the prayers were, in

fact, taken off the meeting agenda, then they would not be part of the Defendants’

official recording of the meeting at all.

Defendants’ New Policy/Practice expressly limits acceptable invocations to

religious prayers, and categorically excludes non-religious or secular speakers, and

the prayers remain overwhelmingly Christian. Verified Amd. Compl. ¶ 136 (Doc.

10). By its own terms, Resolution 10-041/848 categorically excludes, among

others, any person who is not considered by the Defendants to be an “eligible”

member of the “clergy.” Id. ¶ 89-108 (Doc. 10). Traci Terry, who was charged


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with the obligation of handling the selection process from November, 2005 to the

present, testified that she had no idea what an “eligible clergy” was. Terry Dep.

93-94 (Doc. 43).

Resolution 10-041/4848 states that the Defendants will maintain a database of

only those “religious congregations” that have an “established presence” in

“Lakeland and Polk County.” Terry Dep. 95 (Doc. 43). Ms. Terry was not

provided any training regarding what organizations would be considered “religious

congregations,” whether a “religious congregation” was different than “eligible

clergy,” or what was meant by “established presence.” Id. 95, 101. Ms. Terry

testified that her understanding of the meaning of “religious congregation”

included “somebody believing in something, or nothing,” including someone

without a belief in a higher power. Id. 100. However, Ms. Terry was instructed to

only seek out religious groups, and she was not to find organizations that did not

involve a belief in a higher power. Id. 98. Resolution 10-041/4848 does not define

“established presence.” Verified Amd. Compl. ¶97-98 (Doc. 10). Resolution 10-

041/4848 expressly or impliedly excludes any group that is not a “church,”

“congregation” or “other religious assembly.” Id. ¶ 99 and see Doc 46, Exh. 4.

Resolution 10-041/848 expressly requires the Secretary to the City Commission

to compile a “Congregation List,” review “yellow pages,” conduct research on the

internet, and consult with unspecified local chambers of commerce. Verified Amd.


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Compl ¶ 103.3 Resolution 10-041/4848 expressly or impliedly requires that

invitation letters to “clergy” be written, reviewed, printed, folded, placed in

envelopes, stamped, and mailed to “eligible clergy.” Id. ¶ 104 (Doc. 10).

Resolution 10-041/4848 requires paid city employees to spend time receiving,

reviewing, handling, calendaring, and organizing responses to invitations to

“eligible clergy,” and to arrange for those “eligible clergy” that respond to present

religious prayers. Id. ¶ 103 (Doc. 10). The Defendants’ prayer practices involve

costs and expenses that would not otherwise be paid or expended but for the

religious prayers. Id. ¶ 104-106 (Doc. 10).

In August, 2010, Ms. Terry received a copy of Resolution 10-041/4848 which

purports to set forth a portion of the Defendants’ prayer and invocation policies.

Terry Dep. 33-34; Doc. 46, Exh. 15). Ms. Terry was not trained on what the new

policy required, and she did not receive any communication regarding what she

was supposed to do with the Resolution, so she “skimmed” it and filed in her desk.

Terry Dep. 34, 94-95 (Doc. 43). Ms. Terry understood, however, that she was the

person responsible to handle the selection process. Terry Dep. 34 (Doc. 43).

As part of the Defendants’ post-August, 2010 policy, Ms. Terry is responsible

for preparing a “congregation list.” Tracy Dep. 46 (Doc. 43). In doing so, Ms.

Terry searches the Verizon Yellow Pages, the Lakeland Chamber of Commerce,

“Yellowwiz,” and Yellowbook.com for “churches” and “places of worship.” Id.

3 The Secretary to the City Commission, however, does not in fact conduct any of the activities required of the

Secretary by the Resolution. Terry Dep. 96 (Doc. 43).


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37-39. Ms. Terry claims to have “googled” churches and places of worship, and

she “want[ed] to say [she] did temples and mosques…” Id. (emphasis added).

From searching through these sources, Ms. Terry produced a list of

“congregations” from which speakers are to be drawn to give religious prayers at

Commission meetings. Id. 46. Ms. Terry testified that she mailed letters to the

congregations inviting them to give religious prayers at Commission meetings. Id.

46-47. If congregations responded affirmatively to the letters, Ms. Terry would put

the individuals on the invocation rotation schedule.

After adopting Resolution 10-041/4848, the Defendants promptly violated it in

several ways. By way of example:

1. Section 2 states that an invocation or prayer will be offered “before” its

meetings. The prayers, however, are offered “during” the meetings. For

example, on October 4, 2010, the invocation is listed on the online “Full

Agenda” (posted immediately to the right of the meeting video) and listed

after the “Call to Order.” (Doc. 46, Exhibit 14). The meetings begin at

9:00a.m., and the video stream posted on-line includes the prayer as part of

the meeting. When the prayer giver is speaking, the words “Commission

Meeting” are displayed, indicating that the meeting is in session. See Terry

Dep (Doc. 43).

2. Section 3 states that the invocation shall not be listed or recognized as an

agenda item for the meeting or as part of public business. The prayer,

however, is included in the video stream on the website as part of the public

business. See Doc. 46, Exh. 14.

3. Section 4 states that no person shall be required to participate in any

invocation that is offered. However, the invocation and prayer appears to

start at the normal start time, and is not in any way separated from any other

part of the meeting. As a practical matter, anyone wishing to attend the

meeting must participate in the prayer ritual.


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4. Section 10 states that Fields (chairman of the commission) shall introduce

the prayer giver and the person who will recite the Pledge of Allegiance, and

invite only those who wish to stand to do so. However, the Defendants have

not made the required statements.

5. The Resolution required that “within 30 days of the effective date of this

policy, and on or about December 1st of each calendar year thereafter, the

Secretary shall mail an … invitation to the religious leader of each

congregation listed in the congregation list, as well as to the individual

chaplains included in the congregation list.” Terry Dep. 109. No such

invitations were sent out. Terry Dep. 109-110 (Doc. 43). Ms. Terry is the

only one who sends invitations. Id. 110. As of May 13, 2011, nearly a year

after the policy took effect, no invitations had been sent out. Id. 112-113.

6. The Resolution required that a congregations list be updated in the month of

November of each year, but no such update occurred in 2010. Id. 108.

7. Only those religious organizations that qualify for 501(c)(3) exempt status

are eligible to give prayers at City Commission meetings. Id. 105.

However, no action was ever taken to verify that any organization was in

fact 501(c)(3) tax exempt. Id. 107.

C. Virtually All Prayers Given at Defendants’ Government Meetings

Were and Are Sectarian, Christian, and Were Used to Proselytize

and/or to Advance Religion.

An undisputed chronology of the religious invocations beginning May 18, 2009

is set forth in the Amended Complaint, ¶47-108 (Doc. 10), and below is an

abbreviated summary:4

1. On the first date available, May 18, 2009, a Christian pastor gave a

Christian prayer.

2. On June 1, 2009, another Christian pastor prayed “…in the name of Jesus

Christ,” stating “Our Heavenly Father, we come to you in the name of

4 May 18, 2009, was the earliest date available publicly on the Defendants’ website. Amended Verified Complaint ¶

42-108 (Doc. 10). http://www.lakelandgov.net/news/newcommmeetings.html.


16

Jesus Christ.” He asked for divine blessings, thanked God, and entreated

“may this be a day when Your [God’s] name is honored and glorified.”

3. On June 15, 2009, a Protestant Christian Pastor gave the official prayer,

once again calling specifically on the Christian God.

4. On July 6, 2009, the Christian prayer “invoked Your [God’s] presence.”

He thanked God for various blessings, noting that Lakeland had “leaders

willing to follow You [God].” He instructed that “we” give to God the

“business of the day,” and that people “commune with You [God].”

5. On July 20, 2009, another Christian prayer “…in Jesus’ name,” referred

to Defendants’ business as “[God’s] business,” asked for God’s

leadership, wisdom, and knowledge “of what “[God] want[s] them to

do,” and stated that the Defendants’ goal should not only be to do what is

best for the people, but also to do what is best for the Christian God.

6. On August 3, 2009, the Christian prayer thanked the “Eternal [Christian]

God” and sought divine blessings and guidance.

7. On August 17, 2009, another Christian prayer, “…in Jesus’ name,”

announced that, among other things, “In Lakeland, Florida we still

believe in prayer,” and “[w]e know that it is the power of prayer that

accomplishes things” that “we” cannot do.

8. On September 8, 2009, another Christian prayer, “…in Jesus’ name,”

acknowledged that the Christian God is “…our sovereign God.”

9. On September 21, 2009, another Christian prayer, asking for protection

for the City and the City Commission, acknowledging that “Lord, we

know that you are in charge,” and seeking that God “intervene” in “our”

lives and in Defendants’ affairs.

10. On October 5, 2009, the prayer was made “…in the name of the King of

Kings.” God was asked to “oversee these proceedings,” and make his

“presence be certain.”

11. On October 19, 2009, the Christian minister referred to City Hall as a

“hallowed chamber” and credited God with creating the world and

imparting wisdom and blessings. The minister called upon the


17

“Heavenly Father” to “influence and guide” all discussions, debates and

decisions. He warned Defendants that God is “honored” by their

decisions.

12. On November 2, 2009, another Christian prayer was presented “…in the

name of Jesus,” called on the “Holy Father,” the “Lord God,” “Heavenly

Father,” and the “Lord God Almighty.” People were to “think about [the

Christian God’s] kingdom,” and ask God to “touch the Commission” to

“increase stewardship.”

13. On November 16, 2009, another Christian minister asked for God’s

leadership, thanked God and Jesus, and sought blessings and “guidance

in each decision that is made.”

14. On December 7, 2009, another Christian prayer in Jesus’ and the

Heavenly Father’s name, quoted from the Christian Bible, called for the

will of God to be done, and asked that God guide the Defendants’ affairs

because God is the “Superintendent.”

15. On December 21, 2009, Defendant Fields performed the prayer “…in His

Holy Son Jesus’ name,” credited and thanked the “Heavenly Father,” and

sought divine blessings for the Defendants, attendees of the meeting, and

the City of Lakeland.

16. On January 4, 2010, another Christian prayer, “…in Jesus’ name,”

thanked God for the New Year, and Lakeland’s leaders. The prayer

sought the “Unchanging God’s” blessings, and asked for “the wisdom of

Solomon, courage of Daniel, heart of David, perseverance of Job,

encouragement of Barnabas, and the fortitude of Paul.”

17. On January 19, 2010, the Christian prayer was given “in the name of the

Father, Son and Holy Spirit.” The prayer called upon the Mayor to be

“lifted up to You [God]” so that it may receive divine blessing, and called

for the surrender of the Commission and the people’s needs to God’s

“embrace,” and to make God’s will the “utmost priority.”

18. On February 1, 2010, the Christian prayer called upon the Christian God

to help the city government do, among other things, “His will.”


18

19. On February 15, 2010, the Christian prayer asked the “Eternal Father” to

impart “supernatural wisdom,” and credited God with Lakeland’s

greatness.

20. On March 1, 2010, Fields presented the Defendants’ “favorite” Christian

minister to perform the prayer. The reverend announced that all present

were to bow their heads in prayer and called upon “Heavenly Father.” He

invoked divine protection, divine gifts, divine powers, and otherwise

called upon Jesus to assist the government, asking the attendees and the

Defendants to do the same.

21. On March 15, 2010, the Christian minister quoted from the Bible and

called exclusively upon "Jesus’ name,” invoking the name of Jesus at

least three times.

22. On April 5, 2010, much of the prayer cannot be heard due to what

appears to be an audio problem, the prayer is clearly closed, “In the name

of Jesus Christ.”

23. On April 19, 2010, the prayer invoked “Lord Eternal God” without

whom “our lives would be empty.” As part of a lengthy Christian prayer,

the minister asked for divine guidance and direction from the “Heavenly

Father,” through His “Son’s name.”

24. On May 3, 2010, the first known non-Christian clergyman performed the

religious prayer. Cantor Geigner is the lone known non-Christian

speaker from 2002 until May, 2010. He was not originally on the 2010

Invocation Schedule, and appeared a few weeks after Plaintiffs’ March,

2010, objections to the Lakeland City Commission to attempt to end the

unconstitutional prayers.

25. On May 17, 2010, another Christian minister called upon the attendees to

pray to Jesus.

26. On June 7, 2010, Fields presented the prayer, calling upon “Our

Heavenly Father,” and ultimately praying “In Jesus’ name.” Fields also

specifically singled out nonbelievers by pointing out that they do not

accept Jesus Christ.


19

27. On June 21, 2010, the Christian minister delivered a five (5) minute

prayer including: (a) a greeting “in the name of Jesus Christ, who is our

Savior and incoming King;” (b) an assertion that Defendant City of

Lakeland has a “spiritual destiny that has yet to be fulfilled,” (c) a

statement that “[w]hat God began before the founding of our city…has

not yet been completed;” (d) an injunction that “it is the responsibility of

the citizens of Lakeland and its leadership to seek the face of God

Almighty and to live a life of Godliness exemplified by integrity and a

high moral standard, 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;” Pastor Steiner went on to deliver the

message, on behalf of the Defendants, that the City is in the process of

“fulfilling a divine destiny” that has not yet been fulfilled, and that

citizens are obligated to follow the Christian God’s commands and

intentions. The message included a reference to Lakeland becoming a

city whose purpose is for people to find a true relationship with the

Christian God, and that the citizens will have an “awakening” to the

Christian religion.

28. On July 6, 2010, another Christian prayer, “…in Jesus’ name,” referred

to God’s plan for Defendants and acknowledged that as a city, Lakeland

“trusts in the Lord” and chooses “to put [God] first.” The minister

announced that God “governs the affairs” of Lakeland.

29. On July 19, 2010, another Christian prayer was given.

30. On August 2, 2010, the Christian prayer was directed to “Father in

Heaven,” and asked for divine guidance, teachings and blessings from the

Christian God.

31. On August 16, 2010, the prayer called upon the Christian God to make

His “Kingdom Come” and that His “will be done” in Lakeland, “in Jesus’

name.”5

32. After the filing of the Plaintiffs’ Amended Verified Complaint, the

Christian nature of the prayers continued unabated. On September 7,

2010, the Defendants conducted another Christian prayer ritual and called

5 The last commission meeting prior to Plaintiffs’ filing of their Amended Complaint took place on August 16, 2010.

The court may take judicial notice of the commission meetings, which are posted by Defendants on Defendants’

website at the following URL: http://www.lakelandgov.net/news/newcommmeetings.html.


20

upon the Christian God for guidance for the “People of the Bible,” and

referred to “Jesus Christ” as “Our Lord and Savior.”

33. On September 20, 2010, the Christian prayer appealed to the “Heavenly

Father” who is the “Lord and Savior” of the City of Lakeland, and madea

plea to the Christian God that Lakeland would be “known as the City

whose builder and maker is God.”

34. On October 4, 2010, the Christian prayer ritual was directed to the

Christian “Eternal Father,” who was asked to direct His guidance to the

“Hallowed Chamber.”

The above chronology is set forth in more detail in Plaintiffs’ Verified Amd.

Compl., ¶ 47-109 (Doc. 10). Such prayers and invocations are not necessary to

have at City Commission meetings. Terry Dep. 91-92 (Doc. 43).

On March 1, and March 15, 2010, approximately four months before filing suit

on July 12, the Plaintiffs made formal verbal and written demands on the

Defendants to stop their unconstitutional practices. The Defendants flatly refused,

and have continued their practices. Plaintiffs’ written request that Defendants

change their prayer practices and Defendants’ response is attached to Documents

10 and 46 as Exhibits 1 and 2. Prior to filing suit, Defendants did not suggest that

they would consider changing their policies, practices and customs.

On March 17, 2010, the City Manager’s office prepared a letter “To Whom It

May Concern” which stated that “Periodically, the City of Lakeland updates its

invocation rotation list for the City Commission Meetings to ensure that those who

perform this important public service represent Lakeland’s diverse religious


21

community. See, Doc. 46, Exh. 6. However, no such “periodic” updates were

ever done previously. See, Doc. 46 Exh. 5.

From 2002, through the 2010 Resolution, all of the prayer rituals conducted,

save one, were by Christian denominations invoking the Christian God, and many

of them referenced Jesus, Christ, Jesus Christ, the Lord, the King of Kings, and the

like. Verified Amd. Comp. ¶ 107(Doc. 10). The post-August 2 prayer rituals

began at the normal scheduled meeting times, were recorded as part of the official

meeting posted on the Defendants’ website, and the prayer speakers were labeled

on the video image as speaking during the “Commission Meeting.” Id. The

Defendants’ “litigation strategy” is at best a cosmetic tactic to attempt to mask

their continuing and patently unconstitutional practices. Resolution 10-041/4848

has not improved Defendants’ practices. It has resulted in a greater affiliation

between the Defendants and religion. Id. ¶ 150. The prayers have been and will

continue to be exploited to proselytize or advance one and/or to disparage other

faiths or beliefs, and non-belief. Id. ¶ 111.

Standard of Review

This Court reviews de novo the district court’s grant of summary and final

judgment for Defendants’ on Plaintiffs’ Establishment Clause claim. See, e.g.,

Johnson v. Booker T. Washington Broadcasting Serv., Inc., 234 F.3d 501, 507

(11th Cir. 2000); Citizens Concerned About Our Children v. Sch. Bd., 193 F.3d

1285, 1288 (11th Cir. 1999).


22

V. SUMMARY OF ARGUMENT

In Marsh, 463 U.S. at 794-95, the Supreme Court held that prayers can be

presented at the opening of deliberative-body sessions so long as the prayer

opportunity is not “exploited to proselytize or advance any one, or to disparage

any other, faith or belief.” The Marsh Court held that the prayers challenged in

that case satisfied this standard because the chaplain had removed all references

to Jesus Christ (id. at 793 n.14), there was no showing that the chaplain had

been selected with any “impermissible motive” (id. at 793), and the audience

consisted of adults who are “presumably not readily susceptible to religious

indoctrination or peer pressure” (id. at 792) (internal citations and quotation

marks omitted).

In keeping with Marsh and its progeny, the lower courts have applied a

multifactored, fact-intensive analysis in determining whether legislative prayers

“proselytize or advance any one, or . . . disparage any other, faith or belief.”

See Pelphrey v. Cobb County, Ga., 547 F.3d 1263, 1271-72 (11th Cir. 2008)

(noting that Marsh Court considered “several factors” in a “fact-intensive

analysis” that did not turn on any “bright-line rule”) (cited and explained in

Joyner v. Forsyth County, 2011 U.S. App. LEXIS 15670 (4th Cir. N.C. July 29,

2011)). Factors that have been found to militate against the permissibility of a

prayer practice are religious exclusivity among the prayer-givers or in the

content of the prayers; the presentation of prayers that are religiously hostile or


23

divisive; the presence of impressionable schoolchildren in the audience; and

exhortations to the audience to join in the prayers.

The present case is a more extensive violation of the Establishment

Clause than the prayer policy which the Pelphrey court found unconstitution.

Moreover, under the rationale discussed in the Joyner case, and Pelphrey’s

adoption of the same test applied in the Fourth Circuit, the district court below

clearly erred in determining that the prayer polices, practices and customs in the

present case were constitutional.

Here, the sectarian references occur in the context of a roster of

religiously exclusive prayer-givers. For as far back as evidence was available

in this case and through March, 2010, all of the City of Lakeland’s prayers were

delivered by Christian clergy. The exclusive use of Christian clergy was only

changed after the Plaintiffs complained about the exclusive prayer practices in

March, 2010. The inclusion of a Jewish cantor, in anticipation of the Plaintiffs

filing this lawsuit, is not indicative of an inclusionary policy. Quite the

opposite, the policy of the Defendants remained unchanged in substance, and it

was only a surface modification, which the city attorney admitted was for the

purposes of litigation.

Prior to the filing of this lawsuit, all but one of the City of Lakeland’s

prayers included explicitly Christian references. Since the filing of this lawsuit,


24

that proportion has only changed modestly. The sectarian references have been

exclusively, or almost exclusively, Christian.

Under these circumstances, Plaintiffs are entitled to summary judgment

and nominal damages on their claim that the United States and Florida

Establishment Clause was violated when they were repeatedly subjected to

sectarian prayers prior to, and after, the filing of this lawsuit; and they are

entitled to summary judgment and injunctive relief on their claims that the City

of Lakeland continues to violate the United States and Florida Establishment

Clauses today.

VI. ARGUMENT/CITATIONS OF AUTHORITY

A. The City of Lakeland’s Sectarian Prayer Polices Both Before and After the

Adoption of Resolution 10-041/4848, are Unconstitutional Under the

Establishment Clauses of the U.S.Constitution.

The government may not “…aid one religion, aid all religions, or prefer one

religion over another. Neither can it 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.” Reynolds v. United

States, 98 U.S. 145,164 (1878); Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947).

(emphasis added). The government must not seek to benefit religion over non-

religion.

The First Amendment’s Establishment Clause applies to the State of Florida

through the Fourteenth Amendment and in pertinent part prohibits the making of


25

any “…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. at 15. In

Larson v. Valente, 456 U.S. 228, 244 (1982), the Supreme Court stated that “[t]he

clearest command of the Establishment Clause is that one religious denomination

cannot be officially preferred over another.” Establishment Clause cases “…are not

decided by bright-line rules, but on a case-by-case basis with the result turning on

the specific facts.” Glassroth v. Moore, 335 F.3d 1282, 1288 (11th Cir. 2003).

“[T]he inquiry calls for line-drawing; no fixed, per se rule can be framed.” Lynch v

Donnelly, 465 U.S. 668, 678 (1984). The Establishment Clause "'mandates

governmental neutrality between religion and religion, and between religion and

nonreligion.'" McCreary County, Ky. v. ACLU, 545 U.S. 844, 860, 125 S. Ct.

2722, 162 L. Ed. 2d 729 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104,

89 S. Ct. 266, 21 L. Ed. 2d 228 (1968)). "The Establishment Clause applies not

only to state statutes, but acts and decisions of individual government actors . . ."

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1284 (11th Cir. 2004).

1. The Lemon Test.

The primary test that the Supreme Court applies to Establishment Clause cases

is the “Lemon” test. McCreary, supra at 860 (2005). For government action to

survive this test, “the challenged practice just have a valid secular purpose, not

have the effect of advancing or inhibiting religion, and not foster excessive


26

government entanglement with religion.” Glassroth v. Moore, 335 F.3d 1282,

1295 (11th Cir. 2003). In the Eleventh Circuit, the endorsement test is part of the

second prong of the Lemon test: “The effects prong asks whether … the practice

under review in fact would convey a message of endorsement or disapproval to an

informed reasonable observer.” Glassroth, 335 F.2d at 1297.

The exclusively Christian prayer practice of the Old Policy/Practice, and the

overwhelmingly Christian and sectarian prayer practice of the New Policy/Practice

simply cannot withstand the Lemon test. The Defendants’ policies and practices

clearly advance one religion and inhibit all others, and nonreligion. The

entanglement created by the Defendants between religion and government is

patent.

2. Marsh and Pelphrey.

Government-sponsored prayers are presumptively unconstitutional because, by

their nature, they have a religious purpose and effect, and they impermissibly

entangle government with religion. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 55-

56 (1985); Mellen v. Bunting, 327 F.3d 355, 372-76 (4th Cir. 2003); N.C. Civil

Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1149-52 (4th Cir.

1991); Hall v. Bradshaw, 630 F.2d 1018, 1119-22 (4th Cir. 1980).

Marsh v. Chambers, 463 U.S. 783 (1983) carved out what has been called an

“exception” to the Lemon test. In Marsh, a state legislator and taxpayer challenged


27

the Nebraska legislature's practice of offering a brief, nonsectarian prayer,

conducted by a staff chaplain whose salary was paid from tax funds, before the

start of official business each day. The Supreme Court upheld the practice. The

opinion holds that the practice of nonsectarian, legislative prayer is "simply a

tolerable acknowledgment of beliefs widely held among the people of this

country." Id. at 792.

After approving the practice in general terms, the Court proceeded to discuss

whether particular features of Nebraska's invocations were constitutionally

problematic. It noted in a footnote that the prayers were "nonsectarian" and "Judeo-

Christian," and that, "[a]lthough some of [the chaplain's] earlier prayers were often

explicitly Christian, [he] removed all references to Christ after a 1980

complaint from a Jewish legislator." Id. at 793 n. 14 (emphasis added).

The Supreme Court itself has read Marsh as generally precluding sectarian

prayers. In County of Allegheny v. American Civil Liberties Union, 492 U.S. 573

(1989), the Supreme Court held unconstitutional the display of a creche in a county

courthouse. Justice Kennedy's dissent for four members of the Court maintained

that, if legislative prayer was permissible under Marsh, then surely the creche was

also constitutional. Id. at 665 & n. 4 (Kennedy, J. dissenting). Justice Blackmun's

majority opinion stated, however, that Marsh recognized that not even "the

unique history" of legislative prayer can justify contemporary legislative


28

prayers that have the effect of affiliating the government with any one specific

faith or belief. The legislative prayers involved in Marsh did not violate this

principle because the particular chaplain had "removed all references to Christ."

Id. at 603; See also, Id. at 604 n. 53 (noting that a Governor's preference for

Christianity and discrimination against all non-Christians in his Thanksgiving

proclamation is the "very evil" against which the Establishment Clause is meant, in

part, to protect). Also, Justice O'Connor, in her separate opinion, emphasized that

both the longstanding existence of legislative prayer and its "nonsectarian nature"

in Marsh led her to conclude that the practice did not violate the First Amendment.

Id. at 630-31 (O'Connor, J., concurring).

The only other Supreme Court case that meaningfully explains Marsh is Van

Orden v. Perry, 545 U.S. 677 (2005). In Perry, which approved a monument of the

Ten Commandments at the Texas capitol, the Court discussed cases that

recognized the role of “God” in American heritage. The Perry Court cited Marsh

and suggested that the challenge to Nebraska's legislative prayer were rejected

because the prayers were nonsectarian: "In Marsh, the prayers were [previously]

often explicitly Christian, but the chaplain removed all references to Christ the

year after the suit was filed." Id. at 2862 n. 8 (emphasis added).

Most circuit courts of appeal addressing the issue have found, consistent with

the above, that Marsh was decided in part on the basis that the prayers were


29

nonsectarian, and as such did not serve to advance one religion, or proselytize.

See, e.g. Hinrichs v. Bosna, 440 F.3d 393 (7th Cir. 2006).

In Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir.2004), the Fourth

Circuit struck down a town's practice of opening city council meetings with

prayers that were similar to (but, less proselytizing than) the majority of prayers in

the present case: brief offerings that ended with supplications like, "In Christ's

name we pray." Id. at 294. Wynne placed great reliance on Marsh's limitation to

nonsectarian prayer and its warning that prayer that advances a particular

religion is impermissible. Wynne also discussed the United States Supreme

Court's subsequent interpretation of Marsh in Allegheny County. See id., at 297-

301. Wynne concluded that the Christian prayers at issue violated the rule of

Marsh and Allegheny County by "affiliat[ing]" the government with the Christian

religion. Id. at 300.

In Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (4th

Cir.2005), the Fourth Circuit reaffirmed Wynne's reading of Marsh and Allegheny

County. Similarly, in Bacus v. Palo Verde Unified School District Board of

Education, 52 Fed.Appx. 355; 2002 WL 31724273 (9th Cir.2002), the court struck

down a school board's practice of sectarian invocations at official meetings, which

ended "in the Name of Jesus." Id. at 356-57. The Ninth Circuit deliberated over

whether school board prayer should be analyzed under Marsh or under school


30

prayer cases; it ultimately did not have to decide this issue, holding that the

practice would even violate the more lenient Marsh doctrine. Id. at 356. According

to that court, the overtly Christian prayers were an inappropriate effort to

"advance" Christianity (prohibited by Marsh) and showed the government's

"allegiance" to that faith (prohibited by Allegheny County). Id. at 357. See also,

Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir.1998); Rubin v. City of

Burbank, 101 Cal.App.4th 1194, 124 (2002) (city council's policy of using rotating

clergy who offered, in the majority of cases, overtly Christian prayers, struck down

as unconstitutional); Society of Separationists v. Whitehead, 870 P.2d 916 (Utah

1993) (upholding nonsectarian invocations where they did not advance a religion

or proselytize).

In the Eleventh Circuit, Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir.

2008), the court addressed the issue of whether the prayer practices of two county

commissions violated the Establishment Clause. The commissions allowed

volunteer leaders of different religions, on a rotating basis, to offer invocations

with a variety of expressions of belief. Pelphrey ruled that one commission’s

invocation practices were unconstitutional and other’s were constitutional. The

court held, (1) the Cobb County Planning Commission’s practice in 2003-2004

was unconstitutional because the selection process was, as in the present case,

biased and exclusionary; and (2) the other Cobb County Commission’s practice

was constitutional, finding that the prayers had not been exploited to proselytize


31

or advance any one, or to disparage any other, faith or belief. Id. Pelphrey

cited Marsh which held that while prayer practices can be constitutional, they must

not be exploited to proselytize, advance or disparage any faith or belief. Marsh, at

786; Pelphrey, at 1269.6 See also, Everson v. Board of Ed. of Ewing, 330 U.S. 1,

16 (1947) (the government cannot exclude Catholics, Lutherans, Mohammedans,

Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any

other faith, because of their faith, or lack of it).

Under Pelphrey, legislative prayers are unconstitutional if they "demonstrate a

[government] preference for one particular sect or creed . . . ." See also Allegheny,

492 U.S. at 605. It is only when legislative prayers do not "have the effect of

affiliating the government with any one specific faith or belief," id. at 603, the

court will not embark on a sensitive evaluation or to parse the content of a

particular prayer. See Marsh, 463 U.S. at 795.

Pelphrey did not agree with the majority of circuits that Marsh requires than

any nonsectarian invocations be held unconstitutional. However, Pelphrey also did

not hold that any and all sectarian prayer practices are, therefore, constitutional.

Where, as here, a prayer practice is used to proselytize, where one religion is

preferred over other religions and non-religion, and where the prayers advance one

6 Plaintiffs believe that Marsh and Pelphrey were wrongly decided, and that the religious prayers at government

meetings are unconstitutional, because, inclusive without limitation, they fail the Lemon Test, constitute an

endorsement of religion over non-religion, and are inherently disparaging to non-religious beliefs. However, even

under Marsh and Pelphrey, the Defendants’ prayers in this case are patently unconstitutional.


32

religion over other religions and non-religion, under Pelphrey, the prayer practices

are unconstitutional.

Under Pelphrey, the court makes a determination of whether prayer practices

(whether sectarian or nonsectarian) advance religion by evaluating three factors:

(1) the identity of the invocation speakers, (2) the selection procedures employed,

and (3) the nature of the prayers. In Pelphrey, “Over the past decade, 70 percent of

prayers before the County Commission and 68 percent of the prayers before the

Planning Commission contained Christian references.” Id at 1267. In the present

case, the prayer practice in the City of Lakeland is far more sectarian in nature, and

far more biased toward Christianity than in Pelphrey. Every prayer-giver from

2002 to May, 2010 were Christian, and the change offered after litigation ensued

have been cosmetic.

Pelphrey was interpreted discussed Joyner v. Forsyth County, 2011 U.S. App.

LEXIS 15670 (4th Cir. N.C. July 29, 2011) (Doc. 46, Exh. 16). In finding that

application of Pelphrey would not require a finding that sectarian prayers were

constitutional, Joyner stated:

In upholding the policy in Pelphrey, the Eleventh Circuit

principally relied on the fact that "the prayers, taken as a whole,

did not advance any particular faith." Pelphrey, 547 F.3d at

1278. In other words, the Pelphrey court adopted the same

approach we did in Wynne and Simpson: it determined as a

threshold matter whether the invocations exploited the

opportunity for legislative prayer. Indeed, the Eleventh

Circuit made this point itself, observing that the "Fourth


33

Circuit read[s] Marsh[ ] as we do." Id. at 1273. It further

noted that Wynne and Simpson had likewise focused their

analysis on the threshold inquiry of whether or not the prayer

opportunity had "been exploited to proselytize or advance" a

particular faith. Id. at 1273 (quoting Marsh, 463 U.S. at 794-

95). Such advancement did not take place in Pelphrey, where

the "diverse references in the prayers, viewed cumulatively, did

not advance a single faith." Id. at 1277. But just such an

advancement has taken place here. This policy was not, as

the dissent would have it, "a pluralistic celebration of prayer,"

post at 48, but an advancement of one religion. In practice, the

Board’s policy resulted in a greater proliferation of sectarian

prayer. Almost four-fifths of the prayers delivered after the

adoption of the policy referenced Jesus Christ.

(emphasis added). Thus, Pelphrey should be interpreted consistent with Joyner,

Wynne and Simpson.

3. The Defendants’ pre-August, 2010, Prayer Practices are

unconstitutional.

In the present case, the Defendants’ prayer practices have been exploited to

advance one faith or belief and to proselytize. References to Christ were and are

not only commonplace, but they are typical and emphatic. Nearly every prayer

given at Defendants’ City Commission meetings have references to Christ, and

prior to the Jewish Cantor in May, 2010, there is no record of a single non-

Christian speaker.

Addressing the first Pelphrey factor, identity of the invocation speakers, 97-

98% (far and away more than the 70% and 68% figures in Pelphrey) invocation

speakers since 2002, have been Christian. The one non-Christian speaker was


34

only grudgingly asked to present an invocation after the Plaintiffs vociferously

complained about the Defendants’ practices on March 1 and 15, 2010. There is no

real diversity in Defendants’ practices. See, Doc. 46, Exh. 4, 5 and 6.

Addressing the second Pelphrey factor, the selection procedures in the present

case are inherently discriminatory in favor of religion over non-religion, and in

favor of Christianity over all other religions. Verified Amd. Compl. ¶ ¶ 70-71, 74,

84, 118, 134, 147, 180, 194, 196, 199. 203, 204, 220 (Doc. 10). Defendants’

selection process is inherently discriminatory and exclusionary. Id ¶ 37-42, 95-106

(Doc. 10). Under the Old Policy/Practice, the entire pool of clergy from which the

Defendants drew prayer givers was exclusively Christian. Doc. 46, Exh. 4, 5 and 6.

Disfavored religions are excluded, and non-religious groups were not (and are not)

considered. Id. The selection process is inherently discriminatory, and the result

was that all (or almost all) of the speakers were Christian. Id.

Addressing the third Pelphrey factor, the nature of the prayers is consistently

and uniformly Christian (almost exclusively Protestant Christian) with references

to Jesus Christ and other Christian terms. The prayers are used for proselytizing

and preaching, and to advance the notion that Lakeland is a Christian city with a

Christian destiny.

The prayers in this case are typically used for the purpose of proselytizing and

are exploitive. They have at times lasted in excess of five (5) minutes, tantamount


35

to mini-sermons that one might hear from the pulpit. During most of the

invocations, the prayers are given “in the name of Jesus Christ,” (Doc. 10, Verified

Amd. Compl ¶ 34) and various references are made to “our Savior” or “King,” or

equivalent verbiage. Id. 84-85. In addition, the Defendants prayer policies,

practices and customs have been used to disparage Plaintiffs’ beliefs. Id. ¶ 111,

133, 150, Plaintiffs have been singled out during city commission meetings, had

their patriotism challenged and were limited in their right to speak at commission

meetings because of their beliefs. Id. ¶ 77, 115.

In the district court’s opinion, the court stated it could find no evidence that the

policymaking officials were aware that non-Christian religious organizations were

being excluded. See Order on Motions for Summary Judgment, p. 29. This is

incorrect, as the testimony of the Tracy Terry and other city personnel charged

with implementing the Defendants’ policies took their direction from a long-

established city policy. The fact that a policy is so entrenched in government

policy that the current government officials did not participate in creating the

policy, practice and custom ought not serve to justify the policy, practice and

custom.

Moreover, the city officials all attended Lakeland City Commission meetings,

including but not limited to Defendant Mayor Gow Fields and the Lakeland City

Commission members itself. They were present at every commission meeting at


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which prayers were given, and must have been personally aware of the exclusively

Christian nature of the prayers givers.

The district court also states that the City officials were not aware that the

various deponents, Hoffman, Terry, and Gill, were excluding non-Christian

denominations from the prayer process. See Order on Motions for Summary

Judgment, p. 29. However, each of those deponents testified that they were handed

by their predecessors an official procedure to follow. They did not create the

policies, practices and customs of the Defendants. The Defendants’ policies were

longstanding policies, practices and customs.

In addition, the district court states that “as soon as they became aware of a

potential problem in March, 2010, City officials moved quickly to rectify any

potential constitutional infirmities and to pass a resolution codifying the new full-

inclusive invocation policy.” Id at 29. The district court is incorrect, because the

first reaction of the Defendants to Plaintiffs’ March, 2010, objections to the prayer

practices was to do write a letter to Plaintiffs that they would do nothing to correct

the situation. Further, the new policy (adopted well after the present suit had been

commenced) was far from “fully inclusive.” Only religious groups are included,

and only those with 501(c)(3) status. Further, the Defendants plainly did not even

follow their own policies, practice and customs.


37

4. Defendants’ Post-August, 2010, Prayer Practices Under

Resolution 10-041/4848 are unconstitutional.

Resolution 10-041/4848 merely continued the Defendants’ prior

unconstitutional policy, practice and custom. Id. ¶ 101. Resolution 10-041/4848

did not change the fact that the process for selecting potential invocation speakers

is unconstitutionally biased and discriminatory and categorically excludes some

religions, and the non-religious. Id. ¶ 42, 95. Resolution 10-041/4848 did not

change the fact that government time and treasure is being used to sponsor the

religious invocation process. Id. ¶ 130, 173-189. Resolution 10-041/4848 did not

change the fact that Defendants affiliated themselves with one religion,

Christianity, and have preferred religion over non-religion. Id. ¶ 150.

Resolution 10-041/4848 expressly excluded non-religious or secular speakers,

and required the invocations to be religious. Id. ¶ 95. Resolution 10-041/4848

categorically excluded speakers who are not members of a “clergy” which operates

to exclude not only the non-religious but also any religions that do not have

“clergy.” Id. ¶ 96. Resolution 10-041/4848 is also limited only to “religious

congregations,” which excludes non-religious groups such as atheists, agnostics,

secularists and humanists from participation, and also excludes any religions

without “congregations.” Id. ¶ 97.

While the resolution purports to remove the prayers from the meeting agenda,

they have not actually been removed. Id. ¶ 108. Viewing the post-August 2, 2010,

prayers, there is no practical difference between them and the Defendants’ prior


38

practices. Id. The prayers start at the same time, and occur during (not before) the

meetings. Id. The video of the meeting on the Defendants’ website includes the

prayer as part of the commission meeting. The “Full Agenda” of the October 4,

2010, city commission meeting includes the invocation on the agenda.

Defendants’ policies, practices and customs have not been brought into

compliance by Resolution 10-041/4848. Quite to the contrary, the Defendants

have further entrenched religion into the machinery of government. They have

positively and expressly endorsed religion over non-religion, and they have sought

to advance one religion over other religions. Far from rendering the case moot,

Resolution 10-041/4848 makes Defendants’ prayer practices more egregious. The

Defendants have exploited the prayers in order to proselytize, and have an

improper and unconstitutional motive.

B. The Defendants’ Pre-August 2, 2010, Practices and Customs Are Sufficient

to Support Liability Under 42 U.S.C. § 1983.

The district court based its decision in part on a determination that the

Defendants’ policies, practices and customs prior to the Defendants’ August 2,

2010, adoption of a new written policy were insufficient to support liability under

24 U.S.C. § 1983. However, the Supreme Court held in Monell v. New York City

Department of Social Services, 436 U.S. 658, 691 (1978), that Section 1983

liability may be based not only on formal policies adopted by government decision

makers, but also upon practices which are well-settled as to constitute “customs or

usage.” The custom or usage will be attributed to the municipality when the


39

duration and frequency of the practice justifies a finding that the municipal policy

makers had actual or constructive knowledge of it.

In the present case, the policy prior to August 2, 2010, was partially in writing.

The Defendants utilized documents every year which set for the Christian churches

that could be included in the rotation of prayer givers, and the Defendants utilized

annual “invocation lists” which listed the Christian denominations in order of

anticipated appearance. The documents were handed down from city employee to

city employee, and the evidence shows that the policy continued for decades and

not a single city employee had any awareness of the policy, practice and custom

being any different.

The district court itself recounted the widespread and longstanding nature of the

policies, practices and customs in its Order On Motions For Summary Judgment, p.

2-3. The district court cited Ms. Hoffman’s deposition testimony (Doc. 39, pp. 7-

22) for the proposition that the Defendants “attempted to vary the religious

denominations,” the testimony is incontrovertible that the only religion included

was Christianity. Rather than evidence a longstanding policy of inclusiveness, the

testimony evidences a longstanding, widespread policy of categorical exclusion.

The district court’s recitation of the facts includes a reference to the testimony

that the policy in effect from the 1980s on through 2010, as Ms. Gill testified, was

that “each of the denominations on her rotating list were Christian, though she was

unsure of what the category labeled ‘nondenominational’ meant (Gill dep. 31, Doc.


40

42). Based on the testimony of Ms. Hoffman, Ms. Gill and Ms. Terry, the policy,

practices and customs from the early 1980s through 2010 did not change, and the

policies, practices and customs were clearly, exclusively, Christian

(notwithstanding Ms. Hoffman’s vague, unsure, nonspecific recollection of one

Jewish prayer giver and possibly a Unitarian, in the 1980s). The district court

found on page 3 of its Order on Motions for Summary Judgment that “The City

continued to follow the same practice following Hoffman’s retirement.” The

rotating list of denominations that the district court refers to on pages 3-4 of its

Order on Motions for Summary Judgment is an exclusively Christian list.

C. The Defendants’ Prayer Practices Are Unconstitutional Under

the Florida Constitution

Plaintiffs’ claims under the Florida Constitution are based both on Florida’s

Establishment Clause and on its “no aid” clause. Specifically, under Article I,

Section 3:

There shall be no law respecting the establishment of religion or

prohibiting or penalizing the free exercise thereof. Religious freedom

shall not justify practices inconsistent with public morals, peace or

safety. No revenue of the state or any political subdivision or agency

thereof shall ever be taken from the public treasury directly or

indirectly in aid of any church, sect, or religious denomination or in

aid of any sectarian institution.

The Defendants have acted in violation of Florida’s establishment clause. The

same facts supporting Plaintiffs’ First Amendment claim also support the Florida

constitutional claim. In addition, Defendants have spent and will continue to spend


41

considerable revenues from the public treasury in furtherance of religion,

specifically Christianity.

In Bush v. Holmes, 886 So. 2d 340 (Fla. 1st DCA 2004), the Florida Court of

Appeals explained that: the constitutional prohibition in the no-aid provision

involves three elements: (1) the prohibited state action must involve the use of tax

revenues; (2) the prohibited use of tax revenues is broadly defined, in that revenues

cannot be used "directly or indirectly in aid of" the prohibited beneficiaries; and (3)

the prohibited beneficiaries of the use of tax revenues are "any church, sect, or

religious denomination" or "any sectarian institution." See also, Council for

Secular Humanism, Inc. v. McNeil, 2010 Fla. App. LEXIS 5546 (Fla. Dist. Ct.

App. 1st Dist. Apr. 27, 2010), rev. denied, 2010 Fla. LEXIS 1114 (Fla. July 8,

2010).

Defendants have argued that the payment of funds to a chaplain is insufficient

to establish a cause of action under the Florida Constitution. However, the

Defendants have done much more than that. The Defendants have spent public

funds on employees to research “churches” in the vicinity of Lakeland. Plaintiffs’

Verified Amd. Compl.. ¶ 106, 130, 182-184, 188 (Doc. 10); Terry Dep. 16 (Doc.

43). Defendants have spent public funds writing invitation letters, paying for

postage, and otherwise managing the prayer practices. Terry Dep 16-18; 25-29; 33-

39; 46-47 (Doc. 43); Gill Dep. 13-34 (Doc. 42) ; Thomas Dep. 96-125 (Doc. 41).

The Defendants have spent city time and money developing the new prayer policy


42

which was approved on August 2, and the Defendants have spent government time

at every meeting engaged in presenting religious prayers in furtherance of no

legitimate governmental purpose. Thomas Dep. 96-125 (Doc. 41).

Additional time and money were spent on preparing the New Policy/Practice,

including time spent by the City Manager, the City Attorney, the Mayor, and all

relevant city employees in carrying out the more extensive practices. Thomas Dep.

211-214 (Doc. 41).

VI. CONCLUSION

Wherefore, for the foregoing reasons, the Plaintiffs respectfully request that this

Honorable Court REVERSE the district court’s order on Defendants’ Motions for

Summary Judgment, and REVERSE the district court’s denial of Plaintiffs’

Motions for Summary Judgment (Doc. 54) and find that the Defendants’ prayer

policies and practices, both before and after August, 2010, are unconstitutional

under the Establishment Clauses of the United States and Florida Constitutions,

and award Plaintiffs’ nominal damages under 42 U.S.C. § 1983, together with

costs and attorneys fees under 42 U.S.C. § 1988.

Respectfully submitted,

/s/ Eric O. Husby_____________

Eric O. Husby, Esq. (FBN: 0893331)

Attorney for Plaintiffs

238 E. Davis Blvd., Suite 213

Tampa, FL 33606

Phone: (813) 597-8181

Fax: (813) 283-4949

Email: [email protected]


43

CERTIFICATE OF COMPLIANCE

Pursuant to the Federal Rule of Appellate Procedure 28.1(e)(3) and 32(a)(7)(C),

I hereby certify that:

1. This brief complies with the type-volume limitations of Fed. R. App. P.

28(e)(2)(A)(i) and 32(a)(7)(B)(iii). Exclusive of those portions excluded by

Fed R. App. P. 32(7)(a)(B)(iii) this brief contains 10,435 words.

2. This brief complies with the typeface requirements of Fed R. App. P.

32(a)(5) and type-style requirements of Fed. R. App. P. 32 (a)(6). The brief

has been prepared in proportionally spaced, 14-point Times New Roman

type using Microsoft Word 2010.

/s/ Eric O. Husby

Eric O. Husby

Counsel for Plaintiffs-Appellants


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 7th day of May, 2012, the above

Appellants’ Opening Brief together with this certificate of service have been filed

electronically using the Court’s ECF system and sent via ECF electronic

notification system to counsel of record, and by regular mail to Attorney General

Pam Bondi at mailing address of record.

By: /s/ Eric O. Husby___________

Eric O. Husby, Esq. (FBN: 893337)

2001 W. Cleveland St.

Tampa, FL 33606

PH: (813) 251-3337

FX: (813) 283-4949

Email: [email protected]

Attorney for Plaintiffs


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