Appeals court won’t rehear decision barring prayer at school board meetings

Thursday, June 17, 1999

A federal appeals court has denied a request by school officials in Cleveland to rehear its ruling that barred prayers before the start of public school board meetings.

It had been the practice for several years of the Cleveland Board of Education to open its meetings with Christian prayer — usually Protestant. In 1992, however, an honor student and a math teacher from Cleveland high schools, represented by the state affiliate of the American Civil Liberties Union, sued the school board in federal court, saying the prayers violated the separation of church and state. The school board president, also a Christian minister, defended the prayers as a way to keep “the Lord” in schools.

On March 11, a three-judge panel of the 6th U.S. Circuit Court of Appeals voted 2-1 to bar the Cleveland school board policy. Judge Ronald Lee Gilman, writing for majority, said that mixing religion with government involvement in the public schools was troubling and undermined democracy.

“The Supreme Court's decisions in striking down religious intrusion into the public schools have a dual basis,” Gilman wrote in Coles v. Cleveland Board of Education. “One is the fact that students are young, impressionable, and compelled to attend public schools, and the other is that public schools are particularly important to the maintenance of a democratic, pluralistic society.”

In April, Richard M. Knoth, the Cleveland school board's attorney, asked the entire 6th Circuit to rehear the case. “The prayers offered at school board meetings are not proselytizing or indoctrinating but a mere invocation which harmonizes the day's events with religious [canons] or familiar writings,” Knoth argued in a petition for rehearing.

On June 11, a majority of the 6th Circuit refused to rehear the case. Two of the judges, however, issued written opinions.

Judge Danny J. Boggs, dissenting from the majority's denial of a rehearing, chastised his colleagues for attempting to eradicate “the possibility of any inclusion of a request for divine guidance in the solemnization of at least these species of public meeting.”

Boggs said the majority apparently “would have no objection if the School Board [chose] to get themselves in the right frame of mind to deliberate by doing yoga, or taking deep breathing exercises. I'm sure it would be all right if they decided to read passages from a self-help book on effective meetings. And if they were to choose to commence meetings by having each publicly elected official, on a rotational schedule, read from some work of inspiration chosen by the member, such as Emerson's 'Self-Reliance,' Theodore Roosevelt's 'The Man in the Arena,' the latest work by Oprah Winfrey, or the collected wisdom of Barney, there could be no objection.”

Boggs added that the majority “must believe that the Constitution allows Marx but not Moses, Oprah but not Obadiah, and Emerson but not Ephesians, and the majesty of the federal courts must suppress individual speech of legislators when it strays over the line.”

Spurred by Boggs' colorful analysis, Judge Gilbert S. Merritt filed an opinion concurring with the majority. Chief Circuit Judge Boyce F. Martin Jr. joined Merritt's concurrence.

“These amusing rhetorical devices do not mention that what we have here is a sectarian Christian minister as school board president not only calling for the congregation to pray to his sectarian 'Lord,' his New Testament 'Lord' but also to do so 'in Jesus' name,'” Merritt wrote. “The rhetoric of my colleague has broad appeal to many religious and political groups, but it has not appealed to the Supreme Court or this court in the past.”

In 1987 the 6th Circuit in Stein v. Plainwell Community Schools invalidated similar sectarian prayers at commencement exercises, Merritt noted. Citing that case, Merritt wrote that “as a diverse people we have rejected the notion of a confessional state that supports religion in favor of a neutral state designed to foster the most extensive liberty of conscience compatible with a similar or equal liberty for others.”

In conclusion, Merritt wrote: “I do not believe as a judge that I may constitutionally call upon those attending my court to repeat the Lord's Prayer or participate in any other prayer in which I ask them to accept Jesus as their Savior. Thank God that the Establishment Clause forbids me from doing that whenever I may be tempted to do so, just as it forbids the Cleveland School Board Chairman from worshiping his Savior in sessions over which he presides.”

Raymond Vasvari, legal director of the ACLU of Ohio, said that while it was unusual to see both a lengthy concurrence and dissent in denial of rehearing, it revealed the passion and controversy in some circles surrounding establishment-clause cases.

“There is nothing preventing individual school board members from silently praying before their meetings, but that situation is a far cry from having officially sanctioned sectarian prayers before those meetings,” Vasvari said. “We are certainly pleased that Merritt was joined by the circuit's chief judge on expressing points that were apt to this situation.”