BREAKING: The Supreme Court won't weigh in on a police-led Christian prayer vigil... yet
Today's denial of writ in Ocala v Rojas postpones the inevitable
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This morning, the Supreme Court announced it would not take up a case involving a government-sponsored Christian prayer vigil, allowing such a vigil to go unchecked and once again jeopardizing the very idea of church/state separation. Two conservative justice made clear they wanted to further destroy that bedrock of our nation’s principles even if they disagreed about the best way to do so.
What City of Ocala, Florida v. Art Rojas, et al is about
In 2014, after a shooting spree that injured several children, Greg Graham, chief of the Ocala Police Department in Florida, posted an unusual letter to the department’s Facebook page. Co-signed by community development director for the Ocala/Marion County Family YMCA Narvella Haynes, the letter called for public prayer:
We are facing a crisis in the City of Ocala and Marion County that requires fervent prayer and your presence to show unity and help in this senseless crime spree that is affecting our communities.
I am urging you all to please support a very important “Community Prayer Vigil” that will be held this coming Wednesday, September 24, 2014 at 6:30 pm to be held at our Downtown Square located in the heart of the City.
It was troubling that a Chief of Police thought the best solution to stop crime was prayer, as if the only alternative was waving a white flag. He could have asked the community to report suspicious activity, or called on politicians to enforce tougher gun safety laws, or demanded state legislators provide more funding for the police department, or (in the long-term) looked for ways to get people out of poverty so some of them didn't feel the need to resort to crime.
Instead, he went with God.
There may have been value to having members of the community unite toward a common cause, but promoting prayer (and, make no mistake, this was always about Christian prayer) was more divisive than anything else. More importantly, this wasn't some grassroots push for prayer led by citizens. It was a top-down call for Christianity to solve secular problems with uniformed chaplains lending their authority to the event.
The American Humanist Association soon wrote a letter to the Chief, calling on him to remove the prayer request from the department's page and asking for reassurance that the police department wouldn't be participating in the event. (Individual officers could always go on their own time, but a government entity had no business promoting religion.)
… For a police department to say that a spree of violence "requires fervent prayer" is an endorsement of religion that violates the First Amendment, as is your statement: "I am urging you all to please support the very important Community Prayer Vigil." There are many ways that police can support a community that is experiencing a crime spree, but such religious proselytizing is not an acceptable means. A governmental call to "show unity" through prayer is in fact inherently divisive, as is evidenced by the numerous complaints posted beneath your letter on Facebook. Religious leaders and private citizens may organize such events, but please keep the apparatus of government out of it.
Nothing ever came of that request. The original post is still (!) up on the police department’s Facebook page and they ultimately participated in the prayer vigil.
Shortly afterwards, when local residents (including Art Rojas) complained about this vigil to Ocala’s Mayor Kent Guinn, he responded by saying the actions were justified because "We open every council meeting with a prayer. And we end the prayer in Jesus name we pray. [O]ur city seal says 'God be with us' and we pray that he is and us with him."
Way to miss the point.
A federal judge relied on the Lemon Test to rule against the police chief
After all those warnings were rebuffed, the AHA filed a lawsuit against the police department in November of 2014, claiming this was a constitutional violation. They noted the department's support for the "revivalist" event, where officers "prayed, sang religious songs and delivered Christian sermons." They cited the Facebook post announcing the event, which was written on official department letterhead and signed by both the police chief and a local Baptist leader.
The case took a number of twists and turns regarding who had legal standing to file the lawsuit, but in 2016, U.S. District Judge Timothy J. Corrigan issued a ruling confirming the AHA’s strongest arguments.
“In sum, under the Establishment Clause of the First Amendment to the United States Constitution, the government cannot initiate, organize, sponsor, or conduct a community prayer vigil,” explained Judge Corrigan. “That is what happened here.”
“Police departments shouldn’t be endorsing religion, yet that’s exactly what the Ocala Police Department did here by sponsoring and promoting a prayer vigil,” said David Niose, AHA legal director. “We hope this ruling ensures that prayer rallies in the future will be run by churches, not police departments.”
In justifying his decision, Judge Corrigan explained that Establishment Clause cases relied on the application of the Lemon Test, basically a three-prong approach to assess whether government action goes too far when it comes to religion. The Lemon Test says a statute must have a secular purpose, neither advance or prohibit religion, and avoid "excessive government entanglement" with religion.
When it came to Ocala, the prayer vigil obviously had a religious purpose. The judge said it could "hardly be thought to be anything other than an endorsement of religion." And since the police department invited the community to attend the prayer vigil, there was entanglement. (Given the formal involvement of the police chaplains, the judge wrote, "the entanglement was excessive.")
Failure on any one of the prongs would have been enough for a judge to declare the event illegal.
It failed all of them.
The end result was that the plaintiffs received a total of $6.00, one dollar from each of the two defendants (since it was never about the money). The taxpayers of Ocala were also on the hook to pay the legal bills for the AHA.
The right-wing legal machine sprang into action to appeal the decision
But the right-wing American Center for Law and Justice appealed the decision to the 11th Circuit Court of Appeals in early 2022. Using phrases like "cancel culture," they argued that the atheists were trying to "shut down protected First Amendment gatherings." Specifically, a response brief filed last year said that participating in the prayer vigil was legal because there was no evidence of coercion, there was no evidence of a lack of neutrality, the plaintiffs lacked standing, and the Establishment Clause was on their side... all of which were fairly laughable arguments, largely because they implied a government endorsement of Christianity was only illegal if people were forced to participate.
By that same logic, every police department in the country could hang a giant cross on their front door and put a Ten Commandments display in the lobby, but none of that would count as promotion of Christianity unless someone explicitly said so or required new employees to adopt the religion.
If we were talking about any other religion besides Christianity, these actions would've been stopped years ago, but conservative Christians believe neutrality is persecution, and they just can't handle anyone complaining when their faith is treated like the default option for everyone in the community.
Unfortunately, last July, their appeal was successful. A three-judge panel on the United States Court of Appeals for the Eleventh Circuit unanimously overturned the earlier decision. (All three judges were appointed by Republican presidents.)
Goodbye to the Lemon Test
When it comes to the question of whether the City of Ocala violated the Establishment Clause, like the district judge had said, the Appeals Court responded with—and I quote—"Maybe."
The bottom line, the appellate court said, was that Judge Corrigan used the Lemon Test as his standard for deciding whether the prayer vigil had crossed the line. But the Supreme Court said in the Kennedy v. Bremerton case—the one about the high school football coach who performed prayers at midfield after games—that the Lemon Test was officially dead... which meant it could no longer be the standard.
(In their explanation, they referred to a line written by the late Justice Antonin Scalia about how the Lemon Test is like a "ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.")
After this appeal was filed, however, the Supreme Court drove a stake through the heart of the ghoul and told us that the Lemon test is gone, buried for good, never again to sit up in its grave. Finally and unambiguously, the Court has “abandoned Lemon and its endorsement test offshoot”... In the course of doing so, the Court asserted that it had already done it — “long ago”... — which was news to a third of the Court’s Justices...
Regardless of exactly when the ghastly decision was dispatched for good, the Supreme Court has definitively decided that Lemon is dead — long live historical practices and understandings.
We remand this case to the district court to give it an opportunity to apply in the first instance the historical practices and understandings standard endorsed in Kennedy.
Simply put, the earlier decision relied on the Lemon Test, but because that test could no longer be used, the district court needed to re-evaluate the legality of the prayer vigil using tradition as the standard. ("Tradition," of course, tends to favor Christianity at the expense of everyone else, which is why conservatives love it.)
Keep in mind that it’s beyond obvious that the prayer vigil failed every single prong of the Lemon Test. But because the ultra-conservative Supreme Court decided that the Lemon Test itself is dead, they have made it that much harder for people to prove when government actions violate the Establishment Clause.
But before the case could be sent back down, the American Center for Law and Justice asked the Supreme Court to step in.
The ACLJ argued that the clients represented by the Humanists didn’t have standing to bring the case at all, therefore this whole case should be tossed out. They argued that one of the plaintiffs (Lucinda Hale) attended the prayer vigil specifically so she could be a party to this lawsuit—i.e. she wasn’t actually offended; she just showed up to the vigil so she could pretend to be offended—therefore she shouldn’t be able to file this lawsuit, therefore it should be thrown out of the courts.
Is psychic or emotional offense allegedly caused by observation of religious messages an injury sufficient to confer standing under Article III of the Constitution, including where the offended party deliberately seeks out the exposure in question?
The ACLJ said the Supreme Court had never granted standing to an “offended observer.” Lower courts had, but only in Establishment Clause cases. Therefore, the justices needed to step in and sort this out “once and for all.”
This Court should grant review to repudiate once and for all the idea that Establishment Clause plaintiffs can write their own ticket to federal court simply by observing an alleged constitutional violation.
That complaint raised another question: If being “offended” wasn’t enough to giving someone legal standing in this situation, what would? Who has the right to sue when a government official uses his office to endorse Christianity? (The ACLJ doesn’t answer that question because they know damn well their side could get away with a lot more shit if no one has the legal right to call them out on it unless they were forced to attend a religious event against their will.)
The Supreme Court weighs in on who has legal standing
This morning, the Supreme Court declined to take up that challenge. We don’t know how many justices agreed with that decision, but four justices need to agree to take up any case, and they didn’t have those votes. That means the case will finally be sent back to Judge Corrigan. He can still say the vigil was illegal, but to do so, he'll need to explain why the police department was promoting Christianity in a way that goes far beyond a historical practice.
Two justices, however, weighed in on the decision not to take up the case.
Neil Gorsuch agreed with the outcome but wrote that giving standing to an “offended observer” was a bad idea; it just wasn’t the Supreme Court’s job to weigh in yet.
… The city asks us to take this case to make just this point. It is an understandable request. But I see no need for the Court’s intervention at this juncture. This case remains in an interlocutory posture—the Eleventh Circuit has remanded the case to the District Court to permit it to consider Kennedy’s implications in the first instance. I would allow that process to unfold. Moving forward, I expect lower courts will recognize that offended observer standing has no more foundation in the law than the Lemon test that inspired it. If I am wrong, the city is free to seek relief here after final judgment.
Clarence Thomas, on the other hand, wanted to pull the bandage off immediately:
… we have muddied the waters by repeatedly reaching the merits of Establishment Clause cases premised upon offended observer standing in the courts below…
… I continue to urge the Court to review the legitimacy of this form of standing. If the Courts of Appeals are unwilling to reconsider their offended observer precedents en banc, we should intervene…
Thankfully, for now, the Supreme Court won’t be weighing in on this matter. The plaintiffs have legal standing and the lower courts will have to decide if there’s a non-Lemon Test reason to declare the prayer vigil a violation of the Establishment Clause.
A terrible decision may come down eventually, but that day isn’t today.
In the meantime, the death of the Lemon Test has created a blueprint for Christian Nationalists to thrive. If a police department wants to promote Christian prayer vigils, all they have to do from now on is make them a regular occurrence. If they take place frequently enough, judges could simply say they're part of a "tradition," ignoring any complaints from the church/state separation crowd.
That’s where this is heading even if the specific path is being debated.
Americans United for Separation of Church and State President and CEO Rachel Laser weighed in on the two conservative responses:
“Justices Gorsuch and Thomas’ statements suggest a willingness to silence voices who speak out against these clear constitutional violations—violations that trample the religious freedom of us all. We must not be silenced. We need a national recommitment to the separation of church and state. Our democracy depends on it.”
Sunil Panikkath, President of the American Humanist Association, added:
“Today’s decision to send Ocala back to the district court reinforces what the American Humanist Association has long fought for: government entities cannot coercively promote religious practices,” said Sunil Panikkath, President of the American Humanist Association. “As opponents to the separation of religion and government continue their anti-democratic agenda in their attempts to obliterate the line between church and state, our work defending that separation becomes ever more important to ensure the religious freedom of all Americans.”
(Portions of this article were published earlier. Featured image via Shutterstock)