March 22, 2016
SENT VIA EMAIL & U.S. MAIL TO mayor.stanton@phoenix.gov
Mr. Brad Holm
City Attorney’s Office, City Hall 200 W. Washington St., 13th Floor
Phoenix, AZ 85003
Re: Amended Phoenix City Council Prayer Policy
Dear Mr. Holm:
I am again writing on behalf of the Freedom From Religion Foundation to object to the Phoenix City Council’s decision to amend the city council invocation policy to the exclusion of nonChristians. Since 2012, FFRF has attempted to inform the city that if it is going to allow premeeting prayer at council meetings, the voice of all citizens must have a chance to be heard. The city council has made it clear that it only wishes to hear those voices that it prefers: first by suspending the non-discriminatory invocation policy, and now by attempting to approve a procedural mechanism that ensures only city-approved chaplains, who are overwhelmingly Christian, may lead future invocations. Such discrimination is shameful and unconstitutional.
As you know, FFRF is a national nonprofit organization, which works to protect the constitutional separation of church and state. FFRF represents more than 23,000 members national including more than 500 members in Arizona and a local Valley of the Sun chapter.
It is our understanding that the city council intends to vote on an amendment that will limit potential pre-meeting invocation leaders to members of the city police or fire chaplaincy, as arranged by the city clerk. If a police or fire chaplain is unavailable, the mayor may call for a moment of silent prayer and reflection.
This policy change amounts to discrimination against the Satanic Temple and against nonChristians. The city council claimed to have an inclusive prayer policy, but, faced with a group whose message it disapproved of, blocked their legitimate participation and is now rewriting the rules so that Christian prayer can stay in the council-chamber, but the Satanic Temple, minority religions, and nonbelievers are out for good.
The city’s retreat from an inclusive invocation policy is yet another unconstitutional attempt to keep members of the Satanic Temple from participating in pre-meeting prayer. The city has repeatedly maneuvered to keep the Temple’s members out of its meetings, first by voting to suspend opening prayers less than two weeks before the Temple’s scheduled invocation, and now by enacting a new policy that brings back prayer, but keeps everyone but city-employed chaplains from participating. This is clear discrimination that no policy—other than an open, nondiscriminatory policy—can fix. Countless statements made by city councilors state, with admirable clarity, the discriminatory intent of the changes. Any court examining the issue will certainly take these admissions into account.
If the city votes to allow only city police and fire chaplains to lead opening invocations, it is giving complete control of the platform to a group of five individuals, in direct contradiction of Greece.
In Greece v. Galloway, the Supreme Court identified several important elements to the town’s invocation practice that, taken together, ensured that the practice did not impermissibly advance one religion over another or promote religion over nonreligion. 134 S. Ct. 1811 (2014). Over time, the town of Greece “compiled a list of willing ‘board chaplains’ who had accepted invitations and agreed to return in the future.” Id. at 1816. Unlike the City of Phoenix, the town of Greece “at no point excluded or denied an opportunity to a would-be prayer giver.” Id.
Although Greece created its initial list of invocation givers by having a “town employee . . . call the congregations listed in a local directory until she found a minister available for that month’s meeting,” the town demonstrated a willingness to go beyond its list and allow others to give invocations. Id. At one point the town invited a Jewish layperson (not a member of the clergy) to give an invocation and when a Wiccan priestess requested to give an opening prayer, the town granted her the opportunity. Id. at 1817. The town “maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation.” Id. at 1816 (emphasis added). In fact, on July 15, 2014, an atheist citizen delivered the opening invocation at Greece’s town board meeting.[1]
The fact that Greece “represented that it would welcome a prayer by any minister or layman who wished to give one” was a critical factor in the Court’s conclusion that the practice in Galloway did not violate the Constitution. Id. at 1824. The Court clearly stated that the purpose of these invocations must be inclusive: “These ceremonial prayers strive for the idea that people of many faiths may be united in a community of tolerance and devotion.” Id. at 1823. The Supreme Court’s decision would have been different had the town used the prayer opportunity to discriminate against minority religions. There can be no “policy or practice of discriminating against minority faiths.” Id. at 1817. While the city may claim its new policy does not discriminate as written, the adoption of this ‘nondiscriminatory’ policy following a series of screening maneuvers by the council to deny the Satanic Temple the same opportunity as other groups strongly suggests behind-the-scenes discrimination.
This policy change would violate the Fourteenth Amendment, as well. It is unconstitutional discrimination to treat similarly-situated persons differently: “[t]he Equal Protection Clause of the Fourteenth Amendment . . . is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). Blocking the members of the Satanic Temple from delivering an invocation by procedural means and then rewriting the rules so that only councilapproved, predominantly Christian chaplains may lead future prayers is in no sense equal treatment.
The city council cannot rely on earlier decisions involving state legislatures in an attempt to bolster its new chaplain policy. First, the city’s new policy has a clearly-stated discriminatory purpose. Second, the Greece decision is the latest word on government prayer and is very clearly predicated on an open, nondiscriminatory policy.
Finally, state legislatures are significantly different than town boards. Citizens come before their local governments on all manner of important issues: permitting, zoning, schools, roads, bond issues, etc. Citizens are given a chance to speak at their local government meetings. Citizens participate in local government, but only observe state-level government, at least when the prayers are being given. This is a critical difference. Courts have been more willing to accommodate the religion of state legislators, who have to travel long distances to reach the capitol, with the use of chaplains. The same cannot be said of members of the local government. City councilors travel no meaningful distance from their home worship sites, have no need of a chaplain to accommodate their religion, and are significantly closer to their constitutents than the state legislature. This new policy will fail under any government prayer analysis.
This policy would encourage prayers that exclude the one in five Americans, including one in three adult Americans under thirty, who are not religious.[2] It is coercive and intimidating for nonreligious citizens to come to a public meeting and be required to either make a public showing of their nonbelief or show deference to a religious sentiment they do not believe in, but which their city council members clearly do.
City-employed chaplains are not a safe harbor for allowing questionable prayer into board meetings. When a local board decides to only allow prayer controlled by the government, “the government is delivering prayers that were exclusively prepared and controlled by the government, constituting a much greater and more intimate government involvement in the prayer practice than that at issue in Town of Greece or Marsh.” Lund v. Rowan Cnty., N.C., 103 F. Supp. 3d 712, 723 (M.D.N.C. 2015) appeal pending 15-1597 (4th Cir. 2016).
Enacting this policy will not circumvent or cure any constitutional violation. Exactly the opposite is true: should the city council pass an amendment that allows only city-employed Christian chaplains to preach after weeks of maneuvering to deny members of the Satanic Temple an equal opportunity to participate, the city will have committed itself to the un-American idea that the government can push people with disagreeable points-of-view to the wayside.
The City of Phoenix has two options to avoid unconstitutional discrimination: (1) either eliminate prayer from Phoenix City Council meetings, or (2) reinstate the prior prayer policy and ensure that the Satanic Temple is allowed to deliver its invocation as it would any other prayergiver.
Sincerely,
Andrew L. Seidel
Staff Attorney
ALS:scw
1 See www.centerforinquiry.net/newsroom/atheist_to_deliver_invocation_at_greece_ny_town_meeting_july_15/.
2“ Nones on the Rise: One-in-Five Adults Have No Religious Affiliation,” Pew Research Center, The Pew Forum on Religion & Public Life (October 9, 2012), available at www.pewforum.org/...