United States Court of Appeals Fifth Circuit 

## FILED December 15, 2006 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 05-30294 JOHN DOE, Individually and as next friend of his minor children James Doe and Jack Doe, Plaintiff-Appellee,

versus TANGIPAHOA PARISH SCHOOL BOARD; JIMMIE RICHARDSON, Reverend, School Board Member, District A; ROBERT POTTS, School Board Member, District B; LEONARD GENCO, School Board Member, District C; AL LINK, School Board Member, District D; DON WILLIAMS, School Board Member, District E; ROBERT CAVES, School Board Member, District F; MAXINE DIXON, School Board Member, District G; SANDRA BAILEY-SIMMONS, School Board Member, District H; CARL BARDWELL, School Board Member, District I; LOUIS JOSEPH, Superintendent,

Tangipahoa Parish School System Defendants-Appellants. Appeal from the United States District Court for the Eastern District of Louisiana

(2:03-CV-2870) Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge: This appeal presents an Establishment Clause issue of first impression in our circuit. The Tangipahoa Parish School Board, its Board members, and the Tangipahoa Parish School System’s superintendent (collectively, the Board) challenge a permanent injunction against the Board’s opening its meetings with prayer. Consistent with the long-standing rule of deciding a constitutional2

issue on its most narrow basis, the injunctive relief must be narrowed greatly. This disposition is reached through differing opinions by each panel member. The Board’s having conceded the prayers are unconstitutional

under the test employed in Lemon v. Kurtzman, 403 U.S. 602, 613 (1971), this opinion assumes, without deciding, that Marsh v. Chambers’ legislative/deliberative-body exception applies. 463 U.S. 783 (1983). Under M arsh, the four prayers at issue are unconstitutional; the balance of the injunction is vacated. Applying a Lemon, rather than M arsh, analysis, Judge Stewart

concurs in these four prayers being unconstitutional, but would affirm the injunction. Judge Clement would vacate the injunction, opining the prayers at issue fit within Marsh’s ambit of protection. As a result, the portion of the injunction relating to the four prayers in the parties’ joint stipulations is AFFIRMED; the remainder of the injunction is VACATED. This matter is REMANDED to the district court for entry of an injunction consistent with this opinion. AFFIRMED in PART; VACATED in PART; and REMANDED. I. In October 2003, John Doe, a resident and taxpayer of Loranger, Tangipahoa Parish, Louisiana, filed this action against the Board, including on behalf of his two minor sons. The Board is

a “[p]olitical subdivision” of the State, LA. CONST. art. 6, §3

44(2), and a statutorily defined “[p]ublic body”, LA. REV. STAT. ANN. § 42:4.2. Doe challenged several prayer events permitted by the School System: pre-game prayers over the public-address system at athletic events; prayers including student athletes prior to, and after completion of, such events; prayers by students to the student body over the public-address system; and the Board’s opening its meetings with a prayer (prayer practice). All but the challenge to the Board’s prayer practice were resolved by a consent judgment in August 2004. It enjoined those other prayer events, except for prayers given by students at graduation ceremonies to the extent permitted by Jones v. Clear Creek Independent School District, 977 F.2d 963, 972 (5th Cir. 1992) (permitting studentinitiated prayers at graduation ceremonies so long as they do not have a coercive effect), cert. denied, 508 U.S. 967 (1993). Regarding the Board’s prayer practice, the parties in September 2004 entered into the following joint stipulations, the sole evidence presented in district court. The Board is a deliberative body that acts in the public interest. It is responsible for operating and governing the School System’s 35 schools, including the high school attended by Doe’s two sons. The Board meets twice each month in the School System’s central office. The Board’s president normally presides; the vice-president presides in his absence. The meetings are open to the public, and4

students may attend. (Although it is possible under Louisiana law for a student to be a Board member, LA. REV. STAT. ANN. § 17:52(E)(1), the stipulations are silent as to whether there is a student member on the Board.) Each meeting begins with a prayer, followed by a recitation of the Pledge of Allegiance. This prayer practice has been followed since at least 1973; prayers have been offered by Board members, the Board president, the School System’s assistant superintendent, School System teachers and students, and ministers. An individual may present a prayer only after being selected by a Board member. In a sampling of prayers delivered between January 2002 and August 2004, ten were by Board members, nine by students or former students, four by principals or assistant principals, three each by teachers and the assistant superintendent, and one each by the Board president and a minister. The stipulations contained four of the prayers given; each contained a reference to “Jesus Christ” or “God” and “Lord”. The School System’s assistant superintendent presented the following prayer on 18 February 2003:

Heavenly Father, we thank you for the many blessings we’ve received. We thank you for our health. We thank you for our strength. We thank you for our peace of mind. We thank you for allowing us to assemble here tonight, and we ask that you give this Board and our Superintendent all the wisdom and the knowledge, and the understanding they need to make the correct decisions for our students and for our parents.5 Also Lord, we ask that you throw your strong arm of protection around our President and around his Cabinet Members, to help him make the right decisions that will affect thousands of U.S. soldiers, airmen, and marines, at this time. We ask that you give him the same wisdom that you gave Solomon in making decisions that’s [sic] best for our country. Also, we thank you for the greatest gift of all — your darling son, Jesus Christ. For we all know that He was born, died, and rose again, so that we all may be forgiven for our sins. And Lord, as we leave this meeting tonight, we ask that you guide us safely to our various abodes. These things we ask in your darling son, Jesus Christ’s[,] name. Amen. A Board member’s son presented the following prayer on 23 September 2003: Almighty God, we make our earnest prayer that

Thou wilt keep the United States in thy holy protection, that Thou wilt incline in the hearts of the citizens to cultivate a spirit of subordination and obedience to government, and entertain a brotherly affection and love for one another and for their fellow citizens of the United States at large. And finally that Thou wilt most graciously be pleased to dispose us all to do justice, to love mercy, and to demean ourselves with that charity, humility, and pacific temper of mind which were the characteristics of the Devine [sic] Author of our blessed religion, and without an [sic] humble imitation of whose example in these things, we can never hope to be a happy nation. Grant our supplications, we beseech Thee, through Jesus Christ our Lord. Amen. A School System elementary-school principal presented the following prayer on 18 May 2004:

Heavenly Father, we thank you for all the blessings that you have given us. Let us not take for granted that each breath that we take6 is a blessing from you, and even though we don’t understand the hardships that are put before us at different times in our lives, let us always remember that the experiences that we go through have a purpose and even though we don’t understand the purpose, it is your desire that we have each and every experience on this earth, for without you we have nothing. Watch over our soldiers that are overseas. Please keep them safe. Please soften the hearts of our adversaries and help them see that we are trying to do what we believe is good and right and to bring freedom to people that have been oppressed. Please guide all the people in this room that are in charge of setting the education of our children and setting the future of our children. Let all of us keep in mind that we have one focus and that is what is best for our children. Let us keep them at the front of all our decision-making processes. Let us do everything to bring glory and honor to your name, and we ask all of these things through Your Son, Jesus Christ. Amen. In the final prayer included in the stipulations, a Board member presented the following on 15 June 2004:

Father, we thank You for Your many blessings. Father, we are grateful for the opportunity to live in this country, the greatest country on this planet. God, we have the freedom to choose, to live our lives as we please. We have the opportunity to pursue any goals we so desire. Lord, this big Board

— group of people meeting here tonight has an awesome responsibility to see that each and every child in the parish has the opportunity, and the chance to prepare themselves to the fullest to live their adult lives. God, we just pray that we in this parish will have the guidance and the wisdom to make it happen. In your name we pray. Amen.7

It was not stipulated that the above four prayers were representative, or typical, of those offered at Board meetings. Each prayer in the stipulations is Christian in tenor, if not in fact.On 3 August 2004, approximately ten months after this action

was filed and only approximately one month before the consent judgment and joint stipulations, the Board considered — but unanimously rejected — a written policy that would have permitted only Board members to begin “meetings with a brief non-sectarian, non-proselytizing invocation to solemnize the occasion”. Accordingly, the Board’s unwritten practice of selecting speakers who give prayers of their own unrestricted choosing remained in effect. This action seeks injunctive and declaratory relief. The district court held the prayers: fall outside the legislativeprayer context permitted byMarsh v. Chambers, 463 U.S. 783 (1983);

and otherwise violate the Establishment Clause pursuant to the traditional analysis under Lemon v. Kurtzman, 403 U.S. 602 (1971). The court permanently enjoined the Board from opening its meetings with any prayer: “the [Board’s] practice of opening each ... meeting with a religious invocation violates [Doe’s] rights under the Establishment Clause of the First Amendment”. Doe v. Tangipahoa Parish Sch. Bd., No. 03-2870, slip op. at 25 (E.D. La. 24 Feb. 2005).8 II. Neither in district court, nor on appeal, has the Board challenged Doe’s standing to bring this action. Nor did the district court address it. Because standing is jurisdictional, however, we must address it sua sponte before considering this Establishment Clause issue of first impression in our circuit. Doe

v. Sch. Bd. of Ouachita Parish, 274 F.3d 289, 292 (5th Cir. 2001);

see Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 547 (1986) (“This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.”) (quoting Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). A. Neither of the separate opinions contests the following standing analysis. This inquiry has two components. First addressed are constitutional limitations, derived from the Constitution’s case-and-controversy requirement in Article III; second, judicially-created prudential limitations are examined. McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003). To establish Article III standing, Doe “must show that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress”. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting Lujan9

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “[T]he concept of injury for standing purposes is particularly elusive in Establishment Clause cases”. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 294 n.31 (5th Cir. 2001) (alteration in original) (quotingMurrayv. CityofAustin, 947 F.2d 147, 151 (5th Cir. 1991), cert. denied, 505 U.S. 1219 (1992)). Our “rules of standing recognize that noneconomic or intangible injury may suffice to make an Establishment Clause claim justiciable”. Id. (quoting Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997)). For example, direct exposure to a mandatory school-uniform policy satisfied the “intangible injury” requirement for Establishment Clause standing. Id. Parents and students challenged this policy, claiming, inter alia, its opt-out procedures “favor[ed] certain established religions at the expense of other religions and thus violate[d] the Establishment Clause”. Id. at 282. In the context of the Establishment Clause, “we attach considerable weight to ... standing ... not [having] been an issue in the Supreme Court in similar cases”. Murray, 947 F.2d at 151. For example, standing existed for a claimed Establishment Clause violation that had impaired “use or enjoyment of a public facility”. Sch. Bd. of Ouachita Parish, 274 F.3d at 292. Standing is bolstered when, as here, the plaintiffs are public school students and their parents, “who enjoy a cluster of rights10

vis-a-vis their schools” and thus transcend the realm of mere bystanders. Id. A parent may be permitted to bring an action as the next friend of his or her children; however, for an action for themselves as well, parents must “assert an injurious deprivation of their own legal rights or interests”. Ward v. Santa Fe Indep. Sch. Dist., 393 F.3d 599, 606 (5th Cir. 2004). Doe appears to assert two standing bases: (1) as a parent of two students in the School System, he (as well as his two sons) has attended, and been offended by, Board meetings; and (2) as a resident and taxpayer of Tangipahoa Parish, where the school district is located. (Because we hold Doe has standing under the first basis, we need not address taxpayer standing.) In his original 14 October 2003 complaint, Doe stated: he was “a domiciliary and resident” and “a taxpayer and registered voter” of Tangipahoa Parish, and also the father of two school-system students; and he and his sons found “objectionable the non-secular

manner in which the Board’s meetings are conducted.... By commencing the meetings with a prayer, the Board is conveying its endorsement of religion”. He noted explicit references to God and Jesus Christ at Board meetings. In seeking injunctive relief, Doe explained his family “ha[d] suffered, and will continue to suffer, immediate and irreparable harm in the event that [the Board is] allowed to continue permitting, authorizing, encouraging, and11

acquiescing in the delivery of ... religious invocations at the start of each board meeting”. As permitted by Federal Rule of Civil Procedure 15(a), Doe’s 26 November 2003 amended complaint was filed before the Board answered. The amendment added: “Plaintiffs, John Doe, James Doe, and Jack Doe, have been in attendance at school board meetings which were opened with a prayer”. In its 26 January 2004 answer, the Board admitted its meetings

were open to the public; it denied, but only for a lack of information, Doe’s allegations regarding attendance and involvement. No mention was made whether Doe had standing to bring this action. Instead, the parties on 30 August 2004 entered into the earlier-discussed consent judgment, which resolved all claims in Doe’s complaint except his challenge to the Board’s prayer practice. Four days later, on 3 September 2004, the parties entered into the stipulations discussed supra. These stipulations did not address the standing issue directly, noting only that Doe

was “a person of full age of majority and a resident and domiciliary of ... [Tangipahoa] Parish ... wherein he is a registered voter and taxpayer” and parent of two students within the School System. The remainder of the stipulations do not address Doe personally.12

The Board’s failure to challenge Doe’s assertions that he attended Board meetings and was offended by their content was never challenged, beyond the lack-of-information denial in its answer, filed more than eight months before the consent judgment. As this action progressed, the Board had many opportunities

— including during the bench trial

— to contest Doe’s standing; the Board’s failure to challenge either Doe’s attendance at Board meetings or his assertion that he was offended is the equivalent of an implied admission.Although we have not located any precedent for this impliedadmission concept regarding standing, we find it sufficiently analogous to the approach taken by Federal Rule of Civil Procedure 15(b). That rule states, in part: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings”. Similarly, the Board’s decision to proceed on the merits of Doe’s claim, without challenging either that he attended Board meetings or was offended by them, permits an inference that the Board conceded these allegations in Doe’s complaint. Further, the Board’s entering into the consent judgment and stipulations with Doe permits the inference that, had the Board disagreed with Doe’s allegations that he attended Board meetings and was offended by its prayer practice, it would not have entered into the consent judgment and stipulations. We may make such inferences from the13

record. Cf. Ladue v. Chevron, U.S.A., Inc., 920 F.2d 272, 277 (5th Cir. 1991) (inferring from the record the cause of injury in a products liability action). Nor do we have any reason to believe the interests of Doe, in his role as next friend, conflict with those of his sons. In contrast, such a conflict arose in N ewdow with evidence that the interests of a non-custodial father conflicted with those of his child. 542 U.S. at 15. Based on the unchallenged allegations in the complaint, Doe has shown an injury; he and his sons have attended Board meetings and have been offended by the Board’s prayer practice, which they “find wholly objectionable”. This suffices for a noneconomic, intangible injury under our Establishment Clause jurisprudence. Littlefield, 268 F.3d at 294 n.31. Doe’s injury, caused by that practice, would be redressed by

an injunction against it. Nothing has been offered to suggest that the Board did not comply with the one imposed by the district court, so Doe’s injury appears sufficiently redressed by it. Accordingly, three prudential factors are considered: (1) whether Doe’s complaint fits “within the zone of interests protected by the ... constitutional provision at issue”; (2) “whether [his] complaint raises [more than] abstract questions amounting to generalized grievances which are more appropriately resolved by the legislative branches”; and (3) “whether [Doe] is asserting his ... own legal rights and interests”, as opposed to14

those of third parties. M urray, 947 F.2d at 151 (quoting Cramer v. Skinner, 931 F.2d 1020, 1024 (5th Cir. 1991)). None of the prudential limitations bars Doe’s standing: his assertion that the prayer practice of the Board, a political subdivision of the state, impermissibly “inject[s] religion” into Boardmeetings, fits within the zone of Establishment Clause claims; he raises not abstract, generalized grievances, but his own experiences at Board meetings; and, finally, he asserts both his own injury, as well as those of his sons as next friend. Id. B. Applied to the States through the Fourteenth Amendment, Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8 (1947), the First Amendment’s Establishment Clause states: “Congress shall make no law respecting an establishment of religion”. U.S. CONST. amend. I. This has become synonymous with the proposition that neither the federal nor a state government, nor their entities, may “promote or affiliate ... with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, ... and may not involve itself too deeply in such an institution’s affairs”. C ounty of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 590-91 (1989) (internal footnotes omitted). The Amendment “guarantee[s] religious liberty and equality to ‘the infidel, the atheist, or the adherent of a non-Christian faith such15

as Islam or Judaism’”. Id. at 590 (quoting Wallace v. Jaffree, 472 U.S. 38, 52 (1985)). “The touchstone for our [Establishment Clause] analysis is the principle that the ‘First Amendment mandates governmental neutralitybetween religion and religion, and between religion and nonreligion.’” McCreary County v. Am. Civil Liberties Union of Ky., 125 S. Ct. 2722, 2733 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). The permanent injunction at issue is reviewed for abuse of discretion; such an abuse occurs if, inter alia, the district court relies on erroneous conclusions of law. M cClure, 335 F.3d at 408. Of course, its constitutional-law conclusions are reviewed de novo. Qutb v. Strauss, 11 F.3d 488, 491 (5th Cir. 1993), cert. denied, 511 U.S. 1127 (1994). An Establishment Clause challenge may be evaluated using one of several judicially-created tests. As it did in district court, the Board relies solely upon the legislativeprayer exception enunciated in Marsh. The Establishment Clause issue at hand being one of first impression for our circuit, little mention has been made of Marsh. One of our few opinions to discuss it explained the prayers in Marsh showed “absolutely no evidence of an intent to proselytize,

or advance, any religion, and no threat of an establishment of religion”. M

urray, 947 F.2d at 155 (holding, inter alia, a Christian cross contained in a city’s insignia did not violate the16

Establishment Clause). Accordingly, we look not only to Supreme Court precedent, but also to that from other circuits. After holding Marsh did not apply to the Board’s prayer practice, the district court, as urged by Doe, held it violated each prong of the Supreme Court’s traditional Establishment Clause analysis first outlined in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (requiring a challenged practice to: (1) “have a secular legislative purpose”; (2) have a “principal or primary effect ... that neither advances nor inhibits religion”; and (3) “not foster

an excessive government entanglement with religion”) (internal citations and quotation marks omitted). As noted, the Board defends its prayer practice solely under Marsh, however. It concedes that practice would not survive the Lemon test. For this reason, and because this opinion assumes the Board, as a stipulated public deliberative body, falls underMarsh, this opinion looks to its legislative-prayer exception in determining whether the Board’s prayer practice violates the Establishment Clause. See, e.g., Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., 52 F. App’x 355, 356 (9th Cir. 2002) (applying Marsh to a school board as a deliberative body); Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 278 (4th Cir.) (applying Marsh to a county board of supervisors as a deliberative body), cert. denied, 126 S.Ct. 426 (2005); Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998) (en banc)17

(applying Marsh to a city council), cert. denied, 526 U.S. 1039 (1999). Unlike the district court’s analysis and Judge Stewart’s opinion, assuming Marsh applies avoids being placed “between the proverbial rock and a hard place”, Coles v. ClevelandBd. ofEduc., 171 F.3d 369, 371 (6th Cir. 1999)

— the Court’s legislative-prayer analysis and its Establishment Clause jurisprudence in the publicschools context. 1. “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). In that regard, “[t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789”. L ynch v. Donnelly, 465 U.S. 668, 674 (1984). This role is reflected in Marsh, which addressed the narrow question of whether the Nebraska state legislature’s practice of opening each legislative session with a prayer by a paid chaplain violated the Establishment Clause. 463 U.S. at 784. Relying in large part on the “unique history” of prayer at legislative sessions and historical evidence of the intent of the Establishment Clause drafters, the Court held this practice constitutionally permissible. Id. at 790-91.

In [the] light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke1 Although Judge Stewart opines that Marsh applies only to

legislative bodies, Marsh contemplated deliberative public bodies more generally. In any event, as stated, this opinion only assumes that Marsh applies. To decide, as Judge Stewart does, whether it applies is not necessary and, as discussed infra, is violative of the well-settled rule that constitutional questions, especially those involving the Establishment Clause, should be decided on the most narrow basis possible. Accordingly, this opinion does not respond to Judge Stewart’s reasons for claiming Marsh does not apply to the Board’s prayer practice. 18 Divine guidance on a public body entrusted with making the laws ... is simply a tolerable acknowledgment of beliefs widely held among the people of this country. Id. at 792 (emphasis added). Likewise, earlier in its opinion, the Court stated: “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country”. Id. at 786 (emphasis added). 1 The challenged prayers in M arsh contained no references to Jesus Christ; although the chaplain had made Christian references in the past, they had been removed at the request of a nonChristian legislator. Id. at 793 n.14. The Court emphasized: “The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Id. at 794-95. Likewise, consistent with

our holding in Jones, 977 F.2d at 972, the consent judgment between Doe and the Board provides that student-led prayers may be19

permitted during graduation ceremonies, so long as they do not have a coercive effect. References to God in a motto or pledge, for example, have withstood constitutional scrutiny; they constitute permissible “ceremonial deism” and do not give an impression of government approval. C

ounty of Allegheny, 492 U.S. at 595 n.46, 603; see Lynch, 465 U.S. at 716 (Brennan, J., dissenting) (suggesting phrases such as “In God We Trust” are best explained as “ceremonial deism”, or practices “protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content”); N.C. Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1151 (4th Cir. 1991) (explaining that use of these oft-repeated phrases “merely reflect[s] this fact of our history and no longer ha[s] any potentially entangling theological significance”) (quoting Hall v. Bradshaw, 630 F.2d 1018, 1023 (4th Cir. 1980), cert. denied, 450 U.S. 965 (1981)), cert. denied, 505 U.S. 1219 (1992). Our circuit has similarly examined legislative prayers alongside other “government use[s] of religious acknowledgment” such as “In God We Trust” on our currency and opening our sessions with “God save the United States and this honorable court”. M urray, 947 F.2d at 154- 55. Since Marsh, the legislative-prayer exception has been sparsely applied; the Court has not held it controlling for an20

Establishment Clause challenge. Instead, the Court has continued to define Marsh as a narrow exception for nonsectarian legislative invocations. In C ounty of Allegheny, applying the Lemon test to a challenged holiday display in local government buildings, the Court discussed its earlier opinion in Marsh: “However history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the government’s allegiance to a particular sect or creed.” 492 U.S. at 603 (internal footnote omitted). The history of legislative prayer, which justified the nonsectarian prayers in Marsh, “can[not] justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief”. Id. (explaining that the prayers in Marsh “did not violate this principle because the particular chaplain had ‘removed all references to Christ’” (quotingMarsh, 463 U.S. at 793 n.14)). Similarly, in Edwards v. Aguillard, 482 U.S. 578 (1987), the Court explained that Marsh’s holding was based on “the historical acceptance of the practice” and deemedMarsh inapplicable to public schools, where there existed no similar longstanding tradition of prayer. Id. at 583 n.4 (“Such a historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted.”). Likewise, in Lee v.21

Weisman, 505 U.S. 577 (1992), the Court noted Marsh’s application to legislative bodies but refused to extend its legislative-prayer exception to public school graduation ceremonies. See id. at 596- 97. Justice Scalia’s dissent analogized the legislative prayers in Marsh to the Court’s tradition of opening its sessions with the “ceremonial deism” of “God save the United States and this Honorable Court”, which dates back to Chief Justice Marshall. Id. at 635 (Scalia, J., dissenting). Later that year, on remand from the Supreme Court, our court decided Jones, in which we reflected on the Court’s holding in Lee that a school principal, by inviting a local clergy member to deliver a graduation prayer, violated the Establishment Clause. Jones, 977 F.2d at 965. We held Lee did not render infirm the graduation prayers at issue in Jones because they imposed no elements of unconstitutional coercion found in Lee. The studentdriven nature of the prayers — the graduating class decided whether any prayer would be given — and the lack of involvement with religious institutions allowed them to pass constitutional muster. Id. at 968-72. In its most recent Establishment Clause decisions, the Court has reaffirmed Marsh’s viability for legislative prayer. In McCreary County, it noted Marsh’s legislative prayer was upheld “despite its religious nature”. 125 S. Ct. at 2733 n.10. In Van Orden v. Perry, 125 S. Ct. 2854 (2005), decided the same day, the22

Court explained it was not constitutionally problematic that the legislative prayers in Marsh “had once been offered in the JudeoChristian tradition”, because the references to Christ had been removed after the litigation commenced. Id. at 2862 n.8. The Court then explained that M arsh stands for the following proposition: “Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause”. Id. at 2863 (noting that the Ten Commandments, at issue inVan Orden, have an “undeniable historical meaning”). Because bothMcCrearyCounty and Van Orden involved Ten Commandment displays, not legislative prayers, however, the Court declined to expand Marsh’s reach. Nor have our sister circuits expansively applied Marsh, even for prayer in “legislative and other deliberative public bodies”. Marsh, 463 U.S. at 786. When they do apply Marsh, other circuits typically emphasize it permits only nonsectarian, non- “proselytiz[ing legislative prayers that do not] ... advance ...

or ... disparage any ... faith or belief”. Id. at 794-95; see also, e.g., Snyder v. Murray City Corp., 159 F.3d 1227, 1235 (10th Cir. 1998) (en banc) (applying M arsh to uphold city council’s decision to disallow a particular opening prayer proselytizing its religious views while disparaging others), cert. denied, 526 U.S. 1039 (1999). Two circuits have squarely addressed opening prayers23

at school-board meetings and M arsh’s applicability to them; the Sixth and Ninth Circuits employed different approaches to hold the prayers violated the Establishment Clause. In Coles v. ClevelandBoard ofEducation, the Sixth Circuit in 1999 concluded school-board prayer was appropriately considered among the Supreme Court’s decisions addressing “school-related activities”, because board meetings “take place on school property and are inextricably intertwined with the public school system”. 171 F.3d at 377. C oles found two relevant “overriding principles” in the Supreme Court’s school-prayer jurisprudence: “first ... that ‘coercion’ of impressionable young minds is to be avoided, and

... second ... that the endorsement of religion is prohibited in the public schools context”. Id. at 379. After briefly outlining Marsh’s legislative-prayer exception, Coles held Marsh not controlling because the school board did not fit within the scope of legislative and deliberative bodies to whichMarsh should apply. Id. at 381 (“Simply stated, the fact that the function of the school board is uniquely directed toward school-related matters gives it a different type of ‘constituency’ than those of other legislative bodies

— namely, students.”). Applying the Lemon test instead, Coles held the school board’s prayers violated the Establishment Clause. Id. at 385. (Seven judges dissented, however, from the denial of rehearing en banc. 183 F.3d 538 (6th Cir. 1999).)24

More recently, in contrast to the Coles approach, the Ninth Circuit, in an unpublished opinion, applied M arsh to a school board’s prayers that typically included “in the name of Jesus” and

were presented by a Christian. Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., 52 F. App’x 355, 356 (9th Cir. 2002). In so doing, the court “assum[ed] without deciding that [M arsh] is applicable” to the school board as a deliberative body. Id. (“On the facts of this case, even if the school board is like a state legislature for this purpose, the invocations are unconstitutional.”). As in the action at hand, but unlike in Marsh, the sectarian references in the prayers at issue in Bacus

were not removed after they were challenged, and the prayers consistently advanced the Christian faith. Bacus held: “[T]he prayers did not disparage other religious faiths, and did not proselytize. But that is not enough” to survive constitutional muster. Id. at 357. The prayers in Bacus failed the additional requirement that they “not ‘advance any one ... faith or belief’”. Id. (quoting Marsh, 463 U.S. at 794-95). The school board’s decision to solemnize its meetings by using Jesus’ name impermissibly “display[ed] ‘the government’s allegiance to a particular sect or creed’”. Id. (quoting County of Allegheny, 492 U.S. at 603). Stating that “[i]njunctions against governmental prayers violative of the Establishment Clause are routinely25

granted”, id., the Ninth Circuit reversed the district court’s denial of such relief. Other circuits have also affirmed Marsh’s viability in the limited sphere of legislative prayer. Quite recently, the Seventh Circuit endorsed a narrow view of M arsh, holding its protections encompass only nonsectarian legislative prayer. Hinrichs v. Bosma, 440 F.3d 393, 399 (7th Cir. 2006). In Hinrichs, the Speaker of Indiana’s House of Representatives requested that ordered injunctive relief be stayed; taxpayers had challenged the Indiana House’s 188-year-old practice of opening official meetings with brief prayers, and the district court permanently enjoined sectarian prayers. Id. at 395-96. The prayers were typically delivered by local clerics of various faiths, but Christian prayers dominated: of 45 prayers in 2005 for which transcripts were available, 29 were “identifiably Christian”. Id. at 395. Relying

on the Court’s language in Marsh and Allegheny, and noting that no other circuit had taken a contrary position, the Seventh Circuit held the prayers fell outside Marsh’s protections. Id. at 400-02;

see id. at 399 (“[W]e have read Marsh as hinging on the nonsectarian nature of the invocations at issue there”.). The Tenth Circuit in Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998) (en banc), cert. denied, 526 U.S. 1039 (1999), applied Marsh in denying a speaker’s request to present an26

invocation at a city-council meeting because of its disparaging, proselytizing content. Id. at 1236. The court held: “the kind of legislative prayer that will run afoul of the Constitution is one that proselytizes a particular religious tenet or belief, or that aggressively advocates a specific religious creed”, id. at 1234; in contrast, a permissible prayer “typically involves nonsectarian requests for wisdom and solemnity, as well as calls for divine blessing on the work of the legislative body”, id.; and Marsh approved of a “genre” of prayer that “is a kind of ecumenical activity that seeks to bind peoples of varying faiths together in a common purpose”, id. The Fourth Circuit upheld a county board of supervisors’ invocationpolicy that permitted only “non-sectarian [prayers] with elements of the American civil religion”. Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 278 (4th Cir. 2005) (quoting the board’s policy). “[S]eeking to avoid the slightest hint of sectarianism”, the board, by letter, directed those presenting the prayer to avoid making references to Jesus Christ. Id. at 279. The court noted that earlier, in W ynne v. T

own of Great Falls, 376 F.3d 292 (4th Cir. 2004), cert. denied, 125 S. Ct. 2990 (2005), it had contrasted this constitutionally permissible policy with prayers found impermissible because “sectarian references ... were far more than occasional or incidental”. Simpson, 404 F.3d at 283.27

In W ynne, before filing suit against the town council, the plaintiff had proposed nonsectarian alternatives to the council’s practice of making references to “Christ” or “Jesus Christ”; as did the Board in the appeal at hand, the council refused those suggestions; and exclusively Christian prayers continued to be presented. 376 F.3d at 295. Unlike the “nonsectarian” and “civil” invocations in Marsh, those permitted by the town council “‘frequently’ contained references to ‘Jesus Christ’ and thus [impermissibly] promoted one religion over all others”. Id. at 298-99 (internal footnote omitted). The remaining circuits have offered only a limited discussion of legislative prayer as permitted by Marsh. See, e.g., ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d 772, 777 (8th Cir. 2005) (“[T]he Court has approved certain government activity that directly or indirectly recognizes the role of religion in our national life”.); Freethought Soc’y of Greater Phila. v. Chester County, 334 F.3d 247, 266 (3d Cir. 2003) (declining to apply Marsh to a Ten Commandments display but noting “that the Supreme Court has acknowledged the proposition that history can transform the effect of a religious practice”); Commack Self-Serv. KosherMeats, Inc. v. Weiss, 294 F.3d 415, 430 (2d Cir. 2002) (applying Lemon, but explaining that legislative prayers in Marsh were permissible because they “did not confer a substantial and impermissible benefit on religion in general or on Christianity in particular”),28

cert. denied, 537 U.S. 1187 (2003); Jager v. Douglas County Sch. Dist., 862 F.2d 824, 828-29 (11th Cir.) (declining to apply Marsh to prayers prior to high-school football games because, unlike the “unique history” of invocations at legislative sessions, those “at school-sponsored football games were nonexistent when the Constitution was adopted”), cert. denied, 490 U.S. 1090 (1989); Carter v. Broadlawns Med. Ctr., 857 F.2d 448, 453 (8th Cir. 1988) (“We do not believe the evidence recounted in Marsh can support a rule permitting state sponsored chaplaincies of any stripe.”). 2. For the Board’s prayers to fall outside those permitted by Marsh, we must conclude either: (1) the Board, although stipulated to be a deliberative body, does not fit within Marsh’s description of “legislative and other deliberative public bodies”, 463 U.S. at 786, either because Marsh did not intend to encompass any entities beyond legislatures or because the prayers fit within the publicschool context to which Marsh does not apply; or (2) the prayers

are not nonsectarian and non-proselytizing, in violation of Marsh and subsequent guidance from the Court. Because the overtly sectarian prayers included in the stipulations fall outside Marsh’s limited reach, we need not decide: (1) whether the Board fits within Marsh’s legislative scope; and (2) thus whether other prayers might be constitutionally permissible. This is in keeping2 Judge Clement contends this analysis incorrectly allocates

the burden of proof to the defendant Board, rather than the plaintiff Doe, because the Establishment Clause violation is based on an absence of evidence. See infra. But the unconstitutionality here is not found in a lack of evidence (i.e., in the Board’s failure to prove) that prayers from other faiths were offered; rather, the impermissible advancement of a particular religion is grounded in the Board’s refusal to adopt a nonsectarian policy, the prayers’ uniformly Christian tenor, and their overtly sectarian, 29 with the long-standing and extremely sensible rule that “constitutional issues should be decided on the most narrow, limited basis”. U nited States v. Roberts, 274 F.3d 1007, 1012 (5th Cir. 2001). For obvious reasons, this holds especially true for Establishment Clause challenges. See, e.g., Lee, 505 U.S. at 597 (“Our Establishment Clause jurisprudence remains a delicate and fact-sensitive one”). The opinions by Judges Stewart and Clement ignore this bedrock prudential rule. Accordingly, we assume arguendo the Board is a Marsh “legislative” or “other deliberative public body”. As another circuit explained, “Marsh does not permit legislators to ... engage, as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe”. Wynne, 376 F.3d at 301. In allowing such explicit references to “Jesus Christ”, in selecting other persons to offer prayers who also referred exclusively to the Christian deity, and in demonstrating an unwillingness to adopt a policy that would have forbidden such references, the Board engaged in what Marsh forbids. 2proselytizing references. See, e.g., Hinrichs, 440 F.3d at 395-96

(upholding Establishment Clause injunction when evidence showed 41 of the 53 legislative invocations during the calendar year were Christian, many containing identifiable supplications to Christ). It is the Board’s stipulated prayer practice, not one particular prayer, that is at issue.

3 Judge Clement maintains a content-based analysis contradicts Marsh. See infra. ButM arsh’s guidance is not so simple. M arsh’s not examining content was conditioned on there being “no indication that the prayer opportunity has been exploited to proselytize or advance any one [faith or belief]”, 463 U.S. at 794, a condition that often requires examination of content. See, e.g., Hinrichs, 440 F.3d at 398-99 (rejecting the argument that M arsh proscribes examining sectarian prayer content, and “read[ing] Marsh as hinging on the nonsectarian nature of the invocations at issue”). M arsh noted the sectarian references were removed following filing of the complaint. 463 U.S. at 793, n.14. Unlike M arsh, the sectarian advances at issue here continue unabated, as reflected in the stipulations. This fact, combined with the apparent foreclosure of other religious viewpoints, demonstrates, as discussed infra, the prayer practice was exploited to advance, if not also proselytize, a particular faith. 30 Although Marsh emphasized the longstanding tradition of legislative prayer, it also found “no indication” that the chaplain’s nonsectarian prayers were “exploited to proselytize or advance any one” religion. 463 U.S. at 794-95. In contrast, it appears the sectarian prayers here were exploited in such a manner, both with their overtly Christian tone and no evidence that an adherent of any non-Christian faith was permitted to offer a prayer presenting a different message. 3 Other circuits have found prayers violative of Marsh even where some were offered by clerics of nonChristian faiths. See, e.g., Hinrichs, 440 F.3d at 395.4 Contrary to Judge Clement’s opinion, because the Board, not

Doe, makes this claim, the burden obviously rested on it to provide supporting evidence. 31 The longstanding history of legislative prayer does not “justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief”. County of Allegheny, 492 U.S. at 603. The prayers here have just that effect: an observer would perceive them to affiliate the Board, a political subdivision charged with acting in the public interest, with Christianity, and they show a clear preference for the Christian faith. This is impermissible under the Establishment Clause. Unlike Coles, where at least some of the school board’s prayers were “secular in their tenor”, 171 F.3d at 373, none of the prayers included in the stipulations had such a tenor. Instead, each evoked a Christian tone, reflecting the Board’s religious preference for Christianity. The Board claims Coles is distinguishable because that school board had a student member and thus student participation was not entirely voluntary. Without supporting evidence, the Board claims it does not have a student member. 4 Neither the Board’s membership nor the statute establishing parish school boards reflect, however, that a student is not a member. See LA. REV. STAT. ANN. § 17:52(E)(1) (requiring, inter alia, that a school-board candidate have reached age 18). Even assuming the Board does not have a student member, and because5 Again, in the light of the joint stipulations, the burden

was on the Board to provide evidence of non-Christian prayers. It failed to do so, as discussed infra. 32 we rely solely on Marsh, while C oles applied Lemon, this is a distinction without a difference. The most sectarian of the earlier-quoted prayers in the stipulations not only referred to “Jesus Christ”

– which the Ninth Circuit deemed impermissible under Marsh, Bacus, 52 F. App’x at 356

– but also spoke of Jesus Christ as “the greatest gift of all – your darling son”. As the Ninth Circuit explained, “[s]ome religions accept Jesus Christ as the Messiah, some do not, and some people do not believe in any religious faith”. Id. at 357. By solemnizing its prayers with any reference to Jesus Christ, the Board demonstrated its “allegiance to a particular sect or creed”. Id. (quoting County of Allegheny, 492 U.S. at 603). The Christian references, which went far beyond a permissible “ceremonial deism”,

were more overt and extensive than those found impermissible by the Sixth and Ninth Circuits. As stated, no evidence exists that any prayers were given by non-Christians. 5 Based on the four prayers in the stipulations, it is reasonable to infer none were. Accordingly, by providing only Christians who presented Christian prayers, the Board at minimum “aggressively advocate[d]” Christianity. S nyder, 159 F.3d at 1234. We need not determine whether the prayers “proselytized” because it is enough that this prayer opportunity was “exploited to33

proselytize or advance any one ... faith or belief”. Marsh, 463 U.S. at 794-95 (emphasis added). The terms “proselytize” and “advance” are not synonymous. While “proselytize” “necessarily means to seek to ‘convert’ others to that belief”, “‘advance’ ...

means simply to ‘forward, further, [or] promote’ the belief”. Wynne, 376 F.3d at 300 (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, 30, 1821 (3d ed. 1993)) (alteration in original). “Advancement could include ‘conversion’ but it does not necessarily contain any ‘conversion’ or ‘proselytization’ element.” Id. (emphasis in original). Because Board members selected those who offered prayers, they

were able to

– and did

– select only those who would advance the Christian faith. The Board’s prayers did “further” and “promote” their Christian beliefs, see id., rather than attempting to “bind peoples of varying faiths”. S nyder, 159 F.3d at 1234. The four prayers in the stipulations evidence “an [impermissible] intent to proselytize, or advance” Christianity. See Murray, 947 F.2d at 155. There is no evidence of any prayers that represented a different faith or were secular in tone. Further, after this action was filed, the Board made no attempt to mitigate the effect the prayers had on those in attendance, or to make the prayers more inclusive of other religious beliefs. See Wynne, 376 F.3d at 295 (noting the town council refused suggested nonsectarian alternatives for its6 Contrary to Judge Clement’s opinion at 4, this opinion does

not “render[] all sectarian prayer necessarily unconstitutional”. Nor, contrary to her claim at 5, does it “reduc[e] Marsh to a sectarian/non-sectarian litmus test”. Instead, being faithful to finding the most narrow basis for deciding the issue at hand, and based on the facts presented in the joint stipulations, this opinion holds that the prayers presented in those stipulations are unconstitutional. In short, this holding is far more narrow than the broad reach erroneously ascribed to it by Judge Clement. Moreover, her opinion fails to recognize that, even if another type of prayer had been given, which the Board failed to show, that would not cure the unconstitutionality of the prayers in the joint stipulations. 34 invocations). Along this line, and although this alone is not dispositive, the Board unanimously rejected a policy requiring “non-sectarian, non-proselytizing” invocations. This was done shortly before the consent judgment concerning other prayer events in the School System. “Whatever else the Establishment Clause may mean[,] ... it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).” County of Allegheny, 492 U.S. at 605. Because the Board’s prayers in the stipulations demonstrate a clear preference for Christianity, they are not permitted under Marsh. In so holding, this opinion takes no position on whether another form of prayer is permissible at Board meetings. 6 Instead, it holds only that prayers of the type included in the stipulations do not pass constitutional muster. This holding is far more narrow than the relief granted by the permanent injunction at issue; it35

enjoined all prayers at Board meetings. For the issue at hand, the holding in this opinion — and the concomitant injunctive relief — need not be that expansive. III. Pursuant to this opinion and those by Judges Stewart and Clement, the permanent injunction is AFFIRMED in PART and VACATED in PART and this matter is REMANDED to district court for entry of an injunction consistent with this opinion. AFFIRMED in PART; VACATED in PART; REMANDED1Contrary to Judge Barksdale’s assertion that constitutional

analysis requires that we avoid deciding this question, his assuming arguendo approach actually decides that Marsh applies because it is only the application of Marsh that would justify the vacatur of any part of the district court’s injunction, especially considering the school board’s concession that its entire practice would fail under Lemon. Moreover, this case is unlike Bacus v. Palo Verde Unified Sch. Dist. Bd of Ed., 52 F. App’x 355 (9th Cir. 2002), because the outcome of that case did not hinge on the application of Marsh; the outcome would have been the same under both Marsh and Lemon. Id. at 356. 36 CARL E. STEWART, Circuit Judge, concurring in the judgment in part and dissenting in the judgment in part: This case squarely presents the issue of the application of Marsh v. Chambers, 463 U.S. 783 (1983), to opening prayers by a

school board. 1 I am not convinced that Marsh applies to the situation before us; therefore, I believe the correct course is to affirm the district court’s ruling, especially in light of the fact that the school board stipulated that its practice would fail under Lemon v. Kurtzman, 403 U.S. 602 (1971). My belief that Marsh is inapplicable to this situation is supported by the language of Marsh, subsequent Supreme Court precedent, and other Circuits’ applications of Marsh. I. This case comes to this court on a record of stipulated facts. John Doe, on behalf of himself and as next friend of his minor children, John and Jack Doe, students at Loranger High School in Tangipahoa Parish, filed suit against the Tangipahoa Parish School Board in 2003, alleging various violations of the Establishment2The Lemon test requires that government action have a secular

purpose, that its primary effect must be one that neither advances or inhibits religion, and that it not foster excessive government entanglement with religion in order to survive an Establishment Clause challenge. 403 U.S. at 613. 37 Clause. All but one of the alleged violations were resolved through a consent decree entered into by the parties on August 31, 2004. The issue that was not resolved, the opening of school board meetings with a prayer, proceeded to a bench trial before the district court judge on the stipulated facts. The parties agree that the school board is a deliberative body

responsible for the operation of the public schools within Tangipahoa Parish. The school board’s meetings take place twice monthly in the boardroom of the Tangipahoa Parish School System’s central office. The meetings are open to the public, and students may attend the meetings. The board meetings commence with an invocation, and board members, teachers, and students have delivered the prayer on various occasions over the last 30 years. The school board conceded that its practice would fail under the Supreme Court’s four-part test in Lemon v. Kurtzman2 but argued that Marsh v. Chambers was the correct test to apply to these facts. The district court ruled that, because of the school board’s “obvious connection to public education,” 2005 WL 517341, *7 (E.D. La. 2005), and because of the refusal of most federal courts to extend Marsh beyond its specific facts, id. at *8, Marsh was38

inapplicable to the case and the Lemon test should apply. The district court then proceeded to analyze the constitutionality of the school board’s prayer practice under Lemon, holding that the practice violated the Establishment Clause. II. The facts of this case give rise to the thorny issue of Marsh’s place in the Supreme Court’s Establishment Clause jurisprudence. The only way to resolve this dispute is to squarely decide whether Marsh should be extended from its original context to this new set of circumstances. After reviewing the parties’ briefs and the stipulated record, I believe that Marsh does not apply to these facts in light of the constricted holding in Marsh itself and how other federal courts, including this one, have interpreted Marsh. I would affirm the injunction of the district court based on the school board’s admission that its practice fails under Lemon. Marsh does not apply to prayer at school board meetings because of the narrowness of its holding. The Court allowed the practice of legislative prayer to continue because it is “deeply embedded in the history and tradition of this country,” id., and, because days after approving a draft of the First Amendment, Congress voted to open legislative sessions with prayer, id. at 787. Therefore, the Court reasoned, the practice does not present a “potential for establishment.” Id. at 791.39

While Marsh mentions “other deliberative public bodies,” 463 U.S. at 786, this phrase only appears once in an opinion that otherwise focuses entirely on the very specific factual history of legislative prayer. This kind of history is not shared by the practice at issue here because the school board is not a legislative body. From the board’s admission that it directs the operation of the schools in its parish rather than passing laws, it

seems obvious that the board’s function is not legislative in nature. The school board argues that it is a “deliberative public body” such that Marsh applies to its practice exactly as it would to a legislature’s. The Circuit courts that have considered this issue, however, have found that Marsh, despite its singular mention of non-legislative bodies, 463 U.S. at 786, is too narrow a holding to be interpreted so broadly. The clearest example of a court being unwilling to use the solitary expression of the phrase “other deliberative public bodies” to extend the reasoning of Marsh is ACLU v. Constangy, 947 F.2d 1145 (4th Cir. 1991), cert. denied, 505 U.S. 1219 (1992). Judge Constangy served on the North Carolina state bench and opened every judicial session with a prayer. Despite his argument that his practice should be allowed because the judiciary is a “deliberative public bod[y]”, the Fourth Circuit held that this language should not be interpreted without looking to the rest of40

the Marsh opinion that very strongly focuses on the specific unique history of legislative prayer. Id. at 1148. The court specifically held that “the Supreme Court sees the holding of Marsh to be predicated on the particular historical circumstances presented in that case” and refused to extend Marsh past those circumstances. Id. Marsh does not “create[] a presumption of validity for government-sponsored prayer at all deliberative public bodies.” Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 380-81 (6th Cir. 1999). Instead, the furthest reach of Marsh has been local governing bodies that are legislative in nature. See, e.g., Simpson v. Chesterfield County, 404 F.3d 276, 278, 280 (4th Cir.), cert. denied, 126 S. Ct. 426 (2005) (allowing a county board of supervisors who modeled its policy on the language of Marsh to open its meetings with a prayer); Wynne v. Town of Great Falls, 376 F.3d 292, 301-02 (4th Cir. 2004), cert. denied, 125 S. Ct. 2990 (2005) (striking down the sectarian prayers of a town council while noting that if the prayers had not been sectarian they would survive challenge under Marsh)

### . Beyond the fact that the school board is not a legislature, the application of Marsh should be limited by the special protections that the Court has mandated for any functions related to public education. In rejecting the mandatory observance of the41

pledge of allegiance in public schools, the Court stated, “[t]hat [school boards] are educating the young for citizenship is reason for scrupulous protection of [c]onstitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943); see also Lee v. Weisman, 505 U.S. 577, 592 (1992) (“[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”). The Sixth Circuit in Coles directly considered the application of Marsh to prayer by a school board. The court held that Marsh should not be applied to the practice because a school board is not equivalent to a legislature because of the school board’s student “constituency.” 171 F.3d at 381. The school board argues that Coles is irrelevant to this case because there is no evidence before the court that students are required to attend school board meetings, that the meetings take place on school property, or that students regularly attend the meetings voluntarily to discuss issues. While the Coles court did rely on these factors to some extent, the greater thrust of the holding is that “the function of a school board is uniquely directed toward school related matters . . . .” Id.42

Even on the stipulated factual record before us here, it is clear that the existence of the school board is dependent on the existence of public schools. Supreme Court jurisprudence, as well

as common sense, dictate that school board members should not be allowed to do at meetings what they could not mandate in the schools. E.g., Coles, 171 F.3d at 382 (“Allowing the board to act in a manner inconsistent with its fundamental function of running the school system only leads to its further erosion in the minds of those students who either attend or hear about such meetings.”). Nor can the school board claim any protection of history for its practice. The Supreme Court has noted that not all practices that have a long history are protected by the kind of reasoning present in Marsh, see County of Allegheny v. ACLU, 492 U.S. 573, 603 (1989) (“Marsh plainly does not stand for the sweeping proposition . . . that all accepted practices 200 years old and their equivalents are constitutional today.”), and the school board has only followed this practice for 30 years. Additionally, the Court has noted on several occasions that Establishment Clause challenges related to public education are rarely protected by history. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987) (“[A] historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted.”) (internal citations omitted); Wallace43

v. Jaffree, 472 U.S. 38, 80 (1985) (O’Connor, J., concurring) (“The simple truth is that free public education was virtually nonexistent in the late 18th century. Since there then existed few government-run schools, it is unlikely that the persons who drafted the First Amendment . . . anticipated the problems of interaction of church and state in the public schools.”) (internal citations omitted). The Court meant for Marsh to be a doctrinal enclave in its Establishment Clause analysis, narrowly ruling on the basis of both extensive, specific history and the nature of the legislative body at issue. I am not persuaded that we are on firm footing to extend this exceptional exception without further guidance from the Court. We should interpret Marsh according to the very narrow question that it claimed to decide: “whether the Nebraska Legislature’s practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishment Clause of the First Amendment.” 463 U.S. at 784. The opening of a nonlegislative public body with a prayer would extend the holding of Marsh beyond “the historical acceptance” of legislative prayer, Edwards, 482 U.S. at 583 n.4. The Supreme Court has had multiple opportunities to extend its reasoning in Marsh to other situations and yet has chosen not to. In McCreary Countyv. ACLU, 125 S. Ct. 2722 (2005), the Court noted that, unless special factors such as those that existed in Marsh44

counsel otherwise, government affiliation with religion is not constitutional. Id. at 2733 n.10. These cases and the language in Marsh itself lead to the conclusion that the holding in Marsh was meant to be a very limited exception from more commonly accepted Establishment Clause doctrine predicated on the “unique history,” 463 U.S. at 791, of the practice at issue in Marsh. Even this rationale has been limited by the Court in subsequent cases. In County of Allegheny, the Court addressed the appropriateness of a creche display in front of a government building. The Court noted that the historic pedigree of government recognition of religious holidays could not save the display of the creche if it otherwise violated the Establishment Clause. 492 U.S. 573, 603. Although the dissenting Justices would have held that the display was constitutional because it did not proselytize, the Court rejected this approach, holding that, except in the limited factual circumstances of Marsh, proselytization is not necessary to show that the government has preferred one religion over another,

or even religion over non-religion. Id. at 602-05. The Marsh opinion’s singular mention of “other deliberative public bodies,” without more, is not enough to overcome the Supreme Court’s own reluctance in subsequent cases to extend Marsh’s reasoning to different factual scenarios. Even in cases where the Supreme Court has arguably relied on Marsh to approve of government action that would seemingly45

otherwise be in violation of the Establishment Clause, the Court has carefully narrowed the holding of Marsh to the unique history of legislative prayer. In Van Orden v. Perry, 125 S. Ct. 2854 (2005), the Court approvingly quoted Marsh to emphasize that not all government affiliation with religionviolates the Establishment Clause but still noted that Marsh relied on the unique factual circumstances of legislative prayer, dating back to the drafters of the Constitution. Id. at 2862. In L ynch v. Donnelly, 465 U.S. 668 (1984), in which the Court upheld the inclusion of a creche in a multi-denominational holiday display, Marsh was quoted approvingly

multiple times; however, the Court also undertook a historical analysis of national recognition of holiday celebrations. Id. at 674-78. Finally, in Lee v. Weisman, 505 U.S. 577 (1992), the Court compared the legislative prayer at issue in Marsh to a schoolsponsored prayer at a high school graduation. Although the opinion in Lee did not explicitly focus on the history of the legislative prayer practice, the Court carefully limited its discussion to a comparison of the graduation prayer to a prayer in a state legislative chamber, id. at 596-97, and refused to extend Marsh to that prayer, id. at 596. Even cases in which the Supreme Court has relied on Marsh, there is no support for the extension of Marsh that the Tangipahoa School Board seeks in this case.46

What the Tangipahoa School Board asks this court to do is extend the holding of Marsh to a new set of factual circumstances that are completely distinct from the legislative arena, something

none of our prior cases have done. In Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991), this court considered whether federal laws that prohibited the use of peyote generally but allowed its use by Native American tribes violated the Establishment Clause. In determining that the special relationship between the federal government and Native American tribes is not susceptible to the usual Establishment Clause analysis, this court cited Marsh as an example of the flexible approach the Supreme Court has taken when specific factors, such as “unambiguous and unbroken history of more than 200 years,” are present. 922 F.2d at 1216 (citing Marsh, 463 U.S. at 792). There is no special relationship or unique history in this case that warrants ignoring the Supreme Court’s general instruction that the Lemon test applies to Establishment Clause challenges. We also considered Marsh in Murray v. City of Austin, a case involving whether a religious symbol in a city insignia violates the Establishment Clause. Although the decision in Murray discusses Marsh in terms that appear to go beyond its historical meaning, 947 F.2d 147, 155 (5th Cir. 1991) (“[W]e lack the kind of evidence of original intent present in Marsh . . . [y]et this case does share some important similarities with Marsh . . . .”), cert.47

denied, 505 U.S. 1219 (1992), the case ultimately rests on County of Allegheny’s language about government endorsement of religion. Id. at 156. Murray does not stand for the proposition that Marsh

can be applied in the absence of the unique history of the practice at issue in that case. Other Circuits that have considered the application of Marsh also have narrowly construed the decision to address only those circumstances that would warrant a direct application of Marsh. The Fourth Circuit first addressed the issue in Constangy, finding that without evidence of long-standing tradition and the “intent of the framers of the Bill of Rights with regard to the [practice],” 947 F.2d at 1148, Marsh should not be applied. The court reaffirmed their reliance on the historical circumstances of Marsh in Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003), cert. denied, 541 U.S. 1019 (2004), when the court refused to apply Marsh to exempt the evening prayer at the Virginia Military Institute from the Lemon test. Id. at 370. Subsequent Fourth Circuit cases have applied Marsh but have not extended it. When considering whether the daily, voluntary recitation of the pledge in public schools violates the Establishment Clause, the court relied on Marsh not for its specific holding but for its reliance on history. M yers v. Loudoun County Public Schools, 418 F.3d 395, 403-04 (4th Cir. 2005). The Fourth Circuit struck down prayer by a legislative body, a town48

council, in Wynne because it was sectarian, 376 F.3d 292, 301-02, although the prayers otherwise would have fit within Marsh’s framework of legislative prayer, including the historical circumstances of legislative prayer. Id. at 302. Similarly, the practice of a county board of supervisors to open its meetings with

a prayer was found not to violate Marsh because a board of supervisors is a legislative body similar to the kind that was specifically at issue in Marsh and because its prayer policies specifically tracked the language the Court used in Marsh. Simpson

v. Chesterfield County, 404 F.3d 276, 278, 280. In short, all the

cases of the Fourth Circuit support a narrow reading of Marsh, limited to the practice of legislative prayer that was at issue in the case. Almost every other Circuit that has considered the application of Marsh to diverse facts has relied on the historical analysis in Marsh to limit its holding to only its specific factual context. See, e.g. , Hinrichs v. Bosma, 440 F.3d 393, 398 (7th Cir. 2006) (striking down sectarian legislative prayer while noting that the practice of legislative prayer is “analyzed . . . largely based on considerations of history and tradition”); Glassroth v. Moore, 335 F.3d 1282, 1298 (11th Cir.) (holding that the placement of a Ten Commandments monument in a courthouse should not be judged byMarsh because the practice does not have the “unambiguous and unbroken history” of legislative prayer), cert. denied, 540 U.S. 100049

(2003); ACLU v. Capitol Square Review and Advisory Bd., 243 F.3d 289, 300 (6th Cir. 2001) (holding that the state motto of Ohio, “With God, All Things Are Possible,” does not violate the Establishment Clause after undertaking an extensive historical review of ceremonial deism based in part on Marsh’s historical analysis); Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 381 (6th Cir. 1999) (viewing Marsh as “one-of-a-kind”); Warner v. Orange CountyDep’t of Prob., 115 F.3d 1068, 1076 (2d Cir. 1997) (refusing to apply Marsh because it “relied heavily on the long tradition of public prayer in [the legislative] context”) (citations omitted), cert. denied, 528 U.S. 1003 (1999); Cammack v. Waihee, 932 F.2d 765, 772 (9th Cir. 1991) (refusing to apply Marsh to Hawaii’s Good Friday holiday because Marsh was “explicitly based upon the ‘unique history’ surrounding legislative prayer”) (citations omitted), cert. denied, 505 U.S. 1219 (1992); Jager v. Douglas County Sch. Dist., 862 F.2d 824, 828 (11th Cir.) (holding that “[b]ecause Marsh

was based on more than 200 years of the ‘unique history’ of legislative invocations, it has no application to the case at bar”) (citations omitted), cert. denied, 490 U.S. 1090 (1989). But see Van Zandt v. Thompson, 839 F.2d 1215, 1219 (7th Cir. 1988) (“The district court viewed Marsh as . . . a one-time departure from the Court’s consistent application of the Lemon criteria to establishment clause cases. . . . In our opinion this is much too crabbed a view.”). Finally, in a concurrence, Judge Lucero’s50

analysis in Snyder v. Murray City Corp., which would apply Marsh only to legislative prayer by established chaplaincies, demonstrates another viewpoint about the extreme narrowness of the holding in Marsh. 159 F.3d 1227, 1237 (10th Cir. 1998) (Lucero, J., concurring), cert. denied, 526 U.S. 1039 (1999). Based on my view of the narrowness of the exception in Marsh, I must dissent from its application to any part of the practice of the Tangipahoa School Board of opening its meetings with a prayer. The school board is not a legislative body within the purview of Marsh , nor does its practice share the “unique” history of legislative prayer. III. The Supreme Court has made clear that Marsh’s application depends on a showing that the practice at issue is legislative prayer with its unique history. The Lemon test should apply to the practice of the Tangipahoa Parish School Board because the Supreme Court has announced no applicable exception to its normal Establishment Clause jurisprudence that would allow this court to deviate from Lemon. In light of the school board’s admission that its practices fail the Lemon test, I would affirm the district court’s order. I dissent from any application of Marsh vacating the district court’s order, and I concur in the judgment only to the extent that it upholds the injunction.5152

EDITH BROWN CLEMENT, Circuit Judge, concurring in the judgment in part and dissenting in the judgment in part: I would hold that Marsh v. Chambers, 463 U.S. 783 (1983), rather than Lemon v. Kurtzman, 403 U.S. 602 (1971), applies to this deliberative body. I disagree with the conclusion that the four stipulated prayers violate Marsh. As to the question of how to apply Marsh, I read Marsh as prohibiting exploitation of prayer opportunities to advance one religion over another. Therefore, the injunction should be vacated in full because Doe failed to demonstrate that the Board exploited the prayer opportunity either “to proselytize or advance any one, or to disparage any other, faith or belief.” Id. at 794–95. The conclusion in Judge Barksdale’s opinion that the Board demonstrated a clear preference for Christianity suffers from a lack of evidence in the record and an erroneously shifted burden of proof that requires the Board to prove it did not violate Marsh. Furthermore, even under the

reasoning in Judge Barksdale’s opinion, the fourth prayer in the stipulations, given June 15, 2004, survives scrutiny under Marsh. A. Marsh permits sectarian prayer when the prayer opportunity is not exploited for impermissible purposes I believe that Judge Barksdale’s opinion misreads Marsh as allowing only non-sectarian prayer. This view would deem all explicit references to sectarian deities necessarily unconstitutional without regard to the government body’s practices53

or motivations. Such a holding does not square with Marsh. The Marsh Court’s focus was—as ours should be—not on the content of the prayer but on the practices and motivations behind the prayer opportunity. Under Marsh, a plaintiff must first show that a prayer opportunity was exploited for an impermissible purpose before the prayer’s content becomes relevant. Marsh, 463 U.S. at 794-95. The Supreme Court has recently reaffirmed this premise. “[The] Establishment Clause doctrine lacks the comfort of

categorical absolutes. In special instances we have found good

reason to hold governmental action legitimate even where its manifest purpose was presumably religious.” McCreary Countyv. Am. Civil Liberties U nion of Ky., 125 S. Ct. 2722, 2733 n.10 (2005) (emphasis added). The McCreary County Court cited Marsh as one such example of the Court “upholding legislative prayer despite its religious nature.” Id. A content-based rule is troubling for several reasons. (1) A content-based rule contradicts Marsh The precedent on which Judge Barksdale’s opinion chiefly relies disavows leading with the content-based analysis employed in his opinion. InMarsh, the Court described the prayer as being “in the Judeo-Christian tradition.” 463 U.S. at 793. The only reference in the Marsh majority opinion to any sectarian/nonsectarian distinction came in a footnote, when the Court observed that the chaplain who gave the prayers described them as being3There is no doubt that prayers before Congress often contain

explicit sectarian references. See Newdow v. Bush, 355 F. Supp. 2d 265, 285 n.23 (D.D.C. 2005) (noting that “the legislative prayers at the U.S. Congress are overtly sectarian”); see also Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. 2083, 2104 & n.118 (1996) (noting that, in the sixyear period before 1996, “over two hundred and fifty opening prayers delivered by congressional chaplains have included 54 “‘nonsectarian,’ ‘Judeo Christian,’ and with ‘elements of the American civil religion.’” Id. at 793 n.14. The Court expressly avoided ruling based on the content of the prayer:

The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer. Id. at 794–95. The Marsh Court’s instruction not to reject prayer based on content alone is clear—unless the prayer opportunity has been shown to be exploitive, the content of the prayer is irrelevant. Judge Barksdale’s opinion contradicts Marsh’s instruction by first focusing on the content of the prayers rather than the Board’s use of the prayer opportunity. If content is determinative, the Marsh Court’s analysis would be internally conflicted. The content of congressional prayer, referred to by the Marsh Court as exemplifying permissible legislative prayer, traditionally has included sectarian references. In addition, Congress continues to permit sectarian invocations, as it has since the practice’s inception. 3 Thissupplications to Jesus Christ”). 55 practice, which Judge Barksdale’s opinion would deem unconstitutional under Marsh, has been upheld by the D.C. Circuit. See Murray v. Buchanan, 720 F.2d 689, 690 (D.C. Cir. 1983) (en banc) (per curiam); see also Newdow v. Eagen, 309 F. Supp. 2d 29, 41 (D.D.C. 2004) (holding that congressional prayer remains constitutional under Marsh). By relying on congressional prayer as a demonstrative example, the Marsh Court endorsed the understanding that the sectarian nature of the prayer’s content does not render it necessarily constitutionally unsound. Marsh, 463 U.S. at 794–95; see also McCreary County, 125 S. Ct. at 2733 n.10 (citing Marsh as an example of a permissible prayer whose “manifest purpose was presumably religious”). Indeed, the Court stated that the Founders “did not consider opening prayers as a proselytizing activity or as symbolically placing the government’s official seal of approval on

one religious view.” Marsh, 463 U.S. at 792 (internal quotation omitted). The content of the prayers identified in the stipulations does not vary meaningfully from that of the prayers offered in Congress on a day-to-day basis. Furthermore, two federal district courts have recently affirmed the principle that a prayer’s sectarian nature does not make it impermissible. Pelphray

v. Cobb County, 410 F. Supp. 2d 1324, 1325, 1349 (N.D. Ga. 2006)56

(refusing to enjoin sectarian prayers at government meetings “that refer to ‘Jesus,’ ‘Jesus Christ,’ or ‘Christ’”) ; Dobrich v. Walls, 380 F. Supp. 2d 366, 371, 377 (D. Del. 2005) (permitting sectarian prayers at school board meetings, including the expression “in the name of Christ”). (2) Marsh instead focuses on the exploitation of the prayer opportunity Where invocations are intended to promote non-sectarian calls for guidance, wisdom, and solemnity, the First Amendment clearly is not violated. See Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 282 (4th Cir. 2005) (“The Court also recognized that legislative invocations comport with the Establishment Clause not only because that tradition is ancient, but because invocations are intended to harmonize broadly ‘with the tenets of some or all religions.’”) (quoting Marsh, 463 U.S. at 792); Snyder v. Murray City Corp., 159 F.3d 1227, 1234 (10th Cir. 1998) (en banc) (“That genre, although often taking the form of invocations that reflect a Judeo-Christian ethic, typically involves nonsectarian requests for wisdom and solemnity, as well as calls for divine blessing on the work of the legislative body.”). This safe-harbor rule permitting non-sectarian prayer, however, does not compel a rule—imposed by Judge Barksdale’s opinion—rendering all sectarian prayer necessarily unconstitutional. As the Tenth Circuit pointed out in Snyder, the57

Establishment Clause does not prohibit all prayer that can be identified with a particular sect; “[r]ather, what is prohibited by the clause is a more aggressive form of advancement, i.e., proselytization.” 159 F.3d at 1234 n.10 (citingMarsh, 463 U.S. at 793 n.14, 794–95). Because all prayer is, at least in some way, inclusive to some and exclusive to others, “the kind of legislative prayer that will run afoul of the Constitution is one that proselytizes a particular religious tenet or belief, or that aggressively advocates a specific religious creed, or that derogates another religious faith or doctrine.” Id. at 1234. The Snyder court also noted that “[b]y using the term ‘proselytize,’ the Court indicated that the real danger in this area is effort by the government to convert citizens to particular sectarian views.” Id. at 1234 n.10. By reducing Marsh to a sectarian/non-sectarian litmus test, Judge Barksdale’s opinion overlooks the pivotal focus of the Marsh decision—whether the prayer opportunity was exploited for constitutionally impermissible purposes—and contravenes the Court’s admonition against ruling based on content alone. See Marsh, 463 U.S. at 794–95; see also Snyder, 159 F.3d at 1234 n.10 (noting that “all prayers ‘advance’ a particular faith or belief in

one way or another” and reading Marsh as “underscor[ing] the conclusion that the mere fact a prayer evokes a particular concept of God is not enough to run afoul of the Establishment Clause”).58

In addition, as the Court forewarned, a content-based approach is bad policy: by placing the evaluation of the prayers’ content ahead of the evaluation of the use of the prayer opportunity, this approach needlessly puts federal courts in the position of drawing the constitutional (and theological) line between sectarian and non-sectarian prayer. Marsh, 463 U.S. at 795 (“[I]t is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.”) (emphasis added). Such attempts require courts to interpret tenets of different faiths and to make controversial judgments about what aspects of those faiths are most important to their adherents. Lee v. Weisman, 505 U.S. 577, 616–17 (1992) (Souter, J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible” than “comparative theology.”). To make such judgments, courts must determine both the doctrinal meaning of a prayer (which requires the court to ascertain the prayer leader’s belief) and whether that meaning differs significantly from the religious beliefs of others (which, again, requires ascertaining their beliefs). Drawing such theological distinctions, which only invite a new wave of litigation, is beyond the expertise, or proper role, of federal courts. B. Marsh applied to this record59

In addition to many generalist religious references, the illustrative set of prayers from the stipulations include references to “Jesus Christ,” “Jesus Christ our Lord,” and “Your Son, Jesus Christ.” In Doe’s view, “that these prayers advance Christianity is undeniable.” Doe further contends that the prayers “clearly discriminate against non-Christians.” In support of the argument that the Board’s invocations improperly advance Christianity, Doe cites County of Allegheny v. American Civil Liberties Union GreaterPittsburgh Chapter for the proposition that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” 492 U.S. 573, 605 (1989) (internal quotation omitted). The Establishment Clause does not, however, demand that governments abandon religion in favor of secularism: “To the extent that the Establishment Clause prevents preferences for one religion over another, it likewise prevents preferences for religion over nonreligion.” Murray v. City of Austin, 947 F.2d 147, 155 (5th Cir. 1991); see also County of Allegheny, 492 U.S. at 605 (noting that there exists “no official preference even for religion over nonreligion”). Judge Barksdale’s opinion accepts Doe’s argument, stating that “[e]ach prayer in the stipulations is Christian in tenor, if not in fact.” Furthermore, it states that “none of the prayers included in the stipulations had such a [secular] tenor. Instead, each60

evoked a Christian tone, reflecting the Board’s religious preference for Christianity.” As is normally the case, the plaintiff bringing an Establishment Clause claim under § 1983 bears the burden of proof. See Gillette v. United States, 401 U.S. 437, 450–51 (1971) (rejecting a challenge under the Establishment Clause); Bowden v. City of Electra, 152 F. App’x 363, 367 (5th Cir. 2005) (noting, in another constitutional context, that “a plaintiff in a suit filed under 42 U.S.C. § 1983 has the burden of proving each element of the constitutional violation”); Doe v. Beaumont Indep. Sch. Dist., 173 F.3d 274, 300 (5th Cir. 1999) (Garza, J., dissenting) (“[T]he plaintiffs bear the burden of proof on . . . their Establishment Clause claim.”), reh’g en banc, 240 F.3d 462 (5th Cir. 2001). On more than one occasion, however, Judge Barksdale’s opinion faults the Board for not proving a particular point. The stipulations do not contain evidence establishing viewpoint discrimination or hostility to non-Christian religions. In the absence of proof to the contrary, the Board’s actions have not been shown to be impermissible under the Constitution. The conclusions in Judge Barksdale’s opinion, based upon an absence of evidence, cannot be squared with the allocation of the burden of proof on Doe. Doe has made no showing that he or anyone was ever denied the opportunity to have an invocation led by someone of a more personally acceptable denomination (or non-denomination). Rather,61

the record, as limited as it is, reflects that the Board has affirmatively stated, through the stipulated and offered testimony, its willingness to allow any viewpoint to be heard at the meetings. Doe’s bare argument, unsupported by the stipulated evidence, that the Board is not true to its word cannot carry his burden. Even if Doe’s claim—that historically, the Board’s prayers have been uniformly Christian—is true, there is simply no record evidence that the Board advances Christianity to the exclusion of another sect or creed. Judge Barksdale’s opinion, however, when analyzing the stipulated prayers under Marsh, states, “it appears the sectarian prayers here were exploited [to advance Christianity] with their overtly Christian tone and no evidence [was produced] that an adherent of any non-Christian faith was permitted to offer a prayer presenting a different message.” This determination is based on an absence of evidence. The similar conclusion that “the Board at [a] minimum aggressively advocate[d] Christianity” is based on an inference, which, in turn, is also drawn from a lack of evidence. The foundation for the holding that the Board improperly advanced Christianity is the understanding that the Board “provid[ed] only Christians who presented Christian prayers.” That understanding is nothing more than an inference “[b]ased on the four prayers in the stipulations” and the fact that “no evidence exists that any prayers were given by non-Christians.” The record is devoid of any4Judge Barksdale’s opinion similarly faults the Board for not

proving that a student is not a member. While the presence or absence of a student member on the school board is not determinative because Judge Barksdale’s opinion assumes that Marsh applies, the absence of proof regarding the Board’s assumed-butnot-proven exclusionary policy is critical. 62 evidence showing that anyone from any other sect or creed ever asked to participate in the Board’s invocations. 4 Even if the contention in Judge Barksdale’s opinion that “[t]here is no evidence of any prayers that represented a different faith” were a correct application of the burden of proof, there is, likewise, no evidence that any non-Christians were ever denied an opportunity to offer a prayer or in any way were hampered in participating in whatever form they wished. After the Board asserted that it has never excluded any faith or denomination from participating in the invocations, Doe identified nothing in the record to counter this assertion. Regardless, there is evidence in support of a non-exclusive policy. In the stipulated facts, the named defendants, including the members of the Board, stated a willingness to “testify under oath that the Tangipahoa School Board does not discriminate on the basis of religious viewpoint and that any individual who wants to give the invocation prior to a board meeting can do so regardless of their religious beliefs.” Again, Doe offers no evidence to counter the proposed testimony.63

I also disagree with the attempt in Judge Barksdale’s opinion to prove exploitation of the prayer opportunity by reference to the Board’s unadopted policy. Judge Barksdale’s opinion infers hostility to non-sectarian, non-proselytizing prayer from the Board’s rejection of the written policy. Moreover, based solely on the Board’s rejection of the policy, Judge Barksdale’s opinion surmises that “the Board made no attempt to mitigate the effect the prayers had on those in attendance, or to make the prayers more inclusive of other religious beliefs.” We should not overlook the possibility of alternative reasons for rejecting the policy. The policy limited the pool of potential leaders of the invocation in conflict with the Board’s past practice. That change could have been the reason for rejecting the proposed policy. Indeed, the rejection of the policy could have stemmed from the Board’s concern that it was not constitutionally permitted to limit the viewpoint of potential speakers. Whatever the reason, without more evidence in the record, the Board’s rejection of the written policy does not prove that the Board exploited the prayer opportunity to advance Christianity to the exclusion of other faiths. C. The June 15 prayer survives even the reading of Marsh employed in Judge Barksdale’s opinion Even under the reading of Marsh applied in Judge Barksdale’s opinion, the prayer given June 15, 2004, is not unconstitutional. The prayer contains no sectarian invocations. Rather, the generic64

references to “Father,” “God,” and “Lord” indisputably pass the perceived non-sectarian requirement. By grouping this last prayer in with the first three, Judge Barksdale’s opinion obfuscates the important distinction it seems to be trying to draw. Unlike the Christian references found in the other stipulated prayers, such as “Jesus Christ,” “Jesus Christ our Lord,” and “Your Son, Jesus Christ,” the June 15 prayer displays no Christian tenor. Judge Barksdale’s opinion cites Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006), for the proposition that Marsh permits only nonsectarian prayer. Both sides of theHinrichs debate, however, would allow the June 15 prayer to survive constitutional scrutiny; the injunction in place in Hinrichs certainly would permit the June 15 prayer. See Hinrichs, 440 F.3d at 402 (“The injunction permits prayer so long as it is of a nondenominational nature and does not ‘use Christ’s name or title or any other denominational appeal.’”) (quoting Hinrichs v. Bosma, 410 F. Supp. 2d 745, 748 (S.D. Ind. 2006) (denying a stay of an injunction on sectarian prayer)). In rejecting the June 15 prayer, Judge Barksdale’s opinion strays from its own reasoning. D. Conclusion I would apply Marsh to this deliberative body. In my view, Judge Barksdale’s opinion misreads Marsh and improperly shifts the burden onto the Board to prove it did not violate Marsh. On this record, I cannot conclude that Doe has proven that the Board65

violated Marsh. As such, I would vacate the district court’s injunction in full.