FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHELLEY RUBIN; MAUREEN I.

FELLER,

Plaintiffs-Appellants,

v.

CITY OF LANCASTER, a municipal

corporation,

Defendant-Appellee.

No. 11-56318

D.C. No.

2:10-cv-04046-

DSF-JC

OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

November 8, 2012—Pasadena, California

Filed March 26, 2013

Before: Alfred T. Goodwin and Diarmuid F. O’Scannlain,

Circuit Judges, and Jack Zouhary, District Judge.*

Opinion by Judge O’Scannlain

* The Honorable Jack Zouhary, United States District Judge for the

Northern District of Ohio, sitting by designation.
2 RUBIN V. CITY OF LANCASTER

SUMMARY**

Civil Rights

The panel affirmed the district court’s bench trial

judgment in favor of the City of Lancaster in plaintiffs’ 42

U.S.C. § 1983 action alleging that the city council’s practice

of opening its meetings with privately led prayers effected an

unconstitutional establishment of religion. 

The panel analyzed the City’s policy and practice of

soliciting volunteers from local congregations to lead the

invocations regardless of the faith, denomination, or other

religious belief of the congregation. The panel held that a

Bishop’s single reference to Jesus in an invocation did not

amount to a violation of the Establishment Clause. The panel

applied the history-based analysis set forth in Marsh v.

Chambers, 463 U.S. 783 (1983), and concluded that neither

the Supreme Court’s decision in Marsh, nor in County of

Allegheny v. ACLU, 492 U.S. 573 (1989), categorically

forbids sectarian references in legislative prayer so long as

legislative prayer—whether sectarian or not—does not

proselytize, advance, or disparage one religion or affiliate

government with a particular faith. 

The panel also rejected plaintiffs’ contention that viewed

in context, the City’s unwritten policy, practice and custom

posed a First Amendment problem because the majority of

city-council invocations have been Christian. The panel,

focusing on the policy’s neutrality and the principle of private

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
RUBIN V. CITY OF LANCASTER 3

choice, not on the number of volunteers from a particular

sect, saw nothing in the record or in the prayer policy to

indicate that the City had affiliated itself with Christianity. 

The panel stated that the City did not choose the content of

the prayers or the denomination of the prayer-givers and the

fact that most of the invocations had been Christian was

merely a function of local demographics and the choice of

religious leaders who responded to the City’s invitation for

volunteers. 

COUNSEL

Roger Jon Diamond, Santa Monica, California, for

Plaintiffs–Appellants.

Allison E. Burns (argued), David R. McEwen, and Joseph M.

Adams, Stradling Yocca Carlson & Rauth, Newport Beach,

California, for Defendant–Appellee.

Dean R. Broyles, National Center for Law & Policy,

Escondido, California, for amicus curiae National Center for

Law & Policy.

Steven W. Fitschen (argued) and Douglas E. Myers, National

Legal Foundation, Virginia Beach, Virginia, for amicus

curiae WallBuilders, Inc.

Jen Monk, Advocates for Faith & Freedom, Murrieta,

California; and Scott W. Gaylord, Elon University Law

School, Greensboro, North Carolina, for amicus curiae

Independence Law Center.
4 RUBIN V. CITY OF LANCASTER

Deborah J. Dewart, Justice and Freedom Fund, Swansboro,

North Carolina; and James L. Hirsen, Anaheim Hills,

California, for amicus curiae Justice and Freedom Fund.

Gary S. McCaleb and Brett Harvey, Alliance Defense Fund,

Scottsdale, Arizona; and Kevin Theriot, Alliance Defense

Fund, Leawood, Kansas, for amicus curiae Alliance Defense

Fund.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a city council’s practice of

opening its meetings with privately led prayers effects an

unconstitutional establishment of religion.

I

A

The City of Lancaster, California, typically begins each

of its city-council meetings with a citizen-led invocation.1

For years, that practice had been merely an informal one.2

But on August 25, 2009, after receiving a cease-and-desist

letter from the American Civil Liberties Union, the City

 

1

 The relevant facts, which the district court found, are undisputed.

2 During the period in which the invocation practice was informal, “a

substantial majority” of the prayers were “Christian in nature,” and some

“contained explicitly sectarian religious references, including specific

references to Jesus Christ.”
RUBIN V. CITY OF LANCASTER 5

decided to commit to paper an official invocation policy. 

That policy sets forth a two-step procedure for soliciting

volunteers. First, the city clerk “compile[s[ and maintain[s]

a database . . . of the religious congregations with an

established presence” in Lancaster. To gather names of local

congregations to add to the master list, the clerk reviews

Lancaster’s Yellow Pages for “churches,” “congregations,”

and “other religious assemblies”; searches the internet for any

local “church,” “synagogue,” “temple,” “chapel,” or

“mosque”; and consults the regional chamber of commerce

and newspaper. All congregations in Lancaster are eligible

to appear on the City’s list. The clerk does not probe “the

faith, denomination, or other religious belief” of a

congregation before adding its name to the database.

Next, the clerk mails all of the listed religious groups an

invitation to open a city-council meeting with an invocation. 

The invitation reads,

This opportunity is voluntary, and you are free

to offer the invocation according to the

dictates of your own conscience. To maintain

a spirit of respect and ecumenism, the City

Council requests that the prayer opportunity

not be exploited as an effort to convert others

. . . nor to disparage any faith or belief

different [from] that of the invocational

speaker.

Elaborating on its apparent commitment to ecumenism, the

policy states that it “is not intended, and shall not be

implemented or construed in any way, to affiliate the City

Council with, nor express the City Council’s preference for,

any faith or religious denomination.” Instead, the policy “is
6 RUBIN V. CITY OF LANCASTER

intended to acknowledge and express the City Council’s

respect for the diversity of religious denominations and faiths

represented and practiced among the citizens of Lancaster.” 

To that end, the City allows each congregation only three,

nonconsecutive invocations a year. No person who has

volunteered to pray has been turned down, and no

government official has ever attempted to influence the

clerk’s selection or scheduling of volunteers.

In late 2009, to gauge public support for the prayer policy,

the City submitted to municipal voters a nonbinding measure

(“Measure I”) requesting a yes-or-no vote on this question:

“In response to a recent complaint, with respect to the

invocations that contained a reference to Jesus Christ[,] shall

the City Council continue its invocation policy in randomly

selecting local clergy of different faiths to deliver the

invocation without restricting the content based on their

beliefs, including references to Jesus Christ?” To aid the

citizenry’s deliberation, the city attorney submitted to the

public (as was his duty) an analysis of the prayer policy’s

legality, which concluded that the policy stood on firm

constitutional footing. The mayor and vice-mayor also

submitted a ballot argument in support of the measure,

asserting that each person has a right to pray in accordance

with his own beliefs and so may pray “to the deity of [his]

own choosing.” The measure was approved.

Shelley Rubin, a Jew, and Maureen Feller, a Christian,

attended a council meeting on April 27, 2010. Bishop Henry

Hearns, former mayor of Lancaster and then-current

“honorarymayor,” delivered the invocation. Hearns thanked

God for his many kindnesses, asked God to bless the council

members (among others), and closed with this entreaty:

“Bring our minds to know you and in the precious, holy and
RUBIN V. CITY OF LANCASTER 7

righteous and matchless name of Jesus I pray this prayer. 

Amen and Amen. God bless you.” Because Hearns had

invoked the name of Jesus, Rubin and Feller “were upset and

offended.” Neither plans to attend another council meeting

until references to Jesus are forbidden.

Between the day Lancaster ratified its policy and the day

of Hearns’s invocation, twenty prayers were given by

members of Christian denominations (and each mentioned

Jesus’s name), four were given by a self-identified

“metaphysicist,” one was given by a Sikh, and another by a

Muslim. Since then, nine invocations have mentioned Jesus,

and five have not.

B

A week after Hearns’s invocation, Rubin and Feller sued

the City of Lancaster in California state court under 42 U.S.C.

§ 1983 and Article I, Section 4 of the California Constitution. 

Rubin and Feller specifically requested declaratory and

injunctive relief from the City’s policy of permitting prayers

that mention Jesus, arguing that both the invocations and the

policy amounted to an establishment of religion. The City

removed to federal court.

The district court held a bench trial and rejected Rubin

and Feller’s claims. The court reasoned that unless

legislative prayer proselytizes, advances, or disparages a

particular faith, it does not violate the First Amendment

simply because it contains sectarian references. The mere

mention of Jesus in the April 27 invocation, therefore, did not

cross the constitutional line. The district court also rejected

Rubin and Feller’s argument that the prayer practice itself

transgressed the First Amendment. “Volunteers of numerous
8 RUBIN V. CITY OF LANCASTER

faiths are invited to and have given invocations before City

Council meetings,” the court noted, “and the selection process

does not discriminate against any faith.” The court

emphasized that the City—precisely to avoid Establishment

Clause problems—had declined to regulate the content of the

prayers, requesting only that volunteers not use the

opportunity to proselytize or disparage any one faith. Finally,

the court concluded that their state constitutional claim failed

for the same reasons. Rubin and Feller timely appeal.

II

Rubin and Feller argue that the district court wrongly

concluded that both the April 27 invocation and the City’s

prayer practice withstood First Amendment scrutiny.

3 We

consider first the prayer and then the policy.

A

Rubin and Feller urge us to declare Hearns’s April 27

invocation (specifically, its reference to Jesus)

unconstitutional and to reverse the district court’s contrary

conclusion. Relying principally on two Supreme Court cases,

they contend that any explicit reference to a sectarian figure

in legislative prayer is a per se breach of the Establishment

Clause.

3 Although Rubin and Feller arguably waived their challenge to the

prayer policy below, the district court nonetheless ruled on it. The issue

of the policy’s constitutionality is therefore before us.
RUBIN V. CITY OF LANCASTER 9

1

Both sides rightly assume that this case falls within the

ambit of Marsh v. Chambers, 463 U.S. 783 (1983). There,

the Supreme Court considered whether the Nebraska

Legislature’s decades-old practice of opening each legislative

day with a prayer delivered by a state-employed chaplain

violated the Establishment Clause. Since 1965, Robert

Palmer, a Presbyterian minister, had served as the Nebraska

Legislature’s official chaplain, a salaried position. Each day

the legislature met, Palmer began with a prayer. Ernest

Chambers, a member of the legislature, sued to enjoin that

practice. Marsh, 463 U.S. at 784–85.

Although the Eighth Circuit had evaluated Nebraska’s

practice under the familiar three prongs of Lemon v.

Kurtzman, 403 U.S. 602 (1971), see Marsh, 463 U.S. at 786,

the Supreme Court took a different approach, “swe[eping]

away” prevailing Establishment Clause doctrine in favor of

a history-based analysis.4Snyder v. Murray City Corp.,

159 F.3d 1227, 1232 (10th Cir. 1998) (en banc). “The

opening of sessions of legislative and other deliberative

public bodies with prayer,” the Marsh Court noted, “is deeply

4 Since Marsh, legislative prayer has enjoyed a “sui generis status” in

Establishment Clause jurisprudence. Snyder v. Murray City Corp.,

159 F.3d 1227, 1231 (10th Cir. 1998) (en banc); see also McCreary Cnty.

v. ACLU, 545 U.S. 844, 860 n.10 (2005) (“Establishment Clause doctrine

lacks the comfort of categorical absolutes. In special instances we have

found good reason to hold governmental action legitimate where its

manifest purpose was presumably religious. See, e.g., Marsh v. Chambers

. . .”); Card v. City of Everett, 520 F.3d 1009, 1014 (9th Cir. 2008)

(“Marsh . . . should be construed as carving out an exception to normal

Establishment Clause jurisprudence due to the unique history oflegislative

prayer.” (internal quotation marks omitted)).
10 RUBIN V. CITY OF LANCASTER

embedded in the history and tradition of this country.” 

463 U.S. at 786. The Continental Congress, no less, began

each of its sessions with an invocation delivered by a paid

chaplain. Likewise, the First Congress, in one of its first

official acts, arranged for daily chaplain-led prayer in both

chambers. Days later, “final agreement was reached on the

language of the Bill of Rights.” Id. at 788. “Clearly,” the

Court inferred, “the men who wrote the First Amendment

Religion Clause did not view paid legislative chaplains and

opening prayers as a violation of that Amendment.” Id. at

789–90. Furthermore, the “practice of opening sessions with

prayer has continued without interruption ever since.” Id. at

789. Given this history, there could be “no doubt” that

legislative prayer was constitutional. Id.

Having upheld legislative prayer in general, the Marsh

Court next considered whether specific features of

Nebraska’s practice pushed it out of constitutional bounds. 

Chambers leveled three complaints: (1) that Nebraska had

selected a representative of “only one denomination” for

sixteen years, (2) that the chaplain was on the state payroll,

and (3) that his prayers were offered “in the Judeo-Christian

tradition.” Id. at 792–93. All three objections flopped. 

Choosing “a clergyman of one denomination” did not

“advance[] the beliefs” of his sect. Nor did paying him. Id.

at 794 (“[R]enumeration is grounded in [the Framers’]

historic practice.”). Nor, even, did the words of the prayers

themselves: “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,” the Court

declared. “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.
RUBIN V. CITY OF LANCASTER 11

A cursory read of Marsh does not disclose whether all or

only some of Palmer’s prayers were “not of concern.” In

footnote 14 (the call for which follows the Court’s description

of the prayers as “Judeo-Christian”), the Court wrote,

Palmer characterizes his prayers as

“nonsectarian,” “Judeo Christian,” and with

“elements of the American civil religion.”

Although some of his earlier prayers were

often explicitlyChristian, Palmer removed all

references to Christ after a 1980 complaint

from a Jewish legislator.

Id. at 793 n.14 (citations omitted); see also Van Orden v.

Perry, 545 U.S. 677, 688 n.8 (2005) (plurality opinion) (“In

Marsh, the prayers were often explicitly Christian, but the

chaplain removed all references to Christ the year after the

suit was filed.”). Six years later, in County of Allegheny v.

ACLU, the Court revisited that footnote. 492 U.S. 573

(1989). There, the Court weighed the constitutionality of a

city’s yearly public display of a Christmas crèche and a

Hanukkah menorah. Resolving the case under Lemon, the

Court had occasion to address Marsh only in response to one

of the dissent’s arguments:

[I]n Marsh itself, the Court recognized that

not even the “unique history” of legislative

prayer can justify contemporary legislative

prayers that have the effect of affiliating the

government with any one specific faith or

belief. The legislative prayers involved in

Marsh did not violate this principle because

the particular chaplain had “removed all

references to Christ.”
12 RUBIN V. CITY OF LANCASTER

Id. at 603 (internal citations omitted). Rubin and Feller assert

that this snippet from Allegheny both confirms that Marsh

upholds only nonsectarian legislative invocations and

establishes that a single sectarian reference in a legislative

prayer goes too far.

2

Rubin and Feller misread Marsh and misapprehend the

effect of Allegheny. Footnote 14 notwithstanding, Marsh

nowhere confines its review of Nebraska’s practice solely to

the short period in which Palmer delivered only nonsectarian

prayers.5 Rather, the Court trained its analysis on Nebraska’s

practice over time. See, e.g., 463 U.S. at 790 (“. . .

Nebraska’s practice of over a century, consistent with two

centuries of national practice . . .”); id. at 795 (“The unbroken

practice . . . for more than a century in Nebraska . . . gives

abundant assurance that there is no real threat . . . .”). Indeed,

when it took up Chambers’s objection to the prayers’ content,

the Court concluded—in a tellingly worded sentence—that

“there is no indication that the prayer opportunity has been

exploited” to proselytize, advance, or disparage a religion. 

Id. at 794–95 (emphasis added). That verb (“has been

exploited”) is in the present perfect tense, denoting “a time in

the indefinite past” or “a past action that comes up to and

touches the present.” See Chicago Manual of Style 237 (16th

ed. 2010). Had the Court wished to avoid suggesting that

Palmer’s pre-1980 sectarian prayers had not advanced

Christianity, it would have used either the simple past (“was

5

“And it is not even clear that the removal of references to Christ

rendered all post-1980 prayers nondenominational.” Galloway v. Town

of Greece, 681 F.3d 20, 30 (2d Cir. 2012), petition for cert. filed,

81 U.S.L.W. 3336 (U.S. Dec. 6, 2012) (No. 12-696).
RUBIN V. CITY OF LANCASTER 13

exploited”) or past perfect (“had been exploited”) with a

qualifying clause or phrase (e.g., “there is no indication that,

during or after 1980, the prayer opportunity [was / had been]

exploited”). As written, the opinion leaves the impression

that none of Palmer’s controversial prayers, at least viewed

cumulatively, crossed the line.

Both dissents in Marsh read the majority opinion as we

do. Justice Brennan, for example, argued that the

“controversy” surrounding the chaplain’s “Christological

references” evinced a threat of state “entanglement” with

religion—a meaningless riposte to the majority if only

Feller’s nonsectarian prayers had been before the Court. 

Marsh, 463 U.S. at 799–800 & n.9 (Brennan, J., dissenting). 

Likewise, Justice Stevens faulted the majority for neglecting

to scrutinize Palmer’s overtly Christian supplications: “The

Court declines to ‘embark on a sensitive evaluation or to

parse the content of a particular prayer.’ Perhaps it does so

because it would be unable to explain away the clearly

sectarian content of some of the prayers given by Nebraska’s

chaplain.” Id. at 823 & n.2 (Stevens, J., dissenting) (internal

citations omitted) (citing a prayer of Palmer’s from 1978 that

spoke of “the suffering and death of [God’s] son,” “[t]he

power of the cross,” and “the wonder of Christ crucified”). 

Plainly, neither dissenting justice interpreted footnote 14 to

leave for another day the constitutional status of single

sectarian references in legislative prayers. See also Van

Orden, 545 U.S. at 688 n.8 (plurality opinion) (“In Marsh, the

prayers were often explicitly Christian . . . .”).

3

What is more telling than Marsh’s language, however, is

that the very “history and tradition” anchoring its holding
14 RUBIN V. CITY OF LANCASTER

reveal a long-standing practice not only of legislative prayer

generally but of sectarian legislative prayer specifically. For

instance, the very first invocation before the Continental

Congress concluded, “All this we ask in the name and

through the merits of Jesus Christ.” Rev. Jacob Duché, First

Prayer of the Continental Congress (Sept. 7, 1774), Office of

the Chaplain: U.S. House of Representatives,

http://chaplain.house.gov/archive/continental.html. Similarly,

Congress’s first Thanksgiving Proclamation besought the

colonial citizenry to “humble and earnest supplication that it

may please God through the merits of Jesus Christ” to forgive

and bless them. 9 Journals of the Continental Congress,

1774–1789 855 (Worthington Chauncey Ford ed., 1907). 

Again in 1800, to mark the death of George Washington, a

legislative chaplain petitioned that all “may obtain unto the

resurrection of life, through Jesus Christ our Lord; at whose

second coming in glorious majesty to judge the world . . .

those who sleep in him shall be . . . made like unto his own

glorious body.” Henry Lee III, An Address and a Form of

Prayer, in An American Prayer Book 58–59 (Christopher L.

Webber ed., 2008).

This practice of sectarian congressional prayer has

persisted. Cf. Marsh, 463 U.S. at 790 (giving weight to

legislative prayer as an “unbroken practice”). As one scholar

reports, “from America’s earliest days to the present times,

the prayers delivered by [legislative] chaplains have been true

sacral prayers, and many of them, true Christian prayers.” 

Steven Epstein, Rethinking the Constitutionality of

Ceremonial Deism, 96 Colum. L. Rev. 2083, 2104 (1996). 

For example, between 1990 and 1996, “over two hundred and

fifty opening prayers delivered by congressional chaplains . . .

included supplications to Jesus Christ.” Id. at 2104 & n.118. 

And the tradition continues. See, e.g., Newdow v. Bush,
RUBIN V. CITY OF LANCASTER 15

355 F. Supp. 2d 265, 285 n.23 (D.D.C. 2005) (“[T]he

legislative prayers at the U.S. Congress are overtly

sectarian.”).

This evidence makes it even more difficult to read Marsh

as categorically barring sectarian legislative invocations. 

Indeed, if “what matters under Marsh is whether the prayer

to be offered fits within the genre of legislative invocational

prayer that has become part of the fabric of our society,” then

surely, as a general matter, sectarian and nonsectarian

legislative prayer stand on equal footing. Simpson v.

Chesterfield Cnty. Bd. of Sup’rs, 404 F.3d 276, 282 (4th Cir.

2005) (quoting Snyder, 159 F.3d at 1233) (internal alterations

and quotation marks omitted).

4

Nonetheless, Rubin and Feller insist that Allegheny

dislodged Marsh. We disagree. First, though Allegheny

commented on Marsh, it did not—because, in dicta, it could

not—supplant Marsh or restrict its scope. See Simpson,

404 F.3d at 281 n.3 (“Allegheny concerned religious holiday

displays, referencing Marsh to confirm that Marsh did not

apply in that context.”); Joyner v. Forsyth Cnty., 653 F.3d

341, 360 (4th Cir. 2011) (Niemeyer, J., dissenting)

(“Allegheny’s dicta . . . do not govern legislative prayer

cases.”), cert. denied, 132 S. Ct. 1097 (2012). In any event,

Allegheny does not in fact say that a legislative prayer is

constitutional only if nonsectarian. A legislative invocation

stripped of any mention of Jesus, Allegheny suggests, would

not have the “effect of affiliating the government with”

religion, but that is not to say that an explicitly sectarian

prayer necessarily would. See Pelphrey v. Cobb Cnty.,

547 F.3d 1263, 1271–72 (11th Cir. 2008) (“Allegheny does
16 RUBIN V. CITY OF LANCASTER

not require that legislative prayer conform to the

[nonsectarian] model in Marsh. Allegheny instead reiterates

the lesson of Marsh that legislative prayers should not

‘demonstrate a [government] preference for one particular

sect or creed . . . .’”). Rather, so long as legislative

prayer—whether sectarian or not—does not proselytize,

advance, or disparage one religion (Marsh’s language) or

affiliate government with a particular faith (Allegheny’s

reiteration), it withstands scrutiny. Marsh, 463 U.S. at 795. 

Far from displacing Marsh, Allegheny merely illuminates its

boundaries.

For these reasons, we join several of our sister circuits in

concluding that neither Marsh nor Allegheny categorically

forbids sectarian references in legislative prayer.6

5

Rubin and Feller argue that Hearns’s April 27 prayer went

too far. “Bring our minds to know you,” Hearns importuned

that evening, “and in the precious, holy and righteous and

matchless name of Jesus I pray this prayer.” As Rubin and

6

See Galloway, 681 F.3d at 29 (“[Allegheny] does not mean that any

single denominational prayer has the forbidden effect of affiliating the

government with any one faith.”); Joyner, 653 F.3d at 351 (“[C]ourts

should not be in the business of policing [legislative] prayers for the

occasional sectarian reference—that carries things too far.”); Pelphrey,

547 F.3d at 1266 (“The taxpayers argue that the Establishment Clause

permits only nonsectarian prayers for the meetings of the commissions,

but we disagree.”). “To the extent that [other] circuit cases stand instead

for the proposition that the Establishment Clause precludes all legislative

invocations that are denominational in nature . . . we cannot agree.” 

Galloway, 681 F.3d at 28 (citing Hinrichs v. Bosma, 440 F.3d 393, 399

(7th Cir. 2006) and Stein v. Plainwell Cmty. Schs., 822 F.2d 1406, 1409

(6th Cir. 1987)).
RUBIN V. CITY OF LANCASTER 17

Feller have made quite clear throughout this litigation, they

object to Hearns’s prayer simply because it “mention[s] the

name of Jesus.” “[T]he Plaintiffs,” their brief says, “were

upset and offended because Hearns mentioned the name of

Jesus.” The district court acknowledged as much in its

disposition below: “Plaintiffs clarified at trial that they

challenge . . . only the reference to Jesus.” And again:

“Plaintiffs have made clear that their contention that the April

27 invocation violates the Establishment Clause rests solely

on the single reference to Jesus.” Consequently, the district

court concluded that, aside from Hearns’s invocation of Jesus,

“[p]laintiffs have presented no evidence or argument to

suggest that the April 27” invocation proselytized, advanced,

or disparaged any faith, nor have they “contended that it had

this purpose or effect.”

So encumbered, Rubin and Feller’s challenge to the April

27 prayer collapses. Marsh “does not mean that any single

denominational prayer has the forbidden effect of affiliating

the government with any one faith.” Galloway, 681 F.3d at

29. Therefore, the district court’s refusal to declare Hearns’s

invocation unconstitutional was not error.

B

Rubin and Feller next challenge the district court’s

determination that the April 27 prayer viewed “in

context”—what they call the invocation “policy in

practice”— posed no First Amendment problem. They say

that it was not just Hearns’s invocation that caused them to

sue, but “what preceded” it and “what has occurred since.” 

The problem, they allege, is the “unwritten policy, practice

and custom of the City of Lancaster” under which the
18 RUBIN V. CITY OF LANCASTER

majority of city-council invocations have been

Christian—and often explicitly so.7

1

Just as Marsh evaluated Nebraska’s practice of legislative

prayers (not Palmer’s prayers individually), we now must

determine whether the City’s “prayer practice, viewed in its

entirety,” has “advance[d] a single religious sect.” Galloway,

681 F.3d at 28; see Pelphrey, 547 F.3d at 1277–78. To

resolve this question, two circuits have undertaken something

like an observer-based “frequency” analysis, invalidating any

legislative-prayer practice that, from the vantage point of the

prayers’ listeners, has resulted in too large a proportion of

sectarian invocations from one particular religious group. 

Because the attendees “hear the prayers, not the policy,” the

Fourth Circuit has reasoned, “we cannot turn a blind eye to

the practical effects of the invocations at issue.” Joyner,

653 F.3d at 354. Adopting a similar approach, the Second

Circuit has asked whether, given the predominance of one

sect’s prayers (among other factors), “the [government’s]

practice, viewed in its totality by an ordinary, reasonable

observer, conveyed the view that [it] favored or disfavored

certain religious beliefs.” Galloway, 681 F.3d at 29.

We read Marsh to require a different inquiry. “In

determining what it means to ‘advance’ one religion or faith

over others, the touchstone of the analysis should be whether

the government has placed its imprimatur, deliberately or by

7 We assume without deciding (because the City makes no argument to

the contrary) that the City’s “policy in practice,” as Rubin and Feller

describe it, is an actionable “policy” or “custom” under Monell v.

Department of Social Services, 436 U.S. 658 (1978).
RUBIN V. CITY OF LANCASTER 19

implication, on any one faith or religion.” Joyner, 653 F.3d

at 362 (Niemeyer, J., dissenting). Reviewing the First

Amendment’s ratification history, the Marsh Court

acknowledged that, though some Framers had in fact opposed

legislative prayer because of its possibly disquieting effect on

listeners of “divided . . . religious sentiments,” that concern

“was met by Samuel Adams, who stated that ‘he was no

bigot, and could hear a prayer from a gentleman of piety and

virtue, who was at the same time a friend to his country.’” 

Marsh, 463 U.S. at 791–92. That Adams’s view ultimately

prevailed confirmed for the Marsh Court that the Framers, on

the whole, “did not consider opening prayers as . . .

symbolically placing the government’s official seal of

approval on one religious view.” Id. at 792 (internal

quotation marks omitted). Of course, a state still could,

through its policy or practice, intentionally affiliate itself with

a particular sect, but the question whether it has, Marsh

suggests, will not pivot on the practice’s effect on the

disapproving listener.8See id. (downplaying the significance

of legislative prayer’s effect on an observer who, as “an adult,

[is] presumably not readily susceptible to religious

indoctrination or peer pressure” (internal citations and

8 Contrasting legislative prayer with prayer during a high-school

graduation ceremony, the Court explained years later,

Inherent differences between the public school system

and a session of a state legislature distinguish this case

from Marsh v. Chambers . . . . The atmosphere at the

opening of a session of a state legislature where adults

are free to enter and leave with little comment and for

any number of reasons cannot compare with the

constraining potential of the one school event most

important for the student to attend.

Lee v. Weisman, 505 U.S. 577, 596–97 (1992).
20 RUBIN V. CITY OF LANCASTER

quotation marks omitted)); see also id. at 798 (Brennan, J.,

dissenting) (bemoaning the majority’s failure to conclude,

under Lemon’s “primary effect” prong, that from the

perspective of the listener, “invocations in Nebraska’s

legislative halls explicitly link religious belief and observance

to the power and prestige of the State”).

Bypassing the reasonable observer, the Marsh Court

instead trained its analysis not only on history but on the

government’s actions. For instance, though the court of

appeals had worried that Palmer’s sixteen-year tenure had

“the effect of giving preference” to Presbyterianism, the

Court, “no more than Members of the Congresses of this

century, [could] perceive any suggestion that choosing a

clergyman of one denomination advances the beliefs” of his

church. Marsh, 463 U.S. at 793 (emphasis added). “To the

contrary, the evidence”—which went solely to the

government’s reasons for retaining Palmer—suggested

merely “that Palmer was reappointed because his

performance and personal qualities were acceptable to the

body appointing him.” Id. at 793; see also id. at 823 n.1

(Stevens, J., dissenting) (“[O]nce again, the Court makes the

subjective motivation of legislators the decisive criterion for

judging the constitutionality of a state legislative practice.”). 

The majority was similarly unconcerned that Palmer was a

paid employee of the state, for, regardless of whether

remuneration signals endorsement, it “is grounded in historic

practice.” Id. at 794. Likewise, the Court shrugged off

Chambers’s objection to the prayers themselves, even though

Palmer’s many sectarian references—having actually “led to

controversy [in the legislature] along religious lines”—at

times might have struck listeners as too favorable to

Christianity. See id. at 800 (Brennan, J., dissenting)

(highlighting “a series of [such] instances” in the record). In
RUBIN V. CITY OF LANCASTER 21

sum, whatever message Nebraska might have conveyed

through its practice of selecting, paying, and retaining for

sixteen years a Presbyterian chaplain who often delivered

explicitly Christian invocations, the Supreme Court

concluded that the legislature had not advanced Christianity.

To be sure, had Marsh applied Lemon, then the question

whether Nebraska had advanced Christianity would have

depended on the prayers’ effects and the reasonable

observer’s perceptions. See Lemon, 403 U.S. at 612; Lynch

v. Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J.,

concurring) (reading Lemon’s effect prong to forbid

government action that communicates “a message of

government endorsement” to the reasonable observer); Bd. of

Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226,

249–53 (1990) (plurality opinion) (treating Lemon’s second

prong and the endorsement test as the same inquiry). And

indeed, the Court might well have determined, as had the

Eighth Circuit, that “[t]hose who have observed or

participated in Nebraska’s legislative process over the last

sixteen years would have to conclude that the legislature has

an official view on religion which is expressed by its minister

and promoted with the use of state funds.” Chambers v.

Marsh, 675 F.2d 228, 235 (8th Cir. 1982), rev’d, 463 U.S.

783 (1983).9Instead, the Court left Lemon on the shelf,

upholding Nebraska’s practice solely on the basis of original

intent, tradition, and the absence of evidence suggesting a

9 But see Lynch, 465 U.S. at 692–93 (O’Connor, J., concurring) (because

of its history, legislative prayer is “not understood as conveying

government approval of particular religious beliefs”); Allegheny, 492 U.S.

at 630 (O’Connor, J., concurring) (“[T]he history and ubiquity of a

practice . . .provides part of the context in which a reasonable observer

evaluates whether a challenged government practice conveys a message

of endorsement of religion.” (internal quotation marks omitted)).
22 RUBIN V. CITY OF LANCASTER

state-led effort to proselytize, advance, or disparage any one

religion.

For these reasons, we conclude that the question in this

case is not simply whether, given the frequency of Christian

invocations, the reasonable observer of Lancaster’s citycouncil meetings would infer favoritism toward Christianity. 

Rather, it is whether the City itself has taken steps to affiliate

itself with Christianity.

2

Rubin and Feller argue that the City, through its prayer

practice, has placed its “official seal of approval” on

Christianity. Marsh, 463 U.S. at 792. Far from it. The City

has instead taken every feasible precaution—short of the

extra step (itself fraught with constitutional peril10) of

requiring volunteers to refrain altogether from referencing

sectarian figures—to ensure its own evenhandedness. First,

it has codified a litany of neutrality-enforcing safeguards: No

person attending a city-council meeting, including a city

employee or official, is required to participate in any prayer. 

No volunteer is paid to pray. Neither the council nor the

clerk may “engage in any prior inquiry, review of, or

involvement in, the content of any prayer to be offered.” 

Moreover, the clerk has never removed a congregation’s

name from the list of invitees or refused to include one. Cf.

Joyner, 653 F.3d at 362–63 (Niemeyer, J., dissenting) (“It is

undisputed that both the County’s policy and its

implementation treat religious leaders from all religions

identically, and no congregation was excluded from the

County list.”).

 

10 See infra Part II.B.4.
RUBIN V. CITY OF LANCASTER 23

Second, the City has taken proactive measures to deliver

on its promise of inclusivity. The clerk must “make every

reasonable effort to ensure that a variety of eligible

invocational speakers are scheduled” to pray, but “[i]n any

event, no invocational speaker shall be scheduled to offer a

prayer at consecutive meetings . . . or at more than three . . .

meetings in any calendar year.” Cf. Pelphrey, 547 F.3d at

1266 (prayer policies constitutional because they “allow

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

offer invocations with a variety of religious expressions,”

such as references to Allah, Muhammad, and Jesus, by far the

figure most often mentioned). He is to invite every local

religious group that he can find. And, as responses trickle in,

he is to schedule appearances on “a first-come, first-serve[d]

or other random basis.” No city official has ever attempted

to influence the clerk’s scheduling decisions.

Third, the City has stressed, both to the public and to

invited prayer-givers, the policy’s nonsectarian aims. 

Designed to “acknowledge and express the city Council’s

respect for [Lancaster’s] diversity of religious denominations

and faiths,” as well as to “solemnize proceedings” of the

council, the policy states that it “is not intended, and shall not

be implemented or construed in any way, to affiliate the City

Council with, nor express . . . preference for, any faith or

religious denomination.” Hence, the invitation notes that

“[t]his opportunity is voluntary, and you are free to offer the

invocation according to the dictates of your own conscience.” 

It also entreats volunteers to respect the sensitive nature of

the forum: “To maintain a spirit of respect and ecumenism,

the City Council requests only that the prayer opportunity not

be exploited as an effort to convert others . . . nor to disparage

any faith or belief different [from] that of the invocational

speaker.” Not only, then, has the City designed its policy to
24 RUBIN V. CITY OF LANCASTER

heed Marsh’s strictures. It also has asked its volunteers to do

the same.

3

But none of this, Rubin and Feller insist, is enough. Its

faciallyneutral policynotwithstanding, the City has advanced

Christianity in effect because, as it happens, most of the

volunteers so far have been Christian and have given

Christian invocations.11

This argument misconceives the focus of our inquiry. 

Whatever the content of the prayers or the denominations of

the prayer-givers, the City chooses neither. That most so far

have been Christian is merely a function of local

“demographics and the choices of the religious leaders who

responded out of their own initiative to the [City’s]

11 In addition to their effects-based argument, Rubin and Feller also

insinuate in passing that the mayor of Lancaster, Rex Parris, is at the

center of a campaign to transformLancaster into a miniature Christendom. 

They point to a speech that Parris made before a meeting of Christian

ministers in 2010, in which he said, “[W]e are growing a Christian

community, and we should not shy away from that.” According to the

district court, Parris later testified “that he meant a ‘community where we

love our neighbors, that we take care of our neighbors, that we protect our

neighbors.’ He further testified that this is his policy; it is not an official

City policy.” Since then, Parris has recruited members of minority (nonChristian) sects to “sign up” for council invocations. Otherwise, he has

had no involvement in the prayer policy’s administration. For these

reasons, the district court was right to downplay the significance of

Parris’s speech.
RUBIN V. CITY OF LANCASTER 25

invitation.”12Joyner, 653 F.3d at 363 (Niemeyer, J.,

dissenting). The City cannot control which religious

congregations settle within its limits. Nor can it compel

leaders of those congregations to accept its invitations.13

Rubin and Feller attack the City for the “policy in practice,”

but they have the wrong target: the policy’s authors are the

citizens themselves. Cf. id. (“[Plaintiffs] overlook[] the real

life fact that when Forsyth County calls for prayers from

religious leaders under a neutral policy that is proactively

inclusive, the prayers will reflect the religions of the religious

leaders, not the preferences of the County.”).

In other Establishment Clause contexts, the Supreme

Court has stressed this element of private choice, holding

time and time again that when a neutral government policy or

program merelyallows or enables private religious acts, those

acts do not necessarily bear the state’s imprimatur. In the

school-vouchers case, for example, the Court explained that

“where a government aid program is neutral with respect to

religion, and provides assistance directly to a broad class of

citizens who, in turn, direct government aid to religious

schools wholly as a result of their own genuine and

independent private choice, the program is not readily subject

to challenge under the Establishment Clause.” Zelman v.

Simmons-Harris, 536 U.S. 639, 652 (2002). This is because

“[t]he incidental advancement of a religious mission, or the

12 Here, as in Joyner, “there is no evidence to suggest that the [City]

attempted to game the demographics . . . by manipulating the list of

religious leaders to ensure that only Christian prayer would be offered.” 

Joynder, 653 F.3d at 363 (Niemeyer, J., dissenting).

13 Though it may encourage them to do so, as the mayor has done. 

According to the district court, Mayor Parris has “encourag[ed] ‘a lot of

religious leaders including Sikhs, Rabbis, and Muslims to sign up.’”
26 RUBIN V. CITY OF LANCASTER

perceived endorsement of a religious message, is reasonably

attributable to the individual recipient, not to the

government.” Id. (emphasis added). On this logic, the Court

also has rejected a constitutional challenge to a state taxdeduction program covering education expenses even for

religious private schools: “Where, as here, aid to parochial

schools is available only as a result of decisions of individual

parents no imprimatur of State approval can be deemed to

have been conferred on any particular religion, or on religion

generally.” Mueller v. Allen, 463 U.S. 388, 399 (1983)

(internal quotation marks and citation omitted). And again,

resolving a challenge to a vocational-scholarship program, the

Court noted that “[a]ny aid . . . that ultimately flows to

religious institutions does so only as a result of the genuinely

independent and private choices of aid recipients,”

emphasizing that the challenged “program is made available

generally without regard to the sectarian–nonsectarian, or

public–nonpublic nature of the institution benefited.” Witters

v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 488

(1986). These and other cases confirm, at the very least, that

“a significant factor in upholding governmental programs in

the face of Establishment Clause attack is their neutrality

towards religion.” Good News Club v. Milford Cent. Sch.,

533 U.S. 98, 114 (2001); see also Zobrest v. Catalina

Foothills Sch. Dist., 509 U.S. 1, 8 (1993) (religious messages

communicated by a taxpayer-funded sign-language

interpreter working in a parochial school did not bear the

government’s endorsement because the program neutrally

provided access to large group of citizens regardless of

religious views).

Focusing here “on [the policy’s] neutrality and the

principle of private choice, not on the number of” volunteers

from a particular sect, Zelman, 536 U.S. at 652, we see
RUBIN V. CITY OF LANCASTER 27

nothing in the record or in the prayer policy to indicate that

the City has affiliated itself with Christianity.

4

To avoid even the appearance that the prayer “policy in

practice” too closely aligns the City with Christianity, Rubin

and Feller request a ban on “prayers in the name of Jesus

Christ (or any other religious figure).”14

 Presumably, Rubin

and Feller would have us order the City to review as a matter

of course the text of every proposed prayer, approving for

delivery only those drafts rid of all references to saints,

disciples, prophets, deities, and the like.

That remedy comes with its own set of First Amendment

infirmities. For one thing, it would assign to the government

the task of coauthoring prayers, precisely what the Court in

Lee v. Weisman declared unconstitutional. In Lee, a rabbi

argued that the government crossed the line when it told him

that his graduation-ceremony invocation “should be

nonsectarian.” Lee, 505 U.S. at 588. The Court agreed: “It

is a cornerstone principle of our Establishment Clause

jurisprudence that ‘it is no part of the business of government

to compose official prayers,’” or “direct[] and control[]” their

content. Id. at 588 (quoting Engel v. Vitale, 370 U.S. 421,

425 (1962)). “A state-imposed requirement that all

14

In truth, Rubin and Feller’s requests for relief have been inconsistent. 

In the first paragraph of their complaint, they ask for declaratory and

injunctive relief only from prayers “wherein the name of Jesus Christ is

invoked.” But at the end of the complaint, they ask the court to enjoin

Lancaster from “condoning, allowing, and sponsoring religious prayers.” 

The district court concluded that plaintiffs “challenge only the reference

to Jesus.” On appeal, plaintiffs now ask for an injunction against prayers

mentioning Christ or any other “religious figure.”
28 RUBIN V. CITY OF LANCASTER

legislative prayers be nondenominational . . . begins to sound

like the establishment of ‘an official or civil religion,’” the

Second Circuit has explained, and “[t]he problem with such

civic religious statements lies, in part, in the danger that such

efforts to secure religious ‘neutrality’ may produce ‘a

brooding and pervasive devotion to the secular and a passive,

or even active, hostility to the religious.’” Galloway, 681 F.3d

at 29 (quoting Sch. Dist. of Abington Twp., Pa. v. Schempp,

374 U.S. 203, 306 (1963) (Goldberg, J., concurring)). 

Consequently, “a government may not establish a vague

theism as a state religion any more than it may establish a

specific creed.”15 Id. at 29.

Second, the very act of deciding—as a matter of

constitutional law, no less—who counts as a “religious

figure” or what amounts to a “sectarian reference” not only

embroils judges in preciselythose intrareligious controversies

that the Constitution requires us to avoid, but also imposes on

us a task that we are incompetent to perform.

16

See Lee,

505 U.S. at 616–17 (Souter, J., concurring). Rubin and Feller

ask us to forbid mention of Jesus, since he is clearly a

religious figure. Ostensibly, the same is true of “Allah,”

15 Here, adopting a “vague theism” as civic religion would also risk

shutting out those religious leaders who, perhaps for doctrinal reasons, are

disinclined to restyle or dilute their prayers. See Robert J. Delahunty,

“Varied Carols”: Legislative Prayer in a Pluralist Polity, 40 Creighton

L. Rev. 517, 526–27 (2007) (“Faced with the choice of praying in

conformity with a government-imposed standard of orthodoxy or not

praying at all, many clergy (to their credit) will choose not to pray at all.”).

16 It also may be that the task is simply impossible. See Geoffrey R.

Stone, In Opposition to the School Prayer Amendment, 50 U. Chi. L. Rev.

823, 829 (1983) (arguing that “the very concept of a ‘nondenominational

prayer’ is self-contradictory”).
RUBIN V. CITY OF LANCASTER 29

“Muhammad,” or “Buddha.” But do more generic religious

appellations also cross the line? “Heavenly Father” strikes

some as comfortably ecumenical, see, e.g., Simpson, 404 F.3d

at 284, yet several sects reject the “fatherhood of God,” see

generally, e.g., Elizabeth A. Johnson, She Who Is: The

Mystery of God in Feminist Theological Discourse (2002),

and some reject even the idea of a heavenly deity, see

generally, e.g., Paul Harrison, Elements of Pantheism:

Religious Reverence of Nature and the Universe (2004). 

Other seemingly “safe” Judeo-Christian monikers, such as

“Lord,” “Jehovah,” “Abraham,” and “Moses,” are no less

problematic. See Joyner, 653 F.3d at 364 (Niemeyer, J.,

dissenting) (“[A]dherents to the Hindu or Muslim religions

could assert that they are offended by prayers in the JudeoChristian tradition, which the majority has deemed to be

nonsectarian and nonoffensive.”). Even within the JudeoChristian tradition, some deific titles that seem ecumenical

turn out not to be. See id. (“[I]n Simpson, we labeled as

nonsectarian references to ‘Lord of [l]ords,’ and “King of

[k]ings.’ . . . Yet, those phrases refer to Jesus in the New

Testament. See Revelations, 19:15.”). As these few

examples show, “[s]imply by requiring the enquiry,

nonpreferentialists invite the courts to engage in comparative

theology.” Lee, 505 U.S. at 616–17 (Souter, J., concurring). 

We “can hardly imagine a subject less amenable to the

competence of the federal judiciary, or more deliberately to

be avoided where possible.”17

 Id. Thus, we avoid it here.

17 The Eleventh Circuit admitted in Pelphrey that it “would not know

where to begin to demarcate the boundary between sectarian and

nonsectarian expressions.” 547 F.3d at 1272. There, as here, the plaintiffs

offered little guidance:

Even the individual taxpayers cannot agree on which

expressions are “sectarian.” Bats, one of the taxpayers,
30 RUBIN V. CITY OF LANCASTER

III

Rubin and Feller also claim that Hearns’s invocation and

the City’s prayer practice violate Article 1, Section 4 of the

California Constitution, which, in relevant part, mimics the

Establishment Clause. See Cal. Const. art. 1, § 4. This

“protection against the establishment of religion embedded in

the California Constitution [does not] create[] broader

protections than those of the First Amendment,” given that

“the California concept of a ‘law respecting an establishment

of religion’ coincides with the intent and purpose of the First

Amendment establishment clause.” E. Bay Asian Local Dev.

Corp. v. California, 13 P.3d 1122, 1138 (Cal. 2000) (internal

citation omitted). Therefore, for the same reasons that Rubin

and Feller’s First Amendment claim fails, their state claim

fails as well.

testified that a prohibition of “sectarian” references

would preclude the use of “father,” “Allah,” and

“Zoraster” but would allow “God” and “Jehovah.”

Selman, another taxpayer, testified, “[Y]ou can't say

Jesus, . . . Jehovah, . . . [or] Wicca . . . .” Selman also

deemed “lord or father” impermissible.

The taxpayers’ counsel fared no better than his clients

in providing a consistent and workable definition of

sectarian expressions. In the district court, counsel for

the taxpayers deemed “Heavenly Father” and “Lord”

nonsectarian, even though his clients testified to the

contrary. . . . When asked . . . whether “King of kings”

was sectarian, he replied, “King of kings may be a

tough one . . . . It is arguably a reference to one God

. . . . I think it is safe to conclude that it might not be

sectarian.”

Id.
RUBIN V. CITY OF LANCASTER 31

IV

The district court correctly determined that neither

Hearns’s April 27 invocation nor the City’s prayer policy

constituted an unconstitutional establishment of religion.

AFFIRMED.