Letter to Sarasota city council opposing opening meetings with prayers

8/7/2019 Letter to Sarasota city council opposing opening meetings with prayers

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March 3, 2011

Mayor Kelly M. Kirschner1565 1st Street, Room 101

Sarasota, Florida 34236

[email protected]

Robert Fournier

City Attorney

1 So. School Avenue, Suite 700Sarasota, Florida 34237

[email protected]

Re: Prayer at Sarasota City Commissioners Meetings

Messrs. Kirschner and Fournier:

I am writing on behalf of a Sarasota resident and taxpayer to alert you to a serious

separation of church and state concern. We have recently been notified that every regular

Sarasota city commissioners meeting begins with an official public prayer. The American

Humanist Association is a national nonprofit organization with over 10,000 members and 20,000supporters across the country, including members in Florida (AHA has 16 local chapters in

Florida, the second most of any state, including one in Sarasota). Our purpose is to protect the

principles of the federal and state constitutions that require separation of church and state.1 See

Koerner v. Borck, 100 So. 2d 398, 401 (Fla. 1958) (holding that the First AmendmentsEstablishment Clause is intended to erect a wall of separation between church and state).

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The audio recordings of Sarasota city commissioners meetings posted on the cityswebsite reveal that each meeting from May 2010 through February 2011 opened with a prayer

addressed to a Heavenly Father and ending with in thy name we pray, amen. (A random

sample of recordings from 2006-2009 revealed the same.) It appears that every meeting in the

last five years has begun with the exact same prayer. These prayers are given by a city official,generally the city auditor and clerk. In a majority of these meetings, citizens were asked to

1 The First Amendment to the U.S. Constitution provides in part: Congress shall make no law respecting an

establishment of religion. Art. 1 Sec. 3 of the Florida Constitution provides in part: There shall be no law

respecting the establishment of religion or prohibiting or penalizing the free exercise thereof.2See also Reynolds v. United States, 98 U.S. 145, 164 (1878) (stating that the phrase make no law respecting an

establishment of religion or prohibiting the free exercise thereof . . . build[s] a wall of separation between church

and State.).


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stand for the prayer.3

Given these facts, we have reason to believe that the citys actions are in

violation of the Establishment Clause.

First, the citys references to a transparently biblical Heavenly Father and amen in

every invocation amounts to an unconstitutional governmental endorsement of (1) one religion

(Christianity) over other religions, and (2) more generally, of religion over non-religion.

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Pursuant to the Supreme Courts ruling in Marsh v. Chambers, 463 U.S. 783 (1983), legislative

prayers are unconstitutional if they attempt to proselytize or advance any one . . . faith or

belief. Id. at 794-95. In County of Allegheny v. ACLU, 492 U.S. 573 (1989), the SupremeCourt explained that Marshcould not be read to justify . . . legislative prayers that have the

effect of affiliating the government with any one specific faith or belief. Id. at 603

In applying Marsh, the Eleventh Circuit Court of Appeals, which includes Florida in its

jurisdiction, rejected the importance of the supposedly nonsectarian nature ofprayers at local

government meetings in deciding their constitutionality, or even the coherence of that idea,

stating that the court would not know where to begin to demarcate the boundary between

sectarian and nonsectarian expressions. See Pelphrey v. Cobb County, Ca., 547 F.3d 1263,1272 (11th

Cir. 2008). In upholding the particular legislative prayers at issue in Pelphrey, the

court relied on the fact that those prayers did not advance or affiliate the government with anyspecific faith. The court observed that the diverse references in the prayers, includ ing to

Allah, Mohammed, and the Torah, made it such that the prayers did not advance anyparticular faith. Id. at 1277-78. Unlike the prayers at issue in Pelphrey, Sarasotas prayers do

not pass constitutional muster. The prayers are not offered by private members of a variety offaiths, nor do they reference deities other than the obviously biblical Heavenly Father.Accordingly, the citys prayers create the perception that city unconstitutionally endorses

Christianity (and, more generally, religion over non-religion) in violation of the EstablishmentClause.

Second, by using the exact same invocation for all meetings from 2006 to the present, the

city is illegally sponsoring an official government prayer. The Supreme Court has held thatthe government is without authority to prescribe any particular form of prayer which is to beused as an official prayer in carrying on any program of governmentally sponsored religious

activity. Engel v. Vitale, 370 U.S. 421, 430 (1962). In Engel,the Supreme Court held that theconstitutional prohibition against laws respecting an establishment of religion must at least mean

. . . it is no part of the business of government to compose official prayers for any group of the

American people to recite as a part of a religious program carried on by government. Id. at 425.Sarasotas unvarying invocation appears to be the citys official prayer as it is the only prayer

recited at each meeting. Thus, the city, by inviting the public to stand and participate in this

official prayer, is clearly in violation of the Establishment Clause. One of the greatest dangers

3The public was asked to please rise for the invocation in (but not limited to) the following meetings: December

6, 2010, November 1 and 15, 2010, October 4 and 18, 2010, September 7 and 20, 2010, August 16, July 19, June 7

May 17, 2010; others: May 4, 2009 (please stand); February 17, 2009 (all stand please); October 20, 2008

(please stand); November 5, 2007 (if everyone will rise please...); December 11, 2006 (please stand).4See Brown v. Orange County Bd. of Public Instruction, 128 So. 2d 181 (1960) (holding that the First Amendment

forbids preferential treatment by government, Federal or State, of one sect or religion over others), Epperson v.

Arkansas, 393 U.S. 97, 104 (holding that the First Amendment requires governmental neutrality between . . .

religion and nonreligion.) and School Dist. of Abington v. Schempp, 374 U.S. 203, 216 (1963) (same).


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to the freedom of the individual to worship in his own way the founding fathers feared lay in

the Government's placing its official stamp of approval upon one particular kind of prayer. Id.at 429. By reciting and coercing others to join in its one particularkind of prayer, the city is

infringing upon the rights of each individual to chose to worship (or not to worship at all) in his

or her own way. Id. As the Supreme Court noted in Engel, [i]t is neither sacrilegious nor

antireligious to say that each separate government in this country should stay out of the businessof writing or sanctioning official prayers and leave that purely religious function to the people

themselves and to those the people choose to look to for religious guidance. Id. at 435. We

simply ask that Sarasota leave the purely religious act of prayer to the people by discontinuingthe practice of beginning city meetings with an invocation. Indeed, the purposes underlying the

Establishment Clause . . . rested on the belief that a union of government and religion tends to

destroy government and to degrade religion. Id. at 431. By delivering prayers at publicmeetings, the city is not only violating the law but also degrading the very religion it seeks to

promote.5

Third, because the prayer at city meetings is delivered by a government official, the city

exacerbates the official nature of its prayer (as proscribed by the Supreme Court in Engel).

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There is a crucial difference between government speech endorsing religion, which the

Establishment Clause forbids, and private speech endorsing religion which the Free Speech and

Free Exercise Clause protect. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000)

(quoting Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990). As government speech,7

Sarasotas prayer is not protected by the First Amendment guarantees of free expression and free

exercise of religion because [n]o individual has a First Amendment right to offer an officialprayer reflecting his personal beliefs. Hinrichs v. Bosma, 410 F. Supp. 2d 745, 750 (S.D. Ind.

2006).

Finally, by asking citizens to stand prior to the invocation, the city makes it immediately

and unavoidably apparent which members of the public are not participating in the prayer, which

in turn creates an unconstitutionally hostile environment for non-participants (such as non-

Christian believers, atheists, and humanists). See Lynch v. Donnelly, 465 U.S. 668, 688 (1984)(OConnor, J., concurring, stating that [e]ndorsement [of religion] sends a message to

nonadherents that they are outsiders, not full members of the political community, and an

accompanying message to adherents that they are insiders, favored members of the political

community.)8 The Supreme Court has held that asking attendees in a public setting to stand as

5Consider that the Bible indicates that Jesus, in the Sermon on the Mount, condemned public prayer: And when

you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to

be seen by others . . . But when you pray, go into your room, close the door and pray to your Father, which is in

secret. (Matthew 6:5-13).6

See, Borden v. School Dist. of Tp. of East Brunswick, 523 F.3d 153, 174 (3rd

Cir. 2008) (holding that a high schoolviolated the Establishment Clause because its football coachs extensive involvement with the teams prayers, which

he organized, participated in, and led, would lead a reasonable observer to conclude that the coach was not merely

showing respect when he bowed his head and took a knee with his teams but was instead endorsing religion).7See Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 288 (4

th Cir. 2005) (holding that the

opening prayer of a county board meeting was government speech).8See Wynne, 376 F.3d at 295-96 (observing that Wynnes efforts to participate in Town Council's meetings as a

member of the public [were] adversely affected by her refusal to accept the Christian prayer tradition . . . the

Council treated [her] differently than other members of the community. She explained that she did not believe the

Mayor took her seriously, and that he attempted to intimidate her.).


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Letter to Sarasota city council opposing opening meetings with prayers

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