Federal Court Says Fla. County Board Cannot Discriminate Against Non-Theists

Below was copied from this LINK
A federal court last night struck down the Brevard County, Fla., Board of County Commissioners’ policy of excluding non-theists from giving opening invocations, a ruling that is being hailed by the groups that sponsored the litigation.

In its ruling, the U.S. District Court for the Middle District of Florida said a local governing body cannot limit its invocation speakers to those from monotheistic religions.

“It is unconstitutional for any governing body to discriminate against people who don’t believe in God,” said Alex J. Luchenitser, associate legal director of Americans United for Separation of Church and State and lead counsel in the case. “Yet that is exactly what Brevard County did through its invocation policy. We’re pleased that the court put an end to the county’s discriminatory practice.”

The Williamson v. Brevard County lawsuit was filed in 2015 by Americans United for Separation of Church and State, the Freedom From Religion Foundation, the American Civil Liberties Union, and the American Civil Liberties Union of Florida on behalf of multiple plaintiffs. It asserted that Brevard County’s rejection of atheists, humanists and other non-theists who sought to deliver solemnizing messages at the beginning of commission meetings violated the U.S. and Florida Constitutions.

The civil liberties groups noted that in a 2014 decision, Town of Greece v. Galloway, the U.S. Supreme Court made clear that local governments cannot discriminate based on religion when selecting who will deliver invocations to open government meetings. Yet the Brevard board argued that it had no obligation to include non-theists.

The district court disagreed.

“ ‘[T]he great promise of the Establishment Clause is that religion will not operate as an instrument of division in our nation,’ ” the court wrote (quoting another case). “Regrettably, religion has become such an instrument in Brevard County. The County defines rights and opportunities of its citizens to participate in the ceremonial pre-meeting invocation during the County Board’s regular meetings based on the citizens’ religious beliefs. . . . [T]he County’s policy and practice violate the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 2 and 3 of the Florida Constitution.”

“We’re delighted such blatant discrimination against nonreligious citizens has been struck down,” said FFRF Co-President Annie Laurie Gaylor. “Governmental bodies that open their meetings with invocations must not turn believers into insiders, and nonbelievers into outsiders, by excluding dissenting points of view.”

“The County’s outright exclusion of nonreligious speakers was unfair and unconstitutional,” said Daniel Mach, Director of the ACLU Program on Freedom of Religion and Belief.  “This decision sends a powerful reminder that no one should be treated as a second-class citizen by their local government.”

The plaintiffs in the case include the Central Florida Freethought Community (a chapter of FFRF) and its chair David Williamson; the Space Coast Freethought Association and its president Chase Hansel; the Humanist Community of the Space Coast and its president Keith Becher; and Brevard County resident Ronald Gordon.

The lawsuit has been litigated by Luchenitser and former Steven Gey Fellow Bradley Girard of Americans United; Rebecca S. Markert and Andrew L. Seidel of FFRF; Nancy Abudu and Daniel Tilley of the ACLU of Florida; and Daniel Mach of the ACLU Program on Freedom of Religion and Belief.

Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.

They can’t ask the audience to rise or bow their heads

They can’t ask the audience to participate.  Council Member Morgan asked people to bow their heads when she said a prayer at the August 23rd meeting.  So I emailed her this note.

forward:
Honorable Council Member Morgan,
The invocation is supposed to be for the council members and not the audience.  You are not supposed to ask the audience to bow their heads.
You asked the audience to bow their heads in this session:
Here is the link to Jason R. Gabriel, General Counsel’s memo:

http://www.coj.net/city-council/docs/misc/ogc-invocationopinion-2014-09-20.aspx

 it is advisable   ….  to enlist best practices to seek to obtain a diverse panel of guest chaplains and to insure that no one attending a Council meeting feels coerced. Some suggestions include:

  • No person attending a city council meeting should be required to participate in any prayer.
  • Neither the council nor the clerk should ask about or review the content of any prayer.
  • No City official should  ask the audience to take any overt act either (bow head, stand up, etc.).
  • The clerk should not remove a congregation from the list of invitees or refuse to include one.
  • No speaker should offer a prayer at consecutive meetings or at more than three meetings in a year.
  • Hold invocations at the beginning of meetings.
  • Have a written statement acknowledging that the invocation policy is open to all and that the prayers are not intended to advance, proselytize, or disparage any one faith over others.
  • Publicize that the invocation is open to anyone by posting on the City website and/or announcing at Council meetings.
  • Actively reach out to non-traditional faith groups to increase the diversity of invocation speakers.

Legal opinion about invocations from The Humanist Society

http://thehumanistsociety.org/wp-content/uploads/2015/10/Secular-Invocation-Memorandum-5-5-14.pdf

Quote from above link:

Legal Memorandum: Secular Invocations The constitutional requirements governing legislative prayers require local government entities to authorize non-theistic invocations whenever theistic invocations are authorized.

Forward from the First Coast Freethought Society

There is and has been a lot of buzz and discussion going on in and around the City of Jacksonville to get the Human Rights Ordinance amended to include the LGBT folks. Jacksonville’s struggle over the HRO was even featured in the New York Times.  New York Times article at this LINK

I know we have and will continue to support this needed amendment to the HRO.

There is another area where the City of Jacksonville has been less than inclusive: invocations at City Council meetings. The First Coast Freethought Society is gearing up to get a freethinker into the rotation to give an invocation at a City Council meeting. The FCFS needs the support of all of the Humanist/Atheist/Agnostic/Freethought/Sk­eptic organizations in the city to make this happen. Please send the letter I have included below to the Jacksonville City Council. If the City Council receives lots of requests for a freethinker to give an invocation at one of the City Council meetings, it will be a lot easier to get a freethinker on the calendar and in the rotation to give an invocation.

HERE is what AU has said about atheists giving invocations at city council meetings.

The buzz and discussion about inclusiveness is a giant wave going through the City of Jacksonville. We need to ride that wave right into the City Council chambers. I urge you to please send the below letter to the City Council and please urge others to do the same.
Thanks,
Earl Coggins
President of First Coast Freethought Society, Inc
And
Loyal member of Americans United for Separation of Church and State

[your name and address]

[date]

Councilman Jim Love
Office of the City Council
117 W. Duval St., Suite 425
Jacksonville, FL 32202

Re: Invocation Request

To the Honorable Jim Love:

There are several humanist/freethought/non-religious organizations in the City of Jacksonville, including The First Coast Freethought Society (FCFS). FCFS is a local educational organization with approximately one hundred dues paying members. FCFS has been in existence since 1998. One of the FCFS’s objectives is to educate the public about the need for inclusiveness,including the non-religious members of our community.

In the recent Supreme Court decision, Town of Greece v. Galloway, the Court emphasized that a government’s prayer practice must be “nondiscriminatory” and it must make reasonable efforts to include invocations from all members of the community, regardless of their faith. In fact, the completely open selection process was crucial to the prayers being upheld: “The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation.” (Town of Greece, N.Y. v. Galloway, 12-696, 2014 WL 1757828 (U.S. May 5, 2014)) Therefore, excluding a particular faith group from consideration is unconstitutional. (Pelphrey v. Cobb County, 547 F.3d 1263, 1276 (11th Cir. 2008)).

In light of these facts, it is clear that local government meetings should include Humanist/Atheist/Agnostic invocations as well as those from any other religious minorities. I respectfully request that you give the FCFS the opportunity to offer invocations at your meetings. Earl Coggins has submitted the official request that a member of the FCFS be included in the rotation of invocation speakers.

The number of U.S. adults who do not identify with any organized religion is growing. The percentage of Americans who are religiously unaffiliated – describing themselves as atheist, agnostic or “nothing in particular” is 22.8% according to this article at pewforum.org

With 22.8% of the U.S. population identifying themselves as unaffiliated with any religion, the FCFS’s request presents an opportunity for the Jacksonville City Council to demonstrate that it seeks to celebrate diversity with its actions and does not discriminate on the basis of religion. Additionally, you will be providing your Humanist and other non-religious constituents with a voice and an equal opportunity to be included in the ceremonial portion of business meetings on a regular basis.

Sincerely,

Melissa Ross’s article from politicsflorida.com

Here is a great article about the issue from politicsflorida.com:

EMAIL INSIGHTS: SECTARIAN PRAYER ISSUE FLARES UP AGAIN AT JAX CITY COUNCIL
April 29, 2015
By Melissa Ross

He hasn’t even been sworn in yet, but incoming Jacksonville City
Council President Greg Anderson is already experiencing the headaches
of leadership.

Susan Aertker has emailed Anderson to ask him to (once again) change
the rules about Council meetings and sectarian vs. inclusive prayers
during the invocation.

Under outgoing City Council President Clay Yarborough, the invocation
period has always been a Christian prayer. This practice has long
been controversial in Jacksonville, which has Bible Belt roots but in
the 21st century, has become increasingly diverse. And the matter
flares up time and again -depending on who leads the Council.

Writes Aertker, “Based on Yarborough’s words in interviews and based
on the fact that the two people that have given the invocation at the
city council meetings since Yarborough became council president said
“in Jesus’ name, we pray”, one can conclude that Yarborough will only
let people (that agree to say those words) give the invocation. In my
view Yarborough is proselytizing his own particular faith by requiring
that “in Jesus’ name we pray” be said at council meetings. I believe
that violates the establishment clause of the First Amendment and the
ruling in Greece v. Galloway.”

Under former Council President Jack Webb, (and with pressure from the
ACLU) the policy regarding the invocation during City Council meetings
was changed, but it wasn’t binding to future council presidents.

Then as Aertker points out, “After Webb left office, Bill Bishop
became Council President and appointed Yarborough as chaplain. Of
course, Yarborough said “in Jesus’ name we pray” while he was
chaplain. After Bishop, Bill Gulliford became Council President and
he did have some diversity during the invocation period. Gulliford
even had a flute player one time which perhaps represented the
non-religious invocation. Yarborough became Council President after
Gulliford. As Yarborough has said, he only allows people who say “in
Jesus’ name we pray” to give the invocation while he has been Council
President.”

In an interview he gave to the Florida Times-Union Yarborough said he
believed in Christian prayer in public buildings, telling the T-U’s
Mark Woods, “The scripture teaches that unless one prays in the name
of Jesus Christ, and since he is our only way to the Father, that that
is how one should pray. And that is what I believe.”

Aertker closes with a link to au.org/UniteUs petition asking for a
change in invocation rules.

General information and links—invocation at Jacksonville City Council meetings

Here is the memo from the city attorney detailing his opinion about the invocation period:

http://www.coj.net/city-council/docs/misc/ogc-invocationopinion-2014-09-20.aspx

Here is the petition with over 500 signatures that the NE Florida AU chapter spearheaded:

https://www.change.org/p/sign-our-petition-in-the-name-of-unity

In an interview a couple of years ago, then CM Yarborough was asked about prayers during city council meetings. Here is a link to the interview:
http://jacksonville.com/opinion/blog/400564/mark-woods/2010-04-17/councilman-takes-turn-answering-questions

CM Yarborough mentioned the phrase “in Jesus’ name we pray” in the interview. It appears that Council President Yarborough only invited people to give the invocation that are willing to say that phrase​. That seems to me a clear violation of the establishment clause of the First Amendment. I hear that Yarborough did a lot of good for our city. He was a watch dog against corporations trying to rip us off or so I heard. BUT his desire to establish a theocracy is wrong, isn’t it?

During Council President Yarborough’s reign (July 2014 to June 2015) , only Doyle Carter and Kimberly Daniels gave the invocation during the city council meetings. They both said “in Jesus’ name we pray” during the invocation. Which according to the Greece v. Galloway case is OK as long as other people (from every group in town) are invited to give the invocation

Invocations during prior years

You can find the rule 1.106 which talks about invocations at this link:

http://www.coj.net/city-council/docs/councilrules/rules-of-council.aspx

As of May of 2016, Rule 1.106 reads as follows:
RULE 1.106 CHAPLAIN
The President may appoint one Council Member to be Chaplain of the Council, who shall
arrange to open each meeting of the Council with a prayer/invocation. The President or Chaplain may invite or designate others to provide appropriate ceremonies.

When Jack Webb was Council President, the ACLU was set to sue if he didn’t rotate the invocation speakers. Jack Webb complied. Here is the invocation policy that he established (but I was told that future council presidents are not bound by):

http://www.coj.net/city-council/docs/invocationpolicy.aspx

As you can see, the memo is dated in 2010.

BUT when Bill Bishop was Council President, he did very little rotating. See list below. And I think Bill Bishop is one of the good guys.

When Gulliford was council president, he rotated the speakers. Not perfect but better than Bishop. When Yarborough was council president, it appeared that he demanded that “in Jesus’ name we pray” be said during the invocation. Only Doyle Carter and Kimberly Daniels gave the invocation during Yarborough’s reign.

BILL BISHOP—PRESIDENT—2012-2013
Here is the list of who gave the invocations from August 2012 to June 25, 2013:
Aug 15, 2012 CM Yarborough
Aug 28, 2012 Bishop Felipe Estevez
Sept 11, 2012 CM Yarborough
Sept 25, 2012 CM Don Redman
Sept 27, 2012 CM Don Redman
Oct 9, 2012 CM Yarborough
Oct 23, 2012 CM Don Redman
Nov 13, 2013 CM Yarborough
Nov 27, 2012 Rev Michael D. Moore
Dec 11, 2012 CM Yarborough
Jan 8, 2013 CM Yarborough
Jan 22, 2013 CM Yarborough
Feb 13, 2013 CM Yarborough
Feb 26, 2013 CM Yarborough
March 12, 2013 CM Yarborough
March 26, 2013 CM Yarborough
April 9, 2013 CM Yarborough
April 23, 2013 CM Yarborough
May 14, 2013–INVOCATION – Bishop George Davis, Faith Christian Center
May 28, 2013–INVOCATION – Reverend Robert Barton, Westside Baptist Church
June 11, 2013–INVOCATION – Pastor Gene Hodges, First Baptist Church West Jacksonville
June 25, 2013–INVOCATION – Council Member Yarborough