          Case: 12-11613   Date Filed: 03/26/2013   Page: 1 of 39


                                                                    [PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 12-11613
                      ________________________

               D.C. Docket No. 8:10-cv-01538-EAK-MAP


ATHEISTS OF FLORIDA, INC.,
ELLENBETH WACHS,

                                                        Plaintiffs - Appellants,


                                 versus

CITY OF LAKELAND, FLORIDA,
GOW FIELDS,


                                                       Defendants - Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________


                            (March 26, 2013)
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Before DUBINA, Chief Judge, BLACK and ALARCÓN,* Circuit Judges.

ALARCÓN, Circuit Judge:

       Atheists of Florida and Ellenbeth Wachs, Director of the Lakeland Chapter

of the Atheists of Florida, (collectively “AOF”), appeal from the district court’s

order denying their motion for summary judgment and granting summary

judgment in favor of the City of Lakeland, Florida and its mayor, Gow Fields,

(collectively “Lakeland” or “Lakeland City”) in this action filed by AOF pursuant

to 42 U.S.C. § 1983. AOF alleged in their complaint that Lakeland’s practice of

opening each Lakeland City Commission legislative session with a sectarian prayer

violates the Establishment Clause of the First Amendment and Article I, Section 3

of the Florida Constitution.

       Lakeland maintains that Resolution 4848, adopted a few months after AOF

complained in March 2010 about its practices in selecting invocation speakers,

does not violate the Establishment Clause of the First Amendment or Article I,

Section 3 of the Florida Constitution because it requires that invitations to

participate be extended to all religious groups. It also asserts that this Court should

not consider the merits of AOF’s claim that Lakeland’s pre-March 2010 practices




       *
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.

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were unconstitutional because that issue became moot with the codification of

Lakeland’s practices in Resolution 4848.

      We affirm the district court’s order granting summary judgment in favor of

Lakeland and Mayor Fields, in part, because we conclude that AOF has failed to

demonstrate that the adoption of Resolution 4848 resulted in proselytizing or

advancing the Christian religion over all others solely because the speakers who

were selected included sectarian references in their prayers. We also conclude that

we lack jurisdiction to decide AOF’s challenge to the Lakeland City Commission’s

pre-March 2010 speaker selection practice as violative of the Establishment Clause

of the First Amendment or Article I, Section 3 of the Florida Constitution because

that issue is moot. Because the district court also lacked jurisdiction, we vacate

and remand that portion of the district court’s order and direct the district court to

dismiss the challenge to the pre-March 2010 prayer practice as moot.

                                           I

                                           A

      The relevant facts are undisputed in this appeal. The parties only disagree as

to the inferences that can be drawn from them. The Lakeland City Commission

has a longstanding practice of opening each of its bi-monthly legislative sessions

with an invocation. Speakers who led the prayers for the twenty-five year period



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between September 1985 and May 2010, were all of the Christian faith, including

Mayor Fields, who led the prayer on December 21, 2009. Similarly, the Lakeland

City Commission’s meeting minutes reflect that between 1951 and 1979, all the

prayers were led by invocational speakers of the Christian faith. The minutes

reflect that between August 1979 and September 1985, a Rabbi of the Jewish faith

from Temple Emanuel provided the invocation on fifteen occasions.

       Prior to August 2, 2010, the Lakeland City Commission had not adopted an

official policy for the selection of invocational speakers. The practice between

1980 and March 2010 was for administrative employees to contact religious

leaders whose names were on a list that originated in the Mayor’s office, and invite

them to offer the legislative prayer at the Lakeland City Commission meetings.1

This list of invocational speakers was developed some time prior to 1980 and was

handed down to each of the succeeding administrative employees tasked with

securing speakers between 1980 and 2010. No other practice was utilized by these

employees between 1980 and March 2010. Between 2002 and 2010, a yearly

invocation schedule was generated that listed solely Christian denominations that



       1
         The lists that were in effect for 2003, 2004, and 2005, for example, identify specific
clergymen and women, and their affiliated religious organizations, and categorize them by the
following denominations: Assembly of God, Baptist, Catholic, Christian, Chaplains, Church of
Christ, Church of God, Episcopal, Lutheran, Methodist, Nazarene, Non-Denominational,
Pentecostal, Presbyterian, Seventh Day Adventist, Salvation Army, and Wesleyan.

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were to be contacted for purposes of performing the invocations at the Lakeland

City Commission meetings.

       On March 1, 2010, and March 15, 2010, some members of AOF, including

Wachs, attended the Lakeland City Commission meetings. At those meetings, they

stated their “opposition to the practice of prayer rituals, particularly citing the

exclusivity of the Christian Protestant prayer rituals, and the conspicuous absence

of non-Protestant invocations,” and asked that the invocation be replaced by “a

silent moment of reflection as a way to give each and every citizen the personal

choice to pray or not (as they prefer).” AOF members also viewed video

recordings of other meetings over the Internet. Video recordings of the Lakeland

City Commission meetings held in 2009 and 2010 reflect that, when speakers and

clergy of the Christian faith led the prayers, they were customarily offered “in the

name of Jesus Christ.” Other prayers referred to “our Savior” or “the King of

Kings” or “the Father, Son and Holy Spirit.”

      On March 15, 2010, a letter signed by Rob Curry, Executive Director of

AOF, was delivered to Mayor Fields asking that the invocation be replaced with a

moment of silent reflection to solemnize Lakeland City Commission’s meetings.2

      2
          In the letter, Curry stated that he

      demand[ed] answers to . . . three questions . . . 1) What is your purpose in having
      official government prayer as an integral part of Commission meetings? 2) Given the
      prejudice experienced by atheists and non-christian religious minorities in Lakeland,

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In March of 2010, a few days after AOF complained about the existing practice of

selecting invocational speakers, Lakeland City Attorney Tim McCausland asked

Traci Terry, a Lakeland City employee, “to refresh” the list of invocational

speakers by “research[ing] the Yellow Pages and the Internet for established places

of worship or religious centers and to include in that search most of the common

permutations of churches or synagogues or mosques or temples or worship

centers.” Terry searched the Yellow Pages and identified several hundred

congregations that were not included in Lakeland’s existing list of potential

speakers. On March 17, 2010, she mailed out letters inviting those congregations

to offer an invocation before a Lakeland City Commission meeting. The vast

majority of the congregations on the updated list were Christian;3 however, it also

included the Islamic Center of Polk County, Temple Emanuel of Lakeland,

Shoresh David Messianic Synagogue, the Swaminarayan Hindu Temple, several

Jehovah’s Witnesses Halls, and a Unitarian congregation.


        why would you deliberately put ordinary, everyday citizens from a wide variety of
        backgrounds into the difficult position of having to take this public test of religious
        conformity at City Hall? 3) Can you support a silent moment of reflection as a way
        to give each and every citizen the personal choice to pray or not (as they prefer),
        without singling anyone out as the current practice does?
        3
         The district court in this matter “has . . . taken judicial notice of the fact that the great
majority of religious organizations in Lakeland are Christian.” Atheists of Fla., Inc. v. City of
Lakeland, Fla., 838 F. Supp. 2d 1293, 1313 (M.D. Fla. 2012); see also Atheists of Fla., Inc. v.
City of Lakeland, 2012 U.S. Dist. LEXIS 11382 (M.D. Fla. Jan. 31, 2012) (noting “that the
majority of tax-exempt properties listed as ‘churches’ in Polk County are identified as Christian
religious organizations”).

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       In a letter to AOF dated March 18, 2010, Mayor Fields explained that “[t]he

practice of opening Lakeland City Commission meetings with an invocation has a

long history and will continue unless the City Commission decides it should be

changed.” Mayor Fields also stated that “[e]very effort is made to ensure that

those offering an inspirational message [are] representative of Lakeland’s diverse

religious community.”

       On May 6, 2010, based on the responses to her invitations, Terry printed out

a new “invocation schedule” for the period April 5, 2010 through the rest of the

year.4 The updated invocation schedule reflects that for the remainder of the year

2010, all the prayers were to be offered by Christian clergy, with the exception of a

Jewish Cantor who delivered the invocation on May 3, 2010.

       Mayor Fields delivered the invocation on June 7, 2010. He invited the

Commission members and the members of the public to stand and bow their heads

as he delivered the invocation. On June 21, 2010, Pastor Don Steiner, a member


       4
        The “2010 Invocational Schedule” included the following speakers: Chaplain Jack
Banton, Retired Military Chaplain; Richard Gerginswald, Legacey Christian Church; Cantor
Victor Geigner, Temple Emanuel; Pastor Ed Gardner, Griffin Baptist Church; Pastor Jones, New
Birth Deliverance Ministry; Pastor Don Steiner, Wings of Eagles International; Jackie Davis, His
Ministry Central Inc.; Beatrice Northington, Founder of Voice of the Nation Corp.; Fr. Matt
Mello, Church of the Resurrection; Christine Collins, At His Fee Ministries Incorporated; Pastor
Walter Laidler, Christ Community Christian Church; Reverend Willough, Unitarian
Congregation (sent letter to cancel); Reverend Jim Hagan, Southside Baptist Church; Pastor
Susie Horner, Trinity UMC; Steve Tuberville, Lighthouse Ministries; Reverend Glenn Allison,
Florida Holiness Campground; Jody MacAfee, Triumph the Brotherhood Healing Temple; and
Pastor Steve Davis, First Baptist Church Lakeland.

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of Wings of Eagles, International, delivered a prayer that lasted five minutes. He

stated in his invocation that “it is the responsibility of the citizens of Lakeland and

its leadership to seek the face of God Almighty, . . . looking to Jesus to fulfill the

destiny of this great central Florida city by moving in our churches, parishes and

the individual lives of its citizens.” On July 6, 2010, Jackie Davis, of His Ministry

Central, Inc., delivered an invocation that included the following statement:

“Father, we pray for wisdom and revelation to be given to these men and women

you have selected to govern the affairs of Lakeland. Not only do you know

Lakeland, but you have a plan for Lakeland, even as you have plans for our lives. .

. . In Jesus name, we ask this. Amen.”

                                           B

      AOF filed this action on July 12, 2010. It alleged that the “policy, practice

and custom relative to prayers at City of Lakeland government meetings” violate

the Establishment Clause of the First Amendment and Article I, Section 3 of the

Florida Constitution “through . . . sponsorship of Protestant Christian prayers at

Lakeland City government meetings because such sponsorship of the prayers

serves the purpose of promoting Protestant Christian religion over other

denominations and religions, and religion over non-religion,” and it was performed

under the color of state law as defined in 42 U.S.C. § 1983. AOF also alleged that



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the imposed invocations violate the Equal Protection Clause by “discriminating

against non-believers, discriminating against believers in excluded faiths, and

denying non-believers and believers alike Equal Protection of the laws.” (Id. at

¶145.)

         Three weeks later, on August 2, 2010, the Lakeland City Commission

passed Resolution No. 4848 (“Resolution 4848”) to “adopt [a] formal, written

policy to clarify and codify its invocation practices,” which had been implemented,

in part, in March 2010 at the direction of City Attorney McCausland. At the

August 2, 2010 meeting, City Attorney McCausland recommended that Lakeland

City Commission pass Resolution 4848 because “the litigation team [had]

convinced [him] that it . . . would be appropriate for . . . the City Commission to

establish a written policy, with respect to how [Lakeland] select[s] people to

provide the invocations and how procedurally that process is handled.” City

Attorney McCausland explained that the proposed resolution was “fairly timely in

that we have to answer the lawsuit this week, and by answer that means the

response to the allegations in the lawsuit as to whether you admit them or deny

them and to raise whatever affirmative defenses that you might have.”

         The prefatory statement to the text of Resolution 4848 provides that “the

Commission wishes to maintain a tradition of solemnizing its proceedings by



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allowing for an opening invocation before each meeting, for the benefit and

blessing of the Commission,” and to codify Lakeland’s “policy regarding

invocations before meetings of the Lakeland City Commission.” It also states that

“invocation[s] before deliberative public bodies ha[ve] been consistently upheld as

constitutional by American courts, including the United States Supreme Court,”

and cites to legal precedents supporting that proposition as follows: Marsh v.

Chambers, 463 U.S. 783 (1983) (rejecting a challenge to the Nebraska

Legislature’s practice of opening each day of its sessions with a prayer); Lynch v.

Donnelly, 465 U.S. 668, 675 (1984) (holding that “[o]ur history is replete with

official references to the value and invocation of Divine guidance in deliberations

and pronouncements of the Founding Fathers and contemporary leaders”); Zorach

v. Clauson, 343 U.S. 306, 314 (1952) (holding that “[w]e are a religious people

whose institutions presuppose a Supreme Being”); Holy Trinity Church v. United

States, 143 U.S. 457, 471 (1892) (acknowledging a “custom of opening sessions of

all deliberative bodies and most conventions with prayer”); Lee v. Weisman, 505

U.S. 577 (1992); and, Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008).

      The operative language in Resolution 4848 reads as follows:

      SECTION 2. In order to solemnize proceedings of the Commission, it
      is the policy of the Commission to allow for an invocation or prayer to
      be offered before its meetings for the benefit of the Commission.



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SECTION 3. The invocation shall not be listed or recognized as an
agenda item for the meeting or as part of the public business.

SECTION 4. No member or employee of the Commission or any
other person in attendance at the meeting shall be required to
participate in any invocation that is offered.

SECTION 5. The invocation shall be voluntarily delivered by an
eligible member of the clergy, as specified below. To ensure that such
person (the “invocation speaker”) is selected from among a wide pool
of local clergy, on a rotating basis, the invocation speaker shall be
selected according to the following procedure:

      a. The Secretary to the City Commission (the “Secretary”) shall
      compile and maintain a database (the “Congregations List”) of
      the religious congregations with an established presence in the
      local community of Lakeland and Polk County.

      b. The Congregations List shall be compiled by referencing the
      listing for “churches,” “congregations,” or other religious
      assemblies in the annual Yellow Pages phone book(s) published
      for the Lakeland and Polk County research from the Internet,
      and consultation with local chambers of commerce. All
      religious congregations with an established presence in the local
      community of Lakeland and Polk County are eligible to be, and
      shall be, included in the Congregations List. Any such
      congregation not otherwise identified for participation may
      request its inclusion by specific written communication to the
      Secretary.

      c. This policy is intended to be and shall be applied in a way
      that is all-inclusive of every diverse religious congregation
      Lakeland and Polk County.          The Congregations List is
      compiled and used for purposes of logistics, efficiency and
      equal opportunity for all of the community’s religious leaders,
      who may themselves choose whether to respond to the
      Commission’s invitation and participate. Should a question
      arise as to the authenticity of a religious congregation, the

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      Secretary shall refer to criteria used by the Internal Revenue
      Service in its determination of those religious organizations that
      would legitimately qualify for Section 501(c)(3) tax-exempt
      status.

      d. The Congregations List shall also include the name and
      contact information of any chaplain who may serve one or more
      of the fire departments or law enforcement agencies of
      Lakeland and Polk County.

      e. The Congregations List shall also include the name and
      contact information of any religious congregation located
      outside the Lakeland and Polk County, if such religious
      congregation is attended by a resident or residents of Lakeland
      and Polk County, and such resident requests the inclusion of
      said religious congregation by specific written communication
      to the Secretary.

      f. The Congregations List shall be updated, by reasonable
      efforts of the Secretary, on or about the month of November of
      each calendar year.

      g. Within thirty (30) days of the effective date of this policy,
      and on or about December 1 of each calendar year thereafter,
      the Secretary shall mail an invitation addressed to the “religious
      leader” of each congregations listed on the Congregations List,
      as well as to the individual chaplains included on the
      Congregations List.

      h. The invitation shall be dated at the top of the page, signed by
      the Secretary at the bottom of the page, and read as follows:
      [text of letter omitted]

SECTION 6. As the invitation letter indicates, the respondents to the
invitation shall be scheduled on a first-come, first-serve basis to
deliver the invocations.




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SECTION 7. No invocation speaker shall receive compensation for
his or her service.

SECTION 8. The Secretary shall make every reasonable effort to
ensure that a variety of eligible invocation speakers are scheduled for
the Commission meetings. In any event, no invocation speaker shall
be scheduled to offer a[n] invocation at consecutive meetings of the
Commission, or at more than three (3) Commission meetings in any
calendar year.

SECTION 9. Neither the Commission nor the Secretary shall engage
in any prior inquiry, review of, or involvement in, the content of any
invocation to be offered by an invocation speaker.

SECTION 10. Shortly before the opening gavel that officially begins
the meeting and the agenda/business of the public, the Chairman of
the Commission shall introduce the invocation speaker and the person
selected to recite the Pledge of Allegiance following the invocation,
and invite only those who wish to do so to stand for those observances
of and for the Commission.

SECTION 11. This policy is not intended, and shall not be
implemented or construed in any way, to affiliate the Commission
with, nor express the Commission’s preference for or against, any
faith or religious denomination. Rather, this policy is intended to
acknowledge and express the Commission’s respect for the diversity
of religious denominations and faiths represented and practiced
among the citizens of Lakeland and Polk County.

SECTION 12. To clarify the Commission’s intentions, as stated
herein above, the following disclaimer shall be included in at least 10
point font at the bottom of any printed Commission meeting agenda:
“Any invocation that may be offered before the official start of the
Commission meeting shall be the voluntary offering of a private
citizen, to and for the benefit of the Commission. The views or beliefs
expressed by the invocation speaker have not been previously
reviewed or approved by the Commission, and the Commission is not
allowed by law to endorse the religious beliefs or views of this, or any

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      other speaker.”

      Following the passage of Resolution 4848, the Lakeland City Commission

began publishing the disclaimer described in Section 12 of Resolution 4848 on its

meeting agendas. Additionally, while the invocations continue to be given at the

commencement of each meeting, they no longer appear as an agenda item.

      The record shows that the invitations to speakers on the Congregations List

were not mailed within thirty days of passage of the resolution, nor were they

mailed in December, as required by Resolution 4848. The Congregations List was

not updated in November 2010 as required by Resolution 4848. The Internet and

Chamber of Commerce searches to update the Congregations List were not

completed until May 11, 2011. Terry testified that “around December, [she] knew

that there was going to be an updated list that needed to be done [but that she]

didn’t have the new phone book, so [she] wanted to wait until [she] had a new

phone book, so [she] could start a new updated list, so it would be current and not

the same one that [she] had just sent out before.”

      In 2011, the Lakeland City Commission meetings were opened with

invocations by religious leaders primarily of the Christian faith, but at three of the

meetings, invocations were delivered by a Muslim speaker, and two Jewish

speakers.



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                                            II

                                            A

      On August 18, 2010, AOF filed a First Amended Verified Complaint, in

which they alleged that the Lakeland City Commission’s legislative prayer

“policies, practices and customs” violate the Establishment Clause of the First

Amendment and Article I, Section 3 of the Florida Constitution because “such

sponsorship serves the purpose of promoting one religion or denomination over

other denominations and religions, and religion over non-religion.” AOF also

asserted that the City of Lakeland’s “continued sponsorship of the prayers . . .

requires the direct and indirect expenditure of city revenues in direct contravention

of Article 1, Section 3, of the Florida State Constitution” which prohibits “revenue

of the state . . . [being] taken from the public treasury directly or indirectly in aid of

any church, sect, or religious denomination or in aid of any sectarian institution.”

      AOF also alleged that the invocations violate the Equal Protection Clause of

the Fourteenth Amendment by “discriminating against non-believers,” and violate

the Freedom of Speech Clause by “coerc[ing], compell[ing], or improperly

influenc[ing Plaintiffs] to make a religious expression to the Defendants and to the

other attendees as to whether he or she is (a) part of the religious group, or, (b) an

outsider to or opponent of the religious ideas being expressed.” AOF prayed for



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declaratory relief pronouncing the Lakeland City Commission invocation practice

unconstitutional, injunctive relief preventing Lakeland City Commission from

continuing the invocation practice, as well as nominal monetary damages, and

attorney’s fees pursuant to 42 U.S.C. § 1988.

                                           B

      Lakeland filed a motion to dismiss AOF’s claims in their entirety on

September 8, 2010, for lack of subject matter jurisdiction on the ground that the

claims were rendered moot by the passage of Resolution 4848, and for failure to

state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure. Mayor Fields also moved to dismiss the claims

against him in his official capacity as duplicative of the claims asserted against

Lakeland and in his individual capacity on qualified immunity grounds.

      The district court granted in part, and denied in part, the motion to dismiss

AOF’s and Wach’s claims filed by the City of Lakeland and Mayor Fields. It

dismissed the claims alleging violations of the Equal Protection and Freedom of

Speech clauses of the United States Constitution but denied the motion as to the

two remaining claims alleging violations of the Establishment clauses of the

United States and Florida Constitutions.5 The district court held that those claims


      5
        AOF has not appealed from the order dismissing their claims filed pursuant
to the Equal Protection and Freedom of Speech clauses.
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were not moot. It held that the fact that Lakeland passed Resolution 4848 “three

weeks after Plaintiffs filed suit in this case, [was] a factor that weighs against

mootness.” Atheists of Fla., Inc. v. City of Lakeland, 779 F. Supp. 2d 1330, 1337

(M.D. Fla. 2011). The district court noted that “in assessing the likelihood that a

government actor will reinstate a challenged practice, the timing of the change in

the law can be essential to addressing the government’s ‘sincerity,’ and thus the

chances that the change in the law is merely a litigation tactic designed to remove

the court’s jurisdiction.” Id. at 1336.

      In rejecting Lakeland and Field’s contention that the question whether the

pre-March 2010 practice was moot, the district court held that “[g]iven the

charitable standard of review applied to factual allegations at this stage of the

proceedings, Defendants’ mootness challenge must accordingly fail.” Id. at 1337.

The district court also noted that “allegations in the complaint are taken as true and

construed in the light most favorable to the plaintiffs.” Id. at 1337-38 (citing Rivell

v. Priv. Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008) (quoting

Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002)).

                                           C

      AOF filed a motion for summary judgment on October 14, 2011, in which

they alleged that Lakeland violated the Establishment Clause of the First

Amendment and Article I, Section 3 of the Florida Constitution by engaging in

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policies, practices, and customs, “[f]or as many years as records have been kept

and can be accessed,” under which Christian clergy were invited to present an

invocation at each of its public meetings in which they delivered sectarian prayers

that contained “specific references to Christ, Jesus Christ, the Lord, the Christian

God and other detailed Christian references.” AOF argued that the Lakeland

Commission “prayers are used for proselytizing and preaching, and to advance the

notion that Lakeland is a Christian city with a Christian destiny.”

      AOF alleged that Lakeland’s codification of its prior policies, practices, and

customs by the adoption of Resolution 4848 also violates the Establishment Clause

of the United States Constitution and the Florida Constitution. They urged the

district court to enjoin the pre-August 2, 2010 policies and practices, and those set

forth in Resolution 4848. Alternatively, AOF requested that “at least the [pre-

August 2, 2010 policies and practices] should be declared unconstitutional.”

      Lakeland also filed a motion for summary judgment on October 14, 2011. It

argued that the amended procedures for selecting invocation speakers set forth in

Resolution 4848 do not violate the Establishment Clause of the First Amendment

or Article I, Section 3 of the Florida Constitution because they comply with Marsh

v. Chambers, 463 U.S. 783 (1983), and this Court’s decision in Pelphrey v. Cobb

County, 547 F.3d 1263 (11th Cir. 2008). Lakeland also contended that the

adoption of the procedures for selecting invocation speakers in Resolution 4848

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“rendered moot Plaintiffs’ challenge to the selection procedures employed before

the passage of the resolution: the voluntary cessation doctrine, which presumes that

governmental entities are unlikely to resume illegal activities.” Defs.’ Mot. Summ.

J. at 13 (quoting Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320,

1329-30 (11th Cir. 1998)). Lakeland asserted that “the change in the procedure for

invocation speaker selection occurred in March 2010, predating both the filing of

Plaintiffs’ lawsuit and the passage of Resolution 4848.”

      Mayor Fields filed a motion for summary judgment in which he adopted the

arguments asserted in Lakeland’s motion for summary judgment. He also argued

that even if AOF’s claims survived summary judgment, he was entitled to qualified

and legislative immunity as to the claims asserted against him in his individual

capacity.

      The district court granted Lakeland’s and Mayor Field’s motions for

summary judgment, and denied AOF’s motion for summary judgment. It noted

that Lakeland “pursued two essentially different prayer practices before and after

March 2010,” Atheists of Fla., Inc., 838 F. Supp. 2d at 1299, and determined to

analyze each period separately. It concluded that “[i]n light of the legislative

prayer practices approved in Marsh and Pelphrey, it is plain that the City’s [post-

March 2010] invocation practice is well within Marsh and Pelphrey’s command

and is, therefore, patently constitutional.” Id. at 1306.

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      The district court also granted the motion for summary judgment filed by

Lakeland with regard to the Lakeland City Commission’s pre-March 2010

invocation practices. In so doing, it rejected Lakeland’s argument that

consideration of the merits of the pre-March 2010 practice of selecting speakers

was a moot issue because it was not clear “that the City of Lakeland will not revive

its challenged practice.” Id. at 1309. The district court granted Lakeland’s motion

for summary judgment on AOF’s discrete claim that Lakeland’s pre-August 2,

2010 practices were unconstitutional. The district court held “it is undisputed that

the City of Lakeland had no official policy with regard to invocations prior to

August 2010, when Resolution 4848 was codified. Nor have Plaintiffs adduced

any evidence whatsoever of any policymaking official that could arguably be said

to have personally ‘exploited [the invocation practice] to proselytize or advance

any one, or to disparage any other, faith or belief.’” Id. at 1310 (quoting Marsh,

463 U.S. at 794-95).

      The district court also concluded that AOF had failed to demonstrate that

Lakeland had violated Florida’s Establishment Clause. In so doing it relied on

Council for Secular Humanism, Inc. v. McNeil, 44 So. 3d 112, 119 (Fla. Dist. Ct.

App. 2010), rev. denied, 41 So. 3d 215 (Fla. 2010), for the proposition that the first

sentence of the Florida Establishment Clause is consistent with the Federal

Establishment Clause. Atheists of Fla., Inc., 838 F. Supp. 2d at 1314. The district

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court also concluded that the expenditure of funds to invite speakers is “simply not

the type of practice contemplated by the Florida Constitution’s Establishment

Clause.” Id. at 1315.

                                           III

                                           A

      AOF contends in this appeal that the district court erred in concluding that

Lakeland City Commission’s invocation practice, prior to and after the filing of

this lawsuit, is constitutional because the legislative prayers it authorized

proselytized and advanced the Christian religion over all others. Appellants’ Br.

31-32. AOF further asserts that Lakeland City Commission’s practice of

sponsoring sectarian prayers pursuant to Resolution 4848 that invoke “the name of

Jesus Christ and other Christian references” violate the Establishment Clause of the

First Amendment and Article I, Section 3 of the Florida Constitution because the

Supreme Court in Marsh v. Chambers, 463 U.S. 783 (1983), precluded “sectarian

prayers” in legislative sessions. Appellants’ Br. 27. AOF maintains that unlike the

legislative prayers involved in Marsh, which had “references to Christ” removed,

in the legislative prayers at issue here, “[r]eferences to Christ were and are not only

commonplace, but they are typical and emphatic.” (Appellants’ Br. 28, 33.)

      In response, Lakeland asserts that in March of 2010, City Attorney

McCausland instructed Terry to update the list of speakers by researching the Polk

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County Yellow Pages and the Internet to include every religious organization,

including “churches or synagogues or mosques or temples of worship” located in

Polk County. A list of over 600 religious organizations was completed by Terry in

March 2010. It includes a Jewish synagogue, an Islamic Center, Jehovah’s

Witnesses meeting halls, Unitarian churches, and a Hindu temple.

      Lakeland argues that its practice in selecting invocation speakers after March

2010, as officially codified in Resolution 4848, does not violate the Establishment

Clause of the First Amendment or Article I, Section 3 of the Florida Constitution.

It also contends that the passage of Resolution 4848 has rendered AOF’s claim

regarding its practices prior to March 2010 moot under the doctrine of voluntary

cessation. To determine whether the pre-March 2010 claim is moot we must first

consider whether the practice set forth in Resolution 4848 violates the United

States Constitution and the Florida Constitution.

                                          B

      A district court must grant summary judgment “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ P. 56(a). Issues of fact are “genuine”

only if a reasonable jury, considering the evidence presented, could find for the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We

review “de novo the district court’s grant of summary judgment, applying the same

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legal standards as the district court, and viewing all facts and reasonable inferences

drawn therefrom in the light most favorable to . . . the non-moving party.”

Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir.

2000).

         AOF asserts that the district court erred in granting Lakeland’s motion for

summary judgment regarding Lakeland’s practices for the selection of invocation

speakers after August 2, 2010, because it failed to apply the test set forth by the

Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), to determine whether

Resolution 4848 is consistent with the Establishment Clause. Appellants’ Br. 25.

In 1971, the Supreme Court established a three-part test in Lemon, to determine

whether laws and government practices are consistent with the Establishment

Clause. “First, the statute must have a secular legislative purpose; second, its

principal or primary effect must be one that neither advances nor inhibits religion;

finally, the statute must not foster ‘an excessive government entanglement with

religion.’” Lemon, 403 U.S. at 612-13 (internal citations omitted).

         Twelve years later, in Marsh v. Chambers, 463 U.S. 783 (1982), the

Supreme Court considered a challenge by a Nebraska state legislator to the practice

of opening of each session of the legislature with a prayer. The Eighth Circuit

applied the Lemon test and held that the prayers violated all three elements of the

Lemon test, and determined that the prayers violated the Establishment Clause. It

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enjoined the State from engaging in any aspect of its established chaplaincy

practice. Id. at 786.

      The Supreme Court granted certiorari and reversed. It held that “the

Nebraska State Legislature’s practice of opening each legislative day with a prayer

by a chaplain paid by the State,” is a practice which does not “violate[] the

Establishment Clause of the First Amendment.” Marsh, 463 U.S. at 784. The

Supreme Court did not apply the Lemon test. Instead, the Court considered the

nation’s longstanding history and tradition of legislative prayer, including the fact

that Congress has consistently appointed Congressional chaplains to open each

session with a legislative prayer, dating back to the First Congress. Id. at 786-92.

The Court explained that

      [i]n 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
      invoke Divine guidance on a public body entrusted with making the
      laws, is not, in these circumstances, an “establishment” of religion or
      a step toward establishment; it is simply a tolerable acknowledgment
      of beliefs widely held among the people of this country.

Id. at 792 (emphasis added).

      In upholding Nebraska’s legislative prayer practices, the Supreme Court

rejected the petitioner’s argument that selecting a Presbyterian clergyman to offer

legislative prayers in the Judeo-Christian tradition violated the Establishment

Clause because “[t]he content of the prayer is not of concern to judges where . . .

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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.

      While the Supreme Court has not extended the Marsh exception to

legislative bodies other than state legislatures, the Court indicated that its

determination was applicable to “sessions of legislative and other deliberative

bodies.” Id. at 786.

      The only challenge to the constitutionality of legislative prayer permitted by

a local deliberative body that has been considered by this Circuit is set forth in

Pelphrey. In that matter, taxpayers challenged the practices of the Cobb County

Board and its Planning Commission of allowing religious leaders of differing faiths

to offer invocations on a rotating basis at their meetings. Pelphrey, 547 F.3d at

1266. The speakers represented various faiths, including Christianity, Islam,

Unitarian Universalism, and Judaism. Id. at 1266. The “expressions of . . .

religious faiths . . . ordinarily [were] brief and often . . . occurred in the concluding

phrase of the prayers.” Id. “The prayers . . . included references to ‘Jesus,’

‘Allah,’ ‘God of Abraham, Isaac, and Jacob,’ ‘Mohammed,’ and ‘Heavenly

Father.’” Id. As required by Marsh, this Court first considered whether there was

any “indication that the prayer opportunity ha[d] been exploited to proselytize or

advance any one or to disparage any other faith or belief” at the Cobb County

Board and the Planning Commissions’ meetings. Id. at 1273, 1277. To make that

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determination, this Court applied a three-factor test analyzing “[(1)] the identity of

the invocational speakers, [(2)] the selection procedures employed, and [(3)] the

nature of the prayers.” Id. at 1277.

      As to the first factor, this Court upheld the district court’s determination “that

the [Cobb County Board] did not exploit the prayers to advance one faith by using

predominantly Christian speakers. Although the majority of speakers were

Christian, the parties agree that prayers were also offered by members of the

Jewish, Unitarian, and Muslim faiths.” Id. at 1277. This Court also held that the

district court’s “finding that the diverse references in the prayers, viewed

cumulatively, did not advance a single faith” was not clearly erroneous. Id. As to

the second factor, this Court agreed with the district court that the Cobb County

Board’s selection process was “not motivated by an improper motive” because its

“list of potential speakers [included clergy] from various sources and included

diverse religious institutions, including a mosque and three synagogues.” Id. at

1278. “Because there [was] no clear error in the findings that the prayers of the

County Commission were not exploited to advance one faith or belief, we need not

evaluate the content of the prayers. The federal judiciary has no business in

‘compos[ing] official prayers for any group of American people to recite as a part

of religious program carried on by government . . . .’” Id. (quoting Lee v. Weisman,

505 U.S. 577, 588 (1992)).

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      As to the Cobb County Planning Commission’s prayer practices, this Court

affirmed the district court’s decision that the prayers offered “during 2003-2004

were unconstitutional because the selection procedures violated the ‘impermissible

motive’ standard of Marsh,” since the evidence showed that the Planning

Commission expressly “exclud[ed] certain faiths because of their beliefs.” Id. at

1281-82. The evidence in Pelphrey showed that during the selection process in

2003 and 2004, a line had been “drawn through several subcategories of churches:

‘Churches-Islamic,’ ‘Churches-Jehovah’s Witnesses,’ ‘Churches-Jewish,’ and

‘Churches-Latter Day Saints[,]’ [and that] [n]o clergy from those subcategories

were asked to provide the invocation during 2003-2004.” Id. at 1267-68. This

Court explained that “[t]he ‘impermissible motive’ standard does not require that all

faiths be allowed the opportunity to pray[, but] instead prohibits purposeful

discrimination.” Id. at 1281-82 (holding that “categorical exclusion of certain faiths

based on their beliefs is unconstitutional”). Declaring the 2003 and 2004 prayers

unconstitutional, this Court rejected the Planning Commission’s argument that “the

selection process is immaterial when the content of the prayer is constitutional,”

because “[t]he central concern of Marsh is whether the prayers have been exploited

to created an affiliation between the government and a particular belief or faith. Id.

at 1281 (citing Marsh, 453 U.S. at 794-95).

                                          C

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      In this matter, the district court applied the three Pelphrey factors to

Lakeland’s post-March 2010 revised practices for the selection of speakers, and the

post-August 2010 official, written policy. It held that the identity of the invocation

speakers was primarily but not exclusively Christian, reflecting the religious

makeup of Lakeland and the surrounding county. It also concluded that the fact that

clergy of other faiths delivered invocations in 2010 and 2011– a Jewish Cantor in

2010 and the Imam of the sole mosque in the county in 2011– provided “diverse

references in the prayers [which], viewed cumulatively, did not advance a single

faith.” Pelphrey, 547 F.3d at 1277.

      With regard to the second Pelphrey factor, the record shows that the speaker

selection practice that was initiated informally in March 2010 and adopted officially

in Resolution 4848, largely parallels the speaker selection process found

constitutional in Pelphrey. Pursuant to Resolution 4848, Lakeland is required to

update the Congregations List annually using the Yellow Pages and the Internet to

search for congregations that should be included. Further, potential speakers from

congregations outside the county are also included if a resident of Lakeland is a

member of that congregation and requests that it be included. The new

Congregations List includes several hundred religious organizations that the

Lakeland City Commission calls upon to deliver invocations. Every religious

congregation on the updated list received an invitation to give the invocation at

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Lakeland City Commission meetings in March 2010 and again in May 2011. Thus,

Lakeland’s current process for finding potential invocation speakers pursuant to

Resolution 4848 is even more expansive and inclusive than that found

constitutional in Pelphrey, because Lakeland gathers information regarding

religious organizations, including the chamber of commerce, to supplement its

Yellow Pages and Internet searches, and permits religious congregations not placed

on its Congregations List to apply to be included. See Pelphrey, 547 F.3d at 1267

(“[T]he administrative specialist of the County Commission, compiles a list of

religious organizations in Cobb County from several sources, including the Yellow

Pages, the internet, and business cards.”).

      AOF also maintains that the content of the Lakeland City Commission’s

“sectarian legislative prayers fall[s] outside of the narrow confines of Marsh v.

Chambers, 463 U.S. 783, 103 S. Ct. 3330 (1983).” Appellant’s Br 3. We disagree.

The Supreme Court did not hold in Marsh that a court must review the text of an

invocation prayer to determine whether it contains sectarian references. Instead, the

Court instructed as follows:

      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.

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        In Pelphrey, this Court stated that “we read Marsh . . . to forbid judicial

scrutiny of the content of prayers absent evidence that the legislative prayers have

been exploited to advance or disparage a religion.” 547 F.3d at 1274. No such

evidence has been presented by AOF.

        The selection procedures of the invocational speakers invited to deliver an

invocation at Lakeland City Commission’s meetings pursuant to policies and

practices initiated informally in March 2010, which were codified with the passage

of Resolution 4848 in August 2010, do not support the AOF’s contention that

Lakeland attempted to exploit the prayer opportunity to proselytize or advance or

disparage any one faith or belief. Nor do those policies and practices have the

effect of affiliating the Lakeland City Commission with any discrete faith or belief.

Accordingly, we are persuaded that the district court did not err in granting

Lakeland’s motion for summary judgment with regard to Lakeland’s policies and

practices for the selection of speakers since March 2010 and codified in Resolution

4848.

                                            D

        AOF also contends that Lakeland’s pre-August 2, 2010 practices violated the

Establishment Clause of the First Amendment and Article I, Section 3 of the Florida

Constitution because they advanced a particular religion since “[e]very prayer-giver

from 2002 to May 2010 [was] Christian, and the change offered after litigation

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ensued [has] been cosmetic.” Appellants’ Br. 32. Lakeland argues that “[t]he

City’s codification of the revised procedures employed in carrying out its legislative

invocation practice renders moot [AOF’s] challenge to the practice prior to

Resolution 4848.” Appellees’ Br. 39. Lakeland maintains that “[w]hile the District

Court determined the claims regarding the pre-Resolution practice were not moot,

mootness provides another avenue by which this Court may affirm the District

Court’s decision regarding the pre-Resolution policy.” Id. at fn. 17.

      AOF contends that “[f]ar from rendering the case moot, Resolution . . . 4848

makes Defendants’ prayer practices more egregious, ” because it “expressly

excluded non-religious or secular speakers, and required the invocations to be

religious, . . . categorically excluded speakers who are not members of a ‘clergy’

which operates to exclude not only the non-religious but also any religions that do

not have ‘clergy,’ . . . [and] also limited only to ‘religious congregations,’ which

excludes non-religious groups such as atheists, agnostics, secularists and humanists

from participation, and also excludes any religions without ‘congregations.’”

Appellants’ Br. 37-38. Whether a case is moot is a question of law that we review

de novo. Troiano v. Supervisor of Elections in Palm Beach Cnty., 382 F.3d 1276,

1282 (11th Cir. 2004).

      As noted supra, the district court rejected Lakeland’s contention that, if the

informal practice instituted in March 2010 for the selection of invocation speakers

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was constitutional, the question whether the practice it had followed previously was

moot. In the answering brief Lakeland filed in this Court, it argues that “the City’s

codification of the revised procedures employed in carrying out its legislative

invocation practice renders moot Appellant’s challenge to the practice prior to

Resolution 4848.” Appellees’ Br. 39. “A prevailing party is entitled to advance in

support of its judgment all arguments it presented to the district court. It need not

and should not file a cross-appeal just because the district judge rejected one of its

arguments on the way to deciding in its favor.” Rose Acre Farms, Inc. v. Madigan,

956 F.2d 670, 672 (7th Cir. 1992).

      “Article III of the Constitution grants the Judicial Branch authority to

adjudicate ‘Cases’ and ‘Controversies.’” Already, LLC v. Nike, Inc., 133 S. Ct. 721,

726-27 (2013). “A case becomes moot—and therefore no longer a ‘Case’ or

‘Controversy’ for purposes of Article III—‘when the issues presented are no longer

“live” or the parties lack a legally cognizable interest in the outcome.’” Id. (quoting

Murphy v. Hunt, 455 U.S. 478, 481 (1982) (some internal quotation marks

omitted)). “No matter how vehemently the parties continue to dispute the

lawfulness of the conduct that precipitated the lawsuit, the case is moot if the

dispute ‘is no longer embedded in any actual controversy about the plaintiffs’

particular legal rights.’” Id. at 727 (quoting Alvarez v. Smith, 558 U.S. 87, 93

(2009)).

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      It is well-settled “that a defendant cannot automatically moot a case simply

by ending its unlawful conduct once sued.” Id. (citing City of Mesquite v. Aladdin’s

Castle, Inc., 455 U.S. 283, 289 (1982)). “Otherwise, a defendant could engage in

unlawful conduct, stop when sued to have the case declared moot, then pick up

where he left off, repeating this cycle until he achieves all his unlawful ends.” Id.

“Given this concern, [the Supreme Court has] explained that ‘a defendant claiming

that its voluntary compliance moots a case bears the formidable burden of showing

that it is absolutely clear the allegedly wrongful behavior could not reasonably be

expected to recur.’” Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 190 (2000)); see also United States v. Concentrated

Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968) (holding that “the heavy burden

of persuasion” that the challenged conduct cannot reasonably be expected to start

up again lies with the party asserting mootness)). “A defendant’s assertion that it

has no intention of reinstating the challenged practice ‘does not suffice to make a

case moot’ and is but ‘one of the factors to be considered in determining the

appropriateness of granting an injunction against the now-discontinued acts.’”

Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 2007)

(quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)).

      This Court has held that voluntary cessation by a government actor gives rise

to a rebuttable presumption that the objectionable behavior will not recur. See, e.g.,

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Beta Upsilon Chi Upsilon Chapter at the Univ. of Fla. v. Machen, 586 F.3d 908,

916 (11th Cir. 2009); Troiano v. Supervisor of Elections in Palm Beach Cnty., 382

F.3d 1276, 1283 (11th Cir. 2004); Coral Springs St. Sys. v. City of Sunrise, 371

F.3d 1320, 1328-34 (11th Cir. 2004). An assertion of mootness in such a case

should be rejected “only when there is a substantial likelihood that the offending

policy will be reinstated if the suit is terminated.” Beta Upsilon Chi Upsilon, 586

F.3d at 917 (quoting Troiano, 382 F.3d at 1284 (internal quotation marks omitted)).



      In determining whether an offending policy is likely to be reinstated, the

Court is “more likely to find that the challenged behavior is not reasonably likely to

recur where it constituted an isolated incident, was unintentional, or was at least

engaged in reluctantly.” Sheely, 505 F.3d at 1184. “Conversely, we are more likely

to find a reasonable expectation of recurrence when the challenged behavior

constituted a ‘continuing practice’ or was otherwise deliberate.” Id. at 1184-85

(citing Grant, 345 U.S. at 632 n.5 (“When defendants are shown to have settled into

a continuing practice . . . , courts will not assume that it has been abandoned without

clear proof.” (internal quotation marks omitted))); Sec’y of Labor v. Burger King

Corp., 955 F.2d 681, 684 (11th Cir. 1992) (“five-year history of violations” cut

against finding of mootness); Hall v. Bd. of Sch. Comm’rs, 656 F.2d 999, 1000 (5th

Cir. 1981) (“longstanding practice” cut against finding of mootness).

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       Arguing that the post March 2010 practice of selecting speakers, as codified

in Resolution 4848, violated the Establishment Clause of the First Amendment,

AOF contends that the adoption of Resolution 4848 was a litigation strategy that is

“at best a cosmetic tactic to attempt to mask their continuing and patently

unconstitutional practices.” Appellants’ Br. 21. As discussed above, the record

shows that the practice followed before March 2010 of not selecting speakers who

were not Christians ended prior to the date AOF filed this action.

       In Hall, the Fifth Circuit reversed the district court’s determination that a case

was moot because the record showed that the longstanding practice of requiring the

reading of morning devotionals in public schools was not moot because it was

“permitted . . . to continue until the filing of th[e] lawsuit was imminent in 1979,

despite the fact that such religious readings in public school were declared

unconstitutional as early as 1963.”6 Hall, 656 F.2d at 1000.

       In this matter, unlike the circumstances in Hall, the pre-March 2010 speaker

selection practice had been discontinued at the request of City Attorney

McCausland prior to the filing of this action. After AOF began voicing complaints

about the invocation practice, City Attorney McCausland made a conscientious

effort to conform Lakeland’s prayer practices to the requirements of the

       6
        Decisions by the former Fifth Circuit issued before October 1, 1981, are binding as
precedent in the Eleventh Circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207
(11th Cir. 1981) (en banc).

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Establishment Clause. Although AOF continues to vehemently dispute the

lawfulness of the pre-March 2010 practice, the case is moot because it “is no longer

embedded in any actual controversy about the plaintiffs’ particular legal rights.”

Already, LLC, 133 S. Ct. at 727 (quotation omitted). AOF has failed to rebut the

presumption that the Lakeland City Commission will not reinstate its pre-March

2010 practices if we hold that Resolution 4848 is constitutional. The Lakeland City

Commission discontinued its prior speaker selection procedures a few days after it

was requested to do so, and months prior to the filing of this action. We conclude,

therefore, that we lack jurisdiction to decide AOF’s claim that the Lakeland City

Commission’s pre-March 2010 speaker selection practice violated the

Establishment Clause of the First Amendment or Article I, Section 3 of the Florida

Constitution. See Todd v. State, 643 So. 2d 625, 628 n.3 (Fla. Dist. Ct. App. 1994)

(“Because the language regarding establishment in the Florida constitution parallels

the language of the First Amendment, federal law will be of great value in

determining issues under Florida’s constitution.”) (citing 25A Fla. Stat. Ann. 79

(1991) (Commentary)). For the same reasons, the district court lacked jurisdiction,

and we vacate that portion of the district court’s judgment addressing the merits of

AOF’s challenge to the pre-March 2010 prayer practice and remand for the district

court to dismiss that portion of the challenge as moot.



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                                          IV

      AOF also maintains that the Lakeland City Commission’s prayer practices

pursuant to Resolution 4848 violate the “no-aid” provision of the Florida

Constitution’s Establishment Clause. Article I, Section 3 of the Florida

Constitution mirrors the Establishment Clause of the United States Constitution but

includes an additional “no-aid provision.” It provides:

      There shall be no law respecting the establishment of religion or
      prohibiting or penalizing the free exercise thereof. Religious freedom
      shall not justify practices inconsistent with public morals, peace or
      safety. No revenue of the state or any political subdivision or agency
      thereof shall ever be taken from the public treasury directly or
      indirectly in aid of any church, sect, or religious denomination or in aid
      of any sectarian institution.


Fla. Const. art. I, § 3. The evidence shows that the approximate cost to the

Lakeland City Commission of updating the Congregations List and mailing out

invitations is $1,200 to $1,500 annually. Invocation speakers are not paid by the

City of Lakeland, nor are their congregations. The district court held that AOF had

“fail[ed] to demonstrate how the mailing of invitations to various religious leaders

in the Lakeland community confers any benefit whatsoever on any religion.”

Atheists of Fla., Inc., 838 F. Supp. 2d at 1315 (citing McNeil, 44 So. 3d at 119)

(emphasis in original).

      In McNeil, Florida’s First District Court of Appeals instructed that the no-aid


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provision is violated when public funds are used “to advance religion,” which

occurs when a government-sponsored program is “used to promote the religion of

the provider, is significantly sectarian in nature, involves religious indoctrination,

requires participation in religious ritual, or encourages the preference of one

religion over another.” McNeil, 44 So. 3d at 120. “In determining whether such

programs violate the no-aid provision, the inquiry necessarily will be case-by-case .

. . .” Id.

       Based on the record before us, AOF has not demonstrated that Lakeland’s

expenditure of $1,200 to $1,500 per year to arrange for invocational speakers to

attend meetings and solemnize the proceedings has resulted in “any pecuniary

benefit, either direct or indirect, conferred by [the City of Lakeland] upon such

groups, nor does it show that any religious organization received financial

assistance from [Lakeland] for the promotion and advancement of its theological

views.” Pelphrey, 410 F. Supp. 2d at 1348. Accordingly, we see no error in the

district court’s ruling in favor of Lakeland as to this claim.

                                      Conclusion

       The district court did not err in its determination that the prayer practices of

Lakeland City Commission after March 2010 do not violate the Establishment

Clause of the First Amendment or Article I, Section 3 of the Florida Constitution.

Accordingly, we AFFIRM the judgment of the district court with regard to the

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Lakeland City Commission’s prayer practices after March 2010.

        Because we affirm the district court’s determination that the City of Lakeland

did not violate AOF’s constitutional rights in adopting Resolution 4848, we also

AFFIRM the district court’s order granting summary judgment in favor of Mayor

Fields, who adopted by reference the arguments asserted in the City’s Motion for

Summary Judgment.

        We VACATE and REMAND that portion of the district court’s order

granting summary judgment in favor of Lakeland and Mayor Fields as to the City’s

pre-March 2010 legislative prayer practices because the district court was without

jurisdiction to hear those claims since Lakeland’s pre-March 2010 practices are

moot.

        AFFIRMED in part, VACATED and REMANDED in part.




                                           39
