                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                      PUBLISH
                                                                         OCT 27 1998
                      UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                             Clerk
                                    TENTH CIRCUIT



 TOM SNYDER,

          Plaintiff - Appellant,
 v.                                                     No. 96-4087

 MURRAY CITY CORPORATION, a
 municipal corporation; H. CRAIG
 HALL, City Attorney for Murray City
 Corporation,

          Defendants - Appellees.


 UNITED STATES OF AMERICA,

          Intervenor. 1




           APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF UTAH
                         (D.C. No. 94-CV-667)


Brian M. Barnard (Andrea Garland of the Utah Legal Clinic, with him on the
briefs), Cooperating Attorneys for Utah Civil Rights & Liberties Foundation, Inc.,


      1
       The government intervened in this case in the district court solely for the
purpose of defending the constitutionality of the Religious Freedom Restoration
Act of 1993. The government did not participate in the initial appeal of this case
and did not participate in this en banc rehearing. Thus, although the government
remains named in the caption of this case, it is not a party to the appeal.
Salt Lake City, Utah, for Plaintiff-Appellant.

Allan L. Larson (Richard A. Van Wagoner, with him on the brief) of Snow,
Christensen & Martineau, Salt Lake City, Utah, for Defendants-Appellees.


Before SEYMOUR, Chief Judge, HOLLOWAY, Senior Circuit Judge,
PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY,
HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges.


EBEL, Circuit Judge.


      This court has agreed to rehear this case en banc 2 to consider whether the

Establishment Clause of the First Amendment prevents a city council from

denying a request from a private citizen to give a prayer at the opening of the

council’s meeting when the denial is made on the basis of the content of the

proposed prayer. The Supreme Court of the United States has previously held in

Marsh v. Chambers, 463 U.S. 783 (1983), that the United States Constitution is

not violated if a legislative or other deliberative body chooses to speak

prayerfully when it opens its meetings. Applying Marsh, we now hold that no

violation of the Establishment Clause arises when a city chooses who may offer


      2
        The original panel in this case voted to affirm in part and reverse in part
the district court’s order. See Snyder v. Murray City Corp., 124 F.3d 1349 (10th
Cir. 1997). This court granted the appellant’s petition for rehearing en banc
limited to the Establishment Clause issues presented in the case. We now vacate
Part I.B. of the panel’s opinion. We did not grant rehearing as to the other
portions of the panel decision, and consequently, the remainder of the panel
opinion remains in effect.

                                        -2-
the invocational prayer to open a city council meeting.



                                   Background

      The background of this case is reported in the district court and original

panel opinions, see Snyder v. Murray City Corp. 902 F. Supp. 1444 (D. Utah

1995) [“Snyder I”] and Snyder v. Murray City Corp., 902 F. Supp. 1455 (D. Utah

1995) [“Snyder II”], aff’d in part & rev’d in part, Snyder v. Murray City Corp.,

124 F.3d 1349 (10th Cir. 1997) [“Snyder III”]. We provide only those details that

are germane to the Establishment Clause issue that we deal with here.

      In 1993, the Utah Supreme Court held that the religion clauses of Utah’s

state constitution do not prohibit a city council from opening its meetings with a

prayer. See Society of Separationists, Inc. v. Whitehead, 870 P.2d 916 (Utah

1993). In the wake of that decision, the municipal council of Murray City

resumed a practice it had maintained since 1982 – but suspended during the

pendency of the appeal in Separationists – of opening each of its meetings with a

prayer. Those prayers had been offered by members of the religious communities

in and around Murray City, including various members of Judeo-Christian

congregations, Zen Buddhists, and Native Americans. Each of those offering

prayers during Murray City’s council meetings did so at the initial request of the

City Council, usually in response to a form letter the council circulated to local


                                        -3-
religious communities. Prior to the events at issue in this case, the city had never

received an unsolicited request from a private individual to give a prayer at a

council meeting. In light of this historical practice, Murray City had no written

policy on its council prayers, and it had no formal guidelines for the content of its

council prayers.

      The decision in Separationists, and the ensuing resumption of legislative

prayers by city councils throughout Utah, prompted Tom Snyder, plaintiff-

appellant here, to draft a prayer that calls on public officials to cease the practice

of using religion in public affairs. 3 Although Snyder’s putative prayer is unusual


      3
          The text of Snyder’s proposed prayer is as follows:

                                  OPENING PRAYER
                      OUR MOTHER, who art in heaven (if, indeed
               there is a heaven and if there is a god that takes a
               woman’s form) hallowed be thy name, we ask for thy
               blessing for and guidance of those that will participate
               in this meeting and for those mortals that govern the
               state of Utah;
                      We fervently ask that you guide the leaders of this
               city, Salt Lake County and the state of Utah so that they
               may see the wisdom of separating church and state and
               so that they will never again perform demeaning
               religious ceremonies as part of official government
               functions;
                      We pray that you prevent self-righteous politicians
               from mis-using the name of God in conducting
               government meetings; and, that you lead them away
               from the hypocritical and blasphemous deception of the
               public, attempting to make the people believe that
                                                                         (continued...)

                                          -4-
and iconoclastic, because this case was decided on summary judgment we will

assume without deciding that it is an invocational prayer. 4 See Engel v. Vitale,

      3
          (...continued)
                bureaucrats’ decisions and actions have thy stamp of
                approval if prayers are offered at the beginning of
                government meetings;
                       We ask that you grant Utah’s leaders and
                politicians enough courage and discernment to
                understand that religion is a private matter between
                every individual and his or her deity; we beseech thee to
                educate government leaders that religious beliefs should
                not be broadcast and revealed for the purpose of
                impressing others; we pray that you strike down those
                that mis-use your name and those that cheapen the
                institution of prayer by using it for their own selfish
                political gains;
                       We ask that the people of the state of Utah will
                some day learn the wisdom of the separation of church
                and state; we ask that you will teach the people of Utah
                that government should not participate in religion; we
                pray that you smite those government officials that
                would attempt to censor or control prayers made by
                anyone to you or to any other of our gods;
                       We ask that you deliver us from the evil of forced
                religious worship now sought to be imposed upon the
                people of the state of Utah by the actions of mis-guided,
                weak and stupid politicians, who abuse power in their
                own self-righteousness;
                       All of this we ask in thy name and in the name of
                thy son (if in fact you had a son that visited Earth) for
                the eternal betterment of all of us who populate the great
                state of Utah.
                Amen.
      4
       Snyder’s supplications draw on religious tenets held by many. See
Matthew 6:5; Book of Mormon, 3 Nephi 13:6. Although there is admittedly some
contradictory evidence in the record, Snyder has presented sufficient evidence to
                                                                      (continued...)

                                           -5-
370 U.S. 421, 424 (1962) (noting that a “solemn avowal of divine faith and

supplication for the blessings of the Almighty” is a “prayer” with an explicitly

religious character); Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir. Unit A

Aug.1981) (“Prayer is an address of entreaty, supplication, praise, or thanksgiving

directed to some sacred or divine spirit, being, or object.”). Although Snyder’s

supposed prayer can perhaps as easily be characterized as political harangue, the

political aspect of a religious supplication does not necessarily invalidate the

invocation’s prayerful character. See Karen B., 653 F.2d at 901 (“That [a prayer]

may contemplate some wholly secular objective cannot alter the inherently

religious character of the exercise.”). Nevertheless, the Establishment Clause

speaks only to the religious aspect of Snyder’s prayer, which we presume for

purposes of this appeal, and as a result, we are not called in this case to evaluate

the prayer’s political overtones. By assuming the religious content of Snyder’s

prayer, we expressly reserve for another day the very difficult issue of attempting


      4
        (...continued)
create a genuine dispute of fact as to the sincerity of his religious belief that
prayer should be a private matter and should not be used to self-aggrandize the
prayer-giver.
       Nevertheless, if Snyder’s invocation is not a “prayer,” our ultimate
conclusion that Murray City did not violate the Establishment Clause would
remain the same. If Snyder’s speech is a non-prayer, then for the reasons we
discuss below in Part III, there would be no “impermissible motive” in preventing
Snyder from reciting a non-prayer during a time permissibly reserved for
legislative prayer. Thus, there would be no Establishment Clause violation. See
Part III, infra.

                                         -6-
to discern the line between prayer and secular speech masquerading as prayer.

      Snyder first presented this prayer, and his request to recite it, to the city

council in Salt Lake City, prompting media coverage of the proposed prayer

including publication of extensive excerpts. See, e.g., Jon Ure, S.L. Man Wants

to Ask Mother in Heaven to End Public Prayer, Salt Lake Trib., Jan. 19, 1994, at

B1. Rather than allowing Snyder to recite the prayer, officials in Salt Lake City

decided to discontinue that city’s practice of opening their city council meetings

with a prayer.

      Snyder next contacted officials in Murray City with a letter on March 23,

1994, expressing his interest in presenting a prayer at one of the council’s

upcoming meetings and asking for information on guidelines for such prayers and

how a person is selected to give such prayers. This letter gave no hint as to the

text of Snyder’s proposed prayer. When Snyder received no response to his first

letter, he sent a second letter on May 9, 1994, again expressing interest in giving

a prayer at a city council meeting. This second letter again included no mention

of the text of his proposed prayer.

      On June 1, 1994, City Attorney H. Craig Hall responded to Snyder’s letters

by explaining that the city council had established an explicit policy that “all

council meetings will start with prayer,” but the council had not established

“formal policies regarding the nature and/or content of this reverence portion of


                                          -7-
their agenda.” Hall’s letter continued:

                    The purpose of the “prayer” is to allow
             individuals that opportunity to express thoughts, leave
             blessings, etc. It is not a time to express political views,
             attack city policies or practices or mock city practices or
             policies.
                    Comments on present city practices or policies
             may be made at city council meetings by one of two
             methods; either by requesting to be placed on the
             agenda, or, taking up to three minutes during the
             “citizen comment” portion of the meeting. The later
             [sic] method requires no prior arrangements to be made. 5

Nowhere in his June 1 letter did Hall respond to Snyder’s particular request for

permission to give a prayer at a city council meeting.

      On June 9, 1994, Snyder sent a third letter to Murray City, again repeating

his request for permission to give a prayer at a city council meeting and this time

including a copy of the text of his proposed prayer.

      Three weeks later, Hall responded to Snyder’s third letter, this time

explicitly denying permission for Snyder to give a prayer at a city council

meeting:

                    The text of the proposed prayer is unacceptable.
             It does not follow the guidelines set forth in my letter


      5
        The text of this letter, with its references to attacks on city policies,
suggests that City Attorney Hall already was aware of the general tenor of
Snyder’s proposed prayer even though Snyder had not yet included a copy of it in
his letters to Murray City. At a later deposition in this case, Hall conceded that
he was influenced by media coverage of Snyder’s dealings with the Salt Lake City
council when he wrote the June 1, 1994, letter.

                                          -8-
             dated June 1, 1994. Until your proposed prayer satisfies
             these guidelines, an invitation to participate in our
             opening ceremonies will not be forthcoming.

Snyder received Hall’s denial letter on July 1, 1994, and filed the original

complaint in this case the same day.

      Snyder’s subsequently amended complaint sought compensatory and

punitive damages, as well as injunctive and declaratory relief, on the basis of

Murray City’s alleged violations of Snyder’s First Amendment and procedural due

process rights under the United States Constitution and the Utah Constitution, as

well as his rights under the Religious Freedom Restoration Act of 1993.

Following discovery and cross-motions for summary judgment, the district court

ruled against all of Snyder’s claims. See Snyder I, 902 F. Supp. at 1455 (granting

summary judgment to Murray City); Snyder II, 902 F. Supp. at 1458 (denying

Snyder’s motion for new trial). On appeal, a divided panel of this court affirmed

the district court’s resolution of Snyder’s federal claims but instructed the district

court to dismiss, without prejudice, Snyder’s state-law claims for want of

adequate supplemental jurisdiction. See Snyder III, 124 F.3d at 1353-55. This

court subsequently agreed to rehear only Snyder’s federal Establishment Clause

claim en banc. 6


      6
        The order for rehearing en banc initially specified two questions for the
parties to address. This court, however, subsequently modified that order to
                                                                       (continued...)

                                         -9-
                                    Discussion 7

      The very first command of our Bill of Rights, as it applies to the states

through the Fourteenth Amendment, is that state and local governments “shall

make no law respecting an establishment of religion.” U.S. Const., amend. I,

cl. 1. At its core, the Establishment Clause enshrines the principle that

government may not act in ways that “aid one religion, aid all religions, or prefer

one religion over another.” See Lee v. Weisman, 505 U.S. 577, 600 (1992)

(Blackmun, J., concurring). As Justice Black declared for the Supreme Court

more than fifty years ago, “Neither a state nor the Federal Government can,

openly or secretly, participate in the affairs of any religious organizations or

groups and vice versa.” Everson v. Board of Educ., 330 U.S. 1, 16 (1947). This

core understanding of our notion of religious liberty stretches back to the very

genesis of the First Amendment. See Reynolds v. United States, 98 U.S. (7 Otto.)

145, 164 (1878) (discussing the history of the Establishment Clause and quoting

Jefferson’s letter to the Danbury Baptist Association on the purpose of the clause



      6
        (...continued)
delete the specific questions presented and “clarify that rehearing en banc is
granted on the Establishment Clause issues in this case.”
      7
       In light of the First Amendment issue raised in this appeal and our
consequential “‘obligation to make an independent examination of the whole
record,’” we review the district court’s summary judgment decision de novo. See
Lytle v. City of Haysville, Kansas, 138 F.3d 857, 862 (10th Cir. 1998) (quoting
Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984)).

                                        - 10 -
to “build[] a wall of separation between church and State”).

      Although there are many kinds of Establishment Clause claims, the prayer

cases typically arise in a procedural posture that pits an audience member of a

particular faith, often a minority religious view, against a government-sanctioned

speaker who has recited a prayer, often expressing a majoritarian religious view,

during a government-created prayer opportunity. See, e.g., Lee, 505 U.S. at 581

(involving a student’s challenge to a public school graduation prayer prepared by

a local rabbi in compliance with school district guidelines developed by the

National Conference of Christians and Jews); Chaudhuri v. Tennessee, 130 F.3d

232, 233-34 (6th Cir. 1997) (involving a Hindu professor’s challenge to a public

university’s practice of beginning university events and faculty meetings with

prayers), cert. denied, 118 S. Ct. 1308 (1998); see also Bauchman v. West High

Sch., 132 F.3d 542, 546 (10th Cir. 1997) (involving a Jewish student’s challenge

to a Mormon music teacher’s various practices and selection of allegedly religious

music for a high school choir in Salt Lake City), cert. denied, 118 S. Ct. 2370

(1998).

      The difficulty of the establishment claim in this case flows partly from its

inversion of the usual posture. Here, the plaintiff is the putative government-

sanctioned speaker, and he alleges that in preventing him from reciting his prayer

against government prayers, the government has established a religion. Despite


                                        - 11 -
its unusual posture, the essence of Snyder’s contention is straight-forward:

Snyder claims that in branding his particular prayer “unacceptable” and

preventing him from offering it as part of the official “reverence period” of the

municipal council meeting, Murray City has impermissibly preferred one religion

over another. We must decide if that is so.



                   I. Sui generis status of legislative prayers

      Prior to 1983, the lower courts had reached a consensus, but without any

consistent rationale, on the conundrum of whether overtly religious prayers by

local and state legislative bodies in opening their legislative sessions constituted

the kind of religious activity banned by the Establishment Clause. With varying

reasoning, the lower courts agreed that such legislative prayers did not fall within

the prohibition against a “law respecting an establishment of religion.” See

Bogen v. Doty, 598 F.2d 1110, 1113-14 (8th Cir. 1979) (applying the three-part

test of Lemon v. Kurtzman, 403 U.S. 602 (1971), in upholding a county board’s

practice of invocational prayers because they had a “clearly secular purpose,” but

warning that the county’s selection procedures for who should give such prayers

were dangerously close to the “quagmire” of “excessive entanglement” and that

the board would be in a “difficult position” if it rejected a volunteer because of

his or her religious persuasion); Colo v. Treasurer & Receiver General, 392


                                        - 12 -
N.E.2d 1195, 1199-1200 (Mass. 1979) (upholding the state’s practice of paying

legislative chaplains in large part because of the practice’s long history and

tradition and because it did not present substantial “divisive political potential”);

Marsa v. Wernik, 430 A.2d 888, 895-96 (N.J.) (upholding invocational prayers at

a borough council meeting because the religious dimension of the prayers did not

predominate over secular goals, nor was the primary effect of the prayer to

promote or inhibit religion), cert. denied, 454 U.S. 958 (1981); Lincoln v. Page,

241 A.2d 799, 800-01 (N.H. 1968) (upholding a town’s practice of invocational

prayers at each annual town meeting because of a de minimis religious effect,

historic use, and similarity to religious references on coins, currency, public

buildings and plaques).

      In 1983, however, the Supreme Court swept away the various approaches

with its pathmarking decision in Marsh v. Chambers, 463 U.S. 783 (1983).

Noting that “[t]he opening of sessions of legislative and other deliberative public

bodies with prayer is deeply embedded in the history and tradition of this

country,” the Court held that “[t]his unique history leads us to accept the

interpretation of the First Amendment draftsmen who saw no real threat to the

Establishment Clause arising from a practice of prayer [opening a legislative

session].” Marsh, 463 U.S. at 786, 791. In the course of reaching this holding,

the Court surveyed the historical record of the views of the framers of the


                                         - 13 -
Constitution as well as the practices of the early Congresses and the infant state

legislatures. The Court concluded, “Clearly the men who wrote the First

Amendment Religion Clause did not view paid legislative chaplains and opening

prayers as a violation of that Amendment, for the practice of opening sessions

with prayer has continued without interruption ever since that early session of

Congress.” Id. at 788.

      Although the Court relied solely – and to the exclusion of its traditional

establishment tests – on a historical analysis to justify the practice of legislative

prayers in Marsh, 8 since that decision the Court has repeatedly avoided applying

Marsh’s mode of historical analysis. See, e.g., County of Allegheny v. American

Civil Liberties Union, 492 U.S. 573, 603 (1989) (rejecting the dissenting

argument in Allegheny County that the Marsh historical analysis controlled the

constitutionality of traditional crèche displays at Christmas: “However history

may affect the constitutionality of nonsectarian references to religion by the



      8
        The historical analysis that formed the basis of Chief Justice Burger’s
majority opinion in Marsh has tempted many litigants and some courts to argue
that the Supreme Court in Marsh created a whole new mode of analysis for
Establishment Clause claims generally. See, e.g., Stein v. Plainwell Community
Schs., 822 F.2d 1406, 1409-10 (6th Cir. 1987) (holding that Marsh’s reliance on
historical acceptance controlled the court’s holding that nonsectarian,
nondenominational school graduation prayers are constitutional). But see Lee,
505 U.S. at 589, 596-97 (rejecting the view in Stein that school graduation
prayers could be justified by their historical acceptance and stressing again the
limited nature of its ruling in Marsh permitting invocational legislative prayers).

                                         - 14 -
government, history cannot legitimate practices that demonstrate the

government’s allegiance to a particular sect or creed.”) Instead, the evolution of

Establishment Clause jurisprudence indicates that the constitutionality of

legislative prayers is a sui generis legal question. As Justice Brennan noted in his

dissent in Marsh, the kind of legislative prayers at issue in Marsh simply would

not have survived the traditional Establishment Clause tests that the Court had

relied on prior to Marsh and has continued to rely on in different contexts since

Marsh. See Marsh, 463 U.S. at 796 (Brennan, J., dissenting). For this reason, the

mainline body of Establishment Clause case law provides little guidance for our

decision in this case. Our decision, instead, depends on our interpretation of the

holding in Marsh.

      In describing its conclusion that legislative prayers do not violate the First

Amendment, the Marsh Court approached the question first and foremost as a

facial issue, separate from the particular nuances of the Nebraska practice there

under review. The Court made clear that it was considering legislative prayers as

a kind of religious genre, and it was this particular genre that was unvitiated by

the Establishment Clause:

                    In 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

                                        - 15 -
             “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. This religious genre known as “legislative prayer” includes the

traditional kind of invocational legislative prayers with which the Court was

familiar, as well as similarly traditional governmental invocations such as the cry,

“God save the United States and this Honorable Court,” intoned by the Court’s

bailiff at the beginning of its own sessions. 9 See id. at 786. As Justice O’Connor

later explained, these kinds of “government acknowledgments of religion serve, in

the only ways reasonably possible in our culture, the legitimate secular purposes

of solemnizing public occasions, expressing confidence in the future, and

encouraging the recognition of what is worthy of appreciation in society.” Lynch

v. Donnelly, 465 U.S. 668, 693 (1984) (O’Connor, J., concurring). In Lynch, the

majority observed that the Establishment Clause cannot mechanistically be

applied to draw unwavering, universal lines for all of the varying contexts of

public life. Rather, the clause erects a “‘blurred, indistinct, and variable barrier

depending on all the circumstances of a particular relationship.’” Id. at 679

(quoting Lemon v. Kurtzman, 403 U.S. 602, 614 (1971)). The Court noted that

“[i]t would be difficult to identify a more striking example of the accommodation




      This judicial invocational prayer also was recited prior to the oral
      9

arguments in this very case.

                                        - 16 -
of religious belief intended by the Framers [than legislative invocational prayer].”

Id. at 674.

      We are obliged, therefore, to read Marsh as establishing the constitutional

principle that the genre of government religious activity that has come down to us

over 200 years of history and which we now call “legislative prayer” does not

violate the Establishment Clause. Furthermore, as a consequence of the fact that

this genre of government religious activity cannot exist without the government

actually selecting someone to offer such prayers, the decision in Marsh also must

be read as establishing the constitutional principle that a legislative body does not

violate the Establishment Clause when it chooses a particular person to give its

invocational prayers. Similarly, there can be no Establishment Clause violation

merely in the fact that a legislative body chooses not to appoint a certain person

to give its prayers. The act of choosing one person necessarily is an act of

excluding others, and as a result, if Marsh allows a legislative body to select a

speaker for its invocational prayers, then it also allows the legislative body to

exclude other speakers.



                 II. Constitutional limits on legislative prayers

      Snyder argues that even if Marsh allows legislative prayers, that case

imposes some limits on a legislative body’s discretion to appoint or to exclude the


                                         - 17 -
persons who will recite its prayers. Snyder points out that when the Court turned

to the particular nuances of the Nebraska practice in Marsh, the Court gave only

conditional approval to the legislative chaplain system there. See Marsh, 463

U.S. at 793-95. Snyder argues that in light of those conditions in Marsh, Murray

City may not discriminate against his request to give an opening prayer based on

the content of his proposed prayer.

      Although we agree with Snyder that Marsh implicitly acknowledges some

constitutional limits on the scope and selection of legislative prayers, those limits

are not the ones Snyder would have us adopt. The Establishment Clause and

Marsh simply do not require that a legislative body ensure a kind of equal public

access to a legislative body’s program of invocational prayers. Instead, the

constitutional restraints on legislative prayers flow directly from the scope of the

religious genre blessed in Marsh. 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” and constitutes a “tolerable

acknowledgment of beliefs widely held among the people.” See id. at 792.

      The point at which an invocational legislative prayer falls outside the

traditions of the genre and becomes intolerable occurs when “the prayer

opportunity has been exploited to proselytize or advance any one, or to disparage




                                         - 18 -
any other, faith or belief.” 10 See id. at 794-95; see also Coles v. Cleveland Bd. of

Educ., 950 F. Supp. 1337, 1347 (N.D. Ohio 1996) (relying on Marsh to uphold a

school board’s practice of invocational prayer because “the record does not

support a finding that the board was using prayer as an attempt to convert

audience members or to promote any particular belief”); Bacus v. Palo Verde

Unified Sch. Dist. Bd. of Educ., 11 F. Supp. 2d 1192 (C.D. Cal. 1998) (denying a

request for a preliminary injunction against a school board’s practice of

invocational prayer in light of Marsh). As Marsh indicated, the danger is not just

an effort to proselytize or disparage an entire religion, but also efforts to

proselytize or disparage the particular tenets or beliefs of individual faiths. See



      10
         Of course, all prayers “advance” a particular faith or belief in one way or
another. The act of praying to a supreme power assumes the existence of that
supreme power. Nevertheless, the context of the decision in Marsh – in which
the Court considered the constitutionality of a Presbyterian minister’s “Judeo
Christian,” “nonsectarian” invocations for the Nebraska Legislature – underscores
the conclusion that the mere fact a prayer evokes a particular concept of God is
not enough to run afoul of the Establishment Clause.
       Rather, what is prohibited by the clause is a more aggressive form of
advancement, i.e., proselytization. See Marsh, 463 U.S. at 793 n.14, 794-95. By
using the term “proselytize,” the Court indicated that the real danger in this area
is effort by the government to convert citizens to particular sectarian views. See
Websters Third New International Dictionary (Unabridged) 1826 (1986) (defining
“proselytize” as “to convert from one religion, belief, opinion, or party to
another”). As the Court reiterated in Lee, “[I]n the hands of government what
might begin as a tolerant expression of religious views may end in a policy to
indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom
of belief and conscience which are the sole assurance that religious faith is real,
not imposed.” Lee, 505 U.S. at 591-92.

                                         - 19 -
Marsh, 463 U.S. at 794-95. The Court explained six years after Marsh 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.” See Allegheny County, 492 U.S. at 603 (quoting Marsh, 463 U.S.

at 791). Thus, the kind of legislative prayer that will run afoul of the Constitution

is one that proselytizes a particular religious tenet or belief, or that aggressively

advocates a specific religious creed, or that derogates another religious faith or

doctrine. When a legislative invocation strays across this line of proselytization

or disparagement, the Establishment Clause condemns it.

      As a second constitutional restriction on legislative prayer, the Court in

Marsh also warned that the selection of the person who is to recite the legislative

body’s invocational prayer might itself violate the Establishment Clause if the

selection “stemmed from an impermissible motive.” See Marsh, 463 U.S. at 793.

The Court implicitly indicated that the particular motive that is “impermissible”

in this context is a motive in selecting the prayer-giver either to “proselytize” a

particular faith or to “disparage” another faith, or to establish a particular religion

as the sanctioned or official religion of the legislative body. See id. at 793-95.

      It is clear under Marsh that there is no “impermissible motive” when a

legislative body or its agent chooses to reject a government-sanctioned speaker

because the tendered prayer falls outside the long-accepted genre of legislative


                                         - 20 -
prayer. The genre approved in Marsh is a kind of ecumenical activity that seeks

to bind peoples of varying faiths together in a common purpose. That genre,

although often taking the form of invocations that reflect a Judeo-Christian ethic,

typically involves nonsectarian requests for wisdom and solemnity, as well as

calls for divine blessing on the work of the legislative body. When a legislative

body prevents its agents from reciting a prayer that falls outside this genre, the

legislators are merely enforcing the principle in Marsh that a legislative prayer is

constitutional if it is “simply a tolerable acknowledgment of beliefs widely held

among the people of this country.” See Marsh, 463 U.S. at 792. 11


      11
         The traditional tone for legislative prayers can be found as early as the
constitutional convention in 1787, when Benjamin Franklin proposed that the
convention begin each morning with “prayers imploring the assistance of Heaven,
and its blessings on our deliberations. . . .” 1 Max Farrand, Records of the Federal
Convention of 1787 452 (1911), quoted in Marsh, 463 U.S. at 787 n.6.
       The same tone also is evident in the prayers of Nebraska’s legislative
chaplain that the Supreme Court found unobjectionable in Marsh. See Joint
Appendix at 92-108, Marsh v. Cambers, 463 U.S. 783 (1983) (No. 82-23). For
example, in 1975, the Rev. Robert E. Palmer offered the following prayer: “For
ties that continue to bind us together, even when the going is rough, for common
purposes we continue to recognize as larger than we are, even when the business
at hand taxes our patience and our constituents; for the privilege of sharing in the
inspirations – as well as the frustrations – of events which make headlines . . . we
now ask Your help, O Lord our God.” Id. at 93-94. Similarly, in 1979 during the
Easter season, the chaplain offered the following prayer: “Today as we are about
to celebrate the great Holy Days of Christians and Jews, Holy Week and Passover,
let us be reminded again through the faith and beliefs of our religions of the
principles and directives which should guide us. . . . May these Holy Days, then,
enable us to act as true followers of the beliefs which we have and may it find
expression in every act and law that is passed.” Id. at 108.
                                                                        (continued...)

                                        - 21 -
       III. The constitutionality of Murray City’s “Reverence Period”

      Turning now to the specifics of this case, Snyder’s amended complaint

sought a declaratory judgment that Murray City’s “conduct is in violation of . . .

the establishment protection . . . of the United States Constitution.” We do not

perceive this request as seeking a declaration that Murray City’s practice of

beginning its council meetings with a prayer is unconstitutional as a whole.

Rather, Snyder’s request merely seeks a declaration that Murray City’s particular

denial of his individual request to participate in the city’s “reverence period” at

the opening of its meeting is unconstitutional.

      Snyder’s claim must fail as a matter of law because his proposed prayer

falls well outside the genre of legislative prayers that the Supreme Court approved

in Marsh and the record is devoid of evidence indicating an intent to promote or

disparage any religion. Not only does Snyder’s prayer explicitly attack the genre

itself, it also disparages those who believe that legislative prayer is appropriate.

See Opening Prayer, supra note 3 (denouncing politicians who believe in the use

of legislative prayer as “self-righteous,” “hypocritical,” “selfish,” “mis-guided,

weak and stupid,” and calling the belief in the use of legislative prayer


      11
        (...continued)
      Finally, a prayer offered in 1975 implored, “O Lord, our God, if ever we
needed Thy wisdom and Thy guidance, it is now – as our Legislature begins a new
session, standing upon the threshold of a new year, fraught with so many
dangerous opportunities. Id. at 92.

                                        - 22 -
“blasphemous,” “evil,” and “cheapen[ing]”). Most importantly, Snyder’s prayer

aggressively proselytizes for his particular religious views and strongly disparages

other religious views. See id. (asking for divine assistance to “guide” civic

leaders to “the wisdom of separating church and state” and to “never again

perform demeaning religious ceremonies as part of official government

functions”). 12 Snyder’s prayer clearly draws on the tenets of his belief – which is

an aspect of many different religious faiths – that prayer should only be conducted

in private. Because Snyder’s prayer seeks to convert his audience to his belief in

the sacrilegious nature of governmental prayer, his prayer is itself proselytizing.

As a result, Murray City was well within its rights under Marsh to deny

permission for Snyder to recite his proposed prayer. A deliberative body has a

right to take steps to avoid the kind of government prayer that would run afoul of

Marsh and the Establishment Clause.

      Having concluded that Murray City did not violate the Establishment



      12
         In fact, virtually every supplication in Snyder’s “Opening Prayer”
variously calls on the citizens and leaders of Utah to convert from their adherence
to public governmental prayer. In addition to the second paragraph quoted above,
the third paragraph asks for divine assistance to “lead” Utah’s politicians away
from the practice of governmental prayer; the fourth paragraph asks that Utah’s
politicians be “educate[d]” and come to “understand” that prayer should be
private and not used for the purpose of impressing others; the fifth paragraph asks
that divine power “teach” the people of Utah that government should not
participate in religion, and the sixth paragraph asks that divine power “deliver us
from the evil of forced religious worship.” See Opening Prayer, supra note 3.

                                        - 23 -
Clause in refusing Snyder’s prayer, we next address the point raised by the dissent

to the original panel decision in this case, to the effect that there is sufficient

evidence in the record below to raise a dispute of fact as to whether Murray City

relied on an impermissible motive in its denial of Snyder’s prayer. See Snyder

III, 124 F.3d at 1357-58 (Briscoe, J., dissenting). The record includes

circumstantial evidence to suggest that City Attorney Hall’s letter of June 1, 1994,

in which he outlined Murray City’s standards for legislative prayers, was drafted

specifically to exclude the kind of prayer that Snyder had proposed. See id.

(pointing out that City Attorney Hall was aware of and influenced by newspaper

accounts of Snyder’s dealings with the city council in Salt Lake City). However,

this evidence only establishes that Hall was concerned with the political nature of

the proposed prayer and with the fact that it was not consistent with the genre of

legislative invocational prayer for which the opening portion of the legislation

session had been reserved.

      This evidence only tends to establish that Murray City acted with a

“permissible” motive in excluding Snyder’s proposed prayer. Snyder’s

proselytizing and disparaging prayer falls well outside the scope of invocational

legislative prayers found to be constitutional in Marsh, and thus there was nothing

improper about excluding it from the time properly set aside for legislative

prayer. It was therefore permissible to exclude Snyder’s prayer from the city’s


                                          - 24 -
‘reverence period.’ In drafting guidelines for council prayers that excluded

Snyder’s prayer, the record demonstrates that Hall was attempting to exclude the

prayer because of its proselytizing and disparaging nature.

      Finally, Snyder attempts to incorporate the Free Speech Clause of the First

Amendment into his argument in this appeal. Because these contentions fall

outside the limitation of our order for rehearing – confined as it was to the

Establishment Clause issues in this case – we will not address them.



                                     Conclusion

      Under the Establishment Clause of the First Amendment, the municipal

council of Murray City has the power to open its meetings with the kind of

legislative prayer that our nation over the course of more than 200 years has come

to see as “tolerable.” See Marsh, 463 U.S. at 792. Furthermore, in the exercise

of that power, Murray City has the discretion to prevent a proposed prayer that

would be intolerable to that tradition. Snyder’s prayer both proselytizes for his

own particular brand of religion and disparages other contrary religious views.

As such, it falls outside the genre of invocational legislative prayer authorized by

Marsh, and Murray City did not violate the Establishment Clause in rejecting it.

Thus, the district court correctly granted summary judgment against Snyder’s

Establishment Clause claim.


                                        - 25 -
      We AFFIRM the district court’s dismissal of plaintiff’s establishment

claim. The remainder of the original panel opinion remains in effect as originally

issued in Snyder III, 124 F.3d at 1352-53, 1354-55. We REMAND for further

proceedings consistent with the disposition in Snyder III. See id. at 1255.




                                        - 26 -
96-4087, Snyder v. Murray City

LUCERO, Circuit Judge, concurring in the judgment.

      I concur in the judgment that Mr. Snyder is not entitled to the relief he seeks

on his Establishment Clause claim. 1 I arrive at this conclusion using a different

analysis from that employed by the majority. I write separately to state my

disagreement with what I believe to be the majority’s impermissible extension of

Marsh v. Chambers, 463 U.S. 783 (1983). Marsh holds squarely that “legislative

prayer” delivered by an established chaplaincy system is not per se

unconstitutional. But the Marsh Court did not consider the constitutionality of the

prayer format utilized by Murray City, wherein prayers are routinely offered, at the

City Council’s invitation, by members of the public acting as representatives of

discrete religious groups. Contrary to the view of the majority, I believe the city’s

choice of format proscribes regulation of the content of the prayers offered.

      However, contrary to the dissent, I do not believe that the city’s elimination

of its content regulations can salvage the constitutionality of its chosen prayer

format. Although I agree with the dissent that Murray City’s practice of excluding

certain prayers for their content violates the Establishment Clause, Snyder is not



       1
          Like the majority, I do not read Snyder’s amended complaint as directed
to Murray City’s practice of beginning its council meetings with prayer. With the
majority, I understand that Snyder is only challenging the city’s denial of his
individual request to offer his prayer at the pre-meeting “reverence period.” Were
I to read his amended complaint more broadly, I would be obliged to endorse a
result at odds with that reached by the majority.
entitled to give his prayer at a reverence period that is itself a violation of the

Establishment Clause. 2 The remedy he wants is no remedy at all.

                                             I

      As plainly evidenced by the case before us, government officials operating an

open prayer format are inevitably drawn into regulating the content of the prayers

offered. 3 The majority believes such regulation to be sanctioned by Marsh. I

respectfully disagree. Purporting to interpret and apply Marsh to this case, the

majority avers that a governmental body can constitutionally bar a particular

legislative prayer when “‘the prayer opportunity has been exploited to proselytize

or advance any one, or to disparage any other, faith or belief.’” Maj. Op. at 18-19

(quoting Marsh, 463 U.S. at 794-95). I believe it misguided, however, to read this

single passage from Marsh as standing for the far-reaching proposition that a

governmental body can, in all circumstances, allow certain legislative prayers while

censoring and barring others because they “proselytize” or “disparage” another

       2
         Given the summary judgment posture of this case, I am obliged to regard
Snyder’s proposed contribution to the reverence period as a genuine expression of
his sincerely held religious beliefs. See Mosier v. Maynard, 937 F.2d 1521, 1523-
25 (10th Cir. 1991); Appellant’s App. at 259 (Dep. of Tom Snyder) (“Q: And does
this opening prayer represent sincerely held religious beliefs on your part? . . . A:
Yes, it does.”). As a result, I accept, for purposes of analysis, the majority’s
assumption that Snyder’s language comprises a prayer.
       3
        Asked to confirm that “Mr. Snyder’s proposed prayer was rejected
because of the content and for no other reason,” Mr. H. Craig Hall, the Murray
City Attorney, responded: “I think that is an accurate statement.” Appellee’s
App. at 88-89.

                                           -2-
faith or religious belief. Read properly, in the factual and historical context that

anchors the case, Marsh does not vest a governmental body with such powers.

       Marsh states that “[t]he question presented is whether the Nebraska

Legislature’s practice of opening each legislative day with a prayer by a chaplain

paid by the State violates the Establishment Clause.” 463 U.S. at 784; see also id.

at 786 (“We granted certiorari limited to the challenge to the practice of opening

sessions with prayers by a State-employed clergyman.”) (citing 459 U.S. 966 (Nov.

1, 1982)). Although Marsh may perhaps be read to extend to circumstances in

which chaplains are not paid and in which there is no single officiating clergyman,

see id. at 794 n.18, the opinion’s historical treatment of legislative prayer shows

that Marsh involves, and should be limited to, established

chaplaincies—chaplaincies that are so structured that they become an arm or an

office of the legislature. 4

       Congressional chaplains, like the chaplain at issue in Marsh, are not members

of the public invited on some representative or wholly open basis to give legislative

prayers. They are officers of the state, who hold official government positions.

Referring to the origins of legislative prayer, the Marsh Court noted that:

       The tradition [of legislative prayer] in many of the colonies was, of
       course, linked to an established church, but the Continental Congress,



        Of course, whether or not a chaplaincy is a salaried position may be an
        4

indicium of whether its occupant is an official government agent.

                                          -3-
      beginning in 1774, adopted the traditional procedure of opening its
      sessions with a prayer offered by a paid chaplain. Although prayers
      were not offered during the Constitutional Convention, the First
      Congress, as one of its early items of business, adopted the policy of
      selecting a chaplain to open each session with a prayer.


Id. at 787-88 (footnotes and citations omitted). Marsh underscores the fact that

congressional chaplains are official governmental functionaries when, in

discussing the history of the position, it states:

      [O]n April 7, 1789, the Senate appointed a committee “to take under
      consideration the manner of electing Chaplains.” On April 9, 1789, a
      similar committee was appointed by the House of Representatives. On
      April 25, 1789, the Senate elected its first chaplain; the House
      followed suit on May 1, 1789. A statute providing for the payment of
      these chaplains was enacted into law.

Id. at 788 (footnote and citations omitted). Noting that Nebraska’s chaplaincy

practice “is consistent with the manner in which the First Congress viewed its

chaplains,” Marsh further states that “[r]eports contemporaneous with the elections

[of congressional chaplains] reported only the chaplains’ names and not their

religions or church affiliations.” Marsh, 463 U.S. at 794 n.16. This again serves

to make the point that the nature of the chaplaincy with which Marsh deals does

not involve people acting as members, leaders, or spokespersons of particular

religions. Rather, they are people who are first and foremost acting as officers of

the various legislative bodies they serve.




                                           -4-
      It is this fact that explains Marsh’s cautionary language—on which the

majority ultimately rests—that legislative prayer not be “exploited to proselytize or

advance any one, or to disparage any other, faith or belief.” Id. at 794-95. Plainly,

established legislative chaplaincies may not proselytize, or disparage a particular

belief, consistent with the dictates of the Establishment Clause. Such chaplains

speak for the legislature, and may not therefore champion particular religious

beliefs while disparaging others. But, by the same token, the government has the

authority to tell its representatives what they can and cannot do in their official

capacities. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,

833 (1995) (“[W]hen the State is the speaker, it may make content-based

choices.”). Prohibiting official chaplaincies from proselytizing on behalf of one

religion, or disparaging another, is not only within the powers of the government,

but serves a crucial Establishment Clause purpose because it ensures that the

government does not, through its officers, espouse one particular religious view to

the detriment of others.

      However, when the person giving a legislative prayer does not speak from an

established chaplaincy position, then Marsh, standing for the proposition that the

government may censor prayers of proselytization, is inapplicable. 5 What is


       5
        Admittedly, the line between an established chaplaincy and an open
prayer system is not a bright one. But, as the Supreme Court has frequently
                                                                     (continued...)

                                          -5-
applicable is the Supreme Court’s traditional Establishment Clause jurisprudence,

specifically its prohibition on “excessive entanglement.” See Lemon v. Kurtzman,

403 U.S. 602, 614 (1971). The process of policing the prayers offered in an

attempt to exclude proselytization or disparagement will inevitably “call[] for

official and continuing surveillance leading to an impermissible degree of

entanglement.” Walz v. Tax Comm’n, 397 U.S. 664, 675 (1970); see also Widmar

v. Vincent, 454 U.S. 263, 272 n.11 (1981) (public university that offers its

facilities for student group meetings “risk[s] greater ‘entanglement’” by attempting

to enforce exclusion of groups practicing religious worship and speech, in part

because of “continuing need to monitor group meetings to ensure compliance with



      5
       (...continued)
noted, that is a feature inevitably common to much Establishment Clause
jurisprudence. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 678-79 (1984) (“The
Establishment Clause like the Due Process Clauses is not a precise, detailed
provision in a legal code capable of ready application. . . . The line between
permissible relationships and those barred by the Clause can be no more straight
and unwavering than due process can be defined in a single stroke or phrase or
test. The Clause erects a ‘blurred, indistinct, and variable barrier depending on
all the circumstances of a particular relationship.’”) (quoting Lemon v. Kurtzman,
403 U.S. 668, 614 (1971)). But there can be no doubt that the facts of this case
place it squarely outside Marsh. Murray City’s practice sought “to invite a
diverse community” to speak at prayer sessions, Appellee’s App. at 10, and these
invitations were sent to “associations” of a “religious nature,” id. at 71-72. There
is no suggestion in the record that such a diverse community of religious bodies,
offering prayers before council meetings, spoke as government functionaries.
Indeed, the City Attorney confirms that, in many cases, he has no idea what the
invited parties will say—precisely because he does not know what religious
beliefs such parties even hold. See id. at 183.

                                         -6-
the rule”); Lemon, 403 U.S. at 620 (statute’s requirement that government examine

school records to determine how much of total school expenditure is attributable to

secular education and how much to religious activity, “is fraught with the sort of

entanglement that the Constitution forbids”). Prayers will either have to be

submitted for approval in advance, as was the case for Mr. Snyder, see Appellee’s

App. at 199 (“Until your proposed prayer satisfies these guidelines, an invitation to

participate in our opening ceremonies will not be forthcoming”), then assessed by

some government body using pre-established government criteria that purport to

distinguish proselytizing from non-proselytizing behavior, or else assessed on the

spot—the gavel ready—for such content before the amen is spoken. 6 And the

process will have to be repeated time after time.

      I cannot accept that the Constitution allows the government to subject

private citizens—as opposed to official chaplaincies—to such liturgical

supervision. “It is a cornerstone principle of our Establishment Clause

jurisprudence that ‘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


       6
         A final alternative—that the government only extend invitations to those
religious groups that it adjudges likely to abide by an implicit bar against
proselytizing, a practice which may have occurred here, see Appellee’s App. at
155—is obviously no less entangling. Such practice also raises the specter of
religious groups molding public statements of their creeds in ways designed to
elicit governmental approval, thus offending one of the core historical purposes of
the Establishment Clause. See infra note 13.

                                         -7-
program carried on by government.’” Lee v. Weisman, 505 U.S. 577, 588 (1992)

(quoting Engel v. Vitale, 370 U.S. 421, 425 (1962)). 7



                                         II

      However, the dissent’s suggested alternative to the majority’s proposal that

the City Council regulate the content of public prayer offered during a pre-meeting


       7
         The foregoing analysis accepts the majority’s implicit assumption that
Murray City rejected Snyder’s prayer because it proselytized and disparaged other
religions. Like the dissent, however, I believe the record raises serious questions
as to whether this was in fact the City’s grounds for refusing the prayer.
       Mr. Hall, the City Attorney who made the decision to reject Snyder’s
prayer, claims that he did so pursuant to a long-standing, albeit implicit and never
before invoked, practice of refusing prayers or invocations that expressed
political views, or attacked or mocked city policies and practices. See Appellee’s
App. at 195. There is scant suggestion in the record that Hall refused the prayer
because it disparaged other faiths. Rather, Hall’s claimed focus was on what he
perceived as disparagement of the City Council and its practice of allowing pre-
meeting prayers.
       Nonetheless, Snyder still validates his Establishment Clause claims. Even
if one assumes Hall did not develop the stated criteria as a pretext for religious
viewpoint discrimination (which assumption I make only for the purposes of the
present discussion), the mere application of the criteria violates the Establishment
Clause for at least two reasons. First, such application discriminates against
religions that encompass stated tenets Hall deems inappropriately “political.” If
we assume, as we must, that Snyder’s prayer is premised on his religious views,
then Hall’s objection to Snyder’s “politics” inevitably amounts to discrimination
against his religion as well. Second, development and application of the criteria
necessitate a governmental determination of whether religious views are
inappropriately political. That kind of determination requires an excessively
entangling interaction between the machinery of government and religious
practice. See infra section III; cf. Widmar, 454 U.S. at 272 n.11 (given breadth
and indeterminacy of what speech is “religious,” state actor risks excessive
entanglement by trying to identify and exclude such speech from public facilities).

                                         -8-
reverence period—namely that the City permit all prayers, Snyder’s included—is

also unconstitutional. As Snyder’s “prayer” starkly demonstrates, without content-

based restrictions, the “reverence period” established by Murray City will be used

to disparage the religious beliefs of others. The resulting juxtaposition of

aggressive proselytization with the exercise of legislative power violates the

Establishment Clause.

      Invocation of Marsh cannot protect such prayer. Once the government steps

outside the historically determined confines of Marsh, it cannot regulate the content

of the prayers it sponsors. The resulting unregulated government prayer sessions

come to pose, as this case clearly illustrates, an unacceptable and inevitable risk of

the advancement of certain faiths at the expense of others. A prayer session in

which Snyder is offered—and takes—the opportunity to denigrate the faith of

others is historically and philosophically far-removed from what Marsh sanctions

as the “tolerable acknowledgment of beliefs widely held among the people of this

country.” Marsh, 463 U.S. at 792. As the majority correctly observes, Marsh

speaks only to legislative prayer of a specific “religious genre.” Maj. Op. at 15-16.

Marsh’s reliance on the ecumenism of the Nebraska prayers is not to be

ignored—just as it is not to be read to repudiate the Court’s entire jurisprudence of

excessive entanglement. To be constitutional, legislative prayer must be “part of

the fabric of our society,” Marsh, 463 U.S. at 792, or, as the majority aptly puts it,


                                          -9-
“a kind of ecumenical activity that seeks to bind peoples of varying faiths together

in a common purpose,” Maj. Op. at 21. If the offerings at a legislative prayer

session depart from this historical norm, which—as Mr. Snyder’s prayer

shows—they assuredly will once Murray City frees the public forum it has created

from content-based restrictions, then they can gain no protection from Marsh.

      Outside the purview of Marsh, and subject to the usual canons of

Establishment Clause jurisprudence, government-sponsored open prayer sessions

marked by uncontrolled proselytizing are unconstitutional. True, the purpose of an

open and unrestricted prayer session may, by analogy to Marsh, pass muster under

the first step of the three-part Lemon test, 403 U.S. at 612. 8 See Lynch v.

Donnelly, 465 U.S. 668, 680-81 (1984) (city’s display of creche has “legitimate

secular purposes” of celebrating, and depicting origins of, national holiday). A

legislative body’s intention in maintaining an open prayer session may be simply to

“solemniz[e] public occasions,   express[] confidence in the future, and encourag[e]

the recognition of what is worthy of appreciation in society.” Lynch, 465 U.S. at

693 (O’Connor, J., concurring).




       8
         In Lemon, the Court describes the following test: “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 (1971) (internal quotation and citations omitted).

                                         - 10 -
      But the effects of such prayer are very different from the situation

considered in Marsh , precisely because once members of the public are invited to

pray, the government must relinquish its power to exclude those prayers that

proselytize or disparage. The remedy Snyder would have us endorse for himself

and others would require the government to invite proselytizers to initiate its

meetings—which it cannot do without violating both the second and third steps of

Lemon , which proscribe, respectively, “a principal or primary effect” of advancing

or inhibiting religion, and “foster[ing] an excessive government entanglement with

religion.” Lemon , 403 U.S. at 612-13 (citations omitted). A principal effect of

open prayer, as practiced by Snyder and others, will be the symbolic association of

government power with religious—and antireligious—intolerance and bigotry.        9




       9
         The situation would be constitutionally different were the “reverence
period” not so significantly characterized by religious activity. See Board of
Educ. v. Mergens, 496 U.S. 226, 248 (1990) (“[I]f a State refused to let religious
groups use facilities open to others, then it would demonstrate not neutrality but
hostility toward religion.”). Despite Murray City’s countless legal pleadings that
the reverence period was open to all-comers, religious and non-religious alike,
and for purposes similarly religious and non-religious, the record is all but
completely devoid of any support for such a conclusion. This may explain why
both the district court, see Appellant’s App. at 597, and the majority today, see
Maj. Op. at 3, appear to assume that invitations were only extended to religious
groups and for the purpose of prayer. From the facts in the record, only one legal
conclusion can follow: the “reverence period” is primarily characterized by
religious activity. There is simply no way that the content of these sessions is
sufficiently secular for them not to advance religion unconstitutionally. Compare
Widmar, 454 U.S. at 269, 272-75 & n.12 (where state-provided forum is
“generally” and “equally” open for use by religious and non-religious groups,
                                                                        (continued...)

                                        - 11 -
     9
       (...continued)
allowing religious groups does not have primary effect of advancing religion)
with County of Allegheny v. ACLU, 492 U.S. 573, 599-600 & n.50 (1989) (Op. of
Blackmun, J.) (display of privately-sponsored creche on “Grand Staircase” of
county courthouse violates Establishment Clause because “[t]he Grand Staircase
does not appear to be the kind of location in which all were free to place their
displays”).
       The City Attorney’s letter of June 1, 1994, to Snyder, states that “the
Council has established the policy that all council meetings will start with
prayer,” Appellee’s App. at 195, and defendants’ answer to Snyder’s amended
complaint concedes this point, see id. at 5 & Appellant’s App. at 82. I cannot
agree with the City Attorney’s unlikely semantics, whereby prayer does not
denote inherently religious activity. (Nor, one might add, could the Supreme
Court of Utah. See Society of Separationists v. Whitehead, 870 P.2d 916, 931-32
(Utah 1993)). Hall appears to concede the religious character of the proceedings
when he confirms that the invited groups were “associations” of a “religious
nature.” Appellee’s App. at 71-72. Asked to confirm that prayers were “religious
exercise,” Hall replies, “Not necessarily,” id. at 53, but his only substantiation of
that qualification is as follows: “We had some Navajos that came and left a
blessing and I don’t know if it was a religious exercise or not.” Id. The City
Attorney’s lack of familiarity with Native American culture simply cannot be
enough to render the prayer sessions primarily non-religious in nature. The
defendants’ answer to Snyder’s amended complaint further supports this view by
arguing that Snyder’s proposed contribution to the reverence period was
justifiably refused because “it was not a sincere and earnest entreaty directed to a
divinity,” and consequently fell outside the definition of “prayer.” Appellant’s
App. at 83.
       Murray City points to two items in the record in support of its claim on this
point. Neither, in light of the overwhelming evidence to the contrary, can carry
any weight whatsoever. The first is a form letter sent to invited groups, which
refers to Murray City’s effort “to encourage community and religious leaders,
representative of the diverse culture of the Salt Lake Valley, to participate in this
meaningful segment of our meetings.” Appellee’s App. at 201. This vague
language in a form letter does nothing to obviate the conspicuous failure, save for
the erroneous reference to the Navajo blessing, to point to a specific non-religious
association to whom an invitation was extended. The second item is Hall’s claim
that the list of invited parties includes “some nondenominational groups.” See id.
                                                                          (continued...)

                                        - 12 -
And the “divisive political potential” of such prayer, which the case law identifies

as a significant component of “excessive entanglement,”              see Lemon , 403 U.S. at

622-23, is self-evident. “[A]      prayer which uses ideas or images identified with a

particular religion may foster a different sort of sectarian rivalry than an invocation

or benediction in terms more neutral,”       Weisman , 505 U.S. at 588, and that is even

more the case when a prayer aggressively proselytizes and disparages the

convictions of others present.

      This stands in stark contrast to      Marsh . The ecumenism of Marsh ’s

legislative prayer does not advance religion beyond the Supreme Court’s general

recognition that “[w]e are a religious people whose institutions presuppose a

Supreme Being.”    Zorach v. Clauson , 343 U.S. 306, 313 (1952). The same is true

of other “official references to the value and invocation of Divine guidance.”

Lynch , 465 U.S. at 675.   10
                                But what is true of the prayers in      Marsh , the creche in


      (...continued)
      9

at 69-70. As “nondenominational” does not mean “secular,” I am unsure why
Murray City should believe this renders the proceedings open to all, believers and
nonbelievers alike. Indeed, Hall emphasizes how the prayer session differed from
the Council’s period for comments by individual members of the public, to which
Snyder would have been welcome. See id. at 56-57. In short, a few evasive and
ambiguous statements cannot support the implausible conclusion that “prayer” has
nothing to do with religion. Thus this case conspicuously lacks the “important
index of secular effect” that is provided by the “provision of benefits to [a] broad
spectrum of groups.” Widmar, 454 U.S. at 274.

         It is for this reason that numerous forms of everyday “ceremonial deism”
          10

pass constitutional muster. (This phrase is used in County of Allegheny, 492 U.S.
                                                                     (continued...)

                                              - 13 -
Lynch , and the Sunday closing laws in      McGowan v. Maryland , 366 U.S. 420

(1961), namely that their “reason or effect merely happens to coincide or

harmonize with the tenets of some or all religions,”     id. at 442, is assuredly not the

case for an open prayer session, sponsored by a legislative body, in which

proselytization and disparagement must of necessity be allowed. When the

government invites a cross-section of religious parties—proselytizers included—to

appear before its meetings, the resulting disparagement of other faiths can hardly

be regarded as mere happenstance.     11
                                           Consequently, I cannot agree that this case

presents grounds for a remand. Snyder has shown an Establishment Clause

violation in the city’s exclusion of his prayer, but his requested remedy would

violate the Establishment Clause just as surely.



       (...continued)
       10

at 595 n.46 (Op. of Blackmun, J.), and was coined by Walter Rostow in 1962.
See Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96
Colum. L. Rev. 2083, 2091-92 (1996)). An incomplete list of such practices
would obviously include the post-1954 Pledge of Allegiance (“under God”); the
national motto as inscribed on our national currency (“In God We Trust”); the
invocation to the Deity prior to judicial proceedings (“God save the United States
and this Honorable Court”); the swearing-in of government officials and
witnesses in court proceedings (“so help me God”); public holidays on Christian
Holy Days; references to the Almighty in inaugural addresses; and Thanksgiving
Day proclamations.
        11
          Or, to put it in terms of Justice O’Connor’s “endorsement” analysis, see
Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O’Connor, J., concurring), Snyder’s
prayer, if given at an open prayer session before a City Council meeting, would
strike an “objective observer” as government endorsement of the disparagement
of faith.

                                             - 14 -
                                          III

       The majority assumes that in approving the chaplaincy format before it in

Marsh , the Court somehow sanctioned a different format which permits a city

council routinely to initiate its meetings with an open prayer session at which

members of the public are invited to pray. I disagree with that view, just as I

would with the proposition that by favorably referring to our customary practice of

opening court with the familiar intonement, “God save the United States and this

Honorable Court,” Marsh somehow would permit us to require the Clerk of the

Court to organize a reverence period at the opening of court assuring that

representatives of a broad spectrum of religious denominations are included in a

prospective list of supplicants invited to seek the blessings of Providence on the

proceedings of the day. The very organization of such prayer sessions—in the case

at bar, the organization and selection of those delivering prayer is a duty of the

Secretary to the City Council,   see Appellee’s App. at 36—comes perilously close to

the establishment of religion.

       Certainly, the mere administration of an open prayer session by the

government may result in a level of entanglement far beyond that sanctioned by

historical practice in Marsh. That is so, even when, as a result of the free choice of

the invited public, a legislative prayer session is not marked by proselytization or

disparagement. In running a prayer session open to the public, the government will


                                         - 15 -
need to identify which members of the public appropriately represent the diverse

religious life of the community. That will require a government determination of

what creeds and philosophies are to count as religious. Given the inevitable limits

on the time available for legislative prayer, the government may also have to

resolve which are sufficiently representative to earn its favor, and in what order. 12

Finally, as in this case, the government will have to distinguish between prayer and

political statement. 13

       None of the administrative machinery necessary to such tasks is endorsed by

Marsh. There, because our social and political history has already made the

necessary determinations, there is less need for day-to-day governmental



         According to Mr. Hall, the City Attorney, “[i]ts impossible when you
        12

have only 24, 25 Council meetings to offer everybody the opportunity to pray.”
Appellee’s App. at 159.
        13
          There is also a grave risk that religious groups will seek to earn the
government’s favor with the intention of obtaining an invitation, or of increasing
the frequency of their invitations, or of being invited to speak before especially
significant and visible legislative sessions. In seeking governmental favor,
religious groups may become subject to an implicit form of government
regulation—a danger that underlies much Establishment Clause jurisprudence.
See Weisman, 505 U.S. at 609 (“We have believed that religious freedom cannot
thrive in the absence of a vibrant religious community and that such a community
cannot prosper when it is bound to the secular.”) (Blackmun, J., concurring). We
note in this case that the City Attorney, when asked whether the city inquires as to
the content of a prayer prior to its delivery, responded: “As far as I know we’ve
never asked. There has been no need to ask. Everybody has been so positive and
met the unwritten guidelines . . . .” Appellee’s App. at 155. The Attorney’s
apparent cause for celebration is—to my mind—cause for grave constitutional
concern.

                                          - 16 -
administration of a legislative prayer “system.” Because this case is so readily

resolved on the two grounds identified above, I need not conclusively determine

whether Murray City’s administration of its prayer system unconstitutionally

entangles government and matters of religion. But legislative bodies should

appreciate that an open prayer system has the potential, in its mere administration,

to violate the Establishment Clause.

                                          IV

      Under the foregoing analysis, government would have to seek the sanctuary

of Marsh should it wish to maintain legislative prayer. It may appear ironic that the

Establishment Clause should endorse official chaplaincies, while proscribing a

practice of inviting prayer volunteers who represent many and varied religious

faiths. But though this effect may appear establishmentarian, a closer inspection

proves otherwise. In fact, the strength and diversity of religious life is doubly

benefitted by a legislative retreat to Marsh.

      First, Marsh requires that official chaplaincy systems do not proselytize for

one religion or disparage others. Though official chaplains speak with the

authority of government to an unparalleled extent, Marsh ensures that their

pronouncements are broadly ecumenical—no more religious, indeed, than the

“fabric of our society” at large. Marsh, 463 U.S. at 792. Second, as Madison

recognized, “[r]eligion flourishes in greater purity, without than with the aid of


                                         - 17 -
Gov[ernment].” James Madison, Memorial and Remonstrance against Religious

Assessments (1785), in The Complete Madison 309 (S. Padover ed. 1953). As this

case shows, when bound to the secular, religion is no longer free to “flourish

according to the zeal of its adherents and the appeal of its dogma.” Zorach, 343

U.S. at 313.




                                        - 18 -
No. 96-4087, Snyder v. Murray City Corp.

BRISCOE, Circuit Judge, dissenting:

      I respectfully dissent. Underlying the majority’s opinion is the implicit

assumption that the reverence portion of City Commission meetings is a nonpublic

forum in which the speakers, though not paid by or otherwise directly connected to

the City, speak on behalf of the City. Based upon this assumption, the majority

concludes the City has the right to control or regulate who speaks on its behalf and

what message is conveyed. Because I disagree with the majority’s underlying

assumption, I also disagree with its conclusion that the City properly rejected

Snyder’s request to speak based upon the content of his proposed prayer.

                                          I.

      In Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995),

the Court emphasized the importance of context in determining the extent to which

the government can control speech. “[W]hen the State is the speaker,” the Court

noted, “it may make content-based choices.” Id. at 833. More specifically, it may

“regulate the content of what is or is not expressed when it is the speaker or when

it enlists private entities to convey its own message.” Id. In contrast, when the

State simply facilitates “a diversity of views from private speakers,” it may not

discriminate based on the viewpoint of a particular private speaker. Id. at 834.

      It is therefore critical, in deciding Snyder’s appeal, to first determine the

context in which the dispute arose. More specifically, it is necessary to decide
whether Snyder was denied the opportunity to speak on behalf of the City or

whether he was denied the opportunity to speak on his own behalf. As is apparent

from the discussion in Rosenberger, the determination of this context will have a

dramatic effect on how the appeal is analyzed and ultimately decided.

      In rejecting Snyder’s Establishment Clause claim, the majority implicitly

assumes persons who speak during the reverence period do so on behalf of the

City. Armed with this assumption, the majority concludes, based upon its

interpretation of Marsh v. Chambers, 463 U.S. 783 (1983) (deciding

constitutionality of opening legislative sessions with a prayer by a chaplain

appointed and paid by state), that the City has the right to control the content of

messages conveyed during the reverence period, and the City did not violate the

Establishment Clause by rejecting Snyder’s tendered prayer because, in the

majority’s opinion, the prayer falls outside the bounds of constitutionally

permissible legislative prayer. For reasons that follow, I cannot accept the

majority’s assumption.

      As I indicated in my dissenting opinion from the original panel opinion, I

believe “a reasonable observer aware of the City’s practice of inviting persons

representing a broad range of religious and nonreligious viewpoints to give

invocations would not regard Snyder’s prayer as representing the City’s

endorsement of his particular beliefs.” Snyder v. Murray City Corp., 124 F.3d


                                          -2-
1349, 1357 (10th Cir. 1997) (dissenting opinion). In other words, I do not believe

any of the speakers offering prayers during the reverence period could reasonably

be perceived as speaking on behalf of the City. See generally County of Allegheny

v. American Civil Liberties Union, 492 U.S. 573, 595 (1989) (endorsement test

depends on observer’s reasonable perception of particular government policy).

      To illustrate the point more thoroughly, I believe it is helpful to review the

type of forum with which we are dealing. 1 See generally Capitol Square Review

Bd. v. Pinette, 515 U.S. 753, 761 (1995) (applying forum analysis to decide

Establishment Clause issue). “[T]he Supreme Court has recognized three distinct

categories of government property: (1) traditional public fora; (2) designated

public fora; and (3) nonpublic fora.” Summum v. Callaghan, 130 F.3d 906, 914

(10th Cir. 1997) (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460

U.S. 37, 45-46 (1983)). Undoubtedly, the reverence period at issue here does not

fall within the category of traditional public fora for it is not at all similar to areas

such as “streets and parks[,] which ‘have immemorially been held in trust for the

use of the public, and, time out of mind, have been used for purposes of assembly,



       1
         Although the scope of our en banc review is purportedly limited to
Snyder’s Establishment Clause claim, the inescapable fact is that this case lies at
the intersection of the Establishment, Free Speech, and Free Exercise Clauses of
the First Amendment. Thus, although the concepts of public fora are typically
associated with cases involving free speech claims, they are useful in deciding the
outcome of this case.

                                           -3-
communicating thoughts between citizens, and discussing public questions.’”

Perry, 460 U.S. at 45 (quoting Hague v. C.I.O., 307 U.S. 496, 515 (1939)).

Instead, the reverence period is either a designated public forum or a nonpublic

forum.

       “A designated public forum is property the government has opened for

expressive activity, treating the property as if it were a traditional public forum.”

Summum, 130 F.3d at 914. Such a forum “may be created for a limited purpose

such as use by certain groups . . . or for the discussion of certain subjects.” Perry,

460 U.S. at 45 n.7. In contrast, a nonpublic forum is “[p]ublic property which is

not by tradition or designation a forum for public communication.” Id. at 46.

“Implicit in the concept of the nonpublic forum is the right [of the government] to

make distinctions in access on the basis of subject matter and speaker identity.”

Id. at 49.

       “The government does not create a public forum by inaction or by permitting

limited discourse, but only by intentionally opening a nontraditional forum for

public discourse.” Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788,

802 (1985). To determine whether the government has intentionally created a

designated public forum, we look to “the policy and practice of the government,”

as well as “the nature of the property and its compatibility with expressive

activity.” Id.


                                          -4-
      Since 1982, the City in this case has incorporated a reverence period as part

of the opening ceremonies of its City Council meetings. Speakers during the

reverence period are not public officials. Rather, the City has “made efforts to

assure that a broad cross-section of the community would be represented” during

the reverence period. Appellant’s App. at 162. To effectuate this goal, Jewel

Chandler, the secretary to the City Council, regularly “compile[s] lists of various

denominations and other groups” who she thinks “would be potentially willing to

come to the City Council meetings based on invitation to give a thought, prayer,

whatever.” Appellee’s App. at 36-37. Chandler sends invitations to these groups,

which read in part:

             It has long been a custom of the Murray City Municipal Council
      to include an invocation or inspirational message as part of the
      opening ceremonies in Council meetings.
             Several years ago the Murray City Council undertook a vigorous
      effort to encourage community and religious leaders, representative of
      the diverse culture of the Salt Lake Valley, to participate in this
      meaningful segment of our meetings.
             We would, therefore, invite you to be a part of this program by
      consenting to offer an invocation, appropriate message or inspirational
      thought at one of our meetings.

Id. at 201. According to the City, participants in the reverence period “have

included representatives from Zen Buddhists, Native Americans, a cross section of

Judeo-Christian congregations, Quakers, and others.” Appellant’s App. at 163.

The invitations contain no restrictions on the messages that speakers can give.

Further, at no time (save for this case) has the City ever asked a particular speaker

                                          -5-
about content of a message or conveyed any guidelines to a particular speaker. In

fact, City Attorney Hall testified:

      I don’t have a clue . . . what the Murray Baptist Church is going to say
      just as I did not have a clue as to what the Zen Buddhists were going
      to say. I don’t know what the religious beliefs are. I don’t know the
      particular tenants of their religious beliefs. I don’t have a clue what
      they’re going to say.

Appellee’s App. at 183. Hall also testified:

      If a person wants to talk in the Buddhist faith about exhortation and
      blessings, that’s fine. If the Navajos want to come in and do what
      they do. If the Catholics and Buddhists and Baptists and Seventh Day
      Adventists come in and don’t mock city practices and policies and
      procedures during that period of time, we’re not going to determine
      what their expression of thought or their statements are going to be.

Id. at 157. Finally, prior to Snyder’s request to speak, the City had not developed

any guidelines concerning the content of messages that could be given during the

reverence period.

      Taken together, I believe these uncontroverted facts demonstrate an intent on

the part of the City to designate the reverence period as a public forum open to

members of the community for the purpose of conveying religious and/or

inspirational messages. In reaching this conclusion, I find significant (1) the

City’s goal of having a broad cross-section of the community speak during the

reverence period, and (2) the lack of restrictions placed on reverence period

speakers. To me, both of these factors indicate the City’s intent to treat the

reverence period as a setting open to all community members, regardless of

                                          -6-
religious viewpoint. I also find significant the fact that the reverence period

occurs within the broader framework of the City Commission meetings, which

themselves are designated public forums given the fact that citizens are encouraged

to attend and voice their opinions. See Grossbaum v. Indianapolis-Marion County

Bldg. Auth., 100 F.3d 1287, 1296 (7th Cir. 1996) (“Legally created public fora are

fora such as school board meetings”), cert. denied 117 S. Ct. 1822 (1997); compare

Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981) (in considering whether

university meeting facilities were a public forum, the Court emphasized the campus

possessed many characteristics of a traditional public forum), with Cornelius, 473

U.S. at 805 (in concluding the combined Federal Campaign charity drive was a

nonpublic forum, the Court emphasized the federal workplace, where the drive

took place, was a nonpublic forum). With regard to this latter point, a finding that

the reverence period is a designated public forum is not inconsistent with the

“normal uses” of the overall setting (i.e., the City Commission meetings).

      The conclusion that the reverence period is a designated public forum for

private religious/inspirational expression demonstrates that the City’s ability to

control the content of messages conveyed during the reverence period is much

more limited than suggested by the majority. “For the State to enforce a content-

based exclusion” when dealing with access to any type of public forum, “it must

show that its regulation is necessary to serve a compelling state interest and that it


                                          -7-
is narrowly drawn to achieve that end.” Perry, 460 U.S. at 45. Although

“compliance with the Establishment Clause is a state interest sufficiently

compelling to justify content-based restrictions on speech,” Pinette, 515 U.S. at

761-62, no such interest was present here. Specifically, because Snyder could not

have reasonably been perceived as speaking on behalf of the City, there was no

necessity for the City to edit his prayer or deny him the opportunity to speak based

on the content of his proposed prayer. 2 See Pinette, 515 U.S. at 763 (state could

not justify content-based restrictions because there was no potential Establishment

Clause violation); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508

U.S. 384, 395 (1993) (same); Widmar, 454 U.S. at 276 (same).



       2
         Even if the reverence period is considered a nonpublic forum, I do not
believe the speakers were speaking on behalf of the City. Rather, for many of the
reasons already outlined, I believe the City chose to allow private citizens access
to the forum to speak on the subject matter of religion and spirituality. See
Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993)
(school district chose to allow private citizens access to nonpublic forum for wide
variety of social, civic, and recreational purposes); see also Summum, 130 F.3d at
914-19 (discussing nonpublic forums which have been opened for limited access
to public). Thus, the only way the City could have properly rejected Snyder is if
its decision was “reasonable in light of the purpose served by the forum and [was]
viewpoint neutral.” Cornelius, 473 U.S. at 806 (discussing restrictions on access
to nonpublic forum); see also Grossbaum v. Indianapolis-Marion Bldg. Auth., 63
F.3d 581, 587 (7th Cir. 1995). I do not believe the denial of access to the forum
would have been reasonable if it was based on concern about a potential
Establishment Clause violation, nor do I believe the City Attorney’s stated
reasons for the denial were reasonable. Rather, I believe the uncontroverted
evidence indicates Snyder was denied access solely to suppress the point of view
he espoused in his tendered prayer. Cornelius, 473 U.S. at 806.

                                         -8-
      Ultimately, I believe the City overstepped its bounds and violated the

Establishment Clause by rejecting Snyder’s request to speak based on its distaste

for the content of his tendered prayer. “[T]he [Establishment Clause’s] guarantee

of neutrality is respected, not offended, when the government, following neutral

criteria and evenhanded policies, extends benefits to recipients whose ideologies

and viewpoints, including religious ones, are broad and diverse.” Rosenberger,

515 U.S. at 839. Here, however, “[t]he neutrality commanded of the State by the

separate Clauses of the First Amendment was compromised by the [City’s] course

of action.” Id. at 845. In particular, the City’s action evinced a hostility toward

Snyder’s religious viewpoints, and thereby “undermine[d] the very neutrality the

Establishment Clause requires.” Id. Stated in different terms, the City’s action

clearly had the effect of disapproving of Snyder’s religious viewpoints. 3 See

County of Allegheny, 492 U.S. at 592-93.

      In the end, the City cannot have it both ways: it cannot purport to open the

reverence period to a broad cross-section of the community without restrictions,

while at the same time limiting a particular speaker’s access to the reverence

period because of its distaste for the speaker’s proposed message. Thus, I believe


       3
         In my dissenting opinion from the original panel decision, I outlined in
greater detail why I believed the City’s actions violated the test set forth in
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). 124 F.3d at 1358-60. I
continue to stand by my earlier analysis, but find it unnecessary to incorporate all
of it into this opinion.

                                          -9-
it must either allow Snyder the opportunity to give his tendered prayer or cease its

currently-formatted reverence period altogether.

                                          II.

      Even assuming, arguendo, I were to accept the majority’s assumption that

the reverence period is a nonpublic forum in which the speakers offer prayers and

messages on behalf of the City, I could not fully join the majority opinion. In

particular, I believe the majority has adopted an improper analytical framework

that requires it to do precisely what the Supreme Court in Marsh was loathe to do:

sit as a board of censors on an individual prayer. Further, I am not convinced the

majority’s framework is useful for determining whether the City acted with

improper motives.

      Only a minor portion of Marsh touches on the propriety of selecting

government-sanctioned speakers for invocational prayer sessions. In particular, the

appellant challenged the fact that the Nebraska legislature, in carrying out its

practice of invocational prayer, had selected a chaplain of only one denomination

over a period of approximately sixteen years. The Court rejected this challenge,

stating:

      We, no more than members of the Congresses of this century, can
      perceive any suggestion that choosing a clergyman of one
      denomination advances the beliefs of a particular church. To the
      contrary, the evidence indicates that [the chaplain] was reappointed
      because his performance and personal qualities were acceptable to the
      body appointing him. [He] was not the only clergyman heard by the

                                         - 10 -
      Legislature; guest chaplains have officiated at the request of various
      legislators and as substitutes during [his] absences. Absent proof that
      the chaplain’s reappointment stemmed from an impermissible motive,
      we conclude that his long tenure does not in itself conflict with the
      Establishment Clause.

463 U.S. at 793-94. Although the quoted language does not provide us with a

precise framework to follow in determining the constitutional propriety of a

particular selection (or rejection) decision, it nevertheless provides us with two

important principles. First, it expressly indicates we should focus on evidence

pertaining to the legislative body’s reasons for selecting or rejecting a particular

speaker. Second, in analyzing such evidence, the ultimate question is whether or

not the selection or rejection “stemmed from an impermissible motive.” 463 U.S.

at 793.

      In establishing its framework for reviewing Snyder’s claim, the majority

acknowledges the second principle, but effectively ignores the first. The majority

begins by acknowledging that, in accordance with Marsh, a selection decision

cannot stem from an impermissible motive. Based upon this principle, the majority

then concludes “there is no ‘impermissible motive’ when a legislative body or its

agent chooses to reject a government-sanctioned speaker because the tendered

prayer falls outside the long-accepted genre of legislative prayer.” From this

conclusion, the majority makes the insupportable leap in logic that the issue of

motive can be decided solely by focusing on the content of the proposed prayer.


                                         - 11 -
Ultimately, because the majority believes Snyder’s proposed prayer falls outside

the boundaries of acceptable legislative prayer, it concludes the City acted with

permissible motives in rejecting the prayer.

      The majority’s analytical framework runs counter to Marsh. Marsh provides

prayer content is simply not an issue for the federal judiciary unless a claim is

made that an entire practice of legislative prayer has been “exploited to proselytize

or advance any one, or to disparage any other, faith or belief.” Id. at 794-95. No

such claim has been made here. Thus, by adopting the framework outlined above,

the majority ignores the Supreme Court’s directive and effectively opens the door

to future judicial review of legislative prayers 4 outside the narrow confines

outlined in Marsh.

      Additionally, the majority’s analytical framework simply does not do what it

purports to do, i.e., ferret out evidence of motive. The fact a reviewing court

concludes a tendered prayer is or is not “constitutionally acceptable” says nothing

about the motivations of the legislative body that actually rejected the prayer.

Indeed, it is entirely conceivable that what turns out to be a “constitutionally

unacceptable” prayer could have been rejected by a legislative body based solely

on its distaste for the proposed speaker’s religious beliefs. On the flip side, if a



       4
         I use the term “legislative prayers” to refer to prayers given on behalf of
a legislative body.

                                         - 12 -
legislative body rejects a proposed prayer solely because of concern for complying

with Marsh, the majority would nevertheless apparently infer impermissible

motives if it concludes the prayer is “constitutionally acceptable.” Both of these

examples demonstrate the majority’s framework requires absolute perfection on the

part of those legislative bodies that attempt to conform their own prayers to the

dictates of Marsh. 5 For these reasons, I believe the content of a tendered prayer is,

at best, but one piece of evidence pertaining to the issue of motive.

                                         III.

      I would reverse the district court’s grant of summary judgment and remand

Mr. Snyder’s Establishment Clause claim for further proceedings.

      SEYMOUR, Chief Judge, joins in the foregoing dissent.




       5
         I again emphasize that my criticisms are confined to those situations
involving prayer by government speakers. Where, as here, we are dealing with
private expression, absolute perfection is required because a private party’s free
speech rights are affected by the government’s decision. See, e.g., Pinette, 515
U.S. at 763 (rejection of private expression cannot be based on government’s
incorrect conclusion concerning potential Establishment Clause problem).

                                         - 13 -
                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        SEP 10 1997
                     UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                             Clerk
                                 TENTH CIRCUIT



 TOM SNYDER,

       Plaintiff - Appellant,
 vs.                                                   No. 96-4087

 MURRAY CITY CORPORATION, a
 municipal corporation; H. CRAIG
 HALL, City Attorney for Murray City
 Corporation,

       Defendants - Appellees.


 UNITED STATES OF AMERICA,

       Intervenor.




          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF UTAH
                        (D.C. No. 94-CV-667)


Brian M. Barnard (Andrea Garland and the Utah Legal Clinic, with him on the
briefs), Cooperating Attorneys for Utah Civil Rights & Liberties Foundation, Inc.,
Salt Lake City, Utah, for Plaintiff-Appellant.

Allan L. Larson (Richard A. Van Wagoner, with him on the brief), Snow,
Christensen & Martineau, Salt Lake City, Utah, for Defendants-Appellees.


Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.
KELLY, Circuit Judge.



      Plaintiff Tom Snyder appeals from the district court’s grant of summary

judgment in favor of Defendants Murray City and H. Craig Hall, the City

Attorney of Murray City. In his 42 U.S.C. § 1983 action, Mr. Snyder alleged that

Murray City’s refusal to permit him to speak during the reverence portion of a

Murray City Council meeting violated his rights under the United States

Constitution. He also alleged violations of the Religious Freedom Restoration

Act and the Utah Constitution. The talk Mr. Snyder desired to present—which he

characterizes as a prayer and the City characterizes as a diatribe against City

officials 1—requests the “Mother in Heaven” to cause the cessation of prayers at

public meetings. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm in

part and reverse in part.




      1
              We recognize that the parties disagree over whether Mr. Snyder’s
proposed speech was a prayer and whether Murray City denied his request. The
City’s letter to Mr. Snyder informed him that, until his “proposed prayer satisfies
[the City’s] guidelines, an invitation to participate in our opening ceremonies will
not be forthcoming.” The City also advised Mr. Snyder that he could request a
place on the meeting agenda or voice his thoughts during the citizen comment
portion of the meeting. For ease of reference, however, we adopt the terminology
used by the parties and refer to Mr. Snyder’s talk as a prayer and the City’s action
as a denial of his request to deliver his prayer.

                                         -2-
                                     Background

      Since 1982, Murray City has opened its city council meetings with a

reverence period, during which an invocation or devotional is presented. The

reverence portion of the meetings is designed to encourage lofty thoughts,

promote civility, and cause the participants to set aside other matters in order to

focus on the topics to be addressed at the meeting. The city council extends

invitations to speak during the reverence period to individuals representing a

broad cross-section of religious faiths, and invocations or devotionals have been

presented at the Murray City Council meetings by Christians, Navajos, Quakers,

and Zen Buddhists. One speaker simply requested a moment of silence. Mr.

Snyder, who does not reside in Murray City, wrote to the City, advising of his

interest in presenting a prayer at a council meeting. Mr. Snyder attached his two-

page proposed “Opening Prayer” to the letter. 2 Mr. Snyder’s request was part of


      2
             Mr. Snyder’s proposed prayer read as follows:

             OUR MOTHER, who art in heaven (if, indeed there is a
      heaven and if there is a God that takes a woman’s form) hallowed be
      thy name, we ask for thy blessing for and guidance of those that will
      participate in this meeting and for those mortals that govern the state
      of Utah;
             We fervently ask that you guide the leaders of this city, Salt
      Lake County and the State of Utah so that they may see the wisdom
      of separating church and state and so that they will never again
      perform demeaning religious ceremonies as part of official
      government functions;
                                                                       (continued...)

                                         -3-
his personal campaign to stop prayers at public meetings, waged in response to a

recent decision of the Supreme Court of Utah which upheld Salt Lake City’s

practice of opening public meetings with a prayer.

      Although Mr. Snyder was reared as a member of the Church of Jesus Christ

of Latter-Day Saints, he is no longer a practicing member of that faith, or any


      2
       (...continued)
             We pray that you prevent self-righteous politicians from mis-
      using the name of God in conducting government meetings; and, that
      you lead them away from the hypocritical and blasphemous deception
      of the public, attempting to make the people believe that bureaucrats’
      decisions and actions have thy stamp of approval if prayers are
      offered at the beginning of government meetings;
             We ask that you grant Utah’s leaders and politicians enough
      courage and discernment to understand that religion is a private
      matter between every individual and his or her deity; we beseech thee
      to educate government leaders that religious beliefs should not be
      broadcast and revealed for the purpose of impressing others; we pray
      that you strike down those that mis-use your name and those that
      cheapen the institution of prayer by using it for their own selfish
      political gains;
             We ask that the people of the State of Utah will some day learn
      the wisdom of the separation of church and state; we ask that you
      will teach the people of Utah that government should not participate
      in religion; we pray that you smite those government officials that
      would attempt to censor or control prayers made by anyone to you or
      to any other of our Gods;
             We ask that you deliver us from the evil of forced religious
      worship now sought to be imposed upon the people of the State of
      Utah by the actions of mis-guided, weak and stupid politicians, who
      abuse power in their own self-righteousness;
             All of this we ask in thy name and in the name of thy son (if in
      fact you had a son that visited earth) for the eternal betterment of all
      of us who populate the Great State of Utah.
             Amen.

                                        -4-
other organized religion. He testified that he considers himself deeply religious,

but is not yet sure what his beliefs are, and leans towards agnosticism. Mr.

Snyder cites the Book of Mormon and the Gospel of St. Matthew as the religious

bases for his prayer. He believes that prayer should be a private matter between

an individual and his or her God, and that Jesus Christ opposed public prayers,

including those before government meetings. Although Mr. Snyder testified at his

deposition that he believes in God, he also testified that he questions God’s

existence.

      On behalf of Murray City, Mr. Hall responded to Mr. Snyder’s request and

informed him that his proposed prayer was unacceptable because it did not follow

the guidelines for prayers which the City had previously provided to Mr. Snyder.

Although the council had no formal, written policy, Mr. Snyder had been

informed by letter prior to the submission of his proposed prayer that “the purpose

of the ‘prayer’ is to allow individuals [the] opportunity to express thoughts, leave

blessings, etc. It is not a time to express political views, attack city policies or

practices or mock city practices or policies.” Mr. Snyder had also been advised

that comments on City practices and policies could be made during city council

meetings either by requesting a place on the meeting agenda or by speaking

during the citizen comment portion of the meeting. The citizen comment portion

of the meeting immediately follows the reverence portion.


                                          -5-
      Mr. Snyder filed this § 1983 action upon receiving in the mail Murray

City’s denial of his request to give a prayer. He alleges that the City’s refusal of

his request violated his rights under the United States and Utah Constitutions to

free exercise of his religion and to due process. Mr. Snyder also alleges

violations of the Establishment Clause of both Constitutions, and the Religious

Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb-2000bb-4. Both

Defendants and Mr. Snyder moved for summary judgment, which the district court

granted in favor of the Defendants and denied to Mr. Snyder, who brings this

appeal.


                                     Discussion

      Our review of questions of constitutional law and dispositions on summary

judgment is de novo. United States v. One Parcel Property, 106 F.3d 336, 338

(10th Cir. 1997).


                    I. Claims Under the United States Constitution

      Mr. Snyder brings this action under 42 U.S.C. § 1983. To prevail in a

§ 1983 claim, a plaintiff must establish that the defendants, while acting under

color of state law, deprived him of a right, privilege, or immunity secured by the

United States Constitution. We therefore consider whether Murray City’s denial

of Mr. Snyder’s request to deliver his proposed prayer during the reverence


                                         -6-
portion of a city council meeting violated his rights under the Free Exercise,

Establishment, or Due Process Clauses of the Federal Constitution.

      In his briefs, Mr. Snyder relies upon case law interpreting the Free Speech

Clause of the First Amendment. Since he did not allege a violation of his right to

free speech, however, we need not consider the arguments raised under that body

of law.


                               A. Free Exercise Claim

      The first questions in any free exercise claim are whether the plaintiff’s

beliefs are religious in nature, and whether those religious beliefs are sincerely

held. United States v. Seeger, 380 U.S. 163, 185 (1964). Only beliefs which are

religious in nature are protected by the Free Exercise Clause. Nevertheless,

“religious beliefs need not be acceptable, logical, consistent, or comprehensible to

others in order to merit First Amendment protection.” Thomas v. Review Bd. of

the Ind. Employment Sec. Div., 450 U.S. 707, 714 (1981).

      Although Mr. Snyder swore out affidavits attesting to his sincerity, the

district court held that he was not sincere in the beliefs espoused in his proposed

prayer. The district court reached this conclusion based upon the text of Mr.

Snyder’s prayer, which the court found to contain political instead of religious

content, and on Mr. Snyder’s deposition testimony that he was unsure of his

religious beliefs. The inquiry into the sincerity of a free-exercise plaintiff’s

                                          -7-
religious beliefs is almost exclusively a credibility assessment, see Seeger, 380

U.S. at 186; Mosier v. Maynard, 937 F.2d 1521, 1526 (10th Cir. 1991), and

therefore the issue of sincerity can rarely be determined on summary judgment.

This may well be, however, one of those very rare cases in which the plaintiff’s

beliefs are “so bizarre, so clearly nonreligious in motivation” that they are not

entitled to First Amendment protection. Thomas, 450 U.S. at 715.

      Regardless, we need not decide whether Mr. Snyder’s beliefs are religious

in nature nor whether they are sincerely held. Nor need we address Mr. Snyder’s

argument that summary judgment was inappropriate. Even assuming that Mr.

Snyder is possessed of sincerely held religious beliefs, as articulated in his

proposed prayer, we find that Mr. Snyder’s claim is not cognizable under the Free

Exercise Clause. In fact, Mr. Snyder’s arguments evince a fundamental

misconception about the rights bestowed by the Clause.

      The Free Exercise Clause is one of the Bill of Rights’s “thou shall not”

prohibitions against certain government actions. The Clause “is written in terms

of what the government cannot do to the individual, not in terms of what the

individual can exact from the government.” Sherbert v. Verner, 374 U.S. 398,

412 (1963) (Douglas, J., concurring). To protect “the right to believe and profess

whatever religious doctrine one desires,” Employment Div. v. Smith, 494 U.S.

872, 877 (1990), the Free Exercise Clause prohibits the government from


                                         -8-
impermissibly burdening an individual’s free exercise of religion. However,

“[t]he Free Exercise Clause simply cannot be understood to require the

Government to conduct its own internal affairs in ways that comport with the

religious beliefs of particular citizens.” Bowen v. Roy, 476 U.S. 693, 699 (1986).

      The Free Exercise Clause does not guarantee any person the right to pray

whenever and wherever he chooses. Nor does the Clause guarantee a person the

right to speak during portions of public meetings set aside for devotional or

invocational purposes. Suggestion to the contrary is inconsistent with both

common sense and constitutional doctrine. Cf. Heffron v. International Soc’y for

Krishna Consciousness, 452 U.S. 640, 647 (1981) (“[T]he First Amendment does

not guarantee the right to communicate one’s views at all times and places or in

any manner that may be desired.”). We find no violation of the Free Exercise

Clause.


                          B. Establishment Clause Claim

      Mr. Snyder claims that Murray City’s denial of his request to speak at the

reverence portion of its city council meeting violated the Establishment Clause.

This argument also misapprehends the protections afforded by that Clause. The

Establishment Clause assures that the government will not favor a particular

religion, nor religion over nonreligion. Board of Educ. of Kiryas Joel Village

Sch. Dist. v. Grumet, 512 U.S. 687, 703 (1994). Like the Free Exercise Clause,

                                        -9-
the Establishment Clause is a prohibition against certain government actions. The

Establishment Clause does not give any individual the right to establish his

religion by guaranteeing an opportunity to pray during public meetings, and

certainly does not require Murray City to permit all comers to speak during the

reverence portion of its city council meetings.

      In Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court upheld the

constitutionality of opening governmental meetings with prayers. The Court

observed that the “opening of sessions of legislative and other deliberative public

bodies with prayer is deeply embedded in the history and tradition of this

country.” Id. at 786. “To invoke Divine guidance on a public body entrusted

with making the laws is not . . . an ‘establishment’ of religion or a step toward

establishment . . . .” Id. at 792.

      Mr. Snyder does not argue that Murray City’s practice of opening its city

council meetings with prayer violates the Establishment Clause. Marsh appears to

foreclose such an argument. Instead, Mr. Snyder argues that Murray City violated

the Establishment Clause by permitting others to pray, yet denying him the same

opportunity. Marsh suggests that a governmental body’s practices in selecting

persons to deliver prayers at public meetings may violate the Establishment

Clause if the selections are the product of impermissible motives. Id. at 793. The

record in this matter is devoid of evidence suggesting that Murray City had


                                        - 10 -
impermissible motives either in extending invitations to speak, or in denying Mr.

Snyder’s request. 3 Similarly absent is any suggestion that Murray City used the

reverence portion of its city council meetings to advance a particular faith or to

disparage any faith or belief. See id. at 794-95. In contrast, Mr. Snyder’s prayer

itself disparages those who believe in the propriety of public prayer. Clearly, the

content of Mr. Snyder’s prayer is in conflict with the City’s legitimate objectives

in presenting such prayers. Marsh controls the issue before us, and we find no

violation of the Establishment Clause.


                               C. Due Process Claim

      Because Mr. Snyder’s First Amendment claims are without merit, his claim

under the Federal Due Process Clause also fails. It is beyond argument that



      3
              Conceding that no actual evidence of improper motive exists, the
dissent attempts to create a material issue of fact sufficient to justify a trial by
citing a collection of supposed inferences. Dissent at 9-10. A mere
demonstration that the City denied Mr. Snyder’s request because of the content of
his prayer does not prove a violation of the Establishment Clause. To survive the
motion for summary judgment, Mr. Snyder was required to produce evidence from
which reasonable jurors could find by a preponderance of the evidence that the
City had an impermissible motive, Anderson v. Liberty Lobby, 477 U.S. 242, 252
(1986); in other words, that the City denied Mr. Snyder’s request because it
preferred another religion, or nonreligion, over his religion. Genuine issues of
material facts may be founded upon inferences; however, those inferences must be
reasonable inferences, and must amount to more than a scintilla of evidence. Id.;
see also Black v. Baker Oil Tools, 107 F.3d 1457, 1460 (10th Cir. 1997). Even
assuming that a collection of inferences can create a genuine issue of material
fact, this record cannot reasonably be considered to have created such an issue.

                                         - 11 -
process is due only when the government terminates a protected interest. Board

of Regents v. Roth, 408 U.S. 564, 569 (1972). Mr. Snyder was not deprived of

any protected interest and therefore he had no entitlement to any sort of process.


                   II. Religious Freedom Restoration Act Claim

      Mr. Snyder appeals from the district court’s adverse decision on his RFRA

claims. Since this case was argued, however, the Supreme Court has held RFRA

unconstitutional. City of Boerne v. Flores, 117 S. Ct. 2157 (1997). We therefore

need not consider the merits of Mr. Snyder’s RFRA claims.


                      III. Claims Under the Utah Constitution

      Mr. Snyder also alleges that the City’s denial of his request violates the

Free Exercise, Establishment, and Due Process Clauses of the Utah Constitution.

Although the district court did not reach the merits of these state-law claims, it

ruled against Mr. Snyder, finding that the provisions of the Utah Constitution

were not “self-executing” and therefore did not provide a cause of action.

      We have held that when federal claims are resolved prior to trial, the

district court should usually decline to exercise jurisdiction over pendent state law

claims and allow the plaintiff to pursue them in state court. See Ball v. Renner,

54 F.3d 664, 669 (10th Cir. 1995). We believe this general practice is particularly

appropriate in this case.


                                         - 12 -
         The Supreme Court of Utah recently rejected a challenge to Salt Lake

City’s practice of opening its city council meetings with a prayer. Society of

Separationists v. Whitehead, 870 P.2d 916 (Utah 1993). While that challenge was

brought under the provision of Utah’s Constitution which prohibited the

expenditure of public monies for religious purposes and not under its Free

Exercise or Establishment Clauses, the Supreme Court of Utah stated in Society

of Separationists that it would not follow federal constitutional models in

interpreting the Religion Clauses of the Utah Constitution. Id. at 930, 931 n.36.

Given that the interpretation of those Clauses appears to be undergoing an

evolution, and given the complex issues of state law presented, we decline to

exercise supplemental jurisdiction over Mr. Snyder’s state-law claims.

         We therefore reverse as to the state-law claims and remand them to the

district court with instructions to dismiss without prejudice.

         AFFIRMED in part, REVERSED in part, and REMANDED to the district

court.




                                         - 13 -
No. 96-4087, Snyder v. Murray City Corporation

Briscoe, Circuit Judge, concurring and dissenting:

                           Federal Free Exercise Claim

      I concur with the majority's conclusion that Snyder failed to establish a

federal free exercise claim. I agree that the Free Exercise Clause did not

guarantee Snyder the right to give his prayer as the opening prayer at city council

meetings, and that by excluding Snyder's prayer the City did not impermissibly

burden Snyder's right to believe and profess his religious doctrines. His claim is

not cognizable under the Free Exercise Clause.

      However, I disagree with any suggestion that Snyder's claim could be

rejected at the summary judgment stage on the ground that his beliefs are not

religious in nature. In reviewing the grant of summary judgment, we examine the

factual record and reasonable inferences drawn from it in the light most favorable

to the party opposing summary judgment. Kaul v. Stephan, 83 F.3d 1208, 1212

(10th Cir. 1996). The record contains evidence that the beliefs expressed in

Snyder's prayer have a religious basis, and whether religious beliefs are sincerely

held is a question of fact. Mosier v. Maynard, 937 F.2d 1521, 1523 (10th Cir.

1991). See United States v. Seeger, 380 U.S. 163, 176 (1965). The record does

not support a conclusion that the beliefs expressed by Snyder are so bizarre or so

clearly nonreligious in nature that the district court could properly resolve the

issue on summary judgment.
                    Religious Freedom Restoration Act Claim

      I concur with the majority's conclusion that after City of Boerne v. Flores,

117 S. Ct. 2157 (1997), we need not consider the merits of Snyder's Religious

Freedom Restoration Act claim. The Court held in Boerne that RFRA's

restrictions on state and local government actions affecting religion are

unconstitutional.

                         Claims under Utah Constitution

      I also concur with the majority's conclusion that it was an abuse of

discretion for the district court to exercise supplemental jurisdiction to decide the

delicate state constitutional issues. We cannot predict from Society of

Separationists, Inc. v. Whitehead, 870 P.2d 916 (Utah 1993), how the Utah

Supreme court would decide the state constitutional issues in this case.

                      Federal Establishment Clause Claim

      I respectfully dissent from the majority's conclusion that Snyder's federal

Establishment Clause claim is precluded by Marsh v. Chambers, 463 U.S. 783

(1983). There are significant differences between this case and Marsh. The sole

issue in Marsh was whether the Nebraska Legislature's practice of opening each

day's session with a prayer by a chaplain paid by the state violated the

Establishment Clause. Using a purely historical analysis, the Court concluded the

practice did not establish religion in violation of the First Amendment. The Court


                                         -2-
reasoned the practice did not establish religion within the meaning of the First

Amendment because the First Congress that drafted the Bill of Rights hired

chaplains to give prayers at sessions of Congress. The practice of opening

legislative sessions with prayer by a chaplain paid by the government is not an

establishment of religion within the meaning of the First Amendment, but "is

simply a tolerable acknowledgment of beliefs widely held among the people of

this country." 463 U.S. at 792.

      Here, the City did not hire or appoint a chaplain as its official religious

spokesperson, which was the sole practice at issue in Marsh. Instead, the City

sponsored a forum for private individuals to engage in prayer at city council

meetings and excluded Snyder from that forum because of the content of his

prayer. Snyder does not challenge the City's practice of sponsoring prayer at its

council meetings. He challenges only his exclusion from the City-sponsored

forum for prayer based on the unacceptable content of his proposed prayer.

      Marsh is distinguishable from this case for three reasons. First, the

historical record does not support censorship of prayer by private individuals at

the start of government meetings. Second, prayer by private individuals at the

start of meetings of governmental bodies is fundamentally different from prayer

by a chaplain who is appointed as the official paid religious spokesperson for the




                                          -3-
governmental body. Third, the record contains circumstantial evidence that the

City had impermissible motives for excluding Snyder's prayer.

      Although from Marsh we know the members of the First Congress who

drafted the First Amendment believed appointment of chaplains did not violate

the Establishment Clause, we simply do not know what they would have thought

about censorship of prayer at a government-sponsored forum for prayer by

individuals at the start of meetings of a legislative body. The censorship of

chaplains' prayers at government meetings does not find support in the actions of

the First Congress. Research reveals no historical record of the prayers offered

by the chaplains of the First Congress. The record of debates and proceedings in

the first eighteen congresses in the Annals of Congress do not include chaplains'

prayers 1 and, other than the decision of the First Congress to appoint two

chaplains of different denominations, one by each house to interchange weekly,

see 1 Annals of Congress 968, 1077, 1773, there appears to be no record of the

measures, if any, taken by Congress to control the content of such prayers.

      Marsh suggests that chaplains' prayers could be censored without violating

the Constitution. The Court suggested that to be lawful, a legislative chaplain's

prayer must be nonsectarian and non-proselytizing:


      1
       Nor does the Congressional Globe, which covers the mid-19th century.
The opening prayers of congressional chaplains were not recorded in the
Congressional Record from its start in 1873 until the early twentieth century.

                                         -4-
      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.

463 U.S. at 794-95.

      Conversely, the content of sectarian, proselytizing prayer by a legislative

chaplain would be of concern to the courts as a possible establishment of religion.

See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 603

(1989). Such prayer by a legislative body's official religious spokesperson could

reasonably be viewed as governmental endorsement of a particular religion in

violation of the Establishment Clause. Consequently, it may not violate the

Establishment Clause for a government official to determine whether a chaplain's

prayers are sufficiently nonsectarian and nonproselytizing in order to avoid

violating the Establishment Clause. Censorship or control of the content of a

legislative chaplain's prayers could be justified only by the need to avoid violating

the Establishment Clause by keeping the prayers within the limits allowed by

Marsh.

      It is true Snyder's proposed prayer was proselytizing in nature because it

was intended to convert listeners to his point of view on the impropriety of prayer

at a governmental function. It is also true that although Snyder was not a member

of any organized religious sect, his prayer was sectarian in the sense that it


                                          -5-
represented his particular beliefs and did not attempt to encompass shared beliefs.

However, Snyder is not a chaplain hired or appointed to be the City's official

religious spokesperson. The prayers at the start of the city council meetings are

not offered by a chaplain, but by members of the public representing a broad

range of religious beliefs. The Establishment Clause's guarantee of government

neutrality toward religion is not offended, but respected, when the government,

following neutral criteria and evenhanded policies, gives access to a forum to

recipients whose ideologies and viewpoints, including religious ones, are broad

and diverse. See Rosenberger v. Rector and Visitors of the University of

Virginia, 515 U.S. 819, 115 S. Ct. 2510, 2521 (1995). See also Board of

Education v. Mergens, 496 U.S. 226, 248-49 (1990); Widmar v. Vincent, 454 U.S.

263, 277 (1981). If the City permitted Snyder to offer his prayer, a reasonable

observer aware of the City's practice of inviting persons representing a broad

range of religious and nonreligious viewpoints to give invocations would not

regard Snyder's prayer as representing the City's endorsement of his particular

beliefs. Consequently, permitting the prayer would not have violated the

Establishment Clause. See Rosenberger, 115 S.Ct. at 2523; Capitol Square

Review and Advisory Board v. Pinette, 515 U.S. 753, 115 S.Ct. 2440, 2450

(1995); Mergens, 496 U.S. at 2372; see also Capitol Square, 115 S.Ct. at 2455

(O'Connor, J., concurring); County of Allegheny, 492 U.S. at 636 (O'Connor, J.,


                                         -6-
concurring). Because permitting Snyder's prayer would not have violated the

Establishment Clause, justification for permitting governmental censorship or

control of the content of chaplain's prayers suggested by Marsh is not present

here.

        Marsh also suggests that a governmental body's selection of persons to

deliver prayers at its meetings may violate the Establishment Clause if the

selections are the product of impermissible motives. I disagree with the

majority's conclusion that the record is devoid of evidence suggesting the City

had impermissible motives in denying Snyder's request to offer his prayer. I do

not, as footnote 3 of the majority opinion asserts, concede there is no actual

evidence of impermissible motive. There is no direct evidence, but there is

circumstantial evidence of impermissible motive. Direct evidence of

discriminatory intent is rarely available, and it is not a novel proposition to say

that intent may be proved by circumstantial evidence. See, e.g., Denison v.

Swaco Geolographic Co., 941 F.2d 1416, 1420 (10th Cir. 1991). Viewed in the

light most favorable to Snyder, the record supports an inference that the

guidelines were drafted specifically to exclude Snyder's prayer because its content

was offensive.

        Snyder wrote to the City in March 1994, expressing interest in presenting a

prayer at a council meeting and asking if there were any guidelines or restrictions


                                          -7-
on such prayers. Snyder received no reply and wrote again in May, again

expressing interest in presenting a prayer and inquiring about any guidelines or

restrictions. His request was forwarded to H. Craig Hall, City Attorney of Murray

City, who answered Snyder's letter on June 1, 1994.

      The City had no formal, written guidelines or restrictions on prayers before

council meetings until Snyder asked if there were any. Persons asked to give

invocations were simply asked to give an "invocation, appropriate message, or

inspirational thought." (Appellant's append. at 281.) According to Hall, since the

prayers began in 1982, a custom and practice of "positive, upbeat" prayers

"exhorting the City Council to do what they ought to do under their statutory

responsibilities" had developed. No one had ever attacked City policies or the

council during an invocation.

      By the time Snyder made his request, the City Council of Salt Lake City

had decided not to have prayer at the opening of council meetings rather than deal

with a request by Snyder that he be permitted to deliver a prayer virtually

identical to the prayer at issue in this case. Snyder's prayer was likely to offend a

great many people of a variety of Christian faiths on religious grounds. The

prayer questions the divinity of Jesus and the existence of heaven, and expresses a

belief that God may take the form of a woman. These views are controversial, to

say the least. Snyder's proposed prayer and the decision of the Salt Lake City


                                          -8-
Council were reported in the newspapers. Hall had read newspaper articles about

Snyder's request to present the prayer at a Salt Lake City Council meeting, and

this knowledge influenced his response to Snyder's request. The record

establishes that Hall believed (correctly, as it turned out) Snyder would propose a

similar or identical prayer to Murray City, and he drafted his response to exclude

the expected prayer. This response constituted the City's first written or unwritten

guidelines for prayer at council meetings. In his letter to Snyder, Hall stated that

acceptable invocations, inspirational messages, or prayers must not "express

political views, attack City policies or practices or mock City practices or

policies." (Appellant's append. at 10.) In his deposition, however, he said that

not all political views are prohibited; apparently only views critical of the council

or its policies and practices.

      Upon receiving Hall's response, Snyder sent a copy of his prayer and a

request that he be permitted to offer it at a council meeting. On June 30, Hall

responded with a letter stating the text of the proposed prayer was "unacceptable"

under the guidelines set out in his letter of June 1. (Appellant's append. at 14.)

The next month, the City invited the pastor of a local church to deliver an

invocation and the invitation made no mention of any guidelines or restrictions.

      The record would support inferences that the City had no restrictions on the

content of prayers until Snyder made his request, that the restrictions were drafted


                                          -9-
specifically to exclude Snyder's prayer, and that the restrictions were not applied

to others. Although there was evidence the City had the permissible motive of

promoting civility, and although there was no direct evidence of impermissible

motives, the circumstantial evidence is sufficient to support an inference that the

City acted to exclude Snyder's prayer because it found the content offensive.

Because the record contains evidence the City acted with impermissible motives,

Marsh cannot justify entry of summary judgment for the City.

      Because Marsh is not controlling, determining whether the City's exclusion

of Snyder based on the content of his prayer violates the Establishment Clause

requires further analysis. The long-standing test for determining whether

government action violates the Establishment Clause first set out in Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971), has been modified in recent cases.

Under the Lemon test, government action regarding religion violates the

Establishment Clause unless it meets three conditions: (1) It must have a secular

purpose; (2) its principal or primary effect must be one that neither advances nor

inhibits religion; and (3) it must not foster excessive government entanglement

with religion. The Court has in some cases recast the first and second parts of the

Lemon test to ask whether the challenged government action was intended to

endorse or disapprove, or has the effect of endorsing or disapproving, religion.

See County of Allegheny, 492 U.S. at 592-93; Lynch v. Donnelly, 465 U.S. 668,


                                         -10-
687-94 (1984) (O'Connor, J., concurring); Robinson v. City of Edmond, 68 F.3d

1226, 1229 (10th Cir. 1995), cert. denied 116 S.Ct. 1702 (1996). In Agostini v.

Felton, 117 S. Ct. 1997, 1997 WL 338583 *19-20 (1997), the Court explained that

entanglement is properly understood as an aspect of an inquiry into the effect of

the government action rather than as a separate factor in the test.

      The stated purpose for the City's exclusion of Snyder's prayer was secular--

to promote civility at city council meetings. However, as discussed above, the

record supports an inference that the City drafted its prayer guidelines and applied

them only to Snyder because it found the content of his prayer offensive. On this

record, whether the stated purpose was a pretext for impermissible motives is a

question of fact. The exclusion of Snyder's prayer also had the effect of

expressing disapproval of his religious views. A reasonable observer familiar

with the City's practices could conclude from exclusion of the prayer that the City

disapproved of Snyder's beliefs. See Chandler v. James, 958 F. Supp. 1550, 1566

(M.D. Ala. 1997).

      The City's censorship of the content of the prayer also constitutes excessive

entanglement. Governmental monitoring and control of the content of prayer

inevitably establishes religion by entangling the government in religious issues.

"[R]eview of prayers by government officials is one of the very practices which

the First Amendment was designed to prevent. The framers knew that


                                         -11-
government involvement with one's religious practices would inevitably taint the

sanctity of one's faith." Chandler, 958 F. Supp. at 1566 (holding statute

permitting student-led, nonsectarian, nonproselytizing prayer in public schools

unconstitutional). See also Ingbretsen v. Jackson Public School District, 88 F.3d

274, 279 (5th Cir.), cert. denied 117 S. Ct. 388 (1996). In Lee v. Weisman, 505

U.S. 577 (1992), the Court held prayer at a high school graduation by a clergyman

invited by the principal violated the Establishment Clause. The Court did not

apply the Lemon or endorsement tests, but focused on the susceptibility of high

school students to coercion. However, the Court in effect found excessive

entanglement in concluding the principal's control over the content of the prayer

offended the Establishment Clause. The Court concluded: "It is a cornerstone

principle of our Establishment Clause jurisprudence that '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 the

government,' and that is what the school officials attempted to do." 505 U.S. at

588 (quoting Engel v. Vitale, 370 U.S. 421, 425 (1962)).

      Similarly, in Sands v. Morongo Unified School Dist., 809 P.2d 809 (Cal.

1991), cert. denied 505 U.S. 1218 (1992), the court held a school district's attempt

to control the content of high school graduation prayers constituted excessive

entanglement. To allow preventive monitoring by the state of the content of


                                         -12-
religious speech inevitably leads to gradual official development of what is

acceptable public prayer. 'This result is as contrary to the requirements of the

Establishment Clause as is . . . composition of an official state prayer.'" 809 P.2d

at 818 (quoting Weisman v. Lee, 728 F. Supp. 68, 74 (D.R.I. 1990), aff'd 505 U.S.

577 (1992)).

      Courts that have rejected Establishment Clause challenges to state and local

legislative prayer have also recognized the risk of excessive entanglement even as

they upheld the practice in general. In Bogen v. Doty, 598 F.2d 1110 (8th Cir.

1979), the court rejected an Establishment Clause challenge to a county board's

practice of opening meetings with prayer by an unpaid local clergyman.

However, the court stated:

             We would be less than candid if we did not warn the county of the
      quagmire it is near. Up to the time of oral argument, all persons delivering
      invocations were members of the Christian faith. We have no reason to
      believe that persons of any religious persuasions have volunteered and been
      turned down by the board. If in the future this should occur the board will
      be in a very difficult position to defend against an allegation that it is
      excessively entangled in religion by giving public approval to some groups
      while denying it to others.

598 F.2d at 1114. In upholding a statute authorizing the use of public funds to

pay salaries of chaplains for the state legislature, the Massachusetts Supreme

Court noted:




                                         -13-
            There is no evidence that a great degree of government entanglement
      with religion is occasioned by the employment of legislative chaplains.
      The prayers offered are brief, the content unsupervised by the State, and
      attendance completely voluntary. There is no evidence that the State has
      become embroiled in any difficult decisions about which religions are to be
      represented or what sorts of invocations are to be offered.

Colo v. Treasurer and Receiver General, 392 N.E.2d 1195, 1200 (Mass. 1979)

(emphasis added). See Lincoln v. Page, 241 A.2d 799, 800 (N.H. 1968); Marsa v.

Wernik, 430 A.2d 888, 901 (N.J. 1981) (Pashman, J., concurring).

      Not all government oversight of religious activities violates the

Establishment clause--the entanglement must be excessive. Although mere

custodial oversight of religious activities at a government-sponsored forum does

not constitute excessive entanglement, see Mergens, 496 U.S. at 253, the

censorship of prayer goes far beyond mere custodial oversight, and strikes at the

heart of the Establishment Clause. Moreover, if the City applied its guidelines to

all prayers at council meetings, the censorship would be regular and frequent. In

Lemon, 403 U.S. at 620, the Court held state aid to parochial schools violated the

Establishment Clause because of the monitoring required to ensure that teachers

paid with public funds did not teach religion. "A comprehensive, discriminating,

and continuing state surveillance will inevitably be required to ensure that these

restrictions are obeyed and the First Amendment otherwise respected. . . . These

prophylactic contacts will involve excessive and enduring entanglement between

state and church." Here, if Murray City were to consistently apply its prayer

                                        -14-
guidelines and review all prayers before its meetings, the city attorney would have

to censor prayers approximately thirty-six times a year.

      I recognize that the invocation ceremony at the start of city council

meetings is not a public forum open for indiscriminate public speech by the

general public. It is a limited forum from which the government may exclude a

speaker who wishes to address a topic not encompassed within the purpose of the

forum, although it cannot exclude a speaker solely to suppress a point of view

espoused on an otherwise includible subject. Cornelius v. NAACP Legal Defense

and Educational Fund, Inc, 473 U.S. 788, 806 (1985). See Rosenberger, 115 S.Ct.

at 2516-17; Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S.

384, 392-94 (1993). The City limited the forum to speech appropriate for an

invocation ceremony. The stated purpose of the invocation ceremony was to

promote civility, solemnize the occasion, and encourage concentration on the

matters on the agenda by appropriate inspirational messages, including prayers.

When confronted with a prayer it deemed inappropriate for the invocation, the

City drew up guidelines prohibiting prayer expressing political views or attacking

or mocking City policies and practices. Such prayer would not tend to promote

civility or solemnize the occasion.

      The City could not properly exclude prayer attacking or mocking the city

council or its policies and practices unless it also excluded prayer defending or


                                         -15-
supporting the council and its policies and practices. Otherwise, it would be

allowing prayer on political matters, but from only one point of view. The

guidelines purported to exclude all prayer expressing political views, but the

record indicates some political views were permitted, and the record would

support an inference that the City drafted its guidelines specifically to exclude

Snyder's religious views.

      Moreover, even neutral exclusion of all prayer expressing political views

would violate the Establishment Clause. The City specifically invited religious

speech in the form of prayer. Neutral enforcement of the rule prohibiting prayer

expressing political views would entangle the City in religion by requiring

censorship of prayer. It could also convey a message of governmental

disapproval of religions whose adherents feel compelled to address political

issues.

                            Procedural Due Process Claim

      Because in my view, the district court erred in entering summary judgment

against Snyder's federal Establishment Clause claim, I also dissent from the

majority's conclusion that because Snyder was not deprived of any protected

interest, his due process claim fails.




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