FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SHELLEY RUBIN; MAUREEN I. No. 11-56318 FELLER, Plaintiffs-Appellants, D.C. No. 2:10-cv-04046- v. DSF-JC CITY OF LANCASTER, a municipal corporation, OPINION Defendant-Appellee. Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding Argued and Submitted November 8, 2012—Pasadena, California Filed March 26, 2013 Before: Alfred T. Goodwin and Diarmuid F. O’Scannlain, Circuit Judges, and Jack Zouhary, District Judge.* Opinion by Judge O’Scannlain * The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. 2 RUBIN V. CITY OF LANCASTER SUMMARY** Civil Rights The panel affirmed the district court’s bench trial judgment in favor of the City of Lancaster in plaintiffs’ 42 U.S.C. § 1983 action alleging that the city council’s practice of opening its meetings with privately led prayers effected an unconstitutional establishment of religion. The panel analyzed the City’s policy and practice of soliciting volunteers from local congregations to lead the invocations regardless of the faith, denomination, or other religious belief of the congregation. The panel held that a Bishop’s single reference to Jesus in an invocation did not amount to a violation of the Establishment Clause. The panel applied the history-based analysis set forth in Marsh v. Chambers, 463 U.S. 783 (1983), and concluded that neither the Supreme Court’s decision in Marsh, nor in County of Allegheny v. ACLU, 492 U.S. 573 (1989), categorically forbids sectarian references in legislative prayer so long as legislative prayer—whether sectarian or not—does not proselytize, advance, or disparage one religion or affiliate government with a particular faith. The panel also rejected plaintiffs’ contention that viewed in context, the City’s unwritten policy, practice and custom posed a First Amendment problem because the majority of city-council invocations have been Christian. The panel, focusing on the policy’s neutrality and the principle of private ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RUBIN V. CITY OF LANCASTER 3 choice, not on the number of volunteers from a particular sect, saw nothing in the record or in the prayer policy to indicate that the City had affiliated itself with Christianity. The panel stated that the City did not choose the content of the prayers or the denomination of the prayer-givers and the fact that most of the invocations had been Christian was merely a function of local demographics and the choice of religious leaders who responded to the City’s invitation for volunteers. COUNSEL Roger Jon Diamond, Santa Monica, California, for Plaintiffs–Appellants. Allison E. Burns (argued), David R. McEwen, and Joseph M. Adams, Stradling Yocca Carlson & Rauth, Newport Beach, California, for Defendant–Appellee. Dean R. Broyles, National Center for Law & Policy, Escondido, California, for amicus curiae National Center for Law & Policy. Steven W. Fitschen (argued) and Douglas E. Myers, National Legal Foundation, Virginia Beach, Virginia, for amicus curiae WallBuilders, Inc. Jen Monk, Advocates for Faith & Freedom, Murrieta, California; and Scott W. Gaylord, Elon University Law School, Greensboro, North Carolina, for amicus curiae Independence Law Center. 4 RUBIN V. CITY OF LANCASTER Deborah J. Dewart, Justice and Freedom Fund, Swansboro, North Carolina; and James L. Hirsen, Anaheim Hills, California, for amicus curiae Justice and Freedom Fund. Gary S. McCaleb and Brett Harvey, Alliance Defense Fund, Scottsdale, Arizona; and Kevin Theriot, Alliance Defense Fund, Leawood, Kansas, for amicus curiae Alliance Defense Fund. OPINION O’SCANNLAIN, Circuit Judge: We must decide whether a city council’s practice of opening its meetings with privately led prayers effects an unconstitutional establishment of religion. I A The City of Lancaster, California, typically begins each of its city-council meetings with a citizen-led invocation.1 For years, that practice had been merely an informal one.2 But on August 25, 2009, after receiving a cease-and-desist letter from the American Civil Liberties Union, the City 1 The relevant facts, which the district court found, are undisputed. 2 During the period in which the invocation practice was informal, “a substantial majority” of the prayers were “Christian in nature,” and some “contained explicitly sectarian religious references, including specific references to Jesus Christ.” RUBIN V. CITY OF LANCASTER 5 decided to commit to paper an official invocation policy. That policy sets forth a two-step procedure for soliciting volunteers. First, the city clerk “compile[s[ and maintain[s] a database . of the religious congregations with an established presence” in Lancaster. To gather names of local congregations to add to the master list, the clerk reviews Lancaster’s Yellow Pages for “churches,” “congregations,” and “other religious assemblies”; searches the internet for any local “church,” “synagogue,” “temple,” “chapel,” or “mosque”; and consults the regional chamber of commerce and newspaper. All congregations in Lancaster are eligible to appear on the City’s list. The clerk does not probe “the faith, denomination, or other religious belief” of a congregation before adding its name to the database. Next, the clerk mails all of the listed religious groups an invitation to open a city-council meeting with an invocation. The invitation reads, This opportunity is voluntary, and you are free to offer the invocation according to the dictates of your own conscience. To maintain a spirit of respect and ecumenism, the City Council requests that the prayer opportunity not be exploited as an effort to convert others . nor to disparage any faith or belief different [from] that of the invocational speaker. Elaborating on its apparent commitment to ecumenism, the policy states that it “is not intended, and shall not be implemented or construed in any way, to affiliate the City Council with, nor express the City Council’s preference for, any faith or religious denomination.” Instead, the policy “is 6 RUBIN V. CITY OF LANCASTER intended to acknowledge and express the City Council’s respect for the diversity of religious denominations and faiths represented and practiced among the citizens of Lancaster.” To that end, the City allows each congregation only three, nonconsecutive invocations a year. No person who has volunteered to pray has been turned down, and no government official has ever attempted to influence the clerk’s selection or scheduling of volunteers. In late 2009, to gauge public support for the prayer policy, the City submitted to municipal voters a nonbinding measure (“Measure I”) requesting a yes-or-no vote on this question: “In response to a recent complaint, with respect to the invocations that contained a reference to Jesus Christ[,] shall the City Council continue its invocation policy in randomly selecting local clergy of different faiths to deliver the invocation without restricting the content based on their beliefs, including references to Jesus Christ?” To aid the citizenry’s deliberation, the city attorney submitted to the public (as was his duty) an analysis of the prayer policy’s legality, which concluded that the policy stood on firm constitutional footing. The mayor and vice-mayor also submitted a ballot argument in support of the measure, asserting that each person has a right to pray in accordance with his own beliefs and so may pray “to the deity of [his] own choosing.” The measure was approved. Shelley Rubin, a Jew, and Maureen Feller, a Christian, attended a council meeting on April 27, 2010. Bishop Henry Hearns, former mayor of Lancaster and then-current “honorary mayor,” delivered the invocation. Hearns thanked God for his many kindnesses, asked God to bless the council members (among others), and closed with this entreaty: “Bring our minds to know you and in the precious, holy and RUBIN V. CITY OF LANCASTER 7 righteous and matchless name of Jesus I pray this prayer. Amen and Amen. God bless you.” Because Hearns had invoked the name of Jesus, Rubin and Feller “were upset and offended.” Neither plans to attend another council meeting until references to Jesus are forbidden. Between the day Lancaster ratified its policy and the day of Hearns’s invocation, twenty prayers were given by members of Christian denominations (and each mentioned Jesus’s name), four were given by a self-identified “metaphysicist,” one was given by a Sikh, and another by a Muslim. Since then, nine invocations have mentioned Jesus, and five have not. B A week after Hearns’s invocation, Rubin and Feller sued the City of Lancaster in California state court under 42 U.S.C. § 1983 and Article I, Section 4 of the California Constitution. Rubin and Feller specifically requested declaratory and injunctive relief from the City’s policy of permitting prayers that mention Jesus, arguing that both the invocations and the policy amounted to an establishment of religion. The City removed to federal court. The district court held a bench trial and rejected Rubin and Feller’s claims. The court reasoned that unless legislative prayer proselytizes, advances, or disparages a particular faith, it does not violate the First Amendment simply because it contains sectarian references. The mere mention of Jesus in the April 27 invocation, therefore, did not cross the constitutional line. The district court also rejected Rubin and Feller’s argument that the prayer practice itself transgressed the First Amendment. “Volunteers of numerous 8 RUBIN V. CITY OF LANCASTER faiths are invited to and have given invocations before City Council meetings,” the court noted, “and the selection process does not discriminate against any faith.” The court emphasized that the City—precisely to avoid Establishment Clause problems—had declined to regulate the content of the prayers, requesting only that volunteers not use the opportunity to proselytize or disparage any one faith.