IRV RUBIN AND ROBERTO ALEJANDRO GANDARA,
Plantiffs vs.
CITY OF BURBANK, a municipal corporation, Defendant

Case No. BC 221942
STATEMENT OF DECISION
Judge Alexander H. Williams, III
Department 35
November 16, 2000

On December 20, 1999, Plaintiffs filed their complaint seeking declaratory judgment and injunctive relief prohibiting the City of Burbank from commencing City Council meetings with prayer invoking the name of Jesus Christ.

A Court Trial was conducted on November 3 and November 16, 2000.

The Court hereby issues its Statement of Decision.

The Court commends all involved in this case for the respect and consideration they have shown for each other, for the Court, and for the Constitution. Counsel for both sides, and all parties and witnesses, have displayed the utmost commitment to the exercise of their duties in a fashion that respects the rights of all in the highest traditions of our Constitution.

On November 23, 1999, the Burbank City Council met in official regular session. A tape of pertinent parts of the meeting was admitted into evidence in this trial.

The presiding officer, after welcoming all in attendance, said "We will begin tonight's meeting with an invocation by..." and identified a minister from a local church who would give the invocation.

The contents of the invocation are not the subject of contention in this law suit, except for the last words, wherein the minister concluded by saying "...and we express our gratitude and our love in the name of Jesus Christ. Amen."

The minister delivering the invocation was an unpaid volunteer provided by the burbank Ministerial Association, a non-governmental organization whose current membership includes Christian and Jewish clergy members. The BMA has provided volunteer clergy members to offer invocations at Burbank City Council meetings for a number of years. All observers reported that references to Jesus Christ have been made in less than fifty per cent of the invocations.

Neither the City of Burbank nor the burbank Ministerial Association provides any instructions or guidance to clergy members as to the content of invocations. Nor does either wish to do so.

Some members of the MBA by training and/or conviction find themselves required to invoke their particular deity and beliefs whenever they pray, even in environs outside the confines of their sect. Others, as a matter of philosophy or consideration and respect, are willing and able to , and frequently do indeed, offer public invocations in a manner that does not refer to the beliefs of a particular sect. In other words, many members of the clergy are available to offer non-sectarian prayer at Burbank City Council meetings.

Because the Court deems the decision in this case to be driven by the requirements of the Constitution of the United States of America, no address is being made to the requirements of the Constitution of the State of California.

The First Amendment to the United States Constitution (which is also therefore the First of our Bill of Rights) guarantees to all the free exercise of religion (Free Exercise Clause) and prohibits the government from taking any steps to effect the establishment of religion (Establishment Clause).

The United States Supreme court has consistently recognized "the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of various occasions so as to mark those occasions' significance. But such religious activity... must comport with the First Amendment." Santa Fe Independent School District v. Doe, __U.S.__, 120 S.Ct. 2266, 2278 (2000).

The Establishment Clause is not violated when a legislative session is opened with a prayer by a chaplain. Indeed, the chaplain can be paid by the government. Marsh v. Chambers, 463 U.S. 783 (1983). The Court said: "The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom." Marsh, 463 U.S. at 786.

However, it is important to note that the Supreme Court in Marsh was dealing with a prayer which made no reference to Jesus Christ. Marsh, 463 U.S. at 793, footnote 14. This is significant, because the Court went on to say: "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." Marsh, 463 U.S. at 794-5.

Does an expression of "our gratitude and our love in the name of Jesus Christ" render a prayer impermissibly sectarian in violation of the Establishment Clause? The case law since Marsh inescapably suggests that it does. In numerous decisions, prayer invoking the name of Jesus christ has been identified as sectarian, and prayer that does not has been identified as acceptably non-sectarian. See County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 603 (1989); Lee v. Weissman, 505 U.S. 577, 589 (1992); Santa Fe Independent School District v. Doe, __U.S.__, 120 S.Ct. 2266 (2000).

It should be noted that this case does not involve the even more difficult issue of school prayer. In such cases, the Supreme Court has held that, due to the unique susceptibility of adolescents to peer and social pressure and the control that school authorities necessarily have over student activities, even non-sectarian prayer at school events violates the Establishment Clause. Lee v. Weissman, supra; Santa Fe Independent School District v. Doe, supra. By contrast, with respect to legislative sessions, the status of the law today is that non-sectarian prayer is permitted but sectarian prayer is not.

Finally, is it permissible under the Constitution for the City of Burbank to provide guidance concerning the content of invocations offered as part of City Council meetings? Plainly it is. "There is no doubt that compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions of speech." Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761-62 (1995).

The Court therefore finds for the Plaintiff and against the Respondent. The Court will enter Declaratory Judgment that opening the City Council meeting on November 23, 1999 with the prayer in this case violated the Establishment Clause of the United States Constitution. The Court will issue an Injunction prohibiting the inclusion of sectarian prayer in City Council meetings.

In making this determination, the Court repeats its appreciation of the respect that all parties, counsel and witnesses have displayed in this case. The Court fully understands the reluctance of the City Council and the Burbank Ministerial Association to dictate the content of prayer. All that is required is an advisement that sectarian prayer as part of City Council meetings is not permitted under our Constitution. From the evidence adduced at trial, the Court is confident that such guidance is acceptable to a large number of clergy members who will continue to provide the volunteer service that they have so commendably provided to the City Council and to the people of the city of Burbank throughout the years.

Date: November 16, 2000 /signed/ ALEXANDER H. WILLIAMS III