Navigating First Amendment issues for governing bodies.
By Scott Houston and Stan Springerley
Constitutional issues, while interesting, are intricate and present an ongoing concern for local governing bodies and their legal counsel. Internal policies and procedures need meticulous review to confirm legal compliance. It is our hope that the information here will assist toward that end.
In 2014, the U.S. Supreme Court decided Town of Greece v. Galloway,1 holding that a town’s practice of opening its board meetings with a prayer did not violate the First Amendment’s Establishment Clause, which reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.2
For more than 30 years, Marsh v. Chambers was the seminal
case regarding “legislative prayer.”3 In it, the Supreme
Court held that opening sessions of state legislatures with prayer is
deeply embedded in the history and tradition of this country and thus
does not violate the Establishment Clause.4
The court in Marsh also noted that the content of the prayer itself should be of no concern to the court, unless it is proselytizing or is disparaging to other faiths. “That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer,”5 Chief Justice Warren E. Burger wrote in the majority opinion of the case in 1983, specifically mentioning that the legislative chaplain’s prayers were nonsectarian.6 Interestingly, however, is that footnote 14 in the opinion became infamous because it noted that the chaplain had removed references to Jesus Christ years earlier, but only following a complaint by a Jewish legislator.7
Marsh was followed by a number of circuit court opinions that disagreed as to the extent a sectarian legislative prayer was permissible.8 Those conflicting opinions ultimately led to the 2014 Town of Greece opinion.
Since 1999, the monthly town board meetings in Greece, New York, had opened with a prayer given by clergy selected from the congregations listed in a local directory. While the prayer program was open to all creeds, nearly all of the local congregations were Christian. Thus, nearly all of the participating prayer givers had been too. A citizen of the town filed suit alleging that the town violated the Establishment Clause by preferring Christians to other prayer givers and by sponsoring sectarian prayers.9
The Supreme Court disagreed and upheld the town’s practice, with its analysis centered on the Marsh decision and the historical custom throughout the United States of commencing governmental meetings with an invocation. It expressly repudiated the “footnote 14” argument that it had somehow held in Marsh that prayers must be nonsectarian:
The contention that legislative prayer must be generic or nonsectarian derives from dictum … that was disputed when written and has been repudiated by later cases.10
But the dissent strongly disagreed, writing that the town’s practice
“violate[s] that norm of religious equality—the breathtakingly generous
constitutional idea that our public institutions belong no less to the
Buddhist or Hindu than to the Methodist or
“In God We Trust” on Law Enforcement Vehicles
Many law enforcement agencies around the country have started placing “In God We Trust” decals on their vehicles. In Texas, more than a handful of agencies, including those in the cities of Kirbyville, Childress, and Forney and the counties of Kendall, Burnet, and Liberty, have done so.12
In 2015, the Freedom From Religion Foundation sent over 30 letters to agencies around the country, notifying them that the foundation believes the decals violate the First Amendment’s Establishment Clause and should be removed.13 One of the letters went to the police department in the city of Childress. The department’s chief responded with a one-sentence letter telling one of the foundation co-founders to “go fly a kite.”14
Last November, the Texas attorney general issued an opinion directly on the issue to a Texas Senate committee chairman.15
The opinion bases its conclusion on the fact that “displaying ‘In God We Trust’ on police vehicles is a passive use of a motto steeped in our nation’s history that does not coerce citizen approval or participation.” It further provides that “[a]lthough a number of courts have addressed the motto in other contexts, no court of which we are aware has specifically addressed the display of the motto on law enforcement patrol vehicles.”
That’s true. Instead, the courts have upheld similar religious references in many cases. For example, when the Supreme Court upheld, in Van Orden v. Perry, the placement of the Ten Commandments on the Texas State Capitol grounds, the court emphasized the “passive use” of the text in the monument and “the role the Decalogue plays in America’s heritage.”16 On the other hand, in McCreary County, Kentucky, v. ACLU,17 three Kentucky county courthouses were ordered to remove their framed copies of the commandments.
So why the different outcomes? Although the court did not specifically organize its analysis based on a list of factors, several were considered in both the Texas and Kentucky cases, including—among others—funding, approvals, and intensity. For example, in regard to funding, the Texas monument was donated by the Fraternal Order of Eagles, which also paid the cost of erecting the monument. The counties themselves, however, paid for the displays in Kentucky. Likewise, it appears that most of the law enforcement decals in Texas were either donated or purchased with funds other than tax monies.
As Justice Clarence Thomas observed in a 2011 dissenting opinion from the majority denying review of two cases concerning religious displays, the Supreme Court’s Establishment Clause “jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess. ...”18 That being said, “In God We Trust” has been officially adopted by Congress as the nation’s motto. As such, its use in other contexts is likely to receive great judicial deference.
Speech Rights on Government Property
During the past year, there has been increased attention on the public’s right to participate in governmental meetings, while cities and counties seek to maintain order under rules of decorum.
When it comes to exercising free speech on government premises, the courts use the public forum doctrine to determine the extent of the speaker’s right to expression on such property. In Walker v. Texas Division, Sons of Confederate Veterans, the U.S. Supreme Court determined that the speech sought by the nongovernment group, the Sons of Confederate Veterans, seeking to put the Confederate flag on license plates, did not solely involve the private association but also included governmental speech.19 As such, Texas could refuse to issue the requested specialty plates.20
Based on Walker, the Supreme Court has now clearly recognized four categories of forums: (1) traditional, (2) designated, (3) limited, and (4) nonpublic.21
Traditional forums, including sidewalks and streets, have the greatest protection—the government must generally meet strict scrutiny to justify regulation of content-based speech. The designated forum is specifically created by the government’s decision to outline a premise and open it up for “all types of expressive activity”22 such as a public library—this forum receives the same protection as a traditional forum. Limited forums may be restricted to specific topics or even the class of individuals who may speak—e.g., taxpayers within the jurisdiction.23 Finally, nonpublic forums are not open for public communication and usually involve internal operations where the government is not subject to a heightened review for free speech purposes.24
Just like the scenario in Walker, the business of governing bodies is mostly governmental speech in the form of deliberation. Of course, if there is a statutorily required “public hearing,” then the input of the public during that agenda item is necessary. Yet, the forum analysis for each portion of the meeting is essential to ascertain the scope of the public’s free speech rights. One point of view is that regular agenda items could be treated as a nonpublic forum for the express purpose of the governing body conducting its work.25 It is important to note that the Texas Open Meetings Act26 merely requires access for the public with proper notice—there is no guarantee of participation.27
The U.S. Supreme Court has not directly addressed the question of what type of forum the “public comment session” is of a local governmental meeting. The consensus in the caselaw of lower courts is that a public comment session is a limited public forum.28 As a result, speakers during a comment session may properly be restricted to addressing current agenda items or suggestions for future agenda topics.29
An increasingly common conundrum for local governments is how to reasonably inject public comment into their meetings without disrupting or undermining decorum. Use of rules of procedure and decorum are increasingly under attack for restrictions on “disparaging” others, including criticism of the elected officials attending the meeting.
The expectations on the part of many in the public is that such public comment will be treated as a traditional public forum, but the reality is that these meetings are limited public forums. The courts are hesitant to allow disruptive, repetitious, or completely irrelevant topics that have nothing to do with the local government business in the context of a limited public forum.30
Cities and counties will be wise to remind the public that traditional forums such as the courthouse steps remain available for exercising free speech rights so long as protests are peaceful and within constitutional bounds.TBJ
SCOTT HOUSTON is deputy executive director and general counsel for the Texas Municipal League and general counsel for the Texas City Attorneys Association. He previously served as an adjunct professor of political science in Texas State University’s Master of Public Administration program, and is on the faculty of the Texas Municipal Courts Education Center. His work on open meetings and annexation has been published in the Texas Tech Administrative Law Journal.
STAN SPRINGERLEY is the assistant general counsel for the Williamson County Commissioners Court in Georgetown. He previously served as assistant criminal district attorney advising the Smith County Commissioners Court in Tyler and as an adjunct professor of government and business law at Tyler Junior College and LeTourneau University.