Constitutional Law
Think Local
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.
Meeting Invocations
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
Episcopalian.”11
“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. |