Inside Report for July 2, 2009

• By DAVID J. MITCHELL
• Advocate Florida parishes bureau
• Published: Jul 2, 2009 - Page: 9B

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“Where does the injunction of the First Amendment lead us?”

With that single question, U.S. District Judge Martin L.C. Feldman acknowledged in a ruling June 24 what he called the “intense ... at times, malevolent ... discourse” about how the Establishment Clause of the First Amendment should be applied in modern life.

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof … ”

In a 37-page answer to his own question, Feldman contradicts a past ruling from the same federal court in New Orleans on the issue of prayer at Tangipahoa Parish School Board meetings.

Feldman found that board prayer falls within a 1983 Supreme Court precedent that acknowledges the nation’s history of opening legislative meetings with prayer.

Anonymous plaintiffs represented by the American Civil Liberties Union Foundation of Louisiana have sued the Tangipahoa Parish School Board twice on the issue of meeting prayers, alleging they violate the First Amendment.

In the first suit, U.S. District Judge Helen G. Berrigan found in 2005 that the board’s sectarian prayers were unconstitutional. Because of the unique relationship school boards have with children, Berrigan found sectarian prayers should not be allowed at meetings.

A divided, three-judge panel on the 5th Circuit backed Berrigan. The case later was thrown out by the full 5th U.S. Circuit Court of Appeals in 2007.

The new case was filed in 2008. If Feldman’s ruling should survive future appeals, it means sectarian prayers at board meetings are constitutional, provided they are not used to advance or disparage a faith.

Board attorney Michael Johnson said people were “doing high-fives” when they saw the ruling by Feldman.

Feldman has left open, however, whether the board’s actual prayer practices meet his muster. He plans to explore them in a bench trial Nov. 23.

“That’s the $2 million question,” said Marjorie Esman, executive director of the ACLU Foundation of Louisiana.

Shortly after the 5th Circuit threw out the first ACLU prayer case, the board adopted a prayer policy that school officials say allows any religious leader in the parish to open board meetings with an invocation. School officials do not lead prayers.