DOCKET NO. 03-2069
___________

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
____________

DARLA KAYE WYNNE,

Plaintiff - Appellee,

v.

TOWN OF GREAT FALLS; HENRY CLAYTON STARNES, MAYOR;
JOHN BROOM, COUNCILMAN; HENRY STEVENSON, COUNCILMAN;
BARBARA HILTON, COUNCILWOMAN; AND RAYMOND H. BAKER, COUNCILMAN,

Defendants - Appellants,
______________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
______________

ANSWER OF APPELLEE, DARLA KAYE WYNNE,
TO PETITION FOR REHEARING AND
REHEARING EN BANC
______________

HERBERT E. BUHL, III
Attorney at Law
533 Harden Street
Columbia, South Carolina 29205
(803) 799-3767

Attorney for Appellee

I. NATURE OF THE CASE
The Town of Great Falls, South Carolina, commences each Town Council meeting with a prayer which invokes the name "Jesus," "Jesus Christ", or "Christ". Appellee, a member of the Wiccan faith and a citizen of Great Falls attended numerous council meetings at which council members led an explicitly Christian prayer. Appellee requested that council utilize a non-sectarian prayer which did not refer to a specific deity associated with the Christian faith, or that council alternately invite representatives of all faiths to lead a prayer at council meetings. Appellee's request was denied. She was told that Council would not change its policy of giving a Christian prayer to commence Town Council meetings. The Mayor testified that ninety nine percent (99%) of the citizens of Great Falls were Christian, and that Council would not change its prayer unless or until someone of another faith was elected to Town Council.
On June 23, 2003, two (2) years after the commencement of this litigation, Town Council passed a resolution to give written guidance to its prayer opportunity. The resolution did not limit in any way the Council's use of prayer invoking Jesus Christ and Mayer Starnes testified that the use of Jesus Christ in the prayer would be acceptable to all members of the Town Council. The Resolution was directed at the Town of Great Falls, its officials and citizens. Prayer continues to be listed on the agenda as the first item of official business each month, and members of the public continue to be invited to participate. Defendant, Councilman Stevenson, admitted to Ms. Wynne that the passage of the Resolution would not change anything, and that the prayers invoking the name of Jesus Christ would remain the same and continue.
Appellants' have maintained a persistent, deliberate and exclusionary prayer practice and policy at virtually every Town Council meeting. This is not a case of happenstance or the case of an occasional lapse, or misstatement by a Council member. This is a deliberate practice of Town Council ignoring the Establishment Clause of the First Amendment to the United States Constitution. Plaintiff filed suit requesting that the district court enjoin the Town and Town Council members from engaging in Christian prayers which invoked the name of Jesus Christ. The district court held a bench trial, and found that the practice of the members of the town council invoking name(s) of specific deities associated with the Christian faith at Town Council meetings violated the Establishment Clause. This Court's panel affirmed the district court.
II. THE PANEL DECISION
The panel decision is correct on the facts and the law. The district court made numerous and specific findings of fact which Appellants' conceded on Appeal were not erroneous. Despite Appellants' labored efforts to obfuscate and confuse the matter, it is clear that Town Council's practice of invoking the name of Jesus Christ in its prayers at the commencement of public meetings is a violation of the Establishment Clause and that the panel is correct in its legal analysis in this case, and the Petition for Rehearing and Rehearing en banc should be denied.
III. ARGUMENT
A. The Doctrine of Legislative Immunity
The Doctrine of Legislative Immunity is not applicable to this case. Legislative immunity shields legislators from personal civil liability for their legislative activities. However, it is equally important that this immunity not be understood to protect any matter, however remotely related to the legislative process. The protected activity must be a part of "... the due functioning of the legislative process..." United States v. Brewster, 408 U.S. 501, 516 (1972). The clause cannot include all things in any way related to the legislative process because ".... given such a sweeping reading, we have no doubt that there are few activities in which a legislator engages that he would be able somehow to 'relate' to the legislative process...." Brewster, 408 U.S. at 516.
The test for determining whether an act is legislative "...turns on the nature of the act, rather than on the motive or intent of the official performing it...", Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998). Under this function test, immunity depends on the nature of the act itself, not on the identity of the actor performing it. Forrester v. White, 484 U.S. 218 (1988); Hill v. City of New York, 45 F.3d 653 (2nd Cir. 1995); Carlos v. Santos, 123 F.3d 61 (2nd Cir. 1997).
In Davis v. Passman, 442 U.S. 228 (1979), the Supreme Court recognized that legislative immunity did not apply to discriminatory personnel decisions made by a member of Congress because they were not part of the legislative process. Acts like arranging for the private publication of the Pentagon Papers, arranging for the public dissemination or embarrassing committee material, publishing newsletters and press releases have been held to fall outside of the immunity. See Gravel v. United States, 408 U.S. 606 (1972); Doe v. McMillian, 412 U.S. 306 (1973); Hutchinson v. Proxmire, 443 U.S. 306 (1979).
In Supreme Court of Virginia v. Consumers Union of United States, 446 U.S. 719 (1980) the Virginia Supreme Court was held to be subject to suit under 42 U.S.C. § 1983 and to an award of attorneys fees under 42 U.S.C. § 1988 in its enforcement capacity as to prohibition against attorney advertising. The Supreme Court held that the Virginia Supreme Court was only entitled to judicial immunity in its legislative capacity, not in its administrative capacity. See also: Bryant v. Nichols, 712 F.Supp. 877 (M.D. Ala 1989) (decision by City Council to demote employee not entitled to legislative immunity because not carrying out a legislative function); Stone's Auto Mart v. City of St. Paul, 721 F. Supp. 206 (D. Minn. 1989) (City Council zoning decision not entitled to legislative immunity because administrative in nature; no individual immunity if zoning decision racially motivated); Gross v. Winter, 876 F.2d 165 (D.C. Cir. 1989) (Members of D.C. City Council entitled to legislative immunity; personnel decision by individual legislator not entitled to legislative immunity because administrative in nature); Ryan v. Burlington County, 889 F.2d 1286 (3rd Cir. 1989) (County Board's decisions about daily administration of prison not legislative in nature, so not immune).
It is clear that the action of Town Council of giving a Christian prayer and invoking the name of Jesus Christ at the commencement of each Town Council meeting is not an act taken "....in the sphere of legitimate legislative activity...." Bogan, supra, 523 U.S. at 54., Tenny v. Brandhove, 341 U.S. 367 (1951).
The touchstone to determining whether the Speech or Debate Clause immunity attaches is whether the activities at issue were "an integral part of the deliberative and communicative processes [of Congress]," such that the activity is legislative in character. Gravel v. United States, 408 U.S. 606 (1972).
The act of giving a Christian prayer is not a legislative function, nor is it an integral step in the legislative process. At best, it is an administrative or ministerial action not entitled to legislative immunity. Town Council officials cannot blatantly violate the guarantees of the Establishment Clause, and claim legislative immunity when they give a Christian invocation at a public meeting. There is nothing legislative about Town Council utilizing its prayer opportunity to invoke the name of Jesus Christ and to advance the Christian faith over all other religions, and/or non-religious beliefs. The Town Council cannot 'legislate' prayer and it is not part of the public business. Following Appellants' logic, the Town Council could pledge allegiance to the Klu Klux Klan, or to al Queda and no one would be able to challenge their actions.
The Appellants' raise the issue of legislative immunity for the first time on the Petition for Rehearing and Rehearing en banc. Issues raised on appeal for the first time are not considered by the Court absent exceptional circumstances, Taylor v. Virginia Union University., 193 F.3d 219 (4th Cir. 1999) (en banc). No exceptional circumstances exist in this case as legislative immunity is inapplicable.
The Town of Great Falls, South Carolina, can, of course, be sued for damages, declaratory and injunctive relief, and attorneys fees. Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).

B. The Prayers are unconstitutional and the Marsh case is distinguishable because the prayers are explicitly Christian and sectarian.

The First Amendment to the United States Constitution guarantees to all citizens the free exercise of religion and prohibits the government from benefitting one religion over another. The Establishment Clause is a prohibition of government sponsorship of religion which requires that government neither aid, nor formally establish a religion. The Establishment Clause prohibits a preference for religion over non-religion, or one religion over another religion.
The Town Council's use of officially authorized Christian prayers constitutes a direct violation of the Establishment Clause. This clause was designed to avoid any official sponsorship or approval of religious beliefs. Prayers which favor one religion over another violate the First Amendment. The purpose of the invocation or prayer might be a neutral or secular one of state accommodation of community desires, however, the effect of any such practice is to give government aid and support to the advancing of a particular religion, or religious beliefs over other religious or non-religious beliefs, and this is unconstitutional.
The Appellants' reliance upon Marsh v. Chambers, 463 U.S. 783 (1983) is misplaced and the Appellants' prayer fails even the Marsh test. The Supreme Court in Marsh found that the Establishment Clause was not violated when a legislative session was opened with a prayer offered by a chaplain. It is clear that the Supreme Court in Marsh was dealing with a prayer that made no reference to Jesus Christ. See Marsh, 463 U.S. at 793, Footnote 14. The Chaplain in Marsh had specifically removed any references to Jesus Christ from the prayer when he had received a complaint from a Jewish member of the Nebraska legislature. In Marsh, the prayer was not advancing one religion over another religion or non-religion. In these circumstance legislative prayer is not an "establishment of religion or a step toward establishment," but is "simply a tolerable acknowledgment of beliefs widely held among the people of this country." 463 U.S. at 792. In formulating this holding, the court acknowledged: "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 disparage any other, faith or belief." Id at 794.
As Marsh stated: "Not even the 'unique' history of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief." 463 U.S. at 793, Footnote 14. (Emphasis added) In numerous cases since Marsh, prayer, invoking the name of Jesus Christ has been identified as sectarian, and prayer that does not invoke the name of Jesus Christ has been identified as acceptably non-sectarian. County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 603 (1989); Lee v. Weisman, 505 U.S. 577, 589 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S. Ct. 2266 (2000).
The Supreme Court, in County of Allegheny v. ACLU, 492 U.S. 573 (1989), determined that the placing of a Christian creche in the County Courthouse was an unconstitutional violation of the Establishment Clause as it had the unconstitutional effect of endorsing a patently Christian message: Glory to the God for the birth of Jesus Christ.
As the Court stated in explaining Marsh:

Indeed, in Marsh itself, the Court recognized that not even the unique history of legislative prayer, 463 U.S. at 791, 103 S. Ct. at 3336, can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief. Id. at 794-795, 103 S. Ct. at 3337-3338. The legislative prayers in Marsh did not violate the principle because the particular chaplain had "removed all references to Christ." 492 U.S. at 603...Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion, see, e.g., Texas Monthly, Ins. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989)), it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions.) "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). 492 U.S. at 603.

The prayers offered by the Great Falls Town Council are explicitly Christian prayers, and clearly invoke the name of Jesus Christ, and are therefore sectarian and impermissible under the Establishment Clause.
Even assuming Arguendo, that what County of Allegheny, supra, teaches us about Marsh is dicta, Allegheny is the most recent pronouncement from the Supreme Court, and is not only highly persuasive, but is binding on the Circuit Courts. Any resolution of whether the arguments in County of Allegheny, supra, are dicta would need to be resolved by the United States Supreme Court, and not by this Court on rehearing or rehearing en banc.

A. The Appellants have not, and cannot, cite to a single case which holds that legislative prayers which invoke the name of Jesus Christ are acceptable non-sectarian prayers.

In Lee v. Weisman, 505 U.S. 577 (1992) the Supreme Court recognized that acceptable non-sectarian prayer would not include explicit references .... " to the God of Israel, or to Jesus Christ, or to a patron Saint..." 505 U.S. 577 at 589. In Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) the Court held that the school district policies permitting student led, student initiated pre-game prayers violated the Establishment Clause. The Court struck down the use of Christian invocations, benedictions and overtly Christian prayers which invoked the name of Jesus Christ. See 530 U.S. 295, footnote 2.
The Sixth Circuit in Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir. 1987) held that ceremonial invocations and benedictions could be delivered at high school commencement ceremonies without violating the Establishment Clause provided they preserved substance of principle of equal liberty of conscience. The Court held that the invocations and benedictions in question, however, violated the First Amendment in that they symbolically placed the government seal of approval on the Christian view of religion. The Court determined that the invocations and benedictions were framed and phrased so that they:

"....symbolically place the governments' seal of approval on one religious view"-the Christian view. They employ the language of Christian theology and prayer. Some expressibly invoke the name of Jesus as the Savior. They are not the 'civil' invocations or benedictions used in public legislative and judicial sessions as described in Marsh."822 F.2d at 1409.

In Coles v. Cleveland Board of Education, 171 F.2d 369 (6th Cir. 1999) the Sixth Circuit held that the school boards practice of opening its meetings with a prayer violated the Establishment Clause. The Court found that on numerous occasions, the prayers offered made specific references to Jesus by name, 171 F3d at 373. The Court followed Lee v. Weisman, 505 U.S. 577 (1992) and stated:
We find it wiser to err on the side of Lee and the long line of Establishment Clause jurisprudence that separates church and state in the context of public school system, than to err on the side of Marsh, which itself is basically a historical aberration, 171 F.3d at 383.

The Coles court noted that the school board's prayers "frequently called for divine assistance or affirmation, sometimes by using veiled references to the Bible," and "many prayers mentioned Jesus by name." 171 F.2d at 384 (6th Cir. 1999). Additionally, Coles stated that if a reasonable observer would conclude that the message communicated is one of either endorsement, or disapproval of religion, then the challenged practice is unlawful. Id at 385. Since the school board's prayers were clearly sectarian and contained repeated references to Jesus and the Bible, "....any reasonable observer would conclude that the school board was endorsing Christianity." Id at 385.
In Rubin v. City of Burbank, 124 Cal Rptr 2d 867(Cal Ct App., 2000) the Court found that the City of Burbank violated the Establishment Clause by commencing City Council meetings with prayer invoking the name of Jesus Christ. See: Bacas v. Palo Verde Unified School Dist. Bd of Ed., No. 99-57020, 2002 WL 31724273 (9th Cir. Dec. 3, 2002) (unpub.) finding that school board prayers "in the name of Jesus" violated the Establishment Clause as interpreted by Marsh and Lemon.
Similarly, the Great Falls Town Council prayers with their invocation of, and references to, Jesus Christ, and to the Christian faith, fail the Marsh and Alleghenny standards.
The Town Council Resolution of June 23, 2003, does nothing to change this situation. It allows references to a deity, allows only a Judeo Christian format, and does not regulate the content of the prayer, and leaves the content of the prayer to the sole discretion of the Council member designated by Council to lead the prayer. The Mayor testified that the content of the prayer was acceptable to all members of Council with references to "Jesus Christ", "Jesus Our Savior", "Christ Our Lord", and "In Christ's Name, We Pray", and that the prayer would not be changed to accommodate Ms. Wynne or any other members of other religious faiths and beliefs.

A. The Fourth Circuit has narrowly construed Marsh, and limited it to its historical circumstances.

In Hall v. Bradshaw, 630 F.2d 1018 (4th Cir. 1980) the Fourth Circuit concluded that the inclusion of a prayer on the official State map of North Carolina contravened the Establishment Clause. The Court found that the prayer impermissibly sponsored religious activity, had the clear effect to advance religion, and had the potential for entangling the state in a politically divisive conflict.
As the Court noted:
(4) Recognition of the identification of religion with our history must carry with it the realization that religious freedom is a strong part of that history. See Abington School District v. Schempp, 372 U.S. at 212-14, 83 S.Ct. at 1565-1567; Engle v. Vitale, 370 U.S. at 433-36, 82 S.Ct. at 1268-1269. When government officially approves a prayer, it unconstitutionally favors one religious view over others and breaches the constitutional neutrality mandated by the Establishment Clause. E.g., Walz v. Tax Commission, 391 U.S. at 668-69, 90 S.Ct. at 1411; Abington School District v. Schempp, 374 U.S. at 222-26, 83 S. Ct. at 1571-1573. The Establishment Clause stands for the proposition that "(I)t is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance." Engel v. Vitale, 370 U.S. at 435, 82 S.Ct. at 1269 (footnote omitted).By placing an official prayer on its map the state has assumed a purely religious function and has violated the Establishment Clause. 630 F.2d at 1022.

The Fourth Circuit in North Carolina Civil Liberties Union v. Constangy, 947 F.2d 1145 (4th Cir. 1991) held that the practice of a North Carolina state judge in beginning court sessions with a prayer had a religious purpose, had the primary effect of advancing and endorsing religion, and involved excess entanglement of government with religion, thus violating the Establishment Clause. The Court rejected Marsh, supra, and applied the Lemon test citing County of Allegheny v. ACLU 492 U.S. 573 (1989) and finding Marsh limited to its particular historical circumstances. The Court found that the Judges' prayer violated the Establishment Clause, and failed the three-pronged test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). The Court found that the prayer under review conveyed a message of endorsement of religion and that the practice resulted in excessive entanglement of the government with religion.
In Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003) reh en banc den. 347 F.3d 312 (4th Cir. 2003) this Court recently held that the Virginia Military Institute's use of a non-sectarian, and non denominational, supper prayer violated the Establishment Clause of the First Amendment . The Court rejected VMI's reliance upon Marsh, supra,:

The Supreme Court has since emphasized that Marsh is applicable only in narrow circumstances. In County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989), the Court recognized that the Marsh decision "relied specifically on the fact that Congress authorized legislative prayer at the same time that it produced the Bill of Rights." Id. at 602. The Court expressly declined to interpret Marsh to mean that "all accepted practices 200 years old and their equivalents are constitutional today." Id. at 603. Likewise, in North Carolina Civil Liberties Union Legal Foundation [*370] v. Constangy, 947 F.2d 1145 (4th Cir. 1991), we emphasized, in invalidating a judge's practice of opening court with a prayer, that Marsh was "predicated on the particular historical circumstances presented in that case." 947 F.2d at 1148.

Put simply, the supper prayer does not share Marsh's "unique history." In fact, public universities and military colleges, such as VMI, [**32] did not exist when the Bill of Rights was adopted. Opinion at 625. We are therefore unable to apply Marsh's reasoning to the evaluation of the constitutionality of the supper prayer. See Edwards v. Aguillard, 482 U.S. 578, 583 n.4, 96 L. Ed. 2d 510, 107 S/ Ct. 2573 (1987) (emphasizing that the Marsh analysis "is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted:); see also Coles v. Cleveland Bd. Of Educ., 171 F. 3d 369, 381 (6th Cir. 1999) (noting that "Marsh is a one-of-a-kind" and declining to apply Marsh's reasoning in assessing constitutionality of prayer at school board meetings.

The Court concluded that:
The Founding Fathers "led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid [this] sort of governmental activity." Engel, 370 U.S. at 435. Indeed, "one of the greatest dangers to the freedom of the individual to worship in his own way [lies] in the Government's placing its official stamp of approval upon one particular kind of prayer." Id. at 429 (Emphasis added).

The Town of Great Falls use of a patently Christian prayer likewise fails the Marsh test. The Town of Great Falls by invoking a Christian sectarian prayer at its public meetings has placed its official stamp of approval upon the Christian prayer, and the Christian religion, and by doing so proselytizes and advances Christianity over other religions and non-religions in violation of the Establishment Clause.

E. The Town of Great Falls use of Christian prayer is not an appropriate legislative prayer, nor protected by historical review.

The Great Falls Town Council prayers are not merely legislative prayers directed at its members. The Town Council Resolution of June 23, 2003 provides that.. "The invocation may request divine guidance for the Town of Great Falls, and its officials, and citizens in the conduct of the business of the Town." (J.A. 242) (emphasis added). Town Council's prayer is listed on every Town Council agenda as the first item of official business to be conducted at Town Council Meetings. (J.A. 174, 176, 177, 182, 185, 197, 203, 205, 213, 217, 238) Members of the public have been invited to participate and generally stand, bow their heads and join in the prayer. Members of the public have even concluded the prayers with "Amen"
When Appellee proposed that a generic prayer with references to "God" or "Heavenly Father" be utilized by Town Council, or that representatives of various faiths alternately deliver an invocation, Town Council rejected her proposal, and accepted petitions and statements from the public, and various churches that Town Council continue its practice of offering a "Christian" prayer at council meetings. (J.A. 160-172).
Appellee was treated differently from other members of the public attending Town Council meetings. She was not allowed to participate even when she had properly signed up to speak at public sessions. In order to exercise her rights of citizenship in Great Falls Appellee was subjected to disparate treatment, disparagement and coercion. The dictates of Marsh, supra, and its historical review cannot save the Town Council's Christian prayers. Town Council's prayer invokes the name of a specific deity associated with a specific religion, faith or belief and it proselytizes and advances that particular religion or faith over all others, and endorses that one religion - Christianity. This violates the Establishment Clause of the First Amendment as the district court and the Fourth Circuit Panel correctly found.
As the Supreme Court noted, Allegheny, supra, requires Courts to put historical evidence in context of modern day reality in America.

This Nation is heir to a history and tradition of religious diversity that dates from the settlement of the North American Continent. Sectarian differences among various Christian denominations were central to the origins of our Republic. Since then, adherents of religions too numerous to name have made the United States their home, as have those whose beliefs expressly exclude religion.
Precisely because of the religious diversity that is our national heritage, the Founders added to the Constitution a Bill of Rights, the very first words of which declare: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to "the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism." Allegheny, 492 U.S. at 589-90 (citing Wallace v. Jaffree, 472 U.S. 38, 52 (1985)).

Town Council's use of an explicitly Christian prayer clearly proselytizes and advances the Christian religion over all others. America today is too religiously diverse, and the Constitution too clear to allow explicitly Christian prayers at our public meetings. As the Supreme Court stated in Larson v. Valente, 456 U.S. 228 (1982):
The clearest command of the Establishment Clause is that one religious denominations cannot be officially preferred over another.... 456 U.S. at 245-246 (Emphasis added).

IV. CONCLUSION

The Appellants' petition for rehearing and rehearing en banc should be denied.

Respectfully Submitted,

Columbia, South Carolina _____________________________
Herbert E. Buhl, III
August ____, 2004 533-A Harden Street
Columbia, South Carolina 29205
(803) 799-3767

ATTORNEY FOR APPELLEE