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
______________

BRIEF OF APPELLEE

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

Attorney for Appellee

I. JURISDICTIONAL STATEMENT.
Appellee defers to Appelants' jurisdictional statement.

II. STATEMENT OF ISSUES PRESENTED FOR REVIEW
Did the District Court properly grant a permanent injunction enjoining Appellants from invoking the name of a specific deity associated with any one specific faith, or belief in prayers given at Town Council meetings.

III. STATEMENT OF THE CASE.
Appellee, Darla Kaye Wynne, filed a Complaint pursuant to 42 U.S.C. §1983 on August 20, 2001. Appellee alleged that Defendants commenced each Town Council meeting with a Christian prayer and invoked the name of "Jesus Christ" in each prayer. Appellee sought a permanent injunction, and order "that the Defendants cease and desist forthwith from holding any Christian prayers, or any other prayer rituals which violate the Separation of Church and State provisions of the United States Constitution." (J.A. 15) Defendants filed their Answer on October 1, 2001 admitting only that meetings of the Great Falls Town Council have been opened and continue to be opened with a prayer as permitted by the First Amendment to the United States Constitution. (J.A. 18)
On August 21, 2003, District Court Judge Cameron McGowan Currie issued an Order granting judgment in favor of Plaintiff, permanently enjoining the Town of Great Falls, and its officials, from invoking the name of a specific deity associated with any one specific faith or belief in prayers given at Town Council meetings (J.A. 344).
The Defendant filed a timely Notice of Appeal on August 25, 2003 (J.A. 347).

IV. STATEMENT OF FACTS

Plaintiff, Darla Kaye Wynne, is a citizen and resident of Great Falls, County of Chester, South Carolina. (J.A. 33). Defendant, Great Falls, South Carolina, is a municipality and a body politic organizated and existing under the laws of the State of South Carolina and Defendants, Henry Clayton Starnes, John Broome, Henry Stevenson, Barbara Hilton, Heilman Baker, Mike Brunson, and Glenn Ross are the duly elected Mayor, and Council Members respectively of the Town of Great Falls, South Carolina. (J.A. 11-15)
Plaintiff is a follower of the Wiccan faith, and was initiated into the Rosarian
Tradition of Witchcraft, and is a Third Degree Sidhe, and priestess within the Tradition. (J.A. 252-253)
Plaintiff has been the Assistant National Director of Witches Against Religious
Discrimination, Inc. (W.A.R.D.) since 1998. W.A.R.D. was incorporated to promote a better understanding of the art of Witchcraft as a religion, its history, and the discrimination encountered by its followers and believers, and to that end, it devotes its time and resources to educate the public, and works to end religious discrimination through education, knowledge and the affirmation of religious freedoms. (www.ward-ng.org) (J.A. 72-73) (J.A. 252-253). Ms. Wynne is also active in the North Carolina and South Carolina Prison Ministries Systems providing Pagan Ministries as a recognized chaplain. (J.A. 35-36)
Defendants admit that the meetings of the Great Falls Town Council "have been opened, and continue to be opened with a prayer ..." (J.A. 18)
Ms. Wynne had legitimate purposes for attending Town Council meetings unrelated to her religion. (J.A. 38-39) Ms. Wynne attended numerous Town Council meetings, and indicated that a prayer or invocation was given at each Town Council meeting, which invoked the name of "Jesus Christ", "Christ", or "in the name of Jesus Christ, Savior" or "in Christ's Name."(J.A. 41) Initially Ms. Wynne stood up and bowed her head as the prayer was delivered at the Council meetings;(J.A. 41). Prior to one Council meeting, Ms. Wynne was questioned about her Wiccan beliefs by several Council members. After the Council members questioned the Plaintiff about her faith in Wicca (J.A. 39-42), the prayers became more extensive, and more Christian in nature, and referred to our "Savior Jesus Christ" or "Jesus Christ"( J.A. 41-42). The audience stood each time, bowed their heads, and concluded the prayers with "Amen." The prayers usually ranged from one (1) minute to four and one half (4 1/2) minutes depending on current events within the Town. (J.A. 41-44).

Ms. Wynne attended approximately forty (40) Town Council meetings, or approximately eight (8) per year since moving to Great Falls in 1998. (J.A. 60). Council member, J.C. Broome, led the prayer or invocation at almost every meeting and commenced or ended the prayer with an invocation to "Christ", "Jesus Christ" or "Christ our Savior", on each occasion. (J.A. 44). Ms. Wynne requested that Council change its prayer policy. Councilmember Hilton posted this request for alternative prayers on the town website and asked for public comments. (J.A. 54-55)
Ms. Wynne testified that the Town Council meeting of February 19, 2001
commenced with the typical prayer with references to Jesus Christ. Ms. Wynne presented her request to Council for an alternate prayer at the Town Council meetings. Plaintiff requested that Council utilize a generic prayer that was non-sectarian, one that did not pray to a specific deity of the Christian religion, or in the alternative, to invite members of different faith groups to come to Council meetings and give the prayer. (J.A. 45) (J.A. 90-91). This meeting was attended by over 100 citizens who all stood during the opening prayer, bowed their heads, and concluded the prayer with "Amen." (J.A. 55-56) (J.A. 173). Representatives of several churches and several ministers presented resolutions from their churches in favor of Town Council maintaining its practice of having a "Christian prayer to open every meeting," and Petitions were presented signed by members of the public supporting council's Christian prayer. (J.A. 159-172) At this same meeting, Mayor Starnes announced that the Town was not going to change its prayer. (J.A. 58).
Ms. Wynne testified that she was treated differently from other members of the
public at Town Council meetings. She was not allowed to speak while others were allowed to do so. She was not recognized by the Mayor in open session, and she was not allowed to speak at public session even after she had properly signed up to speak. (J.A. 60-62) (J.A. 63) (J.A. 84, 86).
On one occasion, Ms. Wynne waited outside of the Town Council meeting in order to avoid having to be present during the invocation, and when she entered the meeting at 7:02 p.m., she was not allowed to speak at the public session. Mayor Starnes refused to recognize her, or allow her to speak even though she had properly signed up to be allowed to address Council at public session. (J.A. 62) (J.A. 63) (J.A. 93-95).
Ms. Wynne testified that the Resolution adopted by Town Council on June 23, 2003 would not resolve the current dispute with Town Council.(J.A. 95). The Resolution still allowed Council to invoke a Christian deity; and it provided for a prayer with a Judeo Christian format. The Resolution further imposed no restriction on the content of the prayer whatsoever, and provided for a provision for persons to leave the Council chambers in order to avoid Council's Christian prayer activities, thus forcing citizens to get up and leave the Council meeting in order to avoid participation in a Christian prayer, thus further calling attention to persons of other religious faiths, or persons of non-religion, and further ostracizing them from the community. ( J.A. 67). In addition, Ms. Wynne testified that she had a conversation with Council member, Stevenson, after Council adopted the Resolution, and was informed by him that the prayers were not going to change, and everything would stay the same.(J.A. 66-67)
Ms. Wynne requested on several occasions that Council conduct a generic prayer with reference to a generic deity such as "God" without reference to a specific deity associated with the Christian faith, so that members of her faith and those of other religions did not have to betray their own faith in order to attend Council meetings, and to participate as citizens in Town affairs. (J.A. 68).
In April, 2003, at Council meeting, Ms. Wynne was involved in discussions with Council to explain the Charlotte Metro Pagan Pride event which had been scheduled to be held in Great Falls in September, 2003. Council member, Glenn Ross opposed having the event in Great Falls. (J.A. 78).
Town Council held its regular meeting on June 17, 2003, and Council member, Ross, again made a motion to not have the Pagan Pride Day event in Great Falls. (J.A. 240).
A special "called" meeting of Town Council was held on June 23, 2003 and Council passed its Resolution Adopting Policy for Invocation at Town Council Meetings. Mayor Starnes made a motion to accept the Resolution, and Council member Ross seconded, and the motion passed unanimously. (J.A. 241-245).
Town Council held a special, or "called" meeting on June 30, 2003. Council member Broome opened the meeting with a prayer. (J.A. 251) Mayor Starnes, however, testified that both the June 23 and June 30, 2003 meetings were regular Town Council Meetings. (J.A. 241-245).
At the Town Council meeting, held on July 21, 2003, the Council Agenda included a "Notice" as required by the June 23, 2003, Resolution. However, the Notice was not the complete Notice as required by the Council's own Resolution, and inaccurately informed citizens of their rights. In fact, the Notice was so garbled as to be incomprehensible and confusing. (J.A. 254-260) (J.A. 261-263).
At the July 21, 2003 Town Council meeting, Ms. Wynne was on the meeting agenda and informed Council, that the Pagan Pride Day event scheduled for September, 2003 would be canceled due to the recent racial violence and murder in Great Falls. Town Council member, Glenn Ross, verbally attacked Plaintiff and her religion regarding Pagan Pride Day, and openly expressed a religious intolerance during Council meetings toward Plaintiff, and her religion in direct violation of paragraph 7, page 3 of Defendant's own Resolution of June 23, 2003. Council member Ross stated that the reason Pagan Pride Day was not going to be held in Great Falls was that "... it was God's will. That our 'Heavenly Father' had been watching, and listening to the will of the people, and that their God stood up against the Pagan God, and stopped the Pagan event... that it was God's will and a glorious day for the Christians because they had defeated evil, the Christian community had a day to celebrate.... "Council Member Ross continued to disparage Plaintiff's religion and stated that ... "He had petitions at his house with a couple of hundred signatures, that he was acting on behalf of God's will, and that of the will of the people. What a glorious day in Great Falls, and for all Christians within our community. They came together with God, and through the will of all, defeated the Pagans...." (J.A. 254-263).
Paul Dean Harris, Jr. testified that he had been a citizen and resident of Great Falls, South Carolina all of his life. (J.A. 104). He testified that he has been a follower of the Wiccan religion for approximately fifteen (15) years, and was a member of Witches Against Religious Discrimination, Inc. (WARD). (J.A. 105) (J.A. 107). Harris testified that he had attended twelve (12) or thirteen (13) Council meetings held by the Great Falls Town Council beginning in January 2002 through April, 2003. (J.A. 105-106). In each of the Council meetings that he attended, an invocation and prayer was conducted by Council. In each of the prayers, the name of "Jesus Christ" or "Christ" was invoked either at the beginning of the prayer, or at the end of the prayer. On April 15, 2002, Harris attended the Town Council meeting where council member, J.C. Broome, led the prayer and began with " in the name of our Father" which was unusual since he had always said "in the name of Jesus Christ", but still Mr. Broome concluded the prayer with "in Christ's name we pray."(J.A. 106)
Harris testified that each of the prayers conducted by members of Town Council invoked the name of Jesus Christ. Harris testified that he was present at the Town Council meeting when Plaintiff, Darla Kaye Wynne, presented an oral request to have a non-sectarian prayer at Council meetings to no avail. (J.A. 107).
Henry Clayton Starnes, Jr., served as Council member of Great Falls, South Carolina for two (2) years, and had served as Mayor since 1998. Starnes retired after serving 43 years in public education serving as High School football coach for 12 years, and Principal of Great Falls High School for 31 years. (J.A. 127-129). According to Mayor Starnes, it has been customary to open Council meetings with a prayer or invocation. (J.A. 130)
Mayor Starnes testified that Town Council passed a Resolution on June 23, 2003 "...whereby we were trying to address the issue, Ms. Wynne is concerned with ..., that we would provide guidelines for our people...." (J.A. 130-131). Mayor Starnes admitted that the Resolution does not address the content of the invocation, or prayer, or place any guidelines on the prayer. (J.A. 131).
Mayor Starnes also admitted that it had been customary to open Town Council meetings with a prayer or invocation, and that "Jesus Christ", "Jesus Our Savior", and "In Christ's Name" have been mentioned in the prayers throughout the last year.
J.C. Broome, Mayor Pro Tem., had been the Council member who normally led the prayer, or invocation in the past, and had been designated by Council to lead the prayer, or invocation pursuant to Town Council's Resolution of June 23, 2003. (J.A. 131-132). Council has not directed whether J.C., Broome can or cannot invoke the name of "Jesus Christ" in the prayers, and the decision to invoke the name of "Jesus Christ" or other references to Christ is left totally to his discretion. (J.A. 135-136).
The Mayor and all Council Members are Christian. (J.A. 130). Mayor Starnes admitted that Jesus Christ is a Christian God and that only if a Muslim were elected as a Council Member,would there ever be a reference to Allah. As Mayor Starnes testified, the only way that the prayer will change is if someone of another faith is elected to Council. (J.A. 143)
Mayor Starnes testified that Town Council passed the Resolution on June 23, 2003 and they wanted a prayer "... that would meet the needs of our Council having their prayer. It would also make people feel comfortable to come in, and take part in the proceedings other than the prayer...." (J.A. 146). The Mayor asserted that someone else would have to be elected to Council before the prayer would be changed. Mayor Starnes volunteered that "....99 percent of the people in Town are Christian. That unless we had someone to come in from outside, they would probably follow a Judeo Christian format."(J.A. 146-147) Mayor Starnes made it clear that Council considers that there is no restriction on the content of any prayer or invocation in the Resolution, and he admitted that even with the Resolution in place, Council was free to continue to refer to "Jesus Christ" in any prayer or invocation, and would continue to do so. (J.A. 147-148)
Mayor Starnes admitted that even with the provisions of the Resolution in place, that members of the public at the meeting on June 30, 2003 rose, bowed their heads, and prayed with Town Council. (J.A. 151)
As Mayor Starnes testified on cross examination, [Question: "If someone does not believe that Christ and Jesus was who you believe it is that it doesn't matter?] Answer: "It doesn't matter...!" (J.A. 148 (11-13))
The June 23, 2003 Resolution paragraph 2(c) provides the invocation may request devine guidance for the Town of Great Falls, and its officials, and citizens in the conduct of the business of the Town. It is clear that the Resolution is still directed at public participation in the prayer and invocation, and it is not merely a legislative prayer. (J.A. 247-250).
Although Mayor Starnes testified that he could not recall any specific meetings with Reverand Twitty prior to February 19, 2001, regarding the church Resolutions presented by the churches to Town Council at the February 19, 2001 meeting, it is clear that Reverand Twitty's letter to Mayor Starnes indicates that they had previously discussed the issue of the Church support for Council's use of a Christian prayer. (J.A. 160).
Nothing has actually changed since Town Council enacted the June 23, 2003
Resolution. Town Council meetings still begin with a prayer or invocation and still contain references to, and invoke the name of, "Jesus Christ", and/or "Christ." (J.A. 251) (J.A. 254-263).
On July 21, 2003, the Mayor announced that J.C. Broome would lead the prayer. Mr. Broome invoked the name of "Jesus Christ", and all of the members of the public in attendance stood, and bowed their heads in prayer, (except for Ms. Wynne). On July 21, 2003, there was no pause or oral notice provided before the commencement of the prayer to allow anyone who did not wish to participate to leave Council chambers, and then return after the prayer. (J.A. 254-255)
On July 21, 2003 the Town Council held its second meeting following the June 23, 2003 Resolution (and first following the bench trial). Town Council failed to provide proper notices requred by their own Resolution; (J.A. 261) held a prayer which included references to "Jesus Christ"; and allowed Town Council member Glenn Ross, to openly disparage Plaintiff's religious beliefs while advancing and proselytizing the beliefs of the Christian faith (J.A. 254-263) (J.A. 285-291).
V. SUMMARY OF ARGUMENT
The District Court correctly enjoined the Appellants from commencing Town Council meetings with a prayer invoking the name of a specific deity of any one specific faith or religion. The prayers utilized by Great Falls Town Council at each Town Council meeting invoked the name of "Jesus Christ," "Christ," or, "Jesus our Savior". The use of explicitly Christian and sectarian prayers by Town Council violates the establishment clause of the First Amendment to the United States Constitution.
The prayers used by the Great Falls Town Council are a clear endorsement of the Christian religion in violation of the establishment clause since the prayers invoke the names of "Jesus Christ," "Christ", "Jesus our Savior" and "Christ our Lord" and refer only to Christian theology. These prayers proselytize and advance the Christian faith and advance its tenents over all other religions and non-religions in violation of the Establishment Clause.
The prayers conducted by the Town of Great Falls are conducted in a manner that coerces members of the public who attend Public Town Council meetings to take part in unwelcome religious exercises in violation of the Establishment Clause of the First Amendment to the United States Constitution.
The Town of Great Falls use of a Christian prayer is not an appropriate legislative prayer nor is it protected by historical review. The prayer conducted by the Town of Great Falls is not a legislative prayer directed at its members, but is directed at its citizens and encourages citizen participation. Town Council's use of a Christian prayer, invokes the name of a specific deity, and therefore proselytes and advances the Christian religion over other religions and beliefs. The Establishment Clause is violated in modern day America when a public body invokes a Christian prayer at public meetings.

VI. ARGUMENT

A. 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 applies to both federal and local governments. It is a prohibition of government sponsorship of religion which requires that government neither aid nor formally establish a religion. While at its inception, the Establishment Clause might not have been intended to prohibit governmental aid to all religions, the accepted view today is that it also prohibits a preference for religion over non-religion, or one religion over another religion.
The use of officially authorized prayers constitutes a direct violation of the Establishment Clause. This clause was designed to avoid any official sponsorship or approval of religious beliefs. Even though a practice may not be coercive, active support of a particular belief raises the danger of eventual establishment of state approved religious views. Prayers which favor one religion over another must be found to 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 religious beliefs, of a particular religion, or religious belief over other religious or non-religious beliefs, and this would be unconstitutional as it is in the case before this Court.
The Appellant's reliance upon Marsh v. Chambers, 463 U.S. 783 (1983) is misplaced. 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.
Both Marsh, and the case law since Marsh, find that references to Jesus Christ render such a prayer impermissibly sectarian in violation of the Establishment Clause. 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. 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.

In Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court held that at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way that establishes a state religion or religious faith, or tends to do so. The Court recognized that non-sectarian prayer, or prayer which would be acceptable, 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.
And in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the Supreme Court held that school district policies permitting student-led, student-initiated, prayer before a football game 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 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. The Resolution Adopting Policy for Invocation at Town Council Meetings adopted June 23, 2003, does nothing to change the Town's practice of having a Christian prayer with references to "Jesus Christ." The Resolution provides only official written approval for what Council has done in the past: provide a Christian prayer.
In Snyder v. Murray City Corporation, 159 F3d 1227 (10th Cir. 1998) the Tenth Circuit Court of Appeals held that city council did not violate the Establishment Clause by denying a citizen permission to recite a proposed prayer. The Appeals Court determined that the proposed prayer could easily be characterized as political harangue, but assumed its prayful character. The Court found that the prayer fell well outside the genre of acceptable legislative prayers since it attacked the idea of legislative prayer, and disparaged anyone who believed legislative prayer was appropriate, proselytized his religious views and disparaged others' religious views.

The Court in Snyder contrasted a sole reference to "God" with prayer advancing particular sectarian views. Sectarian legislative prayer, the Court concluded, is a more aggressive form of governmental advancement of religion and would not be allowed.
As the Court concluded:
Thus, the kind of legislative prayer that will run afoul of the Constitution is one that proselytizes a particular religious tenet or belief, or that aggressively advocates a specific religious creed, or that derogates another religious faith or doctrine. When a legislative invocation strays across this line of proselytization or disparagement, the Establishment Clause condemns it. 159 F3d at 123.

The prayers of the Great Falls Town Council invoking the name of Jesus Christ, and a Christian religion, clearly advance and proselytize a particular religious tenet, or belief, and advance a specific religious creed over other religious beliefs and faiths as well as the beliefs of those without religious faiths or beliefs, and therefore violate the Establishment Clause.
The Sixth Circuit Court of Appeals 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 Court of Appeals 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 Court of Appeals applied the three prong test articulated in Lemon v. Kurtzman 403 U.S. 602 (1971). Under Lemon, a government-sponsored activity will not violate the Establishment Clause if : (1) it has a secular purpose, (2) its principle or primary effect neither advances nor inhibits religion, and (3) it does not create an excessive entanglement of the government with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105. If the challenged practice fails any part of the three-part test, then it violates the Establishment Clause. See Stone v. Graham, 449 U.S. 39, 40-41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980).
In applying the Lemon test, 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 states 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. Coles also disapproved of the school board's excessive entanglement with religion. The board decided to include the prayer in its public meetings, determined which member of the community would give the prayer, and often had the school board president himself compose and deliver the prayer. Id.
See also: Rubin v. City of Burbank, 124 Cal Rptr 2d 867(Cal Ct App., 2000) in which 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 standard, as well as the test of Lemon v. Kurtzman, 403 U.S. 602 (1971).
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.
It is crystal clear from the events which took place at Town Council Meetings that Council members feel free not only to have an openly Christian prayer, but also feel free to openly disparage the religion of Ms. Wynne, and others, during the public meetings, in open disregard not only for their own recent Resolution, but also the dictates of the First Amendment.
B. The prayers are a government endorsement of the Christian religion in violation of the Establishment Clause.

The prayers conducted by the Great Falls Town Council are a government endorsement of the Christian religion. The prayers which contain invocations to "Jesus Christ", "Christ", and "Jesus Our Savior", and refer to Christian theology are clear endorsements of the Christian religion and beliefs, and therefore impermissible under the First Amendment.
As the Supreme Court stated in Lee v. Weisman, 505 U.S. 577 (1992):
"The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious faith, or tends to do so.' Id, at 587, 112 S.Ct. 2649 (citations omitted) (quoting Lynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)).

The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an Establishment of Religion." The Establishment Clause "was intended, and has been interpreted, to forbid not only governmental preference of one religion over another, but any establishment or encouragement of religion by the state." O'Malley v. Briely, 477 F2d 785, 790 (3d Cir. 1973). "In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State." Everson v. Board of Education, 330 U.S. 1, 16 (1947).
The three part Lemon test is used to determine the constitutionality of government actions touching on religion. The Supreme Court, the Third Circuit Court of Appeals and this Court have all recently reaffirmed the vitality of the Lemon test. See Santa Fe Independent School District v. Doe, 530 U.S. 290, 314 (2000); ACLU of New Jersey v. Schundler ("Schundler II"), 168 F.3d 92, 97, 105 (3rd Cir. 1999), Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003), reh. en banc den., 341 F.3d 312 (4th Cir. 2003).
The content of the prayers at Great Falls Town Council Meeting are undeniably Christian prayers with invocations in the name of Jesus Christ. The Town Council endorses these prayers at every meeting, and therefore violates the Establishment Clause. See Smith v. County of Albermarle, 895 F.2d 953 (4th Cir. 1990).
In Hall v. Bradshaw, 630 F.2d 1018 (4th Cir. 1980) the Fourth Circuit Court of Appeals 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 Court of Appeals 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 of 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 noted that an act so intrinsically religious as prayer cannot meet the secular purpose test of Lemon. 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.
As the Supreme Court found in Sante Fe Independent School District v. Doe, 530 U.S. 290 (2000) in cases involving state participation in a religious activity, one of the relevant questions is whether an objective observer, acquainted with the text, legislative history and implementation of the statute, would perceive it as a state endorsement of prayer. It is clear that an objective observer would view the Great Falls Town Council's conduct as endorsement of the Christian religion and Christian beliefs.
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 . That prayer, conducted during supper began with: "Almighty God," "O God," "Father God", "Heavenly Father", or "Sovereign God," and was dedicated to giving thanks or asking for God's blessing. 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 of Appeals assessed the supper prayer against the principles announced in Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000); and Lemon v. Kurtzman, 403 U.S. 602 (1971) and found that VMI's supper prayer conflicted with the Establishment Clause of the First Amendment. The Court concluded that the supper prayer violated the Lemon test:

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

The Fourth Circuit Court of Appeals noted that when a state sponsored activity has an overtly religious character, Courts have consistently rejected efforts to assert a secular purpose for that activity. As the Court stated:

Indeed, we have emphasized that "an act so intrinsically religious as a prayer cannot meet, or at least would have difficulty meeting, the secular purpose prong of the Lemon test." Constangy, 947 F.2d at 1150. And we have also recognized the obvious that recitation of a prayer "is undeniably religious and has, by its nature, both a religious purpose and effect." Hall v. Bradshaw, 630 F.2d 1018, 1020 (4th Cir. 1980).

The Town of Great Falls use of a patently Christian prayer likewise fails the Lemon test, and the Marsh test. The invocation of a Christian prayer clearly has a secular purpose; its principle or primary effect advances the Christian religion over all others; and it creates excessive entanglement of the government with religion. 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 proselytes and advances Christianity over other religions and non-religions in violation of the Establishment Clause.

C. The prayers are conducted in a manner that coerces members of the public who attend council meetings to take part in unwelcome religious exercise.

The prayers conducted by the Great Falls Town Council coerce members of the public who attend council meetings to take part in an unwelcome religious exercise which invokes the name of Jesus Christ and other Christian theological beliefs and imposes the Christian view of religion upon the public, and advances these Christian beliefs over other religions and persons of non-religion. Plaintiff has demonstrated that members of the public are ostracized and discriminated against for not participating in the Christian prayers conducted by Town Council. The Plaintiff was treated differently by the Mayor and Council from other members of the public attending Council meetings and Plaintiff's religion was openly disparaged by Council member, Ross, during the public session of the Town Council meeting on July 21, 2003. The Town Council Resolution of June 23, 2003, does not eliminate the coercion as Council does not provide adequate notice either orally or in writing before commencement of a prayer, and the Resolution and practice requires members of other faiths to leave Town Council meetings in order not to be subjected to a Christian prayer. This policy only furthers coerces, and further ostracizes such persons from their community and inhibits them in conduct of public business.
This is the same type of coercion that the United States Supreme Court has condemned in Lee v. Weisman, 505 U.S. 577 (1992) and Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). In Lee the Court stated:
While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us........

It is the tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. 505 U.S. at 596.

In Santa Fe, the Court found that the school district could not force upon students the choice between attending football games, and avoiding personally offensive religious rituals, and to do so was a violation of the Establishment Clause. The Court noted:
[8] School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents "that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Lynch, 465 U.S., at 688, 104 S.Ct. 1355 (O'CONNOR, J., concurring). 530 U.S. at 308.

And in Mellen, supra, this Court found that VMI's supper prayer was not "voluntary," and exacted an unconstitutional toll on the consciences of religious objectors and was therefore in violation of the Establishment Clause.
The same principles apply to the Great Falls Town Council's conduct in advancing only a Christian view, and Christian prayer which coerces citizens to either be subjected to a Christian message, or to forfeit their political participation in the affairs of their government.

D. 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 proselytes 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 correctly found.
As the District 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 can no longer be allowed as it clearly proselytizes and advances the Christian religion over all others. America today is too religiously diverse, and the Constitution too clear to allow only Christian prayers at our public meetings. As the Supreme Court stated in Larson v. Valente, 456 U.S. 228 (1982):
==================================
ABC Amber Text Converter v2.01
Trial version
==================================

The clearest command of the Establishment Clause is that one religious denominations cannot be officially preferred over another....

This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause. Madison's vison - freedom for all religion being guaranteed by free competition between religions - naturally assumed that every denomination would be equally at liberty to exercise and propagate its beliefs. Buts such equality would be impossibly in an atmosphere of official denominational preference. Free exercise thus can be guaranteed only when legislators - and voters - are required to accord to their own religions the very same treatment given to small, new or unpopular denominations. 456 U.S. at 245-456

VII. CONCLUSION

Any prayer that contains an invocation to Jesus Christ or Christ is explicitly Christian and sectarian. Such a prayer serves to proselytize by endorsing and advancing one religion over another. Under the Marsh, Allegheny, and Lemon standards, a prayer that contains a specific reference to Jesus Christ or Christ is unconstitutional and may not be allowed. The Appellants should therefore be permanently enjoined and restrained from utilizing such prayer to commence Town Council meetings and the District Court's Order should be affirmed.

Respectfully submitted,
Columbia, South Carolina ___________________________
Herbert E. Buhl, III
January , 2004 533 Harden Street
Columbia, SC 29205
(803) 799-3767

ATTORNEY FOR APPELLEE