10th Cir. en banc

[Rob Weinberg]

At 02:29 PM 2/6/98 -0500, Eric Treene wrote:
>The Tenth Circuit has decided to rehear en banc Snyder v. Murray City
>Corp., 1997 WL 561229 (10th Cir. Sept. 10, 1997)  (available at
>www.law.emory.edu/10circuit
>/sept97/96-4087.wpd.html).   The case held that a city council could
>exclude a citizen
>from reading the following prayer during the "reverence" period at the
>beginning of each meeting, on the grounds that the city council could
>label it a statement rather than a prayer:
>
>Our mother, who art in heaven (if, indeed there
>    is a heaven and if there is a God that takes a
[SNIP]

Someone help me out here, but I think the parties, the trial judge AND the
panel missed the boat on this one.

The city rejected the request because the "prayer" wasn't a prayer, but was
actually a political speech. In its letter rejecting the request it said
the time to do that was later in the program. Fair enough. Reasonable time,
place and manner restriction on speech (assuming that _Marsh_ applies and
the original invocations are indeed constitutional, as does the panel).

Now, the city argued it wasn't prayer, it was speech. A potentially
dangerous (but here, successful) thing to do, as clearly it is content and
viewpoint discrimination. Snyder, on the other hand, argues it was indeed a
"prayer," not speech and that rejection of his particular "prayer" violated
the establishment clause because... of its political content?

Snyder loses his establishment and free exercise claims on summary
judgment, but on appeal, according to the panel, argues nothing but free
speech cases, which the panel promptly dismisses as irrelevant to an
establishment clause/free exercise clause analysis. Major mistake, but the
plaintiff *is* the master of his own complaint and argument.

Frankly, I think this should have been analyzed as a free speech case, not
an EC or free exercise case (I think the panel was right on saying he did
not have a free exercise claim). But the panel seems to be suggesting
(someone correct me) that if it is indeed analyzed as "prayer," that it's
OK to discriminate on whether it is a *proper* prayer or not based on ...
its content. Seems to me, in doing so, they've bought themselves an EC
violation because the panel legitimizes the city's selectivity in "what
prayer" they will permit if it doesn't meet articulated "guidelines" as to
content and message.

All of which is to suggest another wrinkle for future discussion: at what
point does a prayer so partake of speech that it must be analyzed under the
free speech clause instead of the establishment clause?

******************
Rob Weinberg, Montgomery, AL
http://www.mindspring.com/~robertmw/