HomeMy WebLinkAbout13 - Change to the City Council's Invocation Policy (A -19)CITY OF
F NEWPORT REACH
City Council Staff Report
January 13, 2015
Agenda Item No. 13
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Aaron Harp, City Attorney — (949) 644 -3131, aharp @newportbeachca.gov
PREPARED BY: Michael Torres, Assistant City Attorney
PHONE: (949) 644 -3131
TITLE: Change to the City Council's Invocation Policy (A -19)
ABSTRACT:
The U.S. Supreme Court recently issued an opinion in Town of Greece v. Galloway, 134 S.Ct. 1811 (2014)
that "absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible
government purpose..." an invocation policy passes constitutional muster. The U.S. Supreme Court
further held that government should refrain from censoring invocations in advance by prohibiting speakers
from referencing specific religions or deities. As a result of the U.S. Supreme Court's holding, the City
Council may wish to update its existing City Council Invocation Policy (A -19) to reflect the current state of
the law and remove restrictions that prohibit a speaker from referring to a specific religion or deity in his /her
invocation. This was a specific request of Council Member Peotter at the December 9, 2014 Council
meeting.
RECOMMENDATION:
Should the Council wish to do so, adopt Resolution No. 2015 -4, A Resolution of the City Council of the City
of Newport Beach Adopting a Revised City Council Policy Regarding Invocations (City Council Policy A -19)
at City of Newport Beach ( "City ") meetings.
FUNDING REQUIREMENTS:
There are no anticipated funding impacts associated with the adoption of the attached resolution.
DISCUSSION:
The City Council, like other legislative bodies in America, has a tradition of solemnizing proceedings by
allowing for an opening prayer before each meeting. The City Council intends, and has intended in past
practice, to adopt a policy that does not proselytize or advance any faith, or show any purposeful
preference of one religious view to the exclusion of others.
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The attached policy allows for an invocation to be voluntarily delivered by a member of the clergy /religious
leader or other person in the City. No member of the City Council, members of any City Board,
Commission, Committee or City employee or any other person in attendance at a meeting is required to
participate in any invocation that is offered.
The City Council has intended in past practice to adopt a policy that upholds an individual's "free exercise"
rights under the First Amendment. The U.S. Supreme Court has repeatedly clarified that "there is a crucial
difference between government speech endorsing religion, which the Establishment Clause forbids, and
private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." (Bd. of
Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990)). The attached policy reflects the
case law established by the U.S. Supreme Court and respects individual rights without endorsing any
particular religion or set of beliefs.
ENVIRONMENTAL REVIEW:
This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060
(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in
physical change to the environment, directly or indirectly.
NOTICING:
This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at
which the City Council considers the item).
ATTACHMENTS:
Description
Attachment A - Resolution
Attachment B - Policy A -19 Adopted January 27, 2004
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ATTACHMENT A
RESOLUTION NO. 2015-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA ADOPTING A
REVISED CITY COUNCIL POLICY REGARDING
INVOCATIONS
WHEREAS, the City Council is an elected legislative and deliberative public
body, serving the citizens of the City of Newport Beach ( "City ");
WHEREAS, legislative bodies in America have long maintained a tradition of
solemnizing proceedings by allowing for an opening prayer;
WHEREAS, City Council Policy A -19 allows for the selection of a member of the
local clergy and other prominent persons to provide invocations at City Council
proceedings;
WHEREAS, the City Council now desires to adopt this formal, written policy to
clarify and codify its invocation practices in light of recent developments in case law;
WHEREAS, such prayer before deliberative public bodies has been consistently
upheld as constitutional by American courts, including the United States Supreme
Court;
WHEREAS, in Marsh v. Chambers, 463 U.S. 783 (1983), the United States
Supreme Court rejected a challenge to the Nebraska Legislature's practice of opening
each day of its sessions with a prayer by a chaplain paid with taxpayer dollars, and
specifically concluded, "[t]he opening of sessions of legislative and other deliberative
public bodies with prayer is deeply embedded in the history and tradition of this country.
From colonial times through the founding of the Republic and ever since, the practice of
legislative prayer has coexisted with the principles of disestablishment and religious
freedom." (ld., at 786);
WHEREAS, the United States Supreme Court further held, "[t]o invoke divine
guidance on a public body... is not, in these circumstances, an 'establishment' of
religion or a step toward establishment; it is simply a tolerable acknowledgment of
beliefs widely held among the people of this country." (ld., at 792);
WHEREAS, the United States Supreme Court affirmed in Lynch v. Donnelly, 465
U.S. 668 (1984), "[o]ur history is replete with official references to the value and
invocation of Divine guidance in deliberations and pronouncements of the Founding
Fathers and contemporary leaders." (Id., at 675);
WHEREAS, the United States Supreme Court further stated, "[t]hose
government acknowledgments of religion serve, in the only ways reasonably possible in
our culture, the legitimate secular purposes of solemnizing public occasions, expressing
confidence in the future, and encouraging the recognition of what is worthy of
appreciation in society. For that reason, and because of their history and ubiquity, those
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practices are not understood as conveying government approval of particular religious
beliefs." (ld., at 693 (O'Connor, J., concurring));
WHEREAS, the United States Supreme Court also famously observed in Zorach
v. Clauson, 343 U.S. 306, (1952), "[w]e are a religious people whose institutions
presuppose a Supreme Being." (Id., at 313 -14);
WHEREAS, the United States Supreme Court acknowledged in Holy Trinity
Church v. United States, 143 U.S. 457 (1892), that the American people have long
followed a "custom of opening sessions of all deliberative bodies and most conventions
with prayer ...." (ld., at 471);
WHEREAS, the United States Supreme Court has determined, "[t]he content of
[such] prayer is not of concern to judges where ... there is no indication that the prayer
opportunity has been exploited to proselytize or advance any one, or to disparage any
other, faith or belief." (Marsh, 463 U.S. at 794 -795);
WHEREAS, the United States Supreme Court also proclaimed that it should not
be the job of the courts or deliberative public bodies "to embark on a sensitive
evaluation or to parse the content of a particular prayer" offered before a deliberative
public body. (ibid.);
WHEREAS, the United States Supreme Court has counseled against the efforts
of government officials to affirmatively screen, censor, prescribe and /or proscribe the
specific content of public prayers offered by private speakers, as such government
efforts would violate the First Amendment rights of those speakers. (See, e.g., Lee v.
Weisman, 505 U.S. 577, 588 -589 (1992));
WHEREAS, the United States Supreme Court has recently held in a plurality
opinion in Town of Greece v. Galloway 134 S.Ct. 1811 (2014) that "absent a pattern of
prayers that over time denigrate, proselytize, or betray an impermissible government
purpose..." a prayer policy passes constitutional muster;
WHEREAS, the City Council intends, and has intended in past practice, to adopt
a policy that upholds an individual's "free exercise" rights under the First Amendment;
WHEREAS, the United States Supreme Court has repeatedly clarified that "there
is a crucial difference between government speech endorsing religion, which the
Establishment Clause forbids, and private speech endorsing religion, which the Free
Speech and Free Exercise Clauses protect." (Bd. of Educ. of Westside Cmty. Sch. v.
Mergens, 496 U.S. 226, 250 (1990));
WHEREAS, the City Council intends, and has intended in past practice, to adopt
a policy that does not proselytize or advance any faith, or show any purposeful
preference of one religious view to the exclusion of others; and
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WHEREAS, the City Council recognizes its constitutional duty to interpret,
construe, and amend its policies and ordinances to comply with constitutional
requirements as they are announced.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council hereby amends City Council Policy A -19 in its
entirety and replaces it with the attached amended City Council Policy A -19, which is
incorporated herein by reference.
Section 2: If any section, subsection, sentence, clause or phrase of this
resolution is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The
City Council hereby declares that it would have passed this resolution and each section,
subsection, clause or phrase hereof, irrespective of the fact that any one or more
sections, subsections, sentences, clauses and phrases be declared unconstitutional.
Section 3: The recitals provided in this resolution are true and correct and are
incorporated into the substantive portion of this resolution.
Section 4: Except as expressly modified in this resolution, all other City
Council Policies, sections, subsections, terms, clauses and phrases set forth in the
Council Policy Manual shall remain unchanged and shall be in full force and effect.
Section 5: The City Council find the adoption of this resolution and the
amendment of City Council Policy A -19 is not subject to the California Environmental
Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a
direct or reasonably foreseeable indirect physical change in the environment) and
15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
Section 6: This resolution shall take effect immediately upon its adoption by
the City Council, and the City Clerk shall certify the vote adopting this resolution.
ADOPTED this day of 2015.
Edward D. Selich
Mayor
ATTEST:
Leilani I. Brown,
City Clerk
Attachment: Amended City Council Policy A -19
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A -19
GUIDELINES FOR INVOCATIONS
The Newport Beach City Council has a long tradition of beginning each City Council
meeting with a pledge of allegiance and an invocation. Recently, the United States
Supreme Court in Town of Greece v. Galloway 134 S.Ct. 1811 (2014) held that "absent
a pattern of prayers that over time denigrate, proselytize, or betray an impermissible
government purpose..." a prayer policy passes constitutional muster. The purpose of
this Policy is to ensure that invocations comply with the law so that the City's residents
retain the right to open public meetings with words of inspiration and wisdom. The City
Council has determined that invocations that comply with the guidelines in this Policy
are consistent with the United States Supreme Court's jurisprudence.
1. In order to solemnize proceedings of the City Council, Boards, Commissions and
Committees, it is the policy of the City Council to allow for an invocation or prayer to be
offered at its meetings for the benefit of the City Council, Board members, Commission
members, Committee members and the community.
2. No member of the City Council members of any City Board, Commission,
Committee or City employee or any other person in attendance at the meeting shall be
required to participate in any prayer that is offered.
3. The prayer shall be voluntarily delivered by a clergy /religious leader or other
person in the City of Newport Beach. To ensure that such person ( "invocational
speaker ") is selected from among a wide pool of the City's leaders, on a rotating basis,
the invocational speaker shall be selected according to the following procedure:
a. The City Clerk shall compile and maintain a database ( "Congregations
List ") of the religious congregations with an established presence in Newport Beach.
b. The Congregations List shall be compiled by referencing the listing for
"churches," "congregations," or other religious assemblies [religious, atheist or agnostic
groups or assemblies (collectively "Assemblies ")] in the annual Yellow Pages phone
book(s) published for the City of Newport Beach, research from the Internet, and
consultation with local chambers of commerce. All religious congregations and
Assemblies with an established presence in the local community of Newport Beach are
eligible to be included in the Congregations List, and any such congregation can confirm
its inclusion by written request to the City Clerk.
C. The Congregations List shall also include the name and contact
information of any chaplain who may serve one (1) or more of the fire departments or
law enforcement agencies of the City of Newport Beach or any nearby military facilities.
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d. The Congregations List shall be updated, by reasonable efforts of the City
Clerk, in November of each calendar year.
e. Within thirty (30) calendar days of the effective date of this Policy, and on
or about December 1 of each calendar year thereafter, the City Clerk shall mail an
invitation addressed to the "congregation leader" of each congregation listed on the
Congregations List, as well as to the individual chaplains included on the Congregations
List.
f. The invitation shall be dated at the top of the page, signed by the City
Clerk at the bottom of the page, and read as follows:
Dear Congregation Leader,
The City Council makes it a policy to invite members of the clergy in the
City of Newport Beach to voluntarily offer a prayer before the beginning of
its meetings. As the leader of one of the congregations with an established
presence in the local community of the City of Newport Beach, or in your
capacity as a chaplain for one of the fire departments or law enforcement
agencies of the City of Newport Beach, the City Council would appreciate
if you would consider offering this important service at an upcoming
meeting of the City Council, City Board, Commission, or Committee.
If you are willing to assist the City in this regard, please send a written
reply via E -mail, fax or mail to the City Clerk. Invocations are scheduled on
a first -come, first -serve or other random basis. The dates of the City
Council's scheduled meetings for the upcoming year are listed on the
following, attached page. Please note, meetings of the City's Boards,
Commissions, and Committees are held throughout the year. If you have
a preference among the dates, please state that request in your written
reply.
This opportunity is voluntary, and you are free to offer the invocation
according to the dictates of your own conscience. To maintain a spirit of
respect and ecumenism, the City Council requests only that the prayer
opportunity not be exploited as an effort to convert others to the particular
faith of the invocational speaker, nor to disparage any faith or belief
different than that of the invocational speaker.
On behalf of the City Council, I thank you in advance for considering this
invitation.
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Sincerely,
City Clerk
g. Consistent with paragraph 6 hereof and, as the invitation letter indicates,
the respondents to the invitation shall be scheduled on a first -come, first - served or other
random basis to deliver invocations.
h. If the selected invocational speaker does not appear at the scheduled
meeting, the Mayor (or board, commission, committee chairperson) may ask for a
volunteer from among the City Council (or Board, Commission, Committee) or the
audience to deliver the invocation.
5. No invocational speaker shall receive compensation for his or her service.
6. The City Clerk shall make every reasonable effort to ensure that a variety of
eligible invocational speakers are scheduled for the City Council meetings. If others are
waiting and have not had an opportunity to deliver an invocation, no invocational
speaker shall be scheduled to offer a prayer at more than three (3) City Council, Board,
Commission or Committee meetings in any calendar year.
7. Neither the City Council, Board, Commission, or Committee members, nor the
City Clerk shall engage in any prior inquiry, review of, or involvement in, the content of
any prayer to be offered by an invocational speaker.
8. This Policy shall be intended for all Boards, Commissions, Committees, or any
other public event of the City of Newport Beach, California.
9. This Policy in not intended, and shall not be implemented or construed in any
way, to affiliate the City Council with, nor express the City Council's preference for, any
faith or religious denomination. Rather, this Policy is intended to acknowledge and
express the City Council's respect for the diversity of religious denominations and faiths
represented and practiced among the citizens of Newport Beach.
Adopted — January 27, 2004
Amended — 2015
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ATTACHMENT B
I_mt
GUIDELINES FOR INVOCATIONS
The Newport Beach City Council has a long tradition of beginning each City Council
meeting with a pledge of allegiance and an invocation. Recently, the Court of Appeal
ruled that certain invocations - those that constitute sectarian prayer - violate the
Establishment Clause of the Federal Constitution (Rubin v. City of Burbank (101 Cal.
App. 4th 1194 (2002 )). The purpose of this Policy is to ensure that invocations comply
with the law so that we retain the right to open public meetings with words of
inspiration and wisdom.
The City Council believes that the purpose of an invocation is to recognize the role that
freedom of religion has played in the history of this country and the contribution that
religious groups make to the quality of life in this community - and not to promote or
discourage any particular religious belief. The City Council is confident that anyone
who agrees to give an invocation consistent with this Policy will offer words that
respect the laws and institutions that protect the freedom we all enjoy.
The City Council has determined that invocations that comply with the following
guidelines are consistent with the Rubin decision.
A. The tone, tenor and content of the invocation would not, to a reasonable person,
be considered as advancing or disparaging a specific religion.
B. The invocation does not refer to terms associated with a specific religion, sect or
deity such as "Jesus Christ ", "Allah" or "Our Father in Heaven."
C. The invocation does not refer to a particular religious holiday, significant date,
holy day or religious event.
D. The person giving the invocation does not read or quote from any sectarian
book, doctrine or material.
The City Attorney shall send a letter to each person who has agreed to give an
invocation expressing the City Council's appreciation for volunteering and confirming
his /her intention to offer an invocation that is fully consistent with this policy.
Adopted - January 27, 2004
1
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