In a welcome decision from the Ninth Circuit Court of Appeals, the judges rejected re-hearing a case in which the Chino Valley Unified School District Board of Directors (in California) was accused of violating the Establishment Clause by promoting Christianity at meetings.

Back in July, a three-judge panel unanimously ruled against the District. Yesterday’s decision reaffirmed that decision, leaving the Supreme Court as the final option for the Christian side.

This is another huge victory for church/state separation and the Freedom From Religion Foundation.

To understand what this case was about, you should know that board meetings in this District frequently resembled church services. The board members often led explicitly Christian prayers and read Bible verses out loud:

… CVUSD Board of Education President James Na said [at a meeting] “our lives begin in the hospital and end in the church, and urged everyone who does not know Jesus Christ to go and find Him.” Mr. [Andrew] Cruz “closed by reading Psalm 143.”

In late 2014, the Freedom From Religion Foundation filed a federal lawsuit against the district on behalf of a student, two parents, and a District employee:

The plaintiffs “feel that the government is taking sides against them on religious questions,” and view the prayers, bible readings, and proselytizing as state-endorsed religion. The board is excessively entangled with religion, alleges the complaint, noting there is no secular or educational purpose for prayers, bible readings, or proselytizing. FFRF contends this violates the Establishment Clause, the Equal Protection Clause, and the California Constitution. FFRF repeatedly attempted to resolve these constitutional violations without litigation. FFRF originally contacted the board on Sept. 14, 2013, asking it to stop scheduling prayers at its meetings. The board responded on Oct. 7, 2013, refusing the request.

These board members didn’t know the difference between church and state, and they saw school board meetings as an extension of the pulpit, where everyone in the room was just a target for proselytization, no matter their age.

Unbelievably, things got only worse after that.

At a meeting shortly after the lawsuit was filed, the Board of Education voted 3-2 in favor of finding an attorney to “defend the board without pay” against the legal challenge, clearly not realizing that while Christian legal groups won’t charge them for their services, the District would be on the hook for FFRF’s legal fees when they lost.

As if that weren’t bad enough, board member Andrew Cruz invoked the Charlie Hebdo massacre to defend the prayers:

At the end of the meeting, Cruz expressed his dismay at the leadership of the country and encouraged people to examine American leadership in light of the terrorist attacks in Paris. “What is happening today, what the terrorists are doing, but what is really important is that you can’t look at the direction of the terrorist, you’ve got to look at the direction of our leaders because what our leaders are doing is they are eroding our rights and they’re also moving away from God,” Cruz said. “It’s so bizarre when you really think about it, that a century ago they had people who were promoting freedom, our rights, and now things have changed dramatically.”

I have no idea what that was supposed to mean… it was basically a word salad made of right-wing talking points.

Cruz went on another absurd rant in 2015, trashing gay marriage, invoking the Confederate Flag, arguing that racism was over, and complaining about California’s recent mandatory vaccination laws.

(I didn’t alter Cruz’s grammar in the excerpts below.)

It is stated upon our foundation and sealed in our hearts that a union between one man and one woman, to the exclusion of all others so that children may know and may be raised by their biological parents, we should now be [unintelligible] vigilant for our freedoms may be in jeopardy… … Children are not commodities that can be [unintelligible] severed from their natural parentage and traded between unrelated adults. Parenting will be defined, erasing and replacing with gender-neutral legal parent, erasing biological, natural parenthood that states will ignore. … [Through the government,] expect thoughts to be controlled by limiting words. Gender-neutral language will become legally mandated. It will be discriminatory to assume a human being is male or female or heterosexual… … It is quite strange when you have nine innocent worshipers in Charleston being murdered, and discussion turns around to the Confederate Flag… Today, South Carolina governor is a woman from India. Of Indian descent. One of two senators is black. You know, we’re no longer a racist country… … It is bizarre how our government harm our citizens by allowing infectious diseases to infect our country and blaming mothers who don’t vaccinate their children.

It’s hard to address all the idiotic things he said since “unintelligible” applies to all of it. (Needless to say, just because people in South Carolina have some prominent politicians of color doesn’t mean racism is over. Not by a long shot.)

But back to the matter at hand: How the hell did any of this help students in the District?

The School Board had become an outlet for Cruz and his church buddies (who outnumbered the other Board members) to promote their personal politics rather than do any meaningful work on behalf of the kids.

A U.S. District Court Judge realized that, too. In 2016, Judge Jesus G. Bernal ruled that the prayers were unconstitutional and ordered the school board to put a stop to them immediately.

The District also had to empty out that bank account.

As a result of today’s court ruling, the Chino Valley Unified School District, which in the past has faced serious budget shortfalls, will be on the hook for tens of thousands of dollars in legal fees. [FFRF’s Andrew] Seidel estimates that the district will pay out more than $50,000. Lisa Greathouse, whose children graduated from the school district, long questioned the board’s “promoting their religious agenda.” She said she’s not surprised by today’s decision but thinks “the money spent on legal fees could have been much better spent in the classroom.” The school board meets tonight, but thanks to the judge’s ruling, it will not be allowed to open its meeting with a prayer for the first time in years.

That article was written immediately after the ruling, and it turned out it lowballed the final amount. It wasn’t $50,000 they had to pay. It was a little bit more:

Bernal ordered board president Andrew Cruz and board members James Na and Sylvio Orzco Thursday to pay a total of $202,971.70 to the Freedom From Religion Foundation for their attorney’s fees and other costs.

That money could easily pay the starting salary for four new teachers. But because this board already lacked a sensible majority, they went ahead and hired a law firm to keep fighting this lawsuit.

There was one glimmer of hope, though. While the legal battle continued, the board voted to discontinue prayers and Bible readings at meetings. (If they had implemented that rule earlier, they could have saved everyone a lot of time and money. Oh well.)

In July, the Appeals Court shot down the school board’s attempt to eke out a victory. Judges M. Margaret McKeown, Kim McLane Wardlaw, and Wiley Y. Daniel issued a unanimous ruling against the District.

Among other things, they said the prayers were hardly analogous to city council invocations as the District had claimed.

Unlike a session of Congress or a state legislature, or a meeting of a town board, the Chino Valley Board meetings function as extensions of the educational experience of the district’s public schools. The presence of large numbers of children and adolescents, in a setting under the control of public-school authorities, is inconsonant with the legislative-prayer tradition.

Furthermore, they said, the board couldn’t just pretend these prayers were a non-sectarian attempt to “solemnize” the meetings.

… Chino Valley’s choice to restrict the opening message to an invocation belies the expressed purposes of the policy. There is no secular reason to limit the solemnization to prayers or, relatedly, to have a presupposition in the policy that the solemnizers will be religious leaders. Rather, these aspects of the policy point to a religious purpose.

The judges also noted that the list of potential congregations from which to draw speakers were nearly all Christian denominations. Because of that, the practice also failed the Lemon Test, which is the tool judges use to determine if church/state separation has been violated. There was no secular purpose to these prayers (violating the first prong), the prayers were advancing religion (violating the second prong), and they created an “excessive government entanglement” with religion (violating the third prong).

Nor did these prayers respect the rights — or existence — of non-religious members of the community:

… the purpose of respecting religious diversity, to the extent that it does not encompass nonreligious belief systems and their diversity, is itself constitutionally suspect. Atheists and agnostics comprise four percent and five percent of the California population, respectively. Neither the purpose of respecting religious diversity nor the means of doing so via prayer acknowledges or respects the beliefs of nonreligious citizens in the district.

Ultimately, said the judges, what this school board was doing was illegal, and the original ruling was correct in stopping it.

The policy and practice of prayer at Chino Valley Board meetings violates the Establishment Clause. The scope of injunctive relief is appropriate, because it merely prohibits governmental action that violates the Constitution and does not infringe upon constitutional rights.

I’m curious how much more the District will have to pay as a result of this loss. Haven’t the students and staff suffered enough?

In any case, the bill is surely larger now that the full Ninth Circuit has rejected the idea of taking another look at the case. It was decided correctly a few months ago, they implied with their votes.

That didn’t stop several judges from voicing their anger at the decision, saying that the Christian prayers uttered by this school board were perfectly in line with the kinds of prayers allowed at city council meetings and sessions of Congress.

… a panel of our court has now concluded that the practice of including prayer at the beginning of the open session of a public legislative body is a violation of the Establishment Clause and is no longer constitutional. In doing so, the panel rejected the clear instruction of the Supreme Court and created a circuit split in the process. And today, the full court has failed to correct our own error. With respect, I believe our court’s refusal to rehear this case en banc is a needless mistake. The practice of Defendant-Appellant Chino Valley Unified School District Board of Education to begin its regular public meetings with prayer does not constitute an establishment of religion in any sense of that term.

Those judges ignore how the Supreme Court said (and other courts interpreted) legislative prayers were acceptable provided that everyone (including atheists) had the opportunity to deliver them. That wasn’t the case here.

The same judge who wrote that rebuke also said it wasn’t a big deal that children were present at these meetings, unlike a city council meeting where that’s rare, since it’s “not a ‘school setting.'”

Another judge who dissented said the application of the Lemon Test by the three-judge panel had been inappropriately used to determine the non-secular nature of the prayers because the school board members said it was secular in nature. So there.

“The board expressed two secular purposes for the policy, both of which pass constitutional muster: (1) solemnizing the board meetings and (2) supporting religious diversity,” [Ryan] Nelson wrote. “These stated secular purposes are generally entitled to deference absent a showing that they are ‘motivated wholly by an impermissible purpose’ or are a sham. As this court has cautioned, a ‘reviewing court must be “reluctant to attribute unconstitutional motives” to government actors in the face of a plausible secular purpose.’ The board policy here is not the ‘unusual’ case where the government purposes should be considered a sham.”

If you believe that, then you’ll also believe anti-gay Christian bakers are just trying to practice religious freedom when they discriminate against certain customers…

But the real question now is whether their arguments could sway the conservative bloc of the Supreme Court — that is, if they choose to take up the case. (The school board hasn’t said if they’ll file another costly appeal.) Even though the earlier appeals court decision was unanimous, having eight dissenting judges issue lengthy rebukes to the let’s-not-rehear-this decision may send a signal to the Supreme Court that its conservatives should overturn the earlier rulings.

Still, for now, FFRF celebrated the denial of a rehearing:

FFRF is pleased with the court’s decision not to rehear this case and subsequently continue to frivolously spend more of taxpayer money battling well-settled law. “Reason — and the Constitution — have once again prevailed,” says FFRF Co-President Annie Laurie Gaylor. “This reaffirms the court’s message to the other school boards out there that they cannot use their public position to impose religion on other people’s children and parents.”

The school district should just apologize, once and for all, and then get to work instead of wasting everyone’s time with religion. They weren’t elected to preach. It’s just sad that it took court battles to make them realize that.

(Large portions of this article were published earlier.)

