The following comes from a Dec. 26 story in the San Francisco Chronicle.
Eight conservative judges on the federal appeals court in San Francisco, including both of President Trump’s appointees, dissented sharply Wednesday from a ruling that prohibited a public school board from opening its sessions with a prayer.
The case may be headed to the Supreme Court — and one Trump-appointed appellate judge said the high court should reconsider its longtime definition of the barriers between church and state.
In Wednesday’s proceedings, a majority of the Ninth U.S. Circuit Court of Appeals rejected a request to reconsider a panel’s ruling in July that halted prayers and Bible readings at meetings of the Chino Valley Unified School District in San Bernardino County.
While the Supreme Court has allowed state legislatures and city councils to hold public prayers, citing centuries of tradition, the three-judge appellate panel in July said school boards are different because youngsters regularly attend their meetings to receive awards, put on talent shows or simply observe the proceedings.
The Supreme Court in 1962 prohibited public schools from conducting prayer sessions. Unlike prayers at legislative sessions, the appeals court said, a religious invocation at a school board meeting attended by students is not a “solemnizing and unifying prayer, directed at lawmakers themselves and conducted before an audience of mature adults free from coercive pressures to participate.”
In an opinion joined by seven colleagues Wednesday, Judge Diarmuid O’Scannlain denounced the panel’s decision and said the court should have granted a rehearing.
“The panel bizarrely transforms the board meetings into a ‘school setting,’” O’Scannlain said. School boards exist to “legislate,” not to “educate,” he said, and thus are covered by Supreme Court rulings since 1983 allowing prayers at legislative sessions. He noted that a federal appeals court in New Orleans had allowed school board prayers in another case last year.
“The panel’s opinion is dripping with unrestrained urgency to insulate public school students from any hint of exposure to religion even outside of the classroom,” O’Scannlain said.
The dissenters included both of Trump’s Ninth Circuit appointees, Michael [sic] Bennett and Ryan Nelson. In a separate dissent joined by three colleagues, Nelson questioned the Supreme Court’s 1971 ruling that set strict standards for laws and government actions affecting religion: They must have a “secular legislative purpose” and an impact that “neither advances nor inhibits religion,” and they may not promote an “excessive government entanglement with religion.”
Religious conservatives have criticized those criteria, known as the Lemon test, which could be challenged in a case before the high court involving a 40-foot cross at a war memorial on public property in Maryland.
Nelson quoted the late Justice Antonin Scalia, who 25 years ago compared the Lemon test to “some ghoul in a late-night horror movie.” Since then, Nelson said, “the Lemon ghoul … has stalked the lower courts, no longer just frightening little children but increasingly devouring religious expression in the public square.”