Freedom From Religion Foundation , Inc . v. Chino Valley Unified School District Board of Education

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREEDOM FROM R ELIGION
FOUNDATION , INC .,
Plaintiff-Appellee,
v.
C HINO VALLEY UNIFIED S CHOOL
D ISTRICT BOARD OF EDUCATION ;
J AMES NA, Chino Valley Unified
School District Board of Education
Board Member in his official
representative capacity; S YLVIA
OROZCO, Chino Valley Unified
School District Board of Education
Board Member in her official
representative capacity; C HARLES
D ICKIE, Chino Valley Unified
School District Board of Education
Board Member in his official
representative capacity; ANDREW
C RUZ, Chino Valley Unified School
District Board of Education Board
Member in his official representative
capacity; IRENE HERNANDEZ-B LAIR ,
Chino Valley Unified School
District Board of Education Board
Member in her official representative
capacity,
Defendants-Appellants.
No. 16-55425
D.C. No.
5:14-cv-02336-
JGB-DTB
ORDER

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2 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted November 8, 2017
Pasadena, California
Filed December 26, 2018
Before: M. Margaret McKeown and Kim McLane
Wardlaw, Circuit Judges, and Wiley Y. Daniel,* District
Judge
Order;
Opinion Respecting Denial by Judge O’Scannlain;
Dissent to Order by Judge R. Nelson
* The Honorable Wiley Y. Daniel, United States District Judge for
the U.S. District Court for Colorado, sitting by designation.

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 3
SUMMARY**
Civil Rights
The panel denied a petition for rehearing en banc on
behalf of the court. In the underlying opinion, the panel held
that a school board’s policy and practice of permitting
religious exercise during board meetings, including a
religious prayer at meetings that are open to the public and
that include student attendees and participants, violates the
Establishment Clause.
Respecting the denial of rehearing en banc, Judge
O’Scannlain, joined by Judges Rawlinson, Bybee, Callahan,
Bea, Ikuta, Bennett and R. Nelson, stated that he believed
that the court’s refusal to rehear this case en banc was a
needless mistake. Judge O’Scannlain stated that the practice
of Defendant-Appellant Chino Valley Unified School
District Board of Education to begin its regular public
meetings with prayer did not constitute an establishment of
religion in any sense of that term.
Dissenting from the denial of rehearing en banc, Judge
R. Nelson, joined by Judges Bybee, Callahan, Bea and Ikuta,
and by Judge Bennett as to Part II, stated that he joined Judge
O’Scannlain’s statement respecting the denial of rehearing
en banc; and that the panel opinion conflicts with the
Supreme Court’s decisions and Fifth Circuit precedent, and
misapplies Lemon v. Kurtzman, 403 U.S. 602 (1971).
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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4 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
ORDER
The full court has been advised of the petition for
rehearing en banc. A judge requested a vote on whether to
rehear the matter en banc. The matter failed to receive a
majority of votes of the nonrecused active judges in favor of
en banc consideration. Fed. R. App. P. 35.
The petition for rehearing en banc is denied.
O’SCANNLAIN, Circuit Judge,*** with whom
RAWLINSON, BYBEE, CALLAHAN, BEA, IKUTA,
BENNETT, and R. NELSON, Circuit Judges, join,
respecting the denial of rehearing en banc:
“In light of the unambiguous and unbroken history of
more than 200 years, there can be no doubt that the practice
of opening legislative sessions with prayer has become part
of the fabric of our society.” Marsh v. Chambers, 463 U.S.
783, 792 (1983). So instructed the Supreme Court in
upholding as constitutional the practice of the Nebraska
Legislature of opening each legislative day with a prayer.
“The Court has considered this symbolic expression to be a
tolerable acknowledgement of beliefs widely held, rather
than a first, treacherous step towards establishment of a state
church.” Town of Greece v. Galloway, 134 S. Ct. 1811, 1818
(2014) (internal quotation marks and citation omitted). And
*** As a judge of this court in senior status, I no longer have the
power to vote on calls for rehearing cases en banc or formally to join a
dissent from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R.
App. P. 35(a). Following our court’s general orders, however, I may
participate in discussions of en banc proceedings. See Ninth Circuit
General Order 5.5(a).

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 5
so reaffirmed the Supreme Court in upholding as
constitutional the practice of a New York town board
opening its monthly board meetings with a prayer.
Nonetheless, 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 Clause1 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.
I
First, a brief overview of the relevant facts. The Chino
Valley Unified School District Board of Education (“Chino
Valley” or “the Board”) is the “governing” body that
oversees all schools within the district. Cal. Educ. Code
§ 35010. As such, it is a legislative body. Cal. Gov’t Code
§§ 54951, 54952. The Board holds eighteen meetings per
year, which may consist of both closed-session and open-
session segments. Freedom From Religion Found., Inc. v.
Chino Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132,
1138 (9th Cir. 2018). During such meetings, typically held
1 The Establishment Clause, characterized but not set forth in the
panel’s opinion, simply provides in full text as follows: “Congress shall
make no law respecting an establishment of religion . . . .” U.S. Const.
amend. I.

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6 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
at the School District’s office building, the Board governs by
“conduct[ing] its business of making decisions regarding
district administration.” Id. at 1138.
The five Board members are elected at large by the
qualified voters of the school district to serve four-year
terms. Cal. Educ. Code § 35012. Under the California
Education Code, the school district may—but need not—
also appoint one or more “pupil members” to the Board to
serve a one-year term. Id. For Chino Valley, such student
representative to the Board has been the president of the
Student Advisory Council, and may cast a preferential vote
on matters during the open session. Id.; Freedom From
Religion, 896 F.3d at 1139. The preferential vote does not
actually factor into the final outcome of any vote by the
Board. Cal. Educ. Code § 35012.
After a closed session during which the five adult Board
members make decisions on student discipline, student
readmission, and district employment matters outside the
presence of the public or any student, the Board meeting
moves into open session. Freedom From Religion, 896 F.3d
at 1138. During the open session, the Board handles its
general business of governing the district. Id. at 1138–39.
There is also a public comment period following comments
by a student representative and an employee representative.
Id. at 1138. The open session may also include presentations
by classes or students, or highlight the accomplishments of
students. Id. The meeting closes with public statements by
each of the adult Board members. Id. at 1139.
Since 2010, the Board has included prayer as part of its
meetings “[i]n order to solemnize proceedings of the Board
of Education.” Id. at 1139, 1149. Pursuant to the Board’s
unanimously adopted policy regarding invocations at
meetings, the prayer is delivered “by an eligible member of

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 7
the clergy or a religious leader in the boundaries of the
district.” Id. at 1139–40 (internal quotations omitted).
Clergy are scheduled on a first-come, first-served, or
otherwise random basis, and no one “may be scheduled to
pray at consecutive meetings, or at more than three per year.”
Id. The Board invites clergy members and religious leaders
to offer an invocation according to their own conscience in
“a spirit of respect and ecumenism,” but requests “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 from that of the
invocational speaker.”
II
The Supreme Court has long recognized the
constitutionality of legislative prayer. In Marsh, the Court
observed that “[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.”
463 U.S. at 786. Yet, the Court explained, the practice of
legislative prayer is constitutional not simply because it is
longstanding, but also because such long historical practice
demonstrates what the drafters were understood to have
meant at the time of the Founding. Id. at 790. “Clearly the
men who wrote the First Amendment Religion Clauses did
not view . . . opening prayers as a violation of that
Amendment, for the practice of opening sessions with prayer
has continued without interruption ever since that early
session of Congress.” Id. at 788. Thus, the Court concluded,
the Nebraska Legislature’s practice of opening sessions with
a chaplain—a Presbyterian clergyman for the previous
sixteen years, paid by the public—offering a prayer in the
Judeo-Christian tradition was constitutional. Id. at 793.

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8 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
The Supreme Court recently reaffirmed the continuing
vitality of such tradition as applied to a local setting in Town
of Greece. “As practiced by Congress since the framing of
the Constitution, legislative prayer lends gravity to public
business, reminds lawmakers to transcend petty differences
in pursuit of a higher purpose, and expresses a common
aspiration to a just and peaceful society.” Town of Greece,
134 S. Ct. at 1818. Thus, the Court held that the Constitution
permits a town board to open its monthly meetings with
prayer, even when such prayer is sectarian. Id. at 1815,
1820. In the process, the Court rejected arguments which
sought to cabin the holding of Marsh and to distinguish the
town’s prayer practice from the long-recognized tradition of
legislative prayer. Id. at 1815, 1820–21.2 And the Court
determined, the prayer practice was constitutional despite
the fact that town board meetings, beyond their legislative
function, could be “occasions for ordinary citizens to engage
with and petition their government, often on highly
individualized matters.” Id. at 1845 (Kagan, J., dissenting
(internal quotations omitted)). Such practice was
constitutional despite the fact that the setting of a town board
meeting may be “intimate,” with “children or teenagers[]
present to receive an award or fulfill a high school civics
requirement.” Id. at 1846 (Kagan, J., dissenting). Despite
these features, the town board meeting “fit[] within the
2 Indeed, the Court even explained that nonsectarian or ecumenical
prayer is not required by the legislative prayer tradition. Id. at 1820–21
(“An insistence on nonsectarian or ecumenical prayer as a single, fixed
standard is not consistent with the tradition of legislative prayer outlined
in the Court’s cases.”). Further, the town’s prayer practice “[did] not
coerce participation by nonadherents” by “creat[ing] social pressures
that force nonadherents to remain in the room or even feign participation
in order to avoid offending the representatives who sponsor the prayer
and will vote on matters citizens bring before the board.” Id. at 1820,
1828.

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 9
tradition long followed in Congress and the state
legislatures.” Id. at 1819 (Kennedy, J., opinion of the Court).
Nowhere did the Court limit such tradition specifically to
Congress, state legislatures, or town boards. Id. at 1818–19.
III
The panel in this case disparages such well-established
precedent. It improperly concludes that “prayer at the Chino
Valley Board meeting falls outside the legislative-prayer
tradition” entirely. Freedom From Religion, 896 F.3d at
1142. Instead, the panel bizarrely transforms the Board
meetings into a “school setting.” Id. at 1145. Because the
“meetings function as extensions of the educational
experience of the district’s public schools,” the panel
argues—without any legitimate support—that they are
“inconsonant with the legislative-prayer tradition.” Id.
This distinction is plainly flawed: the Board, as a
governing body, exists in order to legislate—not in order to
educate. Such a manufactured distinction cannot justify the
panel’s outright disregard for Supreme Court instruction and
guidance. The panel’s view of the legislative prayer
tradition recognized by the Supreme Court is ominously
narrow, and its conclusion is inconsistent with the Supreme
Court’s clear instruction that invocations may be offered
before “legislative and other deliberative public bodies.”
Marsh, 463 U.S. at 786.
A
Attempting to justify its unwarranted refusal to apply the
legislative prayer tradition, the panel first notes “[t]he
presence of large numbers of children and adolescents” as
the distinguishing factor. Freedom From Religion, 896 F.3d
at 1145. Surely, the mere presence of children in the

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10 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
audience cannot erode the legislative nature of the Board’s
proceedings; nor can the presence of a student
representative, voluntarily participating in legislative
proceedings away from any classroom.
Furthermore, the Supreme Court has expressly upheld
the practice of legislative prayer at town board meetings at
which students are present. See Town of Greece, 134 S. Ct.
at 1827. This is surely common for legislative bodies, which
students visit on field trips to observe democratic
proceedings, or in which students work or volunteer as
government pages or other similar positions. Besides, how
does the demographic of the audience on a given day alter
the nature of a deliberative body’s meeting? Does the panel
mean to suggest that the legislative prayer tradition is
constitutional on days when no student is present as a visitor,
award recipient, or volunteer, but suddenly becomes
unconstitutional on days when students are present?
Presumably not. See id. at 1832 (Alito, J., concurring)
(noting that there is not “anything unusual about the
occasional attendance of students” at local town board
meetings); id. at 1846 (Kagan, J., dissenting) (arguing that
the Court should have distinguished the town board from the
Nebraska legislature because of the intimate setting and
audience, which included students).
Certainly, student attendance at Board meetings might
be an informative experience—but, “the presence of students
at board meetings does not transform this into a school-
prayer case.” Am. Humanist Ass’n v. McCarty, 851 F.3d
521, 527–28 (5th Cir. 2017). Quite simply, a Board of
Education meeting is not a “school setting,” whether or not
students might find some benefit in observing the
proceedings. This is not a case of introducing prayer into the
classroom, see Engel v. Vitale, 370 U.S. 421 (1962); Sch.
Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 11
(1963); Wallace v. Jaffree, 472 U.S. 38 (1985), a graduation
ceremony, see Lee v. Weisman, 505 U.S. 577 (1992), or a
high school football game, see Santa Fe Indep. Sch. Dist. v.
Doe, 530 U.S. 290 (2000). Yet, the panel’s opinion is
dripping with unrestrained urgency to insulate public school
students from any hint of exposure to religion even outside
the classroom. Plainly, the Establishment Clause does not
require such extreme measures. 3 Contrary to the panel’s
account, this is a case of students voluntarily attending a
civic proceeding away from school during which the
Establishment Clause plainly permits the practice of an
opening invocation. See Marsh, 463 U.S. at 786 (“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.”).
B
Second, the panel asserts that the legislative prayer
tradition cannot apply because “public-school authorities”
3 And, in the school-prayer context, the Supreme Court has warned:
A relentless and all-pervasive attempt to exclude
religion from every aspect of public life could itself
become inconsistent with the Constitution. We
recognize that, at graduation time and throughout the
course of the educational process, there will be
instances when religious values, religious practices,
and religious persons will have some interaction with
the public schools and their students.
Lee, 505 U.S. at 598–99 (internal citations omitted). The panel goes far
beyond such warning, insulating students from exposure to prayer even
outside of the classroom.

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12 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
are in “control of” students at the Board meetings. Freedom
From Religion, 896 F.3d at 1145. What nonsense!
There is no more exercise of “control” over students
during the school Board meetings here than in the town
board meetings in Town of Greece. School authorities do
not exercise control over students during the Chino Valley
Board meeting. And, there is no suggestion that audience
members—including any children in attendance—or the
student representative are not free to leave the meeting early
or to arrive late. See 134 S. Ct. at 1827. In fact, even the
student representative is not required to attend the Board
meetings, is not permitted to attend the closed-session
meetings, and may come and go during the open session.
At bottom, the question should be one of purpose: why
do these meetings exist? Clearly, the Board exists to
legislate school district policy, and their meetings are the
means by which they do so; they do not occur in order to
educate students in a controlled environment. Students
observing and engaged in Board meetings may well find
some educational benefit to their attendance, as the panel
suggests. But this is the same possible educational value
provided to students attending the town board meetings in
Town of Greece, an open session of Congress, or any other
legislative body—and such value does not render the
legislative prayer tradition unconstitutional.
C
Finally, the panel cursorily concludes that a historical
analysis shows that an opening prayer at school board
meetings does not fit within our nation’s legislative prayer
tradition. Freedom From Religion, 896 F.3d at 1148 (“We
can make no inference as to whether the Framers would have
approved of prayer at school-board meetings in any context,

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 13
much less in the factual circumstances at issue here, given
the lack of free universal public education in the late
1700s.”). The panel’s assumption that, because public
education did not exist broadly at the time of the Founding,
a legislative body overseeing a school district is not
permitted to open with prayer is absurd.
Certainly, we must consider “whether the prayer practice
[at issue] fits within the tradition long followed in Congress
and the state legislatures.” Town of Greece, 134 S. Ct. at
1819. The Supreme Court has explained that the legislative
prayer tradition is not constitutional simply because of its
“historical patterns.” Marsh, 463 U.S. at 790. “Marsh must
not be understood as permitting a practice that would amount
to a constitutional violation if not for its historical
foundation.” Town of Greece, 134 S. Ct. at 1819. Rather,
such historical foundation illuminates what the drafters were
understood to have meant and how the Establishment Clause
applied to early practices. Id.; see also Marsh, 463 U.S. at
791 (“This unique history leads us to accept the
interpretation of the First Amendment draftsmen who saw
no real threat to the Establishment Clause arising from a
practice of prayer similar to that now challenged.”). In
keeping with the Framers’ consideration of legislative prayer
as “a benign acknowledgement of religion’s role in society,”
Town of Greece, 134 S. Ct. at 1819, “the practice of opening
sessions with prayer has continued without interruption”
since the Founding. Marsh, 463 U.S. at 788. Thus, what is
required for a legislative prayer practice to be constitutional
is not an unbroken historical pattern of the precise practice
at issue. In Town of Greece, for example, the town’s prayer
policy was only adopted in 1999, and, in Marsh, the practice
began in 1855, prior to Nebraska’s statehood. Town of
Greece, 134 S. Ct. at 1816; Marsh, 463 U.S. at 790. All that
is needed is simply for the practice to “fit[] within the

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14 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
tradition long followed.” Town of Greece, 134 S. Ct. at 1819
(emphasis added).
In fact, as our sister circuit has observed in considering
the applicability of the tradition, “dating from the early
nineteenth century, at least eight states had some history of
opening prayers at school-board meetings.” Am. Humanist
Ass’n, 851 F.3d at 527. And, until the mid-twentieth
century, the use of public school facilities for religious
education of students and the practice of prayer in public
school classrooms were thought to be consistent with the
Establishment Clause. See McCollum v. Bd. of Educ. of Sch.
Dist. No. 71, 333 U.S. 203, 210–11 (1948); Engel, 370 U.S.
at 424. Such practices of school prayer have not “withstood
the critical scrutiny of time and political change,” but the
practice of legislative prayer has. Town of Greece, 134 S.
Ct. at 1819. The Board’s practice does not, as the panel
suggests, conclusively lie outside of such tradition.
The absence of public education in its current form at the
Founding does not preclude opening prayer at the meetings
of legislative bodies that govern school districts. Cf.
Freedom From Religion, 896 F.3d at 1148. At most, it leads
to the conclusion that “Marsh’s ‘historical approach is not
useful in determining the proper roles of church and state in
public schools.’” Id. (quoting Edwards v. Aguillard,
482 U.S. 578, 583 n.4 (1987) (emphasis added)). But the
Board here does not impose prayer in a public school. As
Town of Greece suggests, the specific purview of the
legislative body at issue—whether it be a state or local
governmental body—surely does not control the
constitutionality of the legislative prayer tradition. Cf. 134
S. Ct. at 1845–49 (Kagan, J., dissenting).
The panel’s attempt to draw such fine distinctions
between Supreme Court precedent and the case at hand is

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 15
unconvincing. The Board is a legislative body, and its
practice of opening meetings with a prayer—pursuant to a
policy that closely mirrors the one approved to open town
board meetings, see Town of Greece, 134 S. Ct. at 1816,
1827—falls within the legislative prayer tradition
recognized by the Supreme Court. The panel’s conclusion
that attendance of some students precludes the practice of
legislative prayer cannot reasonably be squared with the
Court’s decision in Town of Greece. Our court has failed
regrettably in refusing to recognize such tradition and
precedent.
IV
The panel’s refusal to follow Town of Greece also
creates a new circuit split. In contrast to the panel’s decision,
the Fifth Circuit has recognized the constitutionality of the
legislative prayer tradition at school board meetings.
In American Humanist Association v. McCarty, the Fifth
Circuit—the only other circuit to have considered the
constitutionality of legislative prayer in the school board
context in light of Town of Greece4—upheld as
constitutional a school district’s policy of inviting students
to deliver invocations before monthly school board
meetings. 851 F.3d 521, 523 (5th Cir. 2017). Like the Chino
Valley Board meetings, the school board meetings in
American Humanist Association were open to the public,
4 The panel relies heavily on Doe v. Indian River Sch. Dist., 653 F.3d
256 (3d Cir. 2011), and Coles ex rel. Coles v. Cleveland Bd. of Educ.,
171 F.3d 369 (6th Cir. 1999). Both of these cases were decided prior to
Town of Greece, and therefore lacked essential guidance from the
Supreme Court on the constitutionality of legislative prayer in a local
setting. We cannot be confident that such decisions endure as written in
light of Town of Greece.

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16 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
and frequently attended by students “to receive awards or for
other reasons, such as brief performances by school bands
and choirs.” Id. at 524. The Fifth Circuit determined that “a
school board is more like a legislature than a school
classroom or event,” and “[i]n no respect is it less a
deliberative legislative body than was the town board” in
Town of Greece. Id. at 526. The school board’s invitation
to students to offer “expressions” at the beginning of
meetings in American Humanist Association, id. at 524, is,
of course, factually distinguishable from the Chino Valley
School District Board’s invitation to local clergy and adult
volunteers to offer invocations at the beginning of the open
session. But this distinction does not affect the common
setting: a school board meeting. In fact, the policy of
identifying and inviting adults, rather than students, to offer
the opening prayer suggests that the Chino Valley legislative
prayer practice is even closer to the one upheld in Town of
Greece than that considered by the Fifth Circuit. The school
board meetings considered by the Fifth Circuit are squarely
on point with the meetings at issue here, and we should have
followed the lead of our sister circuit.
V
The panel’s stubborn contortion of the Board meetings
here into a “school setting” flies in the face of established
Supreme Court precedent. We have been told twice by the
Supreme Court that the legislative prayer tradition is
constitutional, and yet we insist on false distinctions to avoid
the consequences of this conclusion. Because the panel
failed faithfully to apply Town of Greece and Marsh, and
because such error has now created a circuit split, it is deeply
regrettable that this case was not reheard en banc.

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 17
R. NELSON, Circuit Judge, with whom BYBEE,
CALLAHAN, BEA and IKUTA, Circuit Judges, join, and
with whom BENNETT, Circuit Judge, joins as to Part II,
dissenting from the denial of rehearing en banc:
I join Judge O’Scannlain’s statement respecting the
denial of rehearing en banc. The panel opinion conflicts
with the Supreme Court’s decisions in Marsh v. Chambers,
463 U.S. 783 (1983), and Town of Greece v. Galloway,
572 U.S. 565 (2014), and our sister circuit’s opinion in
American Humanist Ass’n v. McCarty, 851 F.3d 521 (5th
Cir.), cert. denied, 138 S. Ct. 470 (2017). I write separately
to address the panel’s misapplication of Lemon v. Kurtzman,
403 U.S. 602 (1971). See Freedom From Religion Found.,
Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d
1132, 1148–51 (9th Cir. 2018).
I
The panel held that a nonsectarian prayer or invocation
before the Chino Valley Unified School District of
Education Board (“the Board”) meeting violates the
Establishment Clause under Lemon, 403 U.S. 602. This case
is worthy of en banc review. Cf. Paulson v. City of San
Diego, 294 F.3d 1124 (9th Cir. 2002) (en banc) (reversing
panel decision and holding that sale of the City property
including a Latin Cross was unconstitutional under the
California constitution). Given the circuit split created and
widespread effect the panel opinion may have on more than
a thousand school boards throughout the Ninth Circuit
(many open meetings with invocations or prayers), this court
en banc should address the important Establishment Clause
questions raised.

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18 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
A
The Establishment Clause is ten words: “Congress shall
make no law respecting an establishment of religion.” U.S.
Const. amend. I. Much jurisprudence has flowed under the
Establishment Clause bridge over the last 227 years. In
interpreting that precedent, however, the constitutional text
and history is instructive.1
Forty-seven years ago, the Supreme Court adopted the
three-factor test in Lemon, 403 U.S. at 612–13 (requiring that
governmental practice “[f]irst . . . must have a secular
legislative purpose; second, its principal or primary effect
must be one that neither advances nor inhibits religion;
finally [it] must not foster an excessive government
entanglement with religion”) (internal quotation marks and
citations omitted).
Perhaps understating the issue, “the Lemon test has
proved problematic,” Wallace v. Jaffree, 472 U.S. 38, 68
(1985) (O’Connor, J., concurring), resulting in varying
versions of the test, see, e.g., County of Allegheny v. ACLU
Greater Pittsburgh Chapter, 492 U.S. 573 (1989) (adopting
the endorsement test); Agostini v. Felton, 521 U.S. 203, 218,
232–33 (1997) (folding the entanglement inquiry into the
primary effect inquiry), and selective application of the test,
1 See, e.g., Lee v. Weisman, 505 U.S. 577, 632-36 (1992) (Scalia, J.,
dissenting) (history of prayer in light of Establishment Clause); Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 49-52 (2004) (Thomas,
J., concurring) (history of Establishment Clause related to
incorporation); Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 869 (7th Cir.
2012) (Easterbrook, C.J., dissenting) (“The actual Establishment Clause
bans laws respecting the establishment of religion—which is to say,
taxation for the support of a church, the employment of clergy on the
public payroll, and mandatory attendance or worship.”) (emphasis in
original).

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 19
see, e.g., Town of Greece, 572 U.S. at 577 (not applying
Lemon). The state of the Lemon test has left this court at
times struggling for clear guidance. See, e.g., Card v. City
of Everett, 520 F.3d 1009, 1023–24 (9th Cir. 2008)
(Fernandez, J., concurring) (“The still stalking Lemon test
and the other tests and factors, which have floated to the top
of this chaotic ocean from time to time in order to answer
specific questions, are so indefinite and unhelpful that
Establishment Clause jurisprudence has not become more
fathomable.”) (footnote omitted).
Because of its numerous shortcomings, Lemon has been
criticized by members of the Supreme Court and others.2
Although the Supreme Court declined to abandon Lemon (at
least its purpose prong) in 2005, see McCreary, 545 U.S. at
863, recent cases provide good reason to question whether,
2 See, e.g., McCreary Cty. v. ACLU, 545 U.S. 844, 890 (2005)
(Scalia, J., dissenting) (“a majority of the Justices on the current Court
(including at least one Member of today’s majority) have, in separate
opinions, repudiated the brain-spun ‘Lemon test’ that embodies the
supposed principle of neutrality between religion and irreligion”); Van
Orden v. Perry, 545 U.S. 677, 686 (2005) (questioning “the fate of the
Lemon test in the larger scheme of Establishment Clause
jurisprudence”); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,
508 U.S. 384, 398 (1993) (Scalia, J., concurring) (“Over the years,
however, no fewer than five of the currently sitting Justices have, in their
own opinions, personally driven pencils through the [Lemon] creature’s
heart (the author of today’s opinion repeatedly), and a sixth has joined
an opinion doing so.”); Elmbrook Sch. Dist., 687 F.3d at 869
(Easterbrook, C.J., dissenting) (Lemon standards “not only are
hopelessly open-ended but also lack support in the text of the first
amendment and do not have any historical provenance”).

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20 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
or at least to what extent, Lemon has been replaced, see, e.g.,
Town of Greece, 572 U.S. at 577.3
B
Twenty-five years ago, Justice Scalia compared the
Lemon test to “some ghoul in a late-night horror movie that
repeatedly sits up in its grave and shuffles abroad, after being
repeatedly killed and buried” with the effect of “frightening
the little children and school attorneys of [the] School
District.” Lamb’s Chapel, 508 U.S. at 398 (Scalia, J.,
concurring). In the ensuing decades, the Lemon ghoul (while
largely ignored by the Supreme Court), has stalked the lower
courts, no longer just frightening little children but
increasingly devouring religious expression in the public
square.
Even applying Lemon, the purpose prong (applied by the
panel) should be a rather dull arrow in the Establishment
Clause quiver. The secular legislative purpose prong is
“seldom dispositive” under Lemon. McCreary, 545 U.S. at
859. And for good reason. The Lemon analysis, including
the panel’s sharp analysis of the purpose prong, tends to
“ratchet up the Court’s hostility to religion,” id. at 900
(Scalia, J., dissenting), “exacerbat[ing] the tension between
the Free Exercise and Establishment Clauses,” Edwards v.
3 Currently pending before the Supreme Court are two consolidated
cases potentially addressing the contours of Lemon under the
Establishment Clause. See Am. Humanist Ass’n v. Maryland-National
Capital Park & Planning Comm’n, 874 F.3d 195 (4th Cir. 2017), and
Am. Humanist Ass’n v. Maryland-National Capital Park & Planning
Comm’n, 891 F.3d 117 (4th Cir. 2018), cert. granted and cases
consolidated sub nom. Am. Legion v. Am. Humanist Ass’n, Nos. 17-1717,
18-18 (U.S. Nov. 2, 2018).

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 21
Aguillard, 482 U.S. 578, 640 (1987) (Scalia, J., dissenting).
This general flexibility of the Lemon test has at times edged
this court toward hostility to religion.4 By misapplying
Lemon, the panel avoids the text, history and principles of
the First Amendment’s religion clauses.
II
The panel wrongly holds that the “Board’s prayer policy
lacks a secular legislative purpose” under Lemon. Freedom
From Religion, 896 F.3d at 1143. While this court has
invalidated government action under Lemon, it has rarely
done so under the secular purpose prong. Not surprising, as
the secular purpose prong “has not been fatal very often,
4 See, e.g., Salazar v. Buono, 559 U.S. 700 (2010) (reversing Buono
v. Kempthorne, 527 F.3d 758 (9th Cir. 2008), and Buono v. Kempthorne,
502 F.3d 1069 (9th Cir. 2007)); id. at 726 (Alito, J., concurring in part
and concurring in the judgment) (removal of cross might be interpreted
“as an arresting symbol of a Government that is not neutral but hostile
on matters of religion and is bent on eliminating from all public places
and symbols any trace of our country’s religious heritage”); Trunk v. City
of San Diego, 629 F.3d 1099 (9th Cir. 2011) (holding war memorial,
including a Latin cross, violated Establishment Clause, after Justice
Kennedy previously stayed removal of the cross), cert. denied sub nom.
Mount Soledad Mem’l Ass’n v. Trunk, 567 U.S. 944 (2012) (Alito, J.,
Statement regarding denial of certiorari) (indicating willingness to
consider case upon final order); Mount Soledad Mem’l Ass’n v. Trunk,
134 S. Ct. 2658 (2014) (Alito, J., Statement regarding denial of
certiorari); Newdow, 542 U.S. 1 (reversing this court); Gentala v. City of
Tucson, 244 F.3d 1065 (9th Cir.) (en banc) (upholding city’s denial to
provide services for National Day of Prayer gathering), judgment
vacated, 534 U.S. 946 (2001) (vacating and remanding in light of Good
News Club v. Milford Cent. Sch., 533 U.S. 98 (2001)); Garnett v. Renton
Sch. Dist. No. 403, 874 F.2d 608 (9th Cir. 1989) (holding allowing high
school students to use classroom before school for religious meeting
violates the Establishment Clause), judgment vacated, 496 U.S. 914
(1990) (vacating judgment and remanding in light of Board of Education
of the Westside Community Schools v. Mergens, 496 U.S. 226 (1990)).

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22 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
presumably because government does not generally act
unconstitutionally, with the predominant purpose of
advancing religion.” McCreary, 545 U.S. at 863. The panel
ignores Supreme Court precedent and stretches this court’s
case law in invalidating the Board’s prayer or invocation
policy under Lemon’s secular purpose prong.
A
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.
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. Santa Monica
Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d
1286, 1300 (9th Cir. 2015) (emphasis in original) (internal
quotation marks omitted). 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.” Kreisner v. City of San Diego,
1 F.3d 775, 782 (9th Cir. 1993) (quoting Mueller v. Allen,
463 U.S. 388, 394–95 (1983)). The Board policy here is not
the “unusual” case where the government purposes should
be considered a sham. McCreary, 545 U.S. at 865.
To support its dismissal of the Board’s first stated secular
purpose, the panel relies on Santa Fe Independent School
District v. Doe, 530 U.S. 290 (2000). Santa Fe is inapposite
because the school board is a legislative body. See
O’Scannlain Statement at 9–11. But the differences in
context, forum, and facts between the practices and policies
at issue in Santa Fe and those at issue here extend beyond
the legislative context and establish legitimate secular
purposes. Santa Fe involved a single student who was
elected to a year-long position (previously called “Student

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 23
Chaplain”) to solemnize each football game with a sectarian
prayer. Santa Fe, 530 U.S. at 309, 315.
Here, by contrast, the Board did not restrict the
opportunity to solemnize its meetings to one individual, but
rather opened it to rotating members of the religious
community and others. The prayers and invocations
occurred prior to the start of the meeting and were not
included on the meeting minutes. The Board policy provides
that “a religious entity can write to the superintendent’s
designee to ensure that it is on the list” to give a prayer or
invocation. Freedom From Religion, 896 F.3d at 1139.
Non-clergy, non-Christian religious leaders and private
citizens have offered prayers or invocations under the
Board’s policy. And there is no evidence that the Board
excluded or denied an opportunity to any would-be prayer or
invocation giver, whether atheists, plaintiffs or members of
minority religions. Finally, unlike in Santa Fe, the Board
policy as adopted reflects the practice as originally adopted
by the Board to allow nonsectarian prayers or invocations
from a variety of viewpoints at Board meetings.
In finding a predominantly religious purpose, the panel
relies on record evidence that does not bear on the purported
purpose of the Board’s prayer or invocation policy. The
Board policy contains no religious preference, and no
statement regarding religious preference was made at the
time the Board adopted the policy. The panel relies on
statements of individual Board members who did not author
or sponsor the Board policy and which did not reference the
Board’s prayer or invocation policy. More importantly, the
statements by Board members relied upon by the panel were
made a year after the policy was adopted. See Freedom
From Religion, 896 F.3d at 1140–41, 1149–50. This
extraneous evidence is not relevant to the legislative purpose
of the Board policy, even under cases like Edwards, 482 U.S.

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24 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
at 591–93, that suggest that a legislation sponsor’s comments
at the time of enactment may be relevant.
The Board’s second expressed purpose of demonstrating
respect for religious diversity also passes constitutional
muster. Like the Town of Greece, the Board made
reasonable efforts to identify eligible local religious leaders
and compile a list by looking through a commercial
phonebook, collating “research from the internet,” and
consulting with “local chambers of commerce.” Freedom
From Religion, 896 F.3d at 1139. Given the Board policy of
nondiscrimination, “the Constitution does not require it to
search beyond its borders for non-Christian prayer givers in
an effort to achieve religious balancing.” Town of Greece,
572 U.S. at 585–86. Doing so would “require the town ‘to
make wholly inappropriate judgments about the number of
religions it should sponsor and the relative frequency with
which it should sponsor each,’ a form of government
entanglement with religion that is far more troublesome than
the current approach.” Id. at 586 (internal citation and
brackets omitted).
These facts, neither individually, nor collectively,
demonstrate that the Board’s policy was motivated wholly
by an impermissible purpose or was a sham to advance
religion. The Board’s stated secular purposes warrant due
deference and satisfy the secular purpose prong under
Lemon.
B
The panel also superficially, and wrongly, suggests that
the Board’s policy violates the second and third prongs of
the Lemon test. See Freedom From Religion, 896 F.3d at
1151. As noted above, the prayers or invocations were
inclusive of religious groups, including Hindu and Muslim

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FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD 25
invocations, as well as private citizens. Here, as in Town of
Greece, the fact that “nearly all of the congregations in town
turned out to be Christian does not reflect an aversion or bias
on the part of town leaders against minority faiths.” 572 U.S.
at 585.
Rather than attributing the Board’s limited list of eligible
congregations to the religious demographics of the district
(with express provisions providing for religious diversity in
the policy), the panel assumes a constitutionally suspect
reinforcement of dominant religious traditions. Freedom
From Religion, 896 F.3d at 1149. In Town of Greece, the
Supreme Court expressly rejected the Court of Appeals’
view that the town “contravened the Establishment Clause
by inviting a predominantly Christian set of ministers to lead
the prayer.” 572 U.S. at 585.
Moreover, no entanglement problem exists because there
is no indication that the messages are expressly limited by
the Board to prayers or invocations in a traditional sense.
There is no evidence that anyone, whether atheists,
plaintiffs, or religious minorities, asked to provide an
invocation or prayer under the Board policy more consistent
with their desired message. Nor is there any evidence that
the Board rejected the suggestion as the panel proposes, of
allowing leaders from various religious or non-religious
communities to provide for “serious reflection, without
conveying an explicitly religious message.” Freedom From
Religion, 896 F.3d at 1151. Indeed, striking down the Board
policy because it may presuppose a nonsectarian religious
message, but allow other permissible messages, invites “the
very kind of religiously based divisiveness that the
Establishment Clause seeks to avoid.” Van Orden, 545 U.S.
at 704 (Breyer, J., concurring).

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26 FREEDOM FROM RELIGION FOUND. V. CHINO V ALLEY USD
III
Because, even if applicable, the panel’s application of
Lemon conflicts with precedent from the Supreme Court and
this court, we should rehear this case en banc. As such, I
respectfully dissent.

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