NEW ORLEANS — "Tell me how this is not proselytizing," a federal appeals judge asked an attorney for the Tangipahoa Parish School Board, and read a sentence thanking God for "your greatest gift of all, your son Jesus Christ."
Minutes later, another judge asked an attorney for the American Civil Liberties Union why a school board should be excluded from the 1983 U.S. Supreme Court ruling Marsh v. Chambers, which found that legislatures and "other deliberative public bodies" may open meetings with a prayer.
The 5th U.S. Circuit Court of Appeals was hearing the board's appeal of a federal judge's ruling that school boards are different from other panels elected to make laws or rules, because they are integral parts of school systems.
"In officially promoting a religious practice at its governmental meetings, the board is doing what its schools and teachers cannot do, favor religion over nonreligion and endorse particular religious faiths," Chief Judge Helen G. Berrigan of Louisiana's Eastern District wrote nearly a year ago.
The suit challenging the school board's practice was brought anonymously — by John Doe for his children, James and Jack Doe — because the family said they were afraid of harassment or retribution.
There's no way to tell how long it will take for the 5th Circuit to rule, attorneys for both sides said after yesterday's hearing.
Only one other federal appeals court, the Cincinnati-based 6th Circuit, has ruled on whether board meetings may open with prayer, and it was deeply split, board attorney Kirk Gasperecz told the panel of Judges Rhesa H. Barksdale, Carl E. Stewart and Edith Brown Clement.
When Barksdale asked whether the prayer was proselytizing, Gasperecz answered, "Some people could see that as proselytizing." But it doesn't try to convert anyone — and the board has never set out written limits of what is allowable, he said.
"Don't you have to be invited to give a prayer?" Barksdale asked.
One board member or another chooses, but anyone can ask, Gasperecz said.
"Has there ever been any prayer of any religion other than Christian?"
"The record does not show any," Gasperecz said.
Berrigan's ruling is wrong because a school board meeting is held after school hours, outside any school building, and no children are required to attend, Gasperecz said. The 6th Circuit ruling on school board prayers, Coles v. Cleveland Board of Education, doesn't apply because that Ohio city's school board has a student member, and the Tangipahoa board doesn't, he added.
When Ronald Wilson began arguments for the ACLU, the questions were equally pointed.
All three judges asked why a school board shouldn't be considered a deliberative body.
"It is a deliberative body," Wilson said. But, he said, the Supreme Court decision was really about legislatures.
The Supreme Court meant just what it said, Clement told Wilson. If it hadn't, she said, echoing a statement in the school board's legal briefs, "it would have been real easy to take those four words out."
The decision talked about a tradition that had continued for 200 years, Wilson said. "School boards were virtually nonexistent at the founding of the Constitution," he said.
Barksdale asked whether opening with just "God Bless the school board," would be illegal.
Wilson said he thought it was wrong, but "would probably pass constitutional muster."