UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-30874
JANE DOE, on behalf of David Doe,
Plaintiff-Appellee,
VERSUS
SCHOOL BOARD OF OUACHITA PARISH; ET AL
Defendants,
MURPHY J. FOSTER, III, in his official capacity as Governor of
Louisiana, also known as Mike Foster
Defendant-Appellant,
---------------------------
SUSAN DOE, on behalf of Janet Doe;
JOHN DOE, on behalf of Janet Doe,
Plaintiffs-Appellees,
VERSUS
MURPHY J. FOSTER, III, Etc; ET AL,
Defendants,
MURPHY J. FOSTER, III, in his official capacity as
Governor of Louisiana,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
December 11, 2001
Before KING, Chief Judge, DUHE’, and BENAVIDES, Circuit Judges.
DUHÉ, Circuit Judge:
Murphy J. Foster, III (“Foster”), in his capacity as Governor
of Louisiana, appeals the district court’s grant of summary
judgment in favor of plaintiffs-appellees, and declaratory judgment
that La. R. S. § 17:2115(A), La. Rev. Stat. § 17:2115(A) (West
1999), (“the statute”) violates the Establishment Clause of the
First Amendment to the Constitution of the United States, U.S.
Const. amend. I, (“Establishment Clause”). We find that the statute
violates the purpose prong of the Lemon test, Lemon v. Kurtzman,
403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), and under
Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86 L. Ed. 2d 29
(1985), must be struck down without further inquiry. We therefore
AFFIRM the decision of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
As originally enacted in 1976, La. R. S. § 17:2115 required
local school boards and parishes to permit school authorities to
allow students and teachers to observe a “brief time in silent
meditation” at the beginning of each school day. La. Rev. Stat. §
17:2115 (West 1976). In 1992 the provision, which had been
renumbered as La. R. S. § 17:2115(A), was amended to allow
observance of a “brief time in silent prayer or meditation”. La.
Rev. Stat. § 17:2115(A) (West 1992) (emphasis added). In 1999 the
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Louisiana legislature passed, and Foster signed into law, an
amendment deleting the word “silent” from the statute, so that it
now reads:
Each parish and city school board in the state shall permit
the proper school authorities of each school within its
jurisdiction to allow an opportunity, at the start of each
school day, for those students and teachers desiring to do so
to observe a brief time in prayer or meditation.
La. Rev. Stat. § 17:2115(A) (West 1999).
Plaintiffs-appellees are Ouachita Parish schoolchildren and
their parents. They sought a declaration that the amended statute
is unconstitutional, and an injunction ending the practice of
verbal prayer at their schools. In its ruling on cross-motions for
summary judgment, the district court found the statute
unconstitutional, and granted plaintiffs-appellees’ motion in part.
Foster challenges this decision on appeal.1
STANDING
Article III of the United States Constitution (“Article III”)
grants the federal courts jurisdiction over claims between
plaintiffs and defendants only if they present a “case or
controversy.” This ensures that the power granted to the federal
1
The district court did not grant the sought-after injunctive
relief. However, on the basis of the constitutional ruling, the
Ouachita Parish School Board (“School Board”) agreed by Court Order
(“Order”) to cease the practice of verbal prayer in the schools
“[u]ntil such time as the Court’s ruling on the constitutionality
of La. R. S. § 17:2115(A) becomes final.” The Order will become
final if the district court’s decision striking down the statute is
affirmed here. All that is before us is the district court’s
declaratory judgment that the statute is unconstitutional.
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courts “is not an unconditioned authority to determine the
constitutionality of legislative or executive acts.” Valley Forge
Christian Coll. v. Ams. United for Separation of Church and State,
454 U.S. 464, 471, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982).
In order to establish a case or controversy sufficient to give
a federal court jurisdiction over their claims, plaintiffs must
satisfy three criteria. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).
First, they must show they have suffered or are about to suffer an
“injury in fact.” Second, “there must be a causal connection
between the injury and the conduct complained of.” Third, “it must
be likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.” Id. (internal citations
omitted). If any one of these elements – injury, causation, or
redressability – is absent, plaintiffs have no standing in federal
court under Article III to assert their claims.
In the case at bar, defendant Foster neglected to raise
standing in district court, and the district court did not address
it in its ruling. Foster also failed to brief standing to this
court, and waited to raise it without any notice first in oral
argument. This is not the first time the Louisiana Attorney
General’s office as a defendant has raised standing at oral
argument without any notice to a panel of this court. We cannot
overstate our displeasure with this backdoor litigation tactic.
However, because standing is a jurisdictional question, see Flast
4
v. Cohen, 392 U.S. 83, 94-101, 88 S. Ct. 1942, 1949-53, 20 L. Ed.
2d 947 (1968), we must decide the issue. See also Fed. R. Civ. P.
12(h)(3).
Defendant’s claim that plaintiffs lack standing is entirely
without merit. The first prong of the Lujan test is “injury in
fact”. Impairments to constitutional rights are generally deemed
adequate to support a finding of “injury” for purposes of standing.
See Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154
(1972). This court held earlier this year that plaintiffs have
standing to assert that their use or enjoyment of a public facility
is impaired by an alleged violation of the Establishment Clause.
See Doe v. Beaumont Indep. Sch. Dist., 240 F.3d 462, 466 (5th Cir.
2001). The case for standing is made stronger when the plaintiffs
are students and parents of students attending public schools, who
enjoy a cluster of rights vis-a-vis their schools, and thus are not
merely “concerned bystanders.” Id at 466-67. Moreover, the Supreme
Court has repeatedly recognized the right of children and their
parents to receive public education that is compliant with the
Establishment Clause. See Sch. Dist. of Abington Township v.
Schempp, 374 U.S. 203, 224 n.9, 83 S. Ct. 1560, 1572 n.9, 10 L. Ed.
2d 844 (1963); People ex rel. McCollum v. Bd. of Educ., 333 U.S.
203, 206, 68 S. Ct. 461, 462-63, 92 L. Ed. 649 (1948). Plaintiffs’
allegation that the practice of verbal prayer in their schools
violates their constitutional rights under the Establishment Clause
and thus impairs their use of the schools is sufficient to fulfill
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the injury prong of the Lujan test.
The second and third constitutional inquiries for standing are
“causation and redressability”. Plaintiffs must allege that the
defendant’s conduct caused the harm and that a favorable decision
by the court will cure the harm. See Allen v. Wright, 468 U.S. 737,
751, 104 S. Ct. 3315, 3324-25, 82 L. Ed. 2d 556 (1984). In this
case, evidence that the statute legitimizes or authorizes verbal
prayer in schools will satisfy these prongs.
Such evidence is plentiful in the summary judgment record.
School board members and school administrators have stated that a
finding that the statute is unconstitutional would lead to the end
of verbal prayer in schools. The plain language of the statute
allowing verbal prayer also provides a causal link between it and
the existing practice of verbal prayer in the schools.
The clearest evidence that verbal prayer in schools is an
application of the challenged statute and that plaintiffs’ injury
is redressable by a declaration of the statute’s
unconstitutionality is the Order entered into between plaintiffs
and the School Board after the district court’s ruling. There, the
School Board agreed to discontinue the practice of verbal prayer at
the schools in question “until such time as the Court’s ruling on
the constitutionality of La. R. S. § 17:2115(A) becomes final.” If
the district court’s finding of unconstitutionality becomes final,
that Order becomes a final judgment of the court. If the district
court’s decision is reversed, the School Board may decide whether
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to allow verbal prayer at the schools. This is a clear indication
that the practice of verbal prayer at schools flows directly from
the statute in question. Moreover, it is certain that a finding of
unconstitutionality would redress the plaintiffs’ injury, as it
would convert the Order into a final judgment, thereby ending the
practice of verbal prayer in their schools. For the above reasons,
plaintiffs have standing to bring their claims in federal court,
and we now review the district court’s decision on the merits.
DISCUSSION
The district court granted plaintiffs-appellees’ motion for
summary judgment in part and found La. R. S. § 17:2115(A)
unconstitutional. We review that decision de novo. See Weyant v.
Acceptance Ins. Co., 917 F.2d 209, 212 (5th Cir. 1990), and we
affirm. On the relevant merits, this case is virtually
indistinguishable from Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct.
2479, 86 L. Ed. 2d 29 (1985), where the Supreme Court held that the
statute in question violated the first prong of the Lemon test and
thus was unconstitutional.
The First Amendment provides that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof." U.S. Const., amend. I. These Religion Clauses
are made applicable to the states through the Fourteenth Amendment.
See Everson v. Bd. of Educ., 330 U.S. 1, 8, 67 S. Ct. 504, 508, 91
L. Ed. 711 (1947) (applying the Establishment Clause to the
7
states); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900,
903, 84 L. Ed. 1213 (1940) (applying the Free Exercise Clause to
the states).
The Supreme Court introduced a three-prong test to determine
the constitutionality of a statute facing an Establishment Clause
challenge in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct.
2105, 2111, 29 L. Ed. 2d 745 (1971). A constitutional statute must
have a secular legislative purpose, its principal effect must
neither advance nor inhibit religion, and it must not foster
excessive government entanglement with religion. Failure of any
prong of the test results in a finding of unconstitutionality, and
the statute at issue here fails the first prong.
In order for a statute to survive a facial attack, “the
legislature must have adopted the law with a secular purpose.”
Edwards v. Aguillard, 482 U.S. 578, 583, 107 S. Ct. 2573, 2577, 96
L. Ed. 2d 510 (1987). A statute will be found unconstitutional if
it was “motivated wholly by an impermissible purpose,” Bowen v.
Kendrick, 487 U.S. 589, 602, 108 S. Ct. 2562, 2570-71, 101 L. Ed.
2d 520 (1988), or if the religious purpose “predominate[s].”
Edwards, 482 U.S. at 599 (Powell, J., concurring). In making this
evaluation, a court “asks whether government’s actual purpose is to
endorse or disapprove of religion.” Id. at 585 (quoting Lynch v.
Donnelly, 465 U.S. 668, 690, 104 S. Ct. 1355, 1368, 79 L. Ed. 2d
604 (1984) (O’Connor, J., concurring)). The Supreme Court has
provided guidance on what evidence a court should consider in
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evaluating whether the government’s purpose is proper:
A Court’s finding of improper purpose behind a statute is
appropriately determined by the statute on its face, its
legislative history, or its interpretation by a responsible
administrative agency. The plain meaning of the statute’s
words, enlightened by their context and the contemporaneous
legislative history, can control the determination of
legislative purpose. Moreover, in determining the legislative
purpose of a statute, the Court has also considered the
historical context of the statute, and the specific sequence
of events leading to passage of the statute.
Id. at 594-95 (internal citations omitted).
In this case, there is no doubt that the 1999 amendment was
motivated by a wholly religious purpose. It accomplished only one
thing – the deletion of the word “silent” from a statute that
authorized “silent prayer or meditation”. The purpose of the
amendment is clear on its face – it is to authorize verbal prayer
in schools. In this respect, this case is virtually identical to
Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86 L. Ed. 2d 29
(1985), which involved an Alabama statute that authorized a moment
of silence “for meditation or silent prayer” in public schools,
amending a previous statute allowing only meditation. The Supreme
Court struck down that statute, holding that its purpose was to
“return voluntary prayer” to the public schools, and that such a
purpose is unconstitutional. Id. at 57, 60. In finding a religious
purpose, the Court relied in part on the plain language of the
amendment. The existing statute did not prohibit students from
using the meditation period to engage in prayer, and the Court
reasoned that this meant the words “or voluntary prayer” were added
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to endorse and promote prayer. Id. at 47.2 As in Wallace, the
preexisting statute here already protected silent prayer. “Thus,
only two conclusions are consistent with the text of [the statute]:
(1) the statute was enacted to convey a message of state
endorsement and promotion of prayer; or (2) the statute was enacted
for no purpose”. Id. at 59. The latter conclusion would be
inconsistent with “the commonsense presumption that statutes are
usually enacted to change existing law.” Id. at 59 n.48.
The Court in Wallace also relied on legislators’ statements at
the time of the amendment’s passage to confirm its religious
purpose. See id. at 56-57; see also Edwards, 482 U.S. at 587, 591-
92, 107 S. Ct. at 2579-80, 2581-82 (relying on legislators’
contemporaneous statements to find religious purpose behind statute
forbidding teaching of the theory of evolution in public schools
unless accompanied by instruction in “creation science”). Here too,
the legislative history confirms that the amendment was passed to
return verbal prayer to the public schools. The amendment’s
sponsors stated that it was an instrument to allow verbal prayer in
schools. Other legislators who supported the bill indicated that
their understanding of the bill and their intent in seeking its
2
Indeed, as stated by the Supreme Court in Santa Fe Indep. Sch.
Dist. v. Doe, 530 U.S. 290, 313, 120 S.Ct. 2266, 2281 (2000),
“nothing in the Constitution interpreted by this Court prohibits
any public school student from voluntarily praying at any time
before, during, or after the school day. But the religious liberty
protected by the Constitution is abridged when the State
affirmatively sponsors the particular religious practice of
prayer.”
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passage was the same as that of the sponsors. Thus, as in Edwards,
482 U.S. at 604, 107 S. Ct. at 2588 (Powell, J., and O’Connor, J.,
concurring), there is “no persuasive evidence in the legislative
history that the legislature’s purpose was [not religious].”
The plain language and nature of the 1999 amendment as well as
the legislators’ contemporaneous statements demonstrate that the
sole purpose of the amendment was to return verbal prayer to the
public schools. This purpose runs afoul of the Establishment
Clause, see Wallace, 472 U.S. at 40, 105 S. Ct. at 2481 and the
Louisiana statute at issue here is therefore unconstitutional.
CONCLUSION
Because La. R. S. § 17:2115(A) was not adopted with a secular
purpose, it violates the Establishment Clause and is
unconstitutional. We therefore AFFIRM.
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