Snyder v. Murray City Corp.

LUCERO, Circuit Judge,

concurring in the judgment.

I concur in the judgment that Mr. Snyder is not entitled to the relief he seeks on his Establishment Clause claim.1 I arrive at this conclusion using a different analysis from that employed by the majority. I write separately to state my disagreement with what I believe to be the majority’s impermissible extension of Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). Marsh holds squarely that “legislative prayer” delivered by an established chaplaincy system is not per se unconstitutional. But the Marsh Court did not consider the constitutionality of the prayer format utilized by Murray City, wherein prayers are routinely *1237offered, at the City Council’s invitation, by members of the public acting as representatives of discrete religious groups. Contrary to the view of the majority, I believe the city’s choice of format proscribes regulation of the content of the prayers offered.

However, contrary to the dissent, I do not believe that the city’s elimination of its content regulations can salvage the constitutionality of its chosen prayer format. Although I agree with the dissent that Murray City’s practice of excluding certain prayers for their content violates the Establishment Clause, Snyder is not entitled to give his prayer at a reverence period that is itself a violation of the Establishment Clause.2 The remedy he wants is no remedy at all.

I

As plainly evidenced by the case before us, government officials operating an open prayer format are inevitably drawn into regulating the content of the prayers offered.3 The majority believes such regulation to be sanctioned by Marsh. I respectfully disagree. Purporting to inte2’pret and apply Marsh to this case, the majority avers that a governmental body can constitutionally bar a particular legislative prayer when ‘“the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.’ ” Maj. Op. at 1233-34 (quoting Marsh, 463 U.S. at 794-95,103 S.Ct. 3330). I believe it misguided, however, to read this single passage from Marsh as standing for the far-reaching proposition that a governmental body can, in all circumstances, allow certain legislative prayers while censoring and barring others because they “proselytize” or “disparage” another faith or religious belief. Read properly, in the factual and historical context that anchors the case, Marsh does not vest a governmental body with such powers.

Marsh states that “[t]he question presented is whether the Nebraska Legislature’s practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishment Clause.” 463 U.S. at 784, 103 S.Ct. 3330; see also id. at 786, 103 S.Ct. 3330 (“We granted certiorari limited to the challenge to the practice of opening sessions with prayers by a State-employed clergyman.”) (citing 459 U.S. 966, 103 S.Ct. 292, 74 L.Ed.2d 276 (Nov. 1,1982)). Although Marsh may perhaps be read to extend to circumstances in which chaplains are not paid and in which there is no single officiating clergyman, see id. at 794 n. 18,103 S.Ct. 3330, the opinion’s historical treatment of legislative prayer shows that Marsh involves, and should be limited to, established chaplaincies — chaplaincies that are so structured that they become an arm or an office of the legislature.4

Congressional chaplains, like the chaplain at issue in Marsh, are not members of the public invited on some representative or wholly open basis to give legislative prayers. They are officers of the state, who hold official government positions. Referring to the origins of legislative prayer, the Marsh Court noted that:

The tradition [of legislative prayer] in many of the colonies was, of course, linked to an established church, but the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain. Although prayers were not offered during the Constitutional Convention, the First Congress, as one of its early items of business, adopted the policy of *1238selecting a chaplain to open each session with a prayer.

Id. at 787-88, 103 S.Ct. 3330 (footnotes and citations omitted). Marsh underscores the fact that congressional chaplains are official governmental functionaries when, in discussing the history of the position, it states:

[0]n April 7, 1789, the Senate appointed a committee “to take under consideration the manner of electing Chaplains.” On April 9, 1789, a similar committee was appointed by the House of Representatives. On April 25, 1789, the Senate elected its first chaplain; the House followed suit on May 1, 1789. A statute providing for the payment of these chaplains was enacted into law.

Id. at 788, 103 S.Ct. 3330 (footnote and citations omitted). Noting that Nebraska’s chaplaincy practice “is consistent with the manner in which the First Congress viewed its chaplains,” Marsh further states that “[r]e-ports contemporaneous with the elections [of congressional chaplains] reported only the chaplains’ names and not their religions or church affiliations.” Marsh, 463 U.S. at 794 n. 16, 103 S.Ct. 3330. This again serves to make the point that the nature of the chaplaincy with which Marsh deals does not involve people acting as members, leaders, or spokespersons of particular religions. Rather, they are people who are first and foremost acting as officers of the various legislative bodies they serve.

It is this fact that explains Marsh’s cautionary language — on which the majority ultimately rests — that legislative prayer not be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Id. at 794-95, 103 S.Ct. 3330. Plainly, established legislative chaplaincies may not proselytize, or disparage a particular belief, consistent with the dictates of the Establishment Clause. Such chaplains speak for the legislature, and may not therefore champion particular religious beliefs while disparaging others. But, by the same token, the government has the authority to tell its representatives what they can and cannot do in their official capacities. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (“[Wjhen the State is the speaker, it may make content-based choices.”). Prohibiting official chaplaincies from proselytizing on behalf of one religion, or disparaging another, is not only within the powers of the government, but serves a crucial Establishment Clause purpose because it ensures that the government does not, through its officers, espouse one particular religious view to the detriment of others.

However, when the person giving a legislative prayer does not speak from an established chaplaincy position, then Marsh, standing for the proposition that the government may censor prayers of proselytization, is inapplicable.5 What is applicable is the Supreme Court’s traditional Establishment Clause jurisprudence, specifically its prohibition on “excessive entanglement.” See Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The process of policing the prayers offered in an attempt to exclude proselytization or disparagement will inevitably “call[ ] for official and continuing *1239surveillance leading to an impermissible degree of entanglement.” Walz v. Tax Comm’n, 397 U.S. 664, 675, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970); see also Widmar v. Vincent, 454 U.S. 263, 272 n. 11, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (public university that offers its facilities for student group meetings “risk[s] greater ‘entanglement’” by attempting to enforce exclusion of groups practicing religious worship and speech, in part because of “continuing need to monitor group meetings to ensure compliance with the rule”); Lemon,'403 U.S. at 620, 91 S.Ct. 2105 (statute’s requirement that government examine school records to determine how much of total school expenditure is attributable to secular education and how much to religious activity, “is fraught with the sort of entanglement that the Constitution forbids”). Prayers will either have to be submitted for approval in advance, as was the case for Mr. Snyder, see Appellee’s App. at 199 (“Until your proposed prayer satisfies these guidelines, an invitation to participate in our opening ceremonies will not be forthcoming’.’), then assessed by some government body using pre-established government criteria that purport to distinguish proselytizing from non-proselytizing behavior, or else assessed on the spot — the gavel ready — for such content before the ámen is spoken.6 And the process will have to be repeated time after time-.

I cannot accept that the’ Constitution allows the government to subject private citizens — as opposed to official chaplaincies — to such liturgical supervision. “It is a cornerstone principle of our Establishment Clause jurisprudence that ‘it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.’” Lee v. Weisman, 505 U.S. 577, 588, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (quoting Engel v. Vitale, 370 U.S. 421, 425, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962)).7

II

However, the dissent’s suggested alternative to the majority’s proposal that the City Council regulate the content of public prayer offered during a pre-meeting reverence period — namely that the City permit all prayers, Snyder’s included — is also unconstitutional. As Snyder’s “prayer” starkly demonstrates, without content-based restrictions, the “reverence period” established by Murray City *1240will be used to disparage the religious beliefs of others. The resulting juxtaposition of aggressive proselytization with the exercise of legislative power violates the Establishment Clause.

Invocation of Marsh cannot protect such prayer. Once the government steps outside the historically determined confines of Marsh, it cannot regulate the content of the prayers it sponsors. The resulting unregulated government prayer sessions come to pose, as this case clearly illustrates, an unacceptable and inevitable risk of the advancement of certain faiths at the expense of others. A prayer session in which Snyder is offered — and takes — the opportunity to denigrate the faith of others is historically and philosophically far-removed from what Marsh sanctions as the “tolerable acknowledgment of beliefs widely held among the people of this country.” Marsh, 463 U.S. at 792,103 S.Ct. 3330. As the majority correctly observes, Marsh speaks only to legislative prayer of a specific “religious genre.” Maj. Op. at 1232-33. Marsh’s reliance on the ecumenism of the Nebraska prayers is not to be ignored — just as it is not to be read to repudiate the Court’s entire jurisprudence of excessive entanglement. To be constitutional, legislative prayer must be “part of the fabric of our society,” Marsh, 463 U.S. at 792, 103 S.Ct. 3330, or, as the majority aptly puts it, “a kind of ecumenical activity that seeks to bind peoples of varying faiths together in a common purpose,” Maj. Op. at 1234. If the offerings at a legislative prayer session depart from this historical norm, which — as Mr. Snyder’s prayer shows — they assuredly will once Murray City frees the public forum it has created from content-based restrictions, then they can gain no protection from Marsh.

Outside the purview of Marsh, and subject to the usual canons of Establishment Clause jurisprudence, government-sponsored open prayer sessions marked by uncontrolled proselytizing are unconstitutional. True, the purpose of an open and unrestricted prayer session may, by analogy to Marsh, pass muster under the first step of the three-part Lemon test, 403 U.S. at 612, 91 S.Ct. 2105.8 See Lynch v. Donnelly, 465 U.S. 668, 680-81, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (city’s display of creche has “legitimate secular purposes” of celebrating, and depicting origins of, national holiday). A legislative body’s intention in maintaining an open prayer session may be simply to “solemniz[e] public occasions, express[ ] confidence in the future, and encourag[e] the recognition of what is worthy of appreciation in society.” Lynch, 465 U.S. at 693, 104 S.Ct. 1355 (O’Connor, J., concurring).

But the effects of such prayer are very different from the situation considered in Marsh, precisely because once members of the public are invited to pray, the government must relinquish its power to exclude those prayers that proselytize or disparage. The remedy Snyder would have us endorse for himself and others would require the government to invite proselytizers to initiate its meetings — which it cannot do without violating both the second and third steps of Lemon, which proscribe, respectively, “a principal or primary effect” of advancing or inhibiting religion, and “foster[ing] an excessive government entanglement with religion.” Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105 (citations' omitted). A principal effect of open prayer, as practiced by Snyder and others, will be the symbolic association of government power with religious — and an-tireligious — intolerance and bigotry.9 And the “divisive political potential” of such pray*1241er, which the case law identifies as a significant component of “excessive entanglement,” see Lemon, 403 U.S. at 622-23, 91 S.Ct. 2105, is self-evident. “[A] prayer which uses ideas or images identified with a particular religion may foster a different sort of sectarian rivalry than an invocation or benediction in terms more neutral,” Weisman, 505 U.S. at 588, 112 S.Ct. 2649, and that is even more the case when a prayer aggressively proselytizes and disparages the convictions of others present.

This stands in stark contrast to Marsh. The ecumenism of Marsh’s legislative prayer does not advance religion beyond the Supreme Court’s general recognition that “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952). The same is true of other “official references to the value and invocation of Divine guidance.” Lynch, 465 U.S. at 675, 104 S.Ct. 1355.10 But what is true of the prayers in Marsh, the creche in Lynch, and *1242the Sunday closing laws in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), namely that their “reason or effect merely happens to coincide or harmonize with the tenets of some or all religions,” id. at 442, 81 S.Ct. 1101, is assuredly not the case for an open prayer session, sponsored by a legislative body, in which proselytization and disparagement must of necessity be allowed. When the government invites a cross-section of religious parties — proselytizers included — to appear before its meetings, the resulting disparagement of other faiths can hardly be regarded as mere happenstance.11 Consequently, I cannot agree that this case presents grounds for a remand. Snyder has shown an Establishment Clause violation in the city’s exclusion of his prayer, but his requested remedy would violate the Establishment Clause just as surely.

Ill

The majority assumes that in approving the chaplaincy format before it in Marsh, the Court somehow sanctioned a different format which permits a city council routinely to initiate its meetings with an open prayer session at which members of the public are invited to pray. I disagree with that view, just as I would with the proposition that by favorably referring to our customary practice of opening court with the familiar intonement, “God save the United States and this Honorable Court,” Marsh somehow would permit us to require the Clerk of the Court to organize a reverence period at the opening of court assuring that representatives of a broad spectrum of religious denominations are included in a prospective list of supplicants invited to seek the blessings of Providence on the proceedings of the day. The very organization of such prayer sessions — in the case at bar, the organization and selection of those delivering prayer is a duty of the Secretary to the City Council, see Appellee’s App. at 36 — comes perilously close to the establishment of religion.

Certainly, the mere administration of an open prayer session by the government may result in a level of entanglement far beyond that sanctioned by historical practice in Marsh. That is so, even when, as a result of the free choice of the invited public, a legislative prayer session is not marked by prosely-tization or disparagement. In running a prayer session open to the public, the government will need to identify which members of the public appropriately represent the diverse religious life of the community. That will require a government determination of what creeds and philosophies are to count as religious. Given the inevitable limits on the time available for legislative prayer, the government may also have to resolve which are sufficiently representative to earn its favor, and in what order.12 Finally, as in this ease, the government will have to distinguish between prayer and political statement.13

*1243None of the administrative machinery necessary to such tasks is endorsed by Marsh There, because our social and political history has already made the necessary determinations, there is less need for day-to-day governmental administration of a legislative prayer “system.” Because this case is so readily resolved on the two grounds identified above, I need not conclusively determine whether Murray City’s administration of its prayer system unconstitutionally entangles government and matters of religion. But legislative bodies should appreciate that an open prayer system has the potential, in its mere administration, to violate the Establishment Clause.

IV

Under the foregoing analysis, government would have to seek the sanctuary of Marsh should it wish to maintain legislative prayer. It may appear ironic that the Establishment Clause should endorse official chaplaincies, while proscribing a practice of inviting prayer volunteers who represent many and varied religious faiths. But though this effect may appear establishmentarian, a closer inspection proves otherwise. In fact, the strength and diversity of religious life is doubly bene-fitted by a legislative retreat to Marsh.

First, Marsh requires that official chaplaincy systems do not proselytize for one religion or disparage others. Though official chaplains speak with the authority of government to an unparalleled extent, Marsh ensures that their pronouncements are broadly ecumenical — no more religious, indeed, than the “fabric of our society” at large. Marsh, 463 U.S. at 792, 103 S.Ct. 3330. Second, as Madison recognized, “[r]eligion flourishes in greater purity, without than with the aid of Gov[ernment].” James Madison, Memorial and Remonstrance against Religious Assessments (1785), in The Complete Madison 309 (S. Padover ed.1953). As this case shows, when bound to the secular, religion is no longer free to “flourish according to the zeal of its adherents and the appeal of its dogma.” Zorach, 343 U.S. at 313, 72 S.Ct. 679.

. Like the majority, I do not read Snyder’s amended complaint as directed to Murray City's practice of beginning its council meetings with prayer. With the majority, I understand that Snyder is only challenging the city’s denial of his individual request to offer his prayer at the pre-meeting "reverence period.” Were I to read his amended complaint more broadly, 1 would be obliged to endorse a result at odds with that reached by the majority.

.Given the summaiy judgment posture of this case, I am obliged to regard Snyder's proposed contribution to the reverence period as a genuine expression of his sincerely held religious beliefs. See Mosier v. Maynard, 937 F.2d 1521, 1523-25 (10th Cir.1991); Appellant’s App. at 259 (Dep. of Tom Snyder) ("Q: And does this opening prayer represent sincerely held religious beliefs on your part? ... A: Yes, it does.”). As a result, I accept, for purposes of analysis, the majority’s assumption that Snyder’s language comprises a prayer.

. Asked to confirm that "Mr. Snyder’s proposed prayer was rejected because of the content and for no other reason,” Mr. H. Craig Hall, the Murray City Attorney, responded: "I think that is an accurate statement." Appellee's App. at 88-89.

. Of course, whether or not a chaplaincy is a salaried position may he an indicium of whether its occupant is an official government agent.

. Admittedly, the line between an established chaplaincy and an open prayer system is not a bright one. But, as the Supreme Court has frequently noted, that is a feature inevitably common to much Establishment Clause jurisprudence. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 678-79, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (“The Establishment Clause like the Due Process Clauses is not a. precise, detailed provision in a legal code capable of ready application. ... The line between permissible relationships and those barred by the Clause can be no more straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a 'blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.’ ") (quoting Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)). But there can be no doubt that the facts of this case place it squarely outside Marsh. Murray City's practice sought "to invite a diverse community” to speak at prayer sessions, Appellee’s App. at 10, and these invitations were sent to "associations" of a "religious nature,” id. at 71-72. There is no suggestion in the record that such a diverse community of religious, bodies, offering prayers before council meetings, spoke as government functionaries. Indeed, the City Attorney confirms that, in many cases, he has no idea what the invited parties will say — precisely because he does not know what religious beliefs such parties even hold. See id. at 183.

. A final alternative — that the government only extend invitations to those religious groups that it adjudges likely to abide by an implicit bar against proselytizing, a practice which may have occurred here, see Appellee’s App. at 155 — is obviously no less entangling. Such practice also raises the specter of religious groups molding public statements of their creeds in ways designed to elicit governmental approval, thus offending one of the core historical purposes of the Establishment Clause. See infra note 13.

. The foregoing analysis accepts the majority's implicit assumption that Murray City rejected Snyder's prayer because it proselytized and disparaged other religions. Like the dissent, however, I believe the record raises serious questions as to whether this was in fact the City's grounds for refusing the prayer.

Mr. Hall, the City Attorney who made the decision to reject Snyder’s prayer, claims that he did so pursuant to a long-standing, albeit implicit and never before invoked, practice of refusing prayers or invocations that expressed political views, or attacked or mocked city policies and practices. See Appellee's App. at 195. There is scant suggestion in the’ record that Hall refused the prayer because it disparaged other faiths. Rather, Hall's claimed focus was on what he perceived as disparagement of the City Council and its practice of allowing pre-meeting prayers.

Nonetheless, Snyder still validates his Establishment Clause claims. Even if one assumes Hall did not develop the stated criteria as a pretext for religious viewpoint discrimination (which assumption I make only for the purposes of the present discussion), the mere application of the criteria violates the Establishment Clause for at least two reasons. First, such application discriminates against religions that encompass stated tenets Hall deems inappropriately "political.” If we assume, as we must, that Snyder's prayer is premised on his religious views, then Hall's objection to Snyder's "politics” inevitably amounts to discrimination against his religion as well. Second, development and application of the criteria necessitate a governmental determination of whether religious views are inappropriately political. That kind of determination requires an excessively entangling interaction between the machinery of government and religious practice. See infra section III; cf. Wid-mar, 454 U.S. at 272 n. 11, 102-S.Ct. 269 (given breadth and indeterminacy of what speech is "religious,” state actor risks excessive entanglement by trying to identify and exclude such speech from public facilities).

. In Lemon, the Court describes the following test: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105 (internal quotation and citations omitted).

. The situation would be constitutionally different were the "reverence period” not so significantly characterized by religious activity. See Board of Educ. v. Mergens, 496 U.S. 226, 248, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) ("[I]f a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion.”). Despite Murray City’s countless legal pleadings that the reverence period was open to all-comers, religious and non-religious alike, and for purposes similarly religious and non-religious, the record is all but completely devoid of any support for such a conclusion. This may explain *1241why both the district court, see Appellant's App. at 597, and the majority today, see Maj. Op. at 1228, appear to assume that invitations were only extended to religious groups and for the purpose of prayer. From the facts in the record, only one legal conclusion can follow: the "reverence period" is primarily characterized by religious activity. There is simply no way that the content of these sessions is sufficiently secular for them not to advance religion unconstitutionally. Compare Widmar, 454 U.S. at 269, 272-75 & n. 12, 102 S.Ct. 269 (where state-provided forum is “generally” and “equally" open for use by religious and i on-religious groups, allowing religious groups does not have primary effect of advancing religion) with County of Allegheny v. ACLU, 492 U.S. 573, 599-600 & n. 50, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Op. of Blackmun, J.) (display of privately-sponsored creche on “Grand Staircase" of county courthouse violates Establishment Clause because “[l]he Grand Staircase does not appear to be the kind of location in which all were free to place their displays”).

The City Attorney's letter of June 1, 1994, to Snyder, states that "the Council has established the policy that all council meetings will start with prayer,” Appellee's App. at 195, and defendants' answer to Snyder's amended complaint concedes this point, see id. at 5 & Appellant’s App. at 82. I cannot agree with the City Attorney's unlikely semantics, whereby prayer does not denote inherently religious activity. (Nor, one might add, could the Supreme Court of Utah. See Society of Separationists v. Whitehead, 870 P.2d 916, 931-32 (Utah 1993)). Hall appears to concede the religious character of the proceedings when he confirms that the invited groups were “associations” of a "religious nature.” Appellee’s App. at 71-72. Asked to confirm that prayers were "religious exercise,” Hall replies, "Not necessarily,” id. at 53, but his only substantiation of that qualification is as follows: "We had some Navajos that came and left a blessing and I don't know if it was a religious exercise or not.” Id. The City Attorney’s lack of familiarity with Native American culture simply cannot be enough to render the prayer sessions primarily non-religious in nature. The defendants' answer to Snyder’s amended complaint further supports this view by arguing that Snyder's proposed contribution to the reverence period was justifiably refused because "it was not a sincere and earnest entreaty directed to a divinity,” and consequently fell outside the definition of "prayer.” Appellant's App. at 83.

Murray City points to two items in the record in support of its claim on this point. Neither, in light of the overwhelming evidence to the contrary, can carry any weight whatsoever. The first is a form letter sent to invited groups, which refers to Murray City's effort "to encourage community and religious leaders, representative of the diverse culture of the Salt Lake Valley, to participate in this meaningful segment of our meetings." Appellee’s App. at 201. This vague language in a form letter does nothing to obviate the conspicuous failure, save for the erroneous reference to the Navajo blessing, to point to a specific non-religious association to whom an invitation was extended. The second item is Hall’s claim that the list of invited parties includes “some nondenominational groups.” See id. at 69-70. As "nondenominational" does not mean "secular,” I am unsure why Murray City should believe this renders the proceedings open to all, believers and nonbelievers alike. Indeed, Hall emphasizes how the prayer session differed from the Council's period for comments by individual members of the public, to which Snyder would have been welcome. See id. at 56-57. In short, a few evasive and ambiguous statements cannot support the implausible conclusion that "prayer” has nothing to do with religion. Thus this case conspicuously lacks the "important index of secular effect” that is provided by the "provision of benefits to [a] broad spectrum of groups.” Widmar, 454 U.S. at 274, 102 S.Ct. 269.

. It is for this reason that numerous forms of everyday "ceremonial deism” pass constitutional muster. (This phrase is used in County of Allegheny, 492 U.S. at 595 n. 46, 109 S.Ct. 3086 (Op. of Blackmun, J.), and was coined by Walter Rostow in 1962. See Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 Colum.L.Rev.2083, 2091-92 (1996)). An incomplete list of such practices would obviously include the post-1954 Pledge of Allegiance ("under God”); the national motto as inscribed on our national currency ("In God We Trust"); the invocation to the Deity prior to judicial proceed*1242ings ("God save the United States and this Honorable Court"); the swearing-in of government officials and witnesses in court proceedings ("so help me God"); public holidays on Christian Holy Days; references to the Almighty in inaugural addresses; and Thanksgiving Day proclamations.

. Or, to put it in terms of Justice O'Connor’s "endorsement” analysis, see Wallace v. Jaffree, 472 U.S. 38, 76, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O’Connor, J., concurring), Snyder’s prayer, if given at an open prayer session before a City Council meeting, would strike an "objective observer” as government endorsement of the disparagement of faith.

. According to Mr. Hall, the City Attorney, ”[i]ts impossible when you have only 24, 25 Council meetings to offer everybody the opportunity to pray." Appellee’s App. at 159.

.There is also a grave risk that religious groups will seek to earn the government's favor with the intention of obtaining an invitation, or of increasing the frequency of their invitations, or of being invited to speak before especially significant and visible legislative sessions. In seeking governmental favor, religious groups may become subject to an implicit form of government regulation — a danger that underlies much Establishment Clause jurisprudence. See Weisman, 505 U.S. at 609, 112 S.Ct. 2649 ("We have believed that religious freedom cannot thrive in the absence of a vibrant religious community and that such a community cannot prosper when it is bound to the secular.”) (Blackmun, J., concurring). We note in this case that the City Attorney, when asked whether the city inquires as to the content of a prayer prior to its delivery, responded: "As far as I know we’ve never asked. There has been no need to ask. Everybody has been so positive and met the unwritten guidelines....” Appellee's App. at 155. The Attor*1243ney's apparent cause for celebration is — to my mind — cause for grave constitutional concern.