ELON UNIVERSITY SCHOOL OF LAW BILLINGS, EXUM & FRYE NATIONAL MOOT COURT COMPETITION SPRING 2012 PROBLEM

ELON UNIVERSITY SCHOOL OF LAW BILLINGS, EXUM & FRYE NATIONAL MOOT COURT COMPETITION SPRING 2012 PROBLEM No. 12-218 IN THE SUPREME COURT OF THE UNITED STATES CONSTITUTIONAL RIGHTS ADVOCATES, INC., HOWARD SPRAGUE, and ELOISE WALKER, Petitioners, v. ANDREW GRIFFITH, SECRETARY OF THE NORTH GREENE DEPARTMENT OF TRANSPORTATION, and WILLIAM PORTER, SPEAKER OF THE HOUSE OF REPRESENTATIVES OF THE STATE OF NORTH GREENE, Respondents. RECORD ON APPEAL Page 1 of 11

No. 11-1653 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT CONSTITUTIONAL RIGHTS ADVOCATES, INC., HOWARD SPRAGUE, and ELOISE WALKER, Plaintiffs-Appellees, v. ANDREW GRIFFITH, SECRETARY OF THE NORTH GREENE DEPARTMENT OF TRANSPORTATION, and WILLIAM PORTER, SPEAKER OF THE HOUSE OF REPRESENTATIVES OF THE STATE OF NORTH GREENE, Defendants-Appellants. Argued May 12, 2011 Decided June 30, 2011 On appeal from the United States District Court for the Middle District of North Greene. Before: Monroe, Raleigh, and Madison, Circuit Judges. MADISON, Circuit Judge. The defendants appeal from the decision of the United States District Court for the Middle District of North Greene granting summary judgment in favor of the plaintiffs and holding that: (1) the North Greene House of Representatives policy of opening its proceedings with prayer, which frequently include sectarian references, violates the Establishment Clause of the First Amendment to the United States Constitution; and (2) by authorizing a Support Life Page 2 of 11

license plate, while rejecting a pro-choice alternative license plate, the defendants have engaged in viewpoint discrimination in violation of the First Amendment. 1 I. Background On May 18, 2009, Plaintiffs Howard Sprague and Eloise Walker attended a legislative hearing that the North Greene House of Representatives Transportation Committee held on House Bill 952, An Act to Authorize the Department of Transportation to Issue Various Special Registration Plates. Mr. Sprague and Ms. Walker are members of the North Greene chapter of Constitutional Rights Advocates, Inc., a national organization whose mission is to protect and defend the Constitutional rights of every American, with a focus on the separation of Church and State. 2 The Act proposed to authorize several new specialty license plates, including a plate bearing the message Support Life, which the plaintiffs contend is an anti-abortion message. Mr. Sprague and Ms. Walker had attended the hearing to testify in favor of a pro-choice alternative license plate. Like all public meetings of the North Carolina House of Representatives, or any of its committees, the hearing began with an invocation delivered by a local religious leader. The particular prayer given that day ended with the phrase, and this we pray in your son Jesus name, Amen. The May 18, 2009 prayer also made a number of references to specific tenets of the Christian faith, including the Cross of Calvary and the Gospel of the Lord Jesus Christ. According to Mr. Sprague and Ms. Walker, the prayer offended them and made them feel unwelcome to the point they decided not to testify at the hearing, believing their position would not be seriously considered because it represented a non-christian perspective. The Transportation Committee recommended House Bill 952 for passage. The bill was eventually passed by both chambers of the North Greene General Assembly and signed into law by Governor Patrick Henry on June 30, 2009. The Act authorized a total of ten specialty license plates, which brought the total number of specialty license plates that North Greene offers to more than 100. 3 The Act directs the Department of Transportation to produce plates bearing the Support Life slogan when it receives 400 prepaid applications from drivers desiring the plate. Under the Act, the Support Life plate costs drivers who choose to purchase the plate $50 per year in addition to the regular registration fee. From this additional fee, $25 will go to the North Greene Pregnancy Crisis Center, a private organization that runs pregnancy crisis clinics and counsels women about the dangers of abortion, government assistance available to low-income mothers, and laws regarding single mothers entitlement to child support payments from fathers. 1 The North Greene Constitution includes provisions virtually identical to the First Amendment to the United States Constitution. The analysis under both is the same. Accordingly, this opinion will address plaintiffs claims under the United States Constitution. 2 Constitutional Rights Advocates, Inc. joined this suit as a plaintiff on behalf of the named plaintiffs and its other members. The parties have stipulated that Constitutional Rights Advocates, Inc. is a proper plaintiff, and the issue of its standing is not a question before this Court. Likewise, the parties have stipulated that the defendants are proper parties to this lawsuit. 3 The specialty plates authorized by the North Greene General Assembly represent a broad array of interests, including Organ Donation, Save the Sea Turtles, In God We Trust, Support Our Troops, U.S. Equine Rescue League, AIDS Awareness, and many of the state s colleges, including its two rival universities, the public University of North Greene, and the private Oak University. Page 3 of 11

Under the Act, no funds generated by the sale of the Support Life plate may be used to support any person, organization, agency, or institution that provides, promotes, or refers for abortion. In drafting what became the final version of the Act, North Greene legislators invited design submissions from the public, held public hearings, and deliberated over many varying license plate designs. Some of the plate designs were revised and edited several times at the request of legislators before being included in the final version of the bill signed into law. Many plate design submissions were rejected. Indeed, the district court found that since the start of North Greene s specialty license plate program in 2002 more than 500 plates were submitted, from which just over 100 have been approved through legislation such as House Bill 952. The House also rejected an amendment to House Bill 952 that proposed to authorize a pro-choice plate bearing the slogan Support Women s Choice. The plaintiffs asserted that they would purchase plates that bear a pro-choice message if such were made available. Since its creation roughly 204 years ago, the North Greene House of Representatives has started its legislative sessions and committee meetings with prayer. Pursuant to this longstanding practice, meetings of the House generally begin with a brief prayer, usually delivered by a North Greene cleric or clergy member. Following complaints about the prayers in 2005 and again in 2007, the North Greene House of Representatives adopted House Rule 1(b)(2), Policy Regarding Opening Invocations Before Official Meetings of the North Greene House of Representatives, at the start of the 2008 session of the General Assembly. The policy applies to all official meetings of members of the House of Representatives, including formal legislative sessions, committee meetings, and hearings. The policy formalizes the practice of having prayers at meetings of the House of Representatives. According to the policy, the purpose of the opening prayer is to solemnize the proceedings of the North Greene House of Representatives, to encourage participants to act on their noblest instincts, to foster the humility that recognition of a higher hand in human affairs can bring, and to celebrate the diversity of religious beliefs in the State. The policy also states that the invocations are the private expressions of the speakers who deliver them and are not representative of any legislator s affiliations or preference. The policy further provides the chamber and gallery shall remain silent in respectful observance of the invocation; however no House members, or members of the public present, shall be required to stand, bow, kneel, or otherwise make any gesture displaying their adherence to the content of the invocation. The policy codified the House s practice, started in 2000, of having the House clerk select clergy members from the Congregations List. This list, which contains the contact information for nearly every religious group with an established presence in the State of North Greene, is updated each year using the Yellow Pages, Internet research, and suggestions from House members. The list includes congregations from North Greene s many varying and diverse faiths, including Christians, Jews, Muslims, Unitarian Universalists, Buddhists, Hindus, Zoroastrians, Bahá'ís, Jains, Sikhs, and Native American spiritualists. The clerk mails invitations addressed to the religious leader of each of these congregations approximately one month prior to the start of the legislative session. The religious leaders who respond are scheduled by the clerk for House meetings on a first-come, first-served basis. Once each legislative meeting has been assigned a religious leader for its invocation, the clerk assigns the remaining religious Page 4 of 11

leaders to various additional meetings and hearings as they are scheduled throughout the legislative session. In some years, the number of legislative meetings scheduled exceeds the number of religious leaders who respond. When this occurs, the clerk cycles back through the list of responding religious leaders, resulting in some leaders receiving invitations to speak at more than one legislative meeting. Pursuant to the policy, however, no religious leader is permitted to give a prayer at consecutive meetings or to give more than three invocations during a calendar year. The customary invitation sent by the clerk to the invocation speaker, as described by House Rule 1(b)(2), request[s]... that the invocation not be used to convert others to the particular faith of the speaker, and that speakers refrain from disparaging any faith or belief different than their own. The policy also provides that speakers should keep in mind the spirit of respect and ecumenism out of which this opportunity is offered, and consider using nondenominational references to the Divine. The policy, however, does not provide the House clerk or any House member the power to enforce these requests. Instead, it specifically provides that no House member, nor any House staff, shall review or alter the content of any invocation to be offered. Despite the diverse array of religious leaders invited to give invocational prayers, the majority of respondents are Christian. Historically, the House s invocational speakers have almost always been Christian; however, in recent years, especially after the House adopted its prayer policy, the invocational prayers have been given by a more diverse group of religious leaders. The district court found that out of the more than 300 invocational prayers given between the 2005 legislative session (when the first complaint was received) and the filing of this lawsuit in January, 2010, 4 approximately 85% of the religious leaders were from Christian churches, 14% from Jewish temples, and 1% from other denominations or faiths, including Islamic mosques and Hindu temples. Defendants offered a demographic study into evidence at the district court showing that 82% of the State s citizens who report a religious preference identify themselves as Christian. In addition to the high percentage of Christian ministers and religious leaders who have given invocations, the plaintiffs also object to the prevalence of sectarian references in these prayers. In the time period analyzed, although most prayers made non-denominational references to God, only one prayer referenced a specific, non-christian deity. Nearly half of all prayers delivered during the time period contained sectarian references identifiable as exclusively Christian. Many of the overtly Christian prayers invoked Jesus name while others referenced specific tenets and articles of Christianity. For example, the prayer given at the May 18, 2009 Transportation Committee hearing, delivered by Reverend Dan Joyce of the Friendlyville Tree of Life Church, included the following: Heavenly Father, today we are overjoyed that we may pray in the way made possible by your son, the Lord Jesus Christ, who died for our sins on the Cross of Calvary. We pray that you bless 4 This time period has been stipulated by the parties as representing: (1) conditions characteristic of the practice both prior to and after the adoption of the policy; and (2) time during which defendant Rep. William Porter has served as Speaker of the House. Page 5 of 11

today s proceedings with your divine guidance. And we ask that you provide this esteemed body, and the citizens of this great State who come to speak before it, with wisdom, with focus, and with the strength to do your work. We are so grateful that today we can look to the Gospel, and see how you instituted government on this Earth. We humbly submit ourselves, our lives, and our work to you, Dear Lord. For it is you who watches over us. And this we pray in your son Jesus name, Amen. After attending the May 18, 2009 hearing, plaintiffs Sprague and Walker filed this lawsuit, alleging that the overall atmosphere of the Transportation Committee hearing made them feel that their position was unwelcome and challenging the adoption of the Support Life license plate. Plaintiff Constitutional Rights Advocates, Inc. joined in the lawsuit on behalf of plaintiffs and its other members in the State of North Greene. Plaintiffs requested: (1) a declaratory judgment that the House s practice of beginning official meetings with sectarian prayer violated the Establishment Clause and that the General Assembly s authorization of a Support Life license plate, while rejecting a pro-choice alternative, opened a state-created forum for private speech to one viewpoint on abortion and not the other in violation of the First Amendment; and (2) an injunction preventing the use of prayer in future House proceedings and blocking the issuance of the Support Life license plate. The district court granted summary judgment in favor of the plaintiffs. It concluded that the defendants had violated the Establishment Clause by beginning House meetings with sectarian prayer and had committed unlawful viewpoint discrimination in violation of the First Amendment by authorizing the Support Life plate without a pro-choice alternative. The district court issued an injunction prohibiting the House from continuing its invocation practice and prohibiting the Department of Transportation from issuing the Support Life license plates. The defendants now appeal. A. Legislative Prayer II. Discussion At every level of government, legislative bodies throughout the United States use prayer to solemnize important proceedings. It is a tradition as old as the Nation itself. In recent years, though, the federal courts have been called on to determine whether prayer by legislative bodies especially prayers involving sectarian references conflicts with the First Amendment s foundational principle that Congress shall make no law respecting an establishment of religion. U.S. Const. amend. I. A close look at these cases and the history of legislative prayers reveals that such prayers, whether at the national, state, or local level, do not conflict with the Establishment Clause provided that the legislature does not have the motive to advance religion. After all, the first Congress, which adopted the practice of legislative prayer within three days of approving the language of the First Amendment, could not have understood legislative prayer to violate the Establishment Clause. Page 6 of 11

The Supreme Court directly confronted the constitutionality of legislative prayer in the landmark ruling of Marsh v. Chambers, 463 U.S. 783 (1983). In Marsh, the Supreme Court acknowledged that legislative prayers were deeply embedded in the history and tradition of the United States. In particular, the Marsh Court upheld the State of Nebraska s legislative prayer practice because there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. Marsh, 463 U.S. at 795. With this ruling, the Supreme Court affirmed the longstanding practice of legislative prayer as used by the Nebraska legislature. Since Marsh, however, two distinct lines of interpretation have evolved in the circuit and district courts. The source of the disagreement stems from the subsequent Supreme Court ruling in County of Allegheny v. ACLU, 492 U.S. 573 (1989), which some courts take to limit the holding in Marsh to nonsectarian legislative prayers. In Marsh, the Supreme Court noted that [t]he content of the prayer is not of concern to judges absent an indication of the exploitation of prayer, and that it is not for [courts] to embark on a sensitive evaluation or to parse the content of a particular prayer. Marsh, 463 U.S. at 795. However, the Court in Allegheny seemed to emphasize the fact that the prayer giver in Marsh had removed all sectarian references from his invocations: The legislative prayers involved in Marsh did not violate [the Establishment Clause] because the particular chaplain had removed all references to Christ. Allegheny, 492 U.S. at 603 (quoting Marsh, 463 U.S. at 793 n. 14). Thus, one line of interpretation relies on Allegheny s suggestion that the presence of sectarian references is determinative, taking Allegheny to supersede Marsh s instruction against scrutinizing the content of prayers. Under this interpretation, legislative prayers are unconstitutional if they contain sectarian references attributable to one religion, despite attempts by government bodies to discourage sectarian references or invite diverse speakers. Recent decisions in the Fourth Circuit, see Joyner v. Forsyth County, 53 F.3d 341 (4th Cir. 2011), and the Seventh Circuit, see Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006), have employed Allegheny s commentary on Marsh to limit legislative prayer practices that are similar to the policy at issue in this case. Drawing on this line of cases, the district court concluded that, because the North Greene House of Representatives invocation policy produced multiple incidents of sectarian prayer, it runs afoul of the Establishment Clause. The problem with this analysis is threefold. First, it ignores the fact that Allegheny was not a legislative prayer case. Allegheny concerned a town s religious holiday displays, and the plurality s discussion of Marsh was included only as a response to Justice Kennedy s assertion in dissent that Marsh should provide the applicable standard for holiday displays as well. None of the dicta in Allegheny, however, supersedes Marsh s discussion of legislative prayer. Second, in Allegheny, the constitutionality of religious displays turned on the effect of the display on viewers: The effect of the display depends upon the message that the government s practice communicates: the question is what viewers may fairly understand to be the purpose of the display. Allegheny, 492 U.S. at 595. When analyzing the constitutionality of the Nebraska legislature s retaining the same Presbyterian minister for 16 years, the Marsh court expressly rejected the invitation to focus on the effect of giving preference to his religious views. Marsh, 463 U.S. at 793-94. Instead, in the legislative prayer context, the Court analyzed the government s intent: [a]bsent proof that the chaplain's reappointment stemmed from an Page 7 of 11

impermissible motive, we conclude that his long tenure does not in itself conflict with the Establishment Clause. Marsh, 463 U.S. at 793 (emphasis added). Third, the Supreme Court recently explained in Van Orden v. Perry, 545 U.S. 677 (2005), that sectarian content did not shape Marsh s outcome: Indeed, we rejected the claim that an Establishment Clause violation was presented because the prayers had once been offered in the Judeo-Christian tradition: In Marsh, the prayers were often explicitly Christian, but the chaplain removed all references to Christ the year after the suit was filed. Van Orden, 545 U.S. at 688 n. 8. Thus, we reject the district court s reasoning that Allegheny requires us to consider the content of the prayers in this case absent a showing of the government s intent to proselytize or disparage a particular faith. Instead, we adopt the interpretation of Marsh that the Eleventh Circuit adopted in Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008). In Pelphrey, the Eleventh Circuit confronted facts similar to the present case and determined that Marsh required the court to focus on the motives underlying the government s prayer policy, not the effect of the prayer on observers or the specific content of the invocations. Here, North Greene s House Rule 1(b)(2) explicitly provides that the purpose of its invocations is to solemnize proceedings, not to advance religion. North Greene affirms that the spirit of the invocation is respect and ecumenism and, therefore, encourages its speakers to consider using non-denominational references to the Divine. Given that the House makes a demonstrated effort to invite clergy from nearly every religious group with an established presence in the state to offer invocations, there is no impermissible motive. North Greene does not seek to exploit the prayer opportunity to proselytize or advance any one, or to disparage any other, faith or belief. Marsh, 463 U.S. at 795. Under the correct interpretation of Marsh, no inquiry into the content or effect of the invocations is necessary. Although individual prayer givers may make sectarian references, the House neither regulates the content of any prayer nor precludes any religious speaker from giving an invocation. Accordingly, we conclude that the prayer policy and practices of the House of Representatives of the State of North Greene do not violate the Establishment Clause. B. Specialty License Plates The district court concluded that, in allowing a Support Life specialty license plate without also allowing a pro-choice alternative, North Greene state officials violated the First Amendment to the United States Constitution. In its decision, the court determined that, by authorizing specialty license plates, North Greene created a forum for private speech, and by rejecting the pro-choice plate, the defendants engaged in unlawful viewpoint discrimination. The district court s decision turns on its finding that the specialty license plates constitute mixed, or hybrid speech i.e., that they contain elements of both government and private speech. This is the dispositive issue because, if the specialty license plates constitute government Page 8 of 11

speech only, then there is no First Amendment violation. As the Supreme Court recently explained, a government entity has the right to speak for itself and may express its views selectively without running afoul of the First Amendment. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009). The government s freedom to speak as it wishes relies in part on political accountability: When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position. Legal Services Corp. v. Velazquez, 531 U.S. 533, 542 (2001) (citing Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217 (2000)). In concluding that North Greene s Support Life license plate did not constitute pure government speech, the district court applied a four-factor test used by several circuits to determine similar hybrid cases. In analyzing instances where both government and private entities appear to be speaking, this test examines: (1) the central purpose of the program in which the speech in question occurs; (2) the degree of editorial control exercised by the government or private entities over the content of the speech; (3) the identity of the literal speaker ; and (4) whether the government or the private entity bears the ultimate responsibility for the content of the speech. Planned Parenthood of South Carolina, Inc. v. Rose, 361 F.3d 786, 792-93 (4th Cir. 2004) (citation omitted). 5 Applying this test to the present case, the district court found that while the first two factors tend to favor a finding of government speech, factors three and four suggest private speech. The district court found that the central purpose of the overall license plate program was to generate revenue for state-supported programs. It also found that the North Greene General Assembly had complete editorial control over which plates it selected to issue from the roughly 500 that have been proposed. However, the district court found that a reasonable observer would determine that private citizens were the literal speakers of the message displayed on the license plates. The court referenced the Supreme Court s decision in Wooley v. Maynard, 430 U.S. 705 (1977), for the proposition that, in exercising the choice to purchase the Support Life plate, the private speaker bears the ultimate responsibility for the content of the speech. The district court went on to conclude that: (1) as such, the State of North Greene s specialty license plate program establishes a forum for private speech; and (2) by favoring the message of private citizens who desire a Support Life license plate over those who want a Support Women s Choice license plate, the defendants engaged in impermissible viewpoint discrimination. The district court erred in using this test in light of new Supreme Court precedent, which provides a clearer explanation of government speech. In Pleasant Grove City, Utah v. Summum, 5 See also Sons of Confederate Veterans, Inc. v. Comm'r of the Virginia DMV, 288 F.3d 610, 618 (4th Cir.2002); Wells v. City and County of Denver, 257 F.3d 1132, 1141 (10th Cir.), cert. denied, 534 U.S. 997, 122 S.Ct. 469, 151 L.Ed.2d 384 (2001); Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085 (8th Cir.), cert. denied, 531 U.S. 814, 121 S.Ct. 49, 148 L.Ed.2d 18 (2000); Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1011 (9th Cir.2000), cert. denied, 532 U.S. 994, 121 S.Ct. 1653, 149 L.Ed.2d 636 (2001). Page 9 of 11

the Supreme Court confirmed that the control element is the crucial consideration in determining whether speech is government or private, holding that the installation of monuments in a city park constituted government speech, despite the fact that private parties designed and donated the monuments. Summum, 555 U.S. at 461. Although the placement of monuments constituted a mix of private and government speech, the city could still claim the protection of the government speech doctrine because it has effectively controlled the messages sent by the monuments in the Park by exercising final approval authority over their selection. Id. at 473 (citing Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005)). In Summum, the Court relied heavily on Johanns, in which the Court concluded that a program compelling beef producers to fund advertising merited government speech protection. Despite the fact that the advertising create[d] the perception that the advertisements speak for beef producers such as respondents, the government exercise[d] final approval authority over every word used in every promotional campaign and, as a result, was deemed to qualify for protection under the government speech doctrine: When, as here, the government sets the overall message to be communicated and approves every word that is disseminated, it is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources in developing specific messages. Id. Thus, the correct focus in government vs. private speech cases under Johanns and Summum is on how much control the government body has over the content of the message disseminated. Here, the provisions of the specialty license plate program show that the North Greene General Assembly had complete editorial control over the Support Life and all other license plates. The district court found that, out of more than 500 plate designs submitted, the House selected only around 100 for final approval. Many of the plates were subject to House member prompted revisions. 6 Although private citizens pay for the opportunity to display the Support Life plate, the North Greene General Assembly has complete control over the decision to create or reject a proposed specialty plate. Though the plate may have been designed by a private entity, the North Greene General Assembly accepted this design and had final approval of its content. The fact that the government enlists third parties to disseminate its message does not diminish North Greene s control over the decision to issue Support Life license plates. Because only government speech was involved in the authorization of the Support Life license plate, there was no First Amendment speech violation in this case. III. Conclusion For the foregoing reasons, we hold that the district court erred in granting summary judgment in favor of the plaintiffs. Accordingly, the decision of the district court is REVERSED. 6 It is not clear from the record whether the specific Support Life license plate at issue in this case was ever revised. Page 10 of 11

No. 12-218 IN THE SUPREME COURT OF THE UNITED STATES CONSTITUTIONAL RIGHTS ADVOCATES, INC., HOWARD SPRAGUE, and ELOISE WALKER, Petitioner, v. ANDREW GRIFFITH, SECRETARY OF THE NORTH GREENE DEPARTMENT OF TRANSPORTATION, and WILLIAM PORTER, SPEAKER OF THE HOUSE OF REPRESENTATIVES OF THE STATE OF NORTH GREENE, Respondents. ORDER Petition for Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit is GRANTED. The issues before the Court are: 1. Whether the North Greene House of Representatives policy and practice of opening its proceedings with prayer violates the Establishment Clause of the First Amendment to the United States Constitution? 2. Whether North Greene state officials engaged in viewpoint discrimination in violation of the First Amendment to the United States Constitution by authorizing a Support Life license plate while rejecting a pro-choice alternative license plate? Page 11 of 11