13CITY OF SOUTH MIAMI
INTER- OFFICE MEMORANDUM
TO: Hon. Mayor, Vice Mayor Date: November 16, 2010
and Commissioners
FROM: Laurence Feingold, City Attorney
SUBJECT:
t<
RE: Agenda Item #
A Resolution of the Mayor and City Commission of the City of
South Miami, Florida, related to City Commission meetings;
establishing a policy regarding invocations before meetings of
the South Miami City Commission; making findings; and
providing an effective date.
At the Veterans' Day Ceremony established by Dr. Mirabile,
many persons were inspired by the invocation and closing prayer
of the Reverend Pansy Graham.
As a result, Commissioner Palmer is sponsoring and has asked the
City Attorney to prepare for Commission consideration the
attached Resolution omitting the current "moment of silence" in
favor of going back to an invocation before meetings of the City
Commission. The attached Resolution addresses Commissioner
Palmer's concerns.
I have also included as reference material, a news article published
on February 10, 2010 from the Lakeland, Florida Ledger entitled
"Prayer Before Public Meetings Is Common, but Practice Has Its
Critics."
Page 1 of 1
1 RESOLUTION NO.
2
3 A Resolution of the Mayor and City Commission of the City of South Miami,
4 Florida, related to City Commission meetings; establishing a policy regarding
5 invocations before meetings of the South Miami City Commission; making findings;
6 and providing an effective date.
7
8 WHEREAS, the City Commission of the City of South Miami ( "the Commission ") is an elected
9 legislative and deliberative public body, serving the citizens of South Miami; and
10
11 WHEREAS, from the earliest founding of the City, the City Commission maintained a tradition
12 of solemnizing its proceedings by allowing for an opening invocation before each Commission meeting;
13 and
14
15 WHEREAS, the tradition of an invocation has recently been replaced since the last election by a
16 moment of silence; and
17
18 WHEREAS, the Commission wishes to reinstate the tradition of solemnizing its proceedings by
19 allowing for an opening invocation before each meeting, for the benefit and blessing of the Commission;
20 and
21
22 WHEREAS, the Commission now desires to once again adopt a formal, written policy to clarify
23 and establish its invocation practices; and
24
25 WHEREAS, our country's Founders recognized that we possess certain rights that cannot be
26 awarded, surrendered, nor corrupted by human power, and the Founders explicitly attributed the origin of
27 these, our inalienable rights, to a Creator. These rights ultimately ensure the self - government manifest in
28 our Commission, upon which we desire to invoke divine guidance and blessing; and
29
30 WHEREAS, such invocation before deliberative public bodies has been consistently upheld as
31 constitutional by American courts, including the United States Supreme Court; and
32
33 WHEREAS, in Marsh v. Chambers, 463 U.S. 783 (1983), the United States Supreme Court
34 rejected a challenge to the Nebraska Legislature's practice of opening each day of its sessions with a
35 prayer by a chaplain paid with taxpayer dollars, and specifically concluded, "The opening of sessions of
36 legislative and other deliberative public bodies with prayer is deeply embedded in the history and
37 tradition of this country. From colonial times through the founding of the Republic and ever since, the
38 practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom."
39 Id., at 786; and
40
41 WHEREAS, the Commission desires to avail itself of the Supreme Court's recognition that it is
42 constitutionally permissible for a public body to "invoke divine guidance" on its work. Id., at 792. Such
43 invocation "is not, in these circumstances, an `establishment' of religion or a step toward establishment; it
44 is simply a tolerable acknowledgment of beliefs widely held among the people of this country." Id.; and
45
46 WHEREAS, the Supreme Court affirmed in Lynch v. Donnelly, 465 U.S. 668 (1984), "Our
47 history is replete with official references to the value and invocation of Divine guidance in deliberations
48 and pronouncements of the Founding Fathers and contemporary leaders." Id., at 675; and
49
Pagel U5
I WHEREAS, the Supreme Court further stated, that "government acknowledgments of religion
2 serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing
3 public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy
4 of appreciation in society. For that reason, and because of their history and ubiquity, those practices are
5 not understood as conveying government approval of particular religious beliefs." Id., at 693 (O'Connor,
6 J., concurring); and
7
8 WHEREAS, the Supreme Court also famously observed in Zorach v. Clauson, 343 U.S. 306,
9 (1952), "We are a religious people whose institutions presuppose a Supreme Being." Id., at 313 -14; and
10
11 WHEREAS, the Supreme Court acknowledged in Holy Trinity Church v. United States, 143 U.S.
12 457 (1892), that the American people have long followed a "custom of opening sessions of all
13 deliberative bodies and most conventions with prayer...," Id., at 471; and
14
15 WHEREAS, the Supreme Court has determined, "The content of [such] prayer is not of concern
16 to judges where... there is no indication that the prayer opportunity has been exploited to proselytize or
17 advance any one, or to disparage any other, faith or belief." Marsh, 463 U.S. at 794 -795; and
18
19 WHEREAS, the Supreme Court also proclaimed that it should not be the job of the courts or
20 deliberative public bodies "to embark on a sensitive evaluation or to parse the content of a particular
21 prayer" offered before a deliberative public body. Id.; and
22
23 WHEREAS, the Supreme Court has counseled against the efforts of government officials to
24 affirmatively screen, censor, prescribe and /or proscribe the specific content of public prayers offered by
25 private speakers, as such government efforts would violate the First Amendment rights of those speakers.
26 See, e.g., Lee v. Weisman, 505 U.S. 577, 588 -589 (1992); and
27
28 WHEREAS, in Pelphry, et al v. Cobb County, Georgia, et al, 547 F.3d 1263 (11" Cir, Oct. 28,
29 2008), the United States Court of Appeals for the Eleventh Circuit, which includes Florida, held that the
30 practice of allowing clergy to offer uncensored religious invocations at the beginning of sessions of a
31 county commission and county planning commission did not violate the Establishment Clause, as long as
32 the invocations did not advance or disparage a belief or affiliate government with specific faith; and
33
34 WHEREAS, the Commission intends to adopt a policy that does not proselytize or advance any
35 faith, or show any purposeful preference of one religious view to the exclusion of others; and
36
37 WHEREAS, the Commission recognizes its constitutional duty to interpret, construe, and amend
38 its policies and ordinances to comply with constitutional requirements as they are announced; and
39
40 WHEREAS, the Commission accepts as binding the applicability of general principles of law
41 and all the rights and obligations afforded under the United States and Florida Constitution and statutes.
42
43 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION
44 OF THE CITY OF SOUTH MIAMI, FLORIDA:
45
46 Section 1. The forgoing findings are incorporated herein by reference and made a part
47 hereof.
48
49 Section 2. In order to solemnize proceedings of the Commission, it is the policy of the
50 Commission to allow for an invocation or prayer to be offered before its meetings for the benefit of the
51 Community.
Page 2 of 5
1
Section 3. No member or employee of the Commission or any other person in attendance at
2
the meeting shall
be required to participate in any invocation that is offered.
3
4
Section 4. The invocation shall be voluntarily delivered by an eligible member of the clergy
5
in the County.
To ensure that such person (the "invocation speaker ") is selected from among a wide pool
6
of clergy, on
a rotating basis, the invocation speaker shall be selected according to the following
7
procedure:
8
9
a.
The Clerk of South Miami (the "Clerk ") shall compile and maintain a database (the
10
"Congregations List ") of the religious congregations with an established presence in the
11
South Miami area.
12
13
b.
The Congregations List shall be compiled by referencing the listing for "churches,"
14
"congregations," or other religious assemblies in the annual Yellow Pages phone book(s),
15
research from the internet and consultation with local chambers of commerce. All
16
religious congregations with an established presence in our community are eligible to be
17
included in the Congregations List, and any such congregation can confirm its inclusion
18
by specific written request to the Clerk.
19
20
C.
The Congregation List shall be updated, by reasonable efforts of the Clerk in November
21
of each calendar year.
22
23
d.
Within thirty (30) days of the effective date of this policy, and on or about December 1 of
24
each calendar year thereafter, the Clerk shall mail an invitation addressed to the
25
"religious leader" of each congregation listed on the Congregations List.
26
27
e.
The invitation shall be dated at the top of the page, signed by the Clerk at the bottom of
28
the page, and read follows:
29
30
Dear religious leader,
31
32
The South Miami City Commission makes it a policy to invite members of the clergy to
33
voluntarily offer a prayer before the beginning of its meetings, for the benefit and
34
blessing of the Commission. As the leader of one of the religious congregations with an
35
established presence, you are eligible to offer this important service an upcoming
36
meeting of the Commission
37
38
If you are willing to assist the Commission in this regard, please send a written reply at
39
your earliest convenience at the address included on this letterhead Clergy are
40
scheduled on a first -come, first -serve basis. The dates of the Commission's scheduled
41
meetings for the upcoming year are listed on the following, attached page. If you have a
42
preference among the dates, please state that request in your written reply.
43
44
This opportunity is voluntary, and you are free to offer the invocation according to the
45
dictates of your own conscience. To maintain a spirit of respect and ecumenism, the
46
Commission requests only that the prayer opportunity not be exploited as an effort to
47
convert others to the particular faith of the invocation speaker, nor in disparage any faith
48
or belief different than that of the invocation speaker.
49
50
On behalf of the City of South Miami, I thank you in advance for considering this
51
invitation.
Page 3 of 5
1
2 Sincerely,
3
4
5 Maria M. Menendez, CMC
6 City Clerk
7
8 f. as the invitation letter indicates, the respondents to the invitation shall be scheduled on a
9 first -come, first -serve basis to deliver the prayers.
10
11
12 Section 5. No invocation speaker shall receive compensation for his or her service.
13
14 Section 6. The Clerk shall make every reasonable effort to ensure that a variety of eligible
15 invocation speakers are scheduled for the Commission meetings. In any event, no invocation speaker shall
16 be scheduled to offer a prayer at consecutive meetings of the Commission, or more than three (3)
17 Commission meetings in any calendar year.
18
19 Section 7. Neither the Commission nor the Clerk shall engage in any prior inquiry, review
20 of, or involvement in, the content of any prayer to be offered by an invocation speaker.
21
22 Section 8. Shortly before the start of regular Commission business, the Chair of the
23 Commission shall introduce the invocation speaker.
24
25 Section 9. This policy is not intended, and shall not be implemented or construed in any
26 way, to affiliate the Commission with, nor express the Commission's preference for or against any faith
27 or religious denomination. Rather, this policy is intended to acknowledge and express the Commission's
28 respect for the diversity of religious denominations and faiths represented and practiced among our
29 citizens.
30
31 Section 10. To clarify the Commission's intentions, as stated herein above, the following
32 disclaimer shall be included in at least 10 point font at the bottom of any printed Commission meeting
33 agenda: "Any invocation that may be offered before the start of regular Commission business shall be the
34 voluntary offering of a private citizen, for the benefit of the Commission and the citizens present. The
35 views or beliefs expressed by the invocation speaker have not been previously reviewed or approved by
36 the Commission, and the Commission does not endorse the religious beliefs or views of this, or any other
37 speaker."
38
39 Section 11. Anytime an eligible member of the clergy is unavailable to perform the
40 invocation, the invocation shall be voluntarily delivered by a member of the Commission or any citizen as
41 selected by the Chair or the City Commission.
42
43 Section 12 . This resolution shall take effect immediately upon adoption.
44
45
46 PASSED AND ADOPTED this _ day of 2010.
47
48 ATTEST: APPROVED:
49
50
51
Page 4 of 5
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2
3
4
5
6
7
8
9
10
11
12
13
14
CITY CLERK
READ AND APPROVED AS TO FORM
AND SUFFICIENCY:
CITY ATTORNEY
Page 5 of 5
MAYOR
COMMISSION VOTE:
Mayor Stoddard:
Vice Mayor Newman:
Commissioner Palmer:
Commissioner Beasley:
Commissioner Harris:
Prayer Before Public Meetings Is Common, but Practice Has Its Critics I TheLedger.com Page 5 of 14
Prayer Before Public Meetings Is Common, but
Practice Has Its Critics
PAULJOHNSONITHELEDGER
Buy photo
Just before the start of a December Polk County School Board meeting, School Board member Margaret Lofton,
second from right, offers a Christian prayer.
By Cary McMullen
LEDGER RELIGION EDITOR
Published: Wednesday, February 10, 2010 at 10:32 p.m.
Last Modified: Wednesday, February 10, 2010 at 10:32 p.m.
On Sept. 7, 1774, at the request of Benjamin Franklin, the Continental Congress asked an Episcopal rector, the
Rev. Jacob DucM, to give an invocation. Duche prayed for the success of the independence effort, that God
would "unnerve" the hands of British soldiers and concluded with the words, "All this we ask in the name and
through the merits of Jesus Christ, thy Son and our Savior."
practice in America going back centuries. At public
of all kinds - picnics, school assemblies, council meetings,
sessions - ministers and Jay persons have invoked the
if God upon the event. Frequently the prayers are explicitly
n nature. In Polk County, praying before meetings is a
ccurrence, one defended by religious and government officials.
h� At a time when our economy is in shambles, when unemployment is
_ igh, there's a threat of terrorism and the health care issue is dividing us,
Click to enlarge do we really want to say to God right now,'You're not welcome'? I don't
During a worship service before his think so," said the Rev. Jay Dennis, pastor of First Baptist Church at the
swearing -in as Lakeland's mayor, GowMall in Lakeland, who has delivered prayers before local government
Fields, from left, wife Kay Harris
http: / /www.theledger.com /article /2010021 O/NE W S /2105065 11/10/2010
Prayer Before Public Meetings Is Common, but Practice Has Its Critics I TheLedger.com Page 6 of 14
Fields, and daughter Jasmine Harris
bow their heads in prayer at The
Lakeland Center in January.
Buy photo
CINDY SKOP I THE LEDGER
bodies, the U.S. House of Representatives and at a National Day of
Prayer service at the White House.
But the practice has its critics, on the grounds it violates the First
Amendment to the U.S. Constitution, which forbids government
sponsorship - or "establishment" - of any specific religion. In December,
ampa Mayor Pam lorio received a letter from the Freedom From
eligion Foundation of Madison, Wis., requesting that the Tampa City
ouncil discontinue its practice of opening meetings with prayer.
,mment prayer is unnecessary, inappropriate and divisive," the
said in part,
recent years, court rulings have placed restrictions on where and how
blic prayers can be offered, although the courts have allowed
vocations at meetings of government bodies, under some conditions. A
ling in the 1 I th Circuit U.S. Court of Appeals in Atlanta, which also
plies in Florida, allowed prayers before Cobb County (Ga.)
nnmission meetings, offered by a variety of local clergy. But
allenges continue around the country, and in Polk County, the School
>ard could be susceptible to a lawsuit, according to one constitutional
AVORITISM AT ISSUE
issue is whether a government body appears to favor one religion
another.
OR1 1983 U.S. Supreme Court ruling that allows legislative invocations
v Iso leaves open the question how such favoritism is determined,
Click to laree
en resulting in a patchwork of lower court rulings. Among those that have
"I'm a Christian, and I don't apologize restricted public prayers:
for that. I count it as an honor to be
able to pray in public. Our nation is A 2005 ruling in the Fourth Circuit U.S. Court of Appeals over a case in
based on Christian principles, and it's South Carolina means that city councils in five mid - Atlantic states are
a privilege to be able to continue the prohibited from using "the name of a specific deity associated with any
practice put in place by our one specific faith or belief."
forefathers." - Margaret Lofton School In November, a federal judge in Winston - Salem, N.C., ruled that prayers
Board Member offered by local ministers had the effect of favoring Christianity over
other religions and ordered the Forsyth County Board of Commissioners to halt the practice.
In four states - Kentucky, Tennessee, Ohio and Michigan - invocations at school board meetings are prohibited
because of a ruling in the Sixth Circuit U.S. Court of Appeals.
It can boil down to who is offering the prayers and whether they are "sectarian" - expressing the beliefs of a
particular religion, said Charles Haynes, senior scholar at the First Amendment Center, a nonpartisan
educational foundation in Washington.
If clergy are invited to pray, not favoring one faith over another, the courts have been inclined to allow the
practice, he said. That has been the long- standing tradition in the U.S. Congress and the Florida Legislature.
Visiting clergy in Tallahassee are given guidelines developed years ago by the National Conference of
Christians and Jews that propose ways to pray that would respect people of differing faiths, but ministers are not
told what they may or may not pray and many do use Jesus' name, said Bob West, chaplain of the Florida
House.
LOCAL PRACTICES
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Prayer Before Public Meetings Is Common, but Practice Has Its Critics I TheLedger.com Page 7 of 14
A survey of the practices of government bodies in Polk County shows that some policy- making bodies are on
safer constitutional ground than others.
All - including the Florida Citrus Commission - begin their meetings with a prayer or invocation. Many of the
boards and councils invite local clergy members to give the prayers, usually on a rotating basis.
In most instances they are explicitly Christian in nature, reflecting the majority faith of the county. Among those
offered within the past year at board and council meetings, the prayers have included the phrases: "in the holy
name of Jesus Christ" (Lakeland City Commission, March 16), "in the name of Jesus" (Polk County School
Board, Dec. 8) and "in Christ's name" (Polk County Commission, Dec. 9).
Bob English, chairman of the Polk County Commission, said the commission's practice of calling upon local
clergy of all faiths to pray is part of a long tradition.
"We're founded on Judeo- Christian principles and ethics, and the invocations reflect that.... (George)
Washington and (Abraham) Lincoln professed belief in a higher power. I don't see a problem with that, and I
haven't had any constituent come and say they have a problem with it," he said.
English said there is an attempt to recognize religious diversity, and a rabbi had offered a prayer at a
commission meeting about a year ago. He said a Muslim imam was tentatively invited several years ago, but in
the wake of the Sept. 11, 2001, attacks, some commissioners objected.
The Polk County School Board and the councils of some of the county's smaller cities usually have one of the
board or council members deliver the invocation, and that could present a problem, First Amendment scholar
Haynes said.
"If School Board members, themselves, are giving the prayers and they're proselytizing in nature, a challenge
would have a pretty good shot. I'd say it's ripe for a challenge."
School Board Chairwoman Kay Fields and her husband, Lakeland Mayor Gow Fields, are known to be devout,
attending First Baptist Institutional Church and Redeemed Ministries church in Lakeland. When it is her turn to
pray at School Board meetings, Fields usually concludes with a reference to Jesus.
Fields said the current practice "fits our county."
"I don't think we're trying to push religion on anybody," she said. "If there's a problem, I'd be glad to invite
ministers, but I think you're going to get the same thing, only from different perspectives. I'm comfortable with
what we're doing right now."
Asked whether she would be in favor of inviting clergy of other faiths to offer prayers, at least on occasion, she
said yes.
"I don't have a problem with rotating clergy members, but (the School Board) has not had that discussion," she
said.
Polk School Board members have offered their own invocations for years, said Wes Bridges, the School Board
lawyer. At one time, local clergy were invited to pray, but there was a complaint about some clergy's being left
out, so the board members, themselves, took over the duty, he said.
Bridges said the practice has never been challenged.
"I'm not sure it's much different from other public bodies," he said. "Clearly, the Constitution precludes
establishment of religion. The relevant question is, does anything in this practice violate that prohibition? I'm
not sure the School Board of Polk County is doing anything to establish religion."
School Board member Margaret Lofton firmly defended her usual practice of praying with reference to Jesus
Christ.
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Prayer Before Public Meetings Is Common, but Practice Has Its Critics I TheLedger.com Page 8 of 14
"I'm a Christian, and I don't apologize for that. I count it as an honor to be able to pray in public. Our nation is
based on Christian principles, and its a privilege to be able to continue the practice put in place by our
forefathers," she said.
Lofton said expressions of other faiths would be welcome but she will continue to express hers.
"I have just as much right to practice my religion as they do theirs. I'm not going to be intimidated by anyone in
Washington or anywhere else," she said.
Some government officials have claimed a right of freedom of speech to use the name of Christ when praying,
but Haynes, the First Amendment scholar, said courts have held that the First Amendment overrides that
assertion, citing a case in Virginia.
"Under the establishment clause, government officials may not promote religion. You don't have free speech
rights when you're acting as an official. It's easier to challenge (a prayer) if government officials are doing it and
doing it in the name of Jesus," he said.
A leader in the Jewish community in Polk County said most Jews would not object to the practice of offering
prayers before public meetings, even if they are Christian in nature.
"Nobody would overreact to the fact people mention Jesus Christ. Christians are far and away the majority, and
we accept that," said Michael Wiener, president of Temple Emanuel in Lakeland, one of two Jewish synagogues
in the county. "Why would we object? Everything is open to us in the United States, compared to other places in
the world. I don't think the average Jewish person would have any objection."
NO CHALLENGES LOCALLY
No public officials in Polk could recall being challenged about their practices, nor does one appear imminent.
Glenn Katon, director of the Religious Freedom Project of the Florida ACLU, said his "gut -level reaction" is
that the School Board's practice "pretty clearly would be unconstitutional and would subject the board to pretty
serious liability." The likelihood that students might be present for a board meeting would lower the bar to a
challenge even further, but filing a lawsuit would depend on several factors, he said.
"It would be a matter of people willing to step forward and challenge it. They would have to have standing - to
live within the district - and they would have to be offended by it or would like to attend a meeting but were
deterred," Katon said.
Dennis, the Baptist pastor, said he has never been told he could not use the name of Jesus in his prayers at public
events, but he said it can be done in a way that is not offensive.
"I don't want to pray a prayer that's going to be divisive. I'm just trying to ask God to help us," he said. "It's all in
the approach. If we represent the spirit of Jesus, we're not going to go in with both barrels and make them
believe like I do."
[ Cary McMullen can be reached at cary.mcmulleiaLcD heledger.com or 863 -802 -7509. His blog, Scriptorium: A
Religion Panorama, can be read at religion.blogs.theledger.com.
This story appeared in print on page AI
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