Firm that lost school prayer appeal tries with a different client

A firm is hoping to revive a case it lost defending prayer at school board meetings before the 9th U.S. Circuit Court of Appeals after filing a motion to intervene on behalf of another school board.

Tyler & Bursch LLP, which litigates constitutional and religious liberties cases, is hoping the 9th Circuit will allow the Orange County Board of Education to intervene in the case after ruling prayer during school board meetings violated the establishment clause of the First Amendment.

The firm on Feb. 16 filed the case on behalf of the school board, which also holds invocations before its meetings, after the original defendant, Chino Valley Unified School District, decided last month not to pursue an appeal.

At issue is the so-called "legislative exception" to the establishment clause, which would exempt prayer at school board meetings because they are legislative bodies by nature and not educational ones, a sentiment echoed by objections from eight 9th Circuit judges in two conservative dissents when the court ruled it would not sit en banc in the case.

The firm is now hoping those objections will work in favor of attracting the U.S. Supreme Court's attention.

A 9th Circuit panel first affirmed the injunction to halt the prayers, noting children were at times required to attend school board meetings during which prayer was recited. Freedom From Religion Foundation v. Chino Valley Unified School District, 2018 DJDAR 12207 (9th Cir. Dec. 26, 2018).

"The Orange County Board of Education has taken this preliminary step to allow it to intervene and appeal this far-reaching decision, not only for its own benefit, but for the benefit of school boards like it, who recognize that opening their meetings with prayer is part of a longstanding constitutional expression of goodwill, rooted in the historic foundations of this country," Tyler & Bursch attorney James A. Long said in a statement.

David J. Kaloyanides, a Chino sole practitioner who represented the plaintiffs before the 9th Circuit, was not available for comment.

Firm partner Robert H. Tyler said unless the board can intervene, "the U. S. Supreme Court will not have the opportunity to consider accepting this case for review, and a conflict will remain amongst the circuits regarding a serious and important constitutional question."

Depending on whether the motion to intervene is granted, the firm hopes to petition the U.S. Supreme Court to address the motion or the merits of the case itself.

The 9th Circuit decision is at odds with a 2017 5th Circuit Court of Appeals ruling that said starting school board meetings with a prayer did not violate the establishment clause.

Whether the Supreme Court is inclined to take up the matter is unclear. Justices declined to reconcile conflicting outcomes from the 4th and 6th U.S. Circuit Courts of Appeals over whether legislators, not religious leaders, could pray before legislative meetings.