March 3, 2011

Mayor Kelly M. Kirschner

1565 1st Street, Room 101
Sarasota, Florida 34236
kelly.kirschner@sarasotagov.com

Robert Fournier
City Attorney
1 So. School Avenue, Suite 700
Sarasota, Florida 34237
robert.fournier@sarasotagov.com

Re: Prayer at Sarasota City Commissioners Meetings

Messrs. Kirschner and Fournier:

I am writing on behalf of a Sarasota resident and taxpayer to alert you to a serious

separation of church and state concern. We have recently been notified that every regular
Sarasota city commissioners meeting begins with an official public prayer. The American
Humanist Association is a national nonprofit organization with over 10,000 members and 20,000
supporters across the country, including members in Florida (AHA has 16 local chapters in
Florida, the second most of any state, including one in Sarasota). Our purpose is to protect the
principles of the federal and state constitutions that require separation of church and state.1 See
Koerner v. Borck, 100 So. 2d 398, 401 (Fla. 1958) (holding that the First Amendment‟s
Establishment Clause is intended to erect a “wall of separation between church and state”).2

The audio recordings of Sarasota city commissioners meetings posted on the city‟s
website reveal that each meeting from May 2010 through February 2011 opened with a prayer
addressed to a “Heavenly Father” and ending with “in thy name we pray, amen.” (A random
sample of recordings from 2006-2009 revealed the same.) It appears that every meeting in the
last five years has begun with the exact same prayer. These prayers are given by a city official,
generally the “city auditor and clerk.” In a majority of these meetings, citizens were asked to

1
The First Amendment to the U.S. Constitution provides in part: “Congress shall make no law respecting an
establishment of religion.” Art. 1 Sec. 3 of the Florida Constitution provides in part: “There shall be no law
respecting the establishment of religion or prohibiting or penalizing the free exercise thereof.”
2
See also Reynolds v. United States, 98 U.S. 145, 164 (1878) (stating that the phrase “make no law respecting an
establishment of religion or prohibiting the free exercise thereof . . . build[s] a wall of separation between church
and State.”).

1
stand for the prayer.3 Given these facts, we have reason to believe that the city‟s actions are in
violation of the Establishment Clause.

First, the city‟s references to a transparently biblical “Heavenly Father” and “amen” in
every invocation amounts to an unconstitutional governmental endorsement of (1) one religion
(Christianity) over other religions, and (2) more generally, of religion over non-religion.4
Pursuant to the Supreme Court‟s ruling in Marsh v. Chambers, 463 U.S. 783 (1983), legislative
prayers are unconstitutional if they attempt to “proselytize or advance any one . . . faith or
belief.” Id. at 794-95. In County of Allegheny v. ACLU, 492 U.S. 573 (1989), the Supreme
Court explained that Marsh could not be read to “justify . . . legislative prayers that have the
effect of affiliating the government with any one specific faith or belief.” Id. at 603

In applying Marsh, the Eleventh Circuit Court of Appeals, which includes Florida in its
jurisdiction, rejected the importance of the supposedly “nonsectarian” nature of prayers at local
government meetings in deciding their constitutionality, or even the coherence of that idea,
stating that the court “would not know where to begin to demarcate the boundary between
sectarian and nonsectarian expressions.” See Pelphrey v. Cobb County, Ca., 547 F.3d 1263,
1272 (11th Cir. 2008). In upholding the particular legislative prayers at issue in Pelphrey, the
court relied on the fact that those prayers did not advance or affiliate the government with any
specific faith. The court observed that the “diverse references in the prayers,” including to
“Allah,” “Mohammed,” and the “Torah,” made it such that the prayers did not “advance any
particular faith.” Id. at 1277-78. Unlike the prayers at issue in Pelphrey, Sarasota‟s prayers do
not pass constitutional muster. The prayers are not offered by private members of a variety of
faiths, nor do they reference deities other than the obviously biblical “Heavenly Father.”
Accordingly, the city‟s prayers create the perception that city unconstitutionally endorses
Christianity (and, more generally, religion over non-religion) in violation of the Establishment
Clause.

Second, by using the exact same invocation for all meetings from 2006 to the present, the
city is illegally sponsoring an “official” government prayer. The Supreme Court has held that
the government is without authority to prescribe any “particular form of prayer which is to be
used as an official prayer in carrying on any program of governmentally sponsored religious
activity.” Engel v. Vitale, 370 U.S. 421, 430 (1962). In Engel, the Supreme Court held that “the
constitutional prohibition against laws respecting an establishment of religion must at least mean
. . . 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.” Id. at 425.
Sarasota‟s unvarying invocation appears to be the city‟s official prayer as it is the only prayer
recited at each meeting. Thus, the city, by inviting the public to stand and participate in this
official prayer, is clearly in violation of the Establishment Clause. One of the “greatest dangers

3
The public was asked to “please rise for the invocation” in (but not limited to) the following meetings: December
6, 2010, November 1 and 15, 2010, October 4 and 18, 2010, September 7 and 20, 2010, August 16, July 19, June 7
May 17, 2010; others: May 4, 2009 (“please stand”); February 17, 2009 (“all stand please”); October 20, 2008
(“please stand”); November 5, 2007 (“if everyone will rise please...”); December 11, 2006 (“please stand”).
4
See Brown v. Orange County Bd. of Public Instruction, 128 So. 2d 181 (1960) (holding that the First Amendment
“forbids preferential treatment by government, Federal or State, of one sect or religion over others”), Epperson v.
Arkansas, 393 U.S. 97, 104 (holding that the “First Amendment requires governmental neutrality between . . .
religion and nonreligion.”) and School Dist. of Abington v. Schempp, 374 U.S. 203, 216 (1963) (same).

2
to the freedom of the individual to worship in his own way” the founding fathers feared “lay in
the Government's placing its official stamp of approval upon one particular kind of prayer.” Id.
at 429. By reciting and coercing others to join in its one particular kind of prayer, the city is
infringing upon the rights of each individual to chose to worship (or not to worship at all) in his
or her own way. Id. As the Supreme Court noted in Engel, “[i]t is neither sacrilegious nor
antireligious to say that each separate government in this country should stay out of the business
of writing or sanctioning official prayers and leave that purely religious function to the people
themselves and to those the people choose to look to for religious guidance.” Id. at 435. We
simply ask that Sarasota leave the purely religious act of prayer to the people by discontinuing
the practice of beginning city meetings with an invocation. Indeed, “the purposes underlying the
Establishment Clause . . . rested on the belief that a union of government and religion tends to
destroy government and to degrade religion.” Id. at 431. By delivering prayers at public
meetings, the city is not only violating the law but also degrading the very religion it seeks to
promote.5

Third, because the prayer at city meetings is delivered by a government official, the city
exacerbates the “official” nature of its prayer (as proscribed by the Supreme Court in Engel).6
There is a “crucial difference between government speech endorsing religion, which the
Establishment Clause forbids, and private speech endorsing religion which the Free Speech and
Free Exercise Clause protect.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000)
(quoting Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990). As “government speech,”7
Sarasota‟s prayer is not protected by the First Amendment guarantees of free expression and free
exercise of religion because “[n]o individual has a First Amendment right to offer an official
prayer reflecting his personal beliefs.” Hinrichs v. Bosma, 410 F. Supp. 2d 745, 750 (S.D. Ind.
2006).

Finally, by asking citizens to stand prior to the invocation, the city makes it immediately
and unavoidably apparent which members of the public are not participating in the prayer, which
in turn creates an unconstitutionally hostile environment for non-participants (such as non-
Christian believers, atheists, and humanists). See Lynch v. Donnelly, 465 U.S. 668, 688 (1984)
(O‟Connor, J., concurring, stating that “[e]ndorsement [of religion] sends a message to
nonadherents that they are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders, favored members of the political
community.”)8 The Supreme Court has held that asking attendees in a public setting to “stand as

5
Consider that the Bible indicates that Jesus, in the Sermon on the Mount, condemned public prayer: “And when
you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to
be seen by others . . . But when you pray, go into your room, close the door and pray to your Father, which is in
secret.” (Matthew 6:5-13).
6
See, Borden v. School Dist. of Tp. of East Brunswick, 523 F.3d 153, 174 (3rd Cir. 2008) (holding that a high school
violated the Establishment Clause because its football coach‟s extensive involvement with the team‟s prayers, which
he organized, participated in, and led, would lead a reasonable observer to conclude that the coach was not merely
showing respect when he bowed his head and took a knee with his teams but was instead endorsing religion).
7
See Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 288 (4th Cir. 2005) (holding that the
opening prayer of a county board meeting was government speech).
8
See Wynne, 376 F.3d at 295-96 (observing that “Wynne‟s „efforts to participate in Town Council's meetings as a
member of the public [were] adversely affected by her refusal to accept the Christian prayer tradition . . . the
Council treated [her] differently‟ than other members of the community. She explained that she did not believe the
Mayor took her seriously, and that he attempted to intimidate her.”).

3
a group” for an “invocation” is “as real as any overt compulsion,” because in “our culture,
standing or remaining silent can signify adherence to a view.” Lee v. Weisman, 505 U.S. 577,
593 (1992) (holding that a public school‟s inclusion of a “nonsectarian” prayer in a graduation
ceremony violated the Establishment Clause by coercing student to stand and remain silent
during giving of prayer, even though the student was not required to join in the prayer‟s message
in any other way). Sarasota‟s practice of asking citizens to stand for a prayer is also analogous to
the practice struck down by the Fourth Circuit Court of Appeals Wynne v. Town of Great Falls,
376 F. 3d 292, 300 (4th Cir. 2004).9 In Wynne, citizens “attending the meetings customarily”
were asked to “stand,” and the record contained “uncontroverted evidence that residents of the
Town participated in the prayers by saying „amen‟ at the end.” Id. at 294. The court held that
“in a very real sense, the Town Council has directed Christian prayers at - and thereby advanced
Christianity to - the citizens in attendance at its meetings and the citizenry at large.” Id. at 301
n.7. The court rejected the town‟s argument that the prayers were only “for the benefit of the
Council Members,” because (as Sarasota does) the Town Council “specifically listed the prayers
first on its agenda.” Id. In addition, making religion a relevant criterion for participation in the
political process undermines the rights protected by the equal protection clause of the Florida
constitution, which provides that no person shall be deprived of any right because of religion.10

We respectfully request that you discontinue public prayers at Sarasota city

commissioners meetings (and any other governmental meetings involving the public) in order to
be in compliance with the constitutional requirement of separation of church and state mandated
by the Establishment Clause of the First Amendment. All residents of Sarasota deserve to feel
welcome when interacting with their local city government. Beginning public meetings with
prayers produces the opposite effect, corroding the broad civic engagement that is fundamental
to the proper functioning of our secular and democratic form of government.

Please notify us in writing about the steps you are taking to end this constitutional
violation so that we may notify our complainant and avoid any potential litigation. Thank you
for your time and attention to this matter.

Sincerely,

William J. Burgess, Esq.

Appignani Humanist Legal Center
American Humanist Association

9
The prayer in Wynne is nearly identical to the prayer in Sarasota city meetings, as it read: “Our Heavenly Father,
we are here tonight to discuss town business . . . In Christ‟s name we pray. Amen.” Id. at 294.
10
Art. 1 Sec. 2 of the Florida Constitution provides in part: “No person shall be deprived of any right because of
race, religion, national origin, or physical disability.” See Bell v. State, 369 So.2d 932, 934 (Fla.1979) (explaining
that a denial of equal protection occurs when discrimination is “based on an unjustifiable standard such as race,
religion, or other arbitrary classification.”).