A Story of a Chief’s Decision, the Establishment Clause, and Spending a Bunch of Taxpayer Money

The First Amendment to the United States Constitution holds that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Through the Fourteenth Amendment, the First Amendment also applies to the states and to their municipalities.

In 2014, following a series of serious and violent crimes in Ocala, Florida, the police chief met with members of the Ocala faith-based community to seek their help in convincing witnesses to cooperate. In what was later described by the federal district court as “no doubt well-intentioned and sincere” efforts, the police chief and his department then sponsored a prayer vigil in the town square. The sponsorship included on-duty planning meetings, a written invitation on department letterhead for citizens to attend the vigil, placing the invitation on the department’s Facebook page, and on-duty personnel creating a separate flyer which depicted a photo of the town square site with praying hands in one corner and the department’s logo in the other.

After the invitation was broadcast, but before the vigil, some concerned citizens contacted the police chief and mayor concerned that “a prayer vigil organized by a police department would violate the U.S. Constitution. When a second citizen questioned what that citizen perceived to be the police chief’s endorsement of religion, the mayor responded that he intended to praise the chief for it. Another citizen responded on the department’s Facebook page (that the federal district judge later included in his opinion) that said: “why are the police asking us to pray? Will they arrest us if we don’t pray?” The police chief and mayor ultimately decided the event would not be cancelled and the police department’s sponsorship would not be transferred to a non-governmental private organization. At the vigil, four uniformed department chaplains, all of the Christian faith, were present on stage and participated in the prayer vigil.

As of March, 2023, those Ocala police efforts have resulted in a federal lawsuit, seven years of litigation, and City losses in both the federal district court and the 11th Circuit Court of Appeals. The federal trial judge was certainly clear in his decision saying, “[T]here is no dispute that these speeches [during the vigil] were religious . . . .[i]n sum, under the Establishment Clause of the First Amendment to the United States Constitution, the government cannot initiate, organize, sponsor, or conduct a community prayer vigil. That is what happened here. Yet, the same event in private hands would be protected by the First Amendment.” The court was paraphrasing Supreme Court Justice O’Connor when she said in a prior Supreme Court case, “[T]here 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 Clauses protect.” In just the last few weeks, the City requested review by the U.S. Supreme Court. The justices declined, but did send the case back down to the trial court ordering that it use a more recent test to decide the Establishment Clause question. The justices’ decision to send the case back down should add about three more years and hundreds of thousands of dollars to the litigation.

The two issues in the case remain: 1) did the plaintiffs’ have standing to sue; and, if they did have standing, 2) did the actions of the police chief and the City amount to an unconstitutional endorsement of religion. One or maybe both of those questions will finally be answered when the case gets back to the justices.

Again, there has been no final resolution. So, the reader may wonder why this article? Well, first it is to bring the litigation to the attention of agency administrators; second, that to become unnecessarily entangled in an Establishment Clause lawsuit may well cost millions of dollars in taxpayer and tort insurance carrier money; and lastly, the media coverage of the department and of the decision-makers’ private lives will seem never-ending.

One has to think that had the police chief decided instead to have a private group sponsor and plan the community-important vigil the citizen complaints would never have seen the inside of a federal courtroom. No matter the ultimate outcome of the case, agency administrators would be well-served to steer clear of issues involving the Establishment Clause because the law is anything but clear, and even winning will be quite expensive.

(First published Kansas Sheriff magazine, Spring 2023; provided here with permission)

Colin