“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. 

Two Trump judges on the Ninth Circuit, Ryan Nelson and Mark Bennett, joined a dissent from a December 2018 denial of rehearing that would have reversed a panel decision affirming a lower court ruling striking down a school board policy of government-sponsored prayer at school board meetings. Judge Nelson wrote an additional dissent that harshly criticized existing precedent and suggested that the Supreme Court should “reconsider its longtime” ruling on church-state separation.

In Freedom from Religion Foundation v. Chino Valley Unified Sch. Dist. Bd. Of Educ., a three-judge panel of the Ninth Circuit affirmed an injunction against a school board policy that provided for an opening prayer at board meetings that are “open to the public and include student attendees and participants,” as young as elementary school age. The prayers were led by local clergy and, in some cases, school board members and school officials. The panel explained that Supreme Court decisions permitting legislative prayer in Congress and elsewhere did not apply to the school board setting where students are present, as two other courts of appeal had ruled, and analyzed the prayer policy under the long-established Lemon v. Kurtzman standard of the Supreme Court. Under that decision, a government policy must have a secular purpose, cannot have the primary effect of promoting religion, and cannot excessively entangle government with religion. Based on a careful review of the record, the court found that the policy failed the first prong of the test because it clearly had the religious purpose of promoting prayer, noting that several board members had specifically stated the objective of promoting recognition of Jesus Christ.

Although a clear majority of the Ninth Circuit denied a full court rehearing of the case, eight judges dissented, including Nelson and Bennett. The dissent sharply criticized the panel decision, claiming it was inconsistent with Supreme Court and other precedent. Nelson wrote an additional dissent in which he specifically condemned Lemon. Paraphrasing Justice Scalia, he claimed that the “Lemon ghoul” has “stalked the lower courts, no longer just frightening little children but increasingly devouring religious expression in the public square.” He pointedly noted that a pending Supreme Court case to be decided by June will give the Court the opportunity to address the “contours of Lemon under the Establishment Clause.”