BURBANK, USA - Even the current prayers that open City Council meetings are unconstitutional, according to a brief filed by an atheist group in a state appellate court in Los Angeles last month.
Edward Tabash, attorney for the Council for Secular Humanism, a New York-based group that promotes atheist thought, filed the brief on Nov. 29, joining the fight of a Jewish activist who is suing the city of Burbank for the utterance of "Jesus Christ" at the beginning of a Burbank City Council meeting.
"We want the trial court to uphold the ban on Christian prayer," said Tabash, a Beverly Hills attorney. "But we went a step further and wanted to make sure the court would ban all prayer at the City Council meeting." Jewish activist Irv Rubin, chairman of the Jewish Defense League, filed a complaint against the city in December 1999 after sitting in on a City Council meeting in November of that year, when Mormon Bishop David King uttered a reference to Jesus in the course of an invocation.
Rubin claimed King's "Jesus Christ" utterance violated the separation of church and state. Los Angeles Superior Court Judge Alexander Williams III upheld Rubin's claim; the city has appealed in state appellate court in Los Angeles.
The brief filed on behalf of the Council for Secular Humanism outlined the atheist defense for Rubin.
"For any municipality to begin its City Council meetings with any sort of prayer is for that city to convey the message that nonbelievers are not as fully accepted within that city's political system as are believers," noted the brief.
The brief goes on to argue that no branch of government is permitted to show any favoritism to religious belief over nonbelief, that nonbelievers are not any more protected by the 1st Amendment and that the case law the city of Burbank relies on on -- which upheld invocations at the beginning of state legislative sessions -- did not apply to city councils.
"Unlike a state legislature, the City Council is where citizens come to seek direct action of City Council members," Tabash said in a telephone interview. "So, prayers at the City Council meeting much more fully communicate to those who are not of that belief system that they are somehow outsiders."
Rubin's side saw the brief as a mixed bag, which perhaps reached for too much too soon.
"I have ambivalent feelings," said Rubin's attorney, Roger Jon Diamond. "Strategically, it hurts our position with the court of appeals, because it asks the court to go beyond what we wanted the court to find.,"
At this point, Rubin is not arguing against prayer altogether.
City officials seem steadfast in their appeal.
"They are arguing what they think the law should be," said Assistant City Atty. Juli Scott. "We are arguing what the law is."
In an unrelated development, Rubin was arrested on Tuesday in connection with an alleged criminal conspiracy to manufacture and detonate explosives at Muslim buildings, authorities said. He is being held without bail downtown in the Metropolitan Detention Center.
Attorneys from both sides said the Rubin arrest should not affect the case, because the city is the appellant.