2018—“What nonsense!” protests Judge Diarmuid O’Scannlain in his withering critique of the Ninth Circuit panel decision in Freedom from Religion Foundation, Inc. v. Chino Valley Unified School District. In ruling that a school board’s practice of allowing an invocation to be offered at its meetings violates the Establishment Clause, the panel concluded that school-board meetings are not legislative in nature and that the Supreme Court’s rulings on legislative prayer therefore did not apply. But, as O’Scannlain complains, the panel “bizarrely transforms the Board meetings into a ‘school setting’” and implausibly maintains that any students who choose to attend a board meeting are somehow “under the control of public-school authorities.”

O’Scannlain issues his opinion in protest against the Ninth Circuit’s refusal to grant en banc rehearing of the panel ruling. His opinion is joined by seven other judges, including Clinton appointee Johnnie Rawlinson.