COURT FIGHT ON PRAYER ADVANCES.

Byline: Naush Boghossian Staff Writer

BURBANK- Burbank's appeal of a court decision that prevents prayers invoking a particular God during City Council meetings was challenged in court papers Wednesday by the attorney who got the city practice ruled unconstitutional.

Constitutional law attorney Roger Jon Diamond filed a brief restating his original argument in the case against the city, that sectarian prayers are not permitted at City Council meetings.

``The city's argument is they are not proselytizing a religion. The answer is that reference to Jesus Christ is a form of proselytization,'' said Diamond, who is representing the plaintiffs.

However, Chief Assistant City Attorney Juli Scott said she plans to file a reply brief addressing Diamond's arguments; then both sides will argue the case before a panel of appellate judges.

``When our judge said we can allow prayer but not mention a particular deity, it put the council in a position to censor speech,'' Scott argued, a practice the City Council has been following ever since the judge's ruling last year. ``It's not a religious issue. Now it's a free speech issue.''

City attorneys filed a brief with the state Court of Appeal on Oct. 30 asking the court to overturn Los Angeles Superior Court Judge Alexander H. Williams' November 2000 ruling that a prayer invoking the name of Jesus Christ during a council meeting violated the separation of church and state.

The original case arose two years ago when Irv Rubin, who was present at a Nov. 23, 1999, council meeting, said that as a Jew he was offended by the prayer. He and Alejandro Gandara, a Christian, filed a lawsuit against the city a month later.

``Legislative prayer has been recognized by the U.S. Supreme Court as something inherent in the tradition of our country, back to the days of our founding fathers, and is not in violation of the separation of church and state,'' Scott said, noting that the U.S. Congress and Senate have paid chaplains.

But Diamond disagreed with the city attorney's free speech claim, arguing that the council should be able to censor the religious representatives since they open each meeting and are considered part of the program, rather than speaking during the public comments session.

``What would they do if the speakers started to proselytize up there? Of course, they would stop him,'' Diamond said.

If the city loses in the Court of Appeal, Scott said it would be up to the City Council to decide whether to petition the California Supreme Court to review the case.

Rubin said he welcomes the appeal because it will allow the case to be heard by a higher court.