Nancy Lund v. Rowan County, North Carolina ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1591
NANCY LUND; LIESA MONTAG-SIEGEL; ROBERT VOELKER,
Plaintiffs - Appellees,
v.
ROWAN COUNTY, NORTH CAROLINA,
Defendant - Appellant.
----------------------------
STATE OF WEST VIRGINIA; STATE OF ALABAMA; STATE OF ARIZONA;
STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF INDIANA; STATE
OF MICHIGAN; STATE OF NEBRASKA; STATE OF NEVADA; STATE OF
OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF
TEXAS; MEMBERS OF CONGRESS,
Amici Supporting Appellant,
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE;
AMERICAN HUMANIST ASSOCIATION; ANTI-DEFAMATION LEAGUE;
CENTER FOR INQUIRY; FREEDOM FROM RELIGION FOUNDATION;
INTERFAITH ALLIANCE FOUNDATION; SIKH COALITION; UNION FOR
REFORM JUDAISM; WOMEN OF REFORM JUDAISM,
Amici Supporting Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cv-00207-JAB-JLW)
Argued: January 27, 2016 Decided: September 19, 2016
Amended: September 21, 2016
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Reversed and remanded with directions by published opinion.
Judge Agee wrote the majority opinion, in which Judge Shedd
concurs. Judge Wilkinson wrote a dissenting opinion.
ARGUED: Allyson Newton Ho, MORGAN, LEWIS & BOCKIUS LLP, Dallas,
Texas, for Appellant. Christopher Anderson Brook, AMERICAN
CIVIL LIBERTIES UNION OF NORTH CAROLINA, Raleigh, North
Carolina, for Appellees. ON BRIEF: David C. Gibbs, III, THE
NATIONAL CENTER FOR LIFE AND LIBERTY, Flower Mound, Texas; John
C. Sullivan, MORGAN, LEWIS & BOCKIUS LLP, Dallas, Texas; David
A. Cortman, Brett B. Harvey, ALLIANCE DEFENDING FREEDOM,
Scottsdale, Arizona; Hiram S. Sasser, III, LIBERTY INSTITUTE,
Plano, Texas, for Appellant. Daniel Mach, Heather L. Weaver,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C., for
Appellees. Patrick Morrisey, Attorney General, Elbert Lin,
Solicitor General, Julie Marie Blake, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia, for Amicus State of West Virginia;
Luther Strange, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF ALABAMA, Montgomery, Alabama, for Amicus State of Alabama;
Mark Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF ARIZONA, Phoenix, Arizona, for Amicus State of Arizona;
Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of
Arkansas; Pamela Jo Bondi, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF FLORIDA, Tallahassee, Florida, for Amicus
State of Florida; Gregory F. Zoeller, Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, for
Amicus State of Indiana; Bill Schuette, Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for
Amicus State of Michigan; Douglas J. Peterson, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF NEBRASKA, Lincoln, Nebraska,
for Amicus State of Nebraska; Adam Paul Laxalt, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF NEVADA, Carson City,
Nevada, for Amicus State of Nevada; Michael DeWine, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio,
for Amicus State of Ohio; E. Scott Pruitt, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City,
Oklahoma, for Amicus State of Oklahoma; Alan Wilson, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Amicus State of South Carolina;
2
Ken Paxton, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
TEXAS, Austin, Texas, for Amicus State of Texas. Sean
Sandoloski, Dallas, Texas, Thomas G. Hungar, Alex Gesch, Lindsay
S. See, Russell Balikian, GIBSON, DUNN & CRUTCHER LLP,
Washington, D.C., for Amici Members of Congress. Richard B.
Katskee, Gregory M. Lipper, AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE, Washington, D.C., for Amici Americans United
for Separation of Church and State, American Humanist
Association, Anti-Defamation League, Center for Inquiry, Freedom
From Religion Foundation, Interfaith Alliance Foundation, Sikh
Coalition, Union for Reform Judaism, and Women of Reform
Judaism.
3
AGEE, Circuit Judge:
The Board of Commissioners of Rowan County, North Carolina,
(“the Board”) opens its public meetings with an invocation
delivered by a member of the Board. The district court
determined that practice violates the Establishment Clause of
the First Amendment. Under the Supreme Court’s most recent
decision explaining legislative prayer, Town of Greece v.
Galloway, 134 S. Ct. 1811 (2014), we find the Board’s
legislative prayer practice constitutional and reverse the
judgment of the district court.
I.
The relevant facts are undisputed. Rowan County, North
Carolina, exercises its municipal power through an elected Board
of Commissioners, which typically holds public meetings twice a
month. For many years prior to this proceeding, the Board has
permitted each commissioner, on a rotating basis, to offer an
invocation before the start of the Board’s legislative agenda. 1
At most Board meetings, the chairperson would call the
meeting to order and invite the Board and audience to stand for
the ceremonial opening. A designated commissioner would then
1The record does not reflect that the Board adopted a
written policy regarding the invocations but it followed a
relatively routine practice.
4
deliver an invocation of his or her choosing followed by the
pledge of allegiance. The content of each invocation was
entirely in the discretion of the respective commissioner; the
Board, as a Board, had no role in prayer selection or content.
The overwhelming majority of the prayers offered by the
commissioners invoked the Christian faith in some form. For
example, prayers frequently included references to “Jesus,”
“Christ,” and “Lord.” E.g., Supp. J.A. 36-37. 2 It was also
typical for the invocation to begin with some variant of “let us
pray” or “please pray with me.” Id. Although not required to
do so, the audience largely joined the commissioners in standing
and bowing their heads during the prayer and remained standing
for the pledge of allegiance.
In February 2012, the American Civil Liberties Union of
North Carolina sent the Board a letter objecting to the
invocations and asserting a violation of the Establishment
Clause. The Board did not formally respond, but several
commissioners expressed their intent to continue delivering
prayers consistent with their Christian faith. For example, a
then-commissioner stated, “I will continue to pray in Jesus’
name. I am not perfect so I need all the help I can get, and
2
This opinion omits internal marks, alterations, citations,
emphasis, and footnotes from quotations unless otherwise noted.
5
asking for guidance for my decisions from Jesus is the best I,
and Rowan County, can ever hope for.” J.A. 325.
Subsequently, Rowan County residents Nancy Lund, Liesa
Montag–Siegel, and Robert Voelker (collectively, “Plaintiffs”)
filed a complaint in the U.S. District Court for the Middle
District of North Carolina “to challenge the constitutionality
of [the Board’s] practice of delivering sectarian prayer at
meetings[.]” J.A. 10. Specifically, Plaintiffs alleged that
the prayer practice unconstitutionally affiliated the Board with
one particular faith and caused them to feel excluded as
“outsiders.” J.A. 12.
Apart from their objections to the prayers’ contents,
Plaintiffs further alleged that the overall atmosphere of the
meetings coerced them to participate as a condition of
attendance. Lund stated she felt “compelled to stand [during
the invocation] so that [she] would not stand out.” Supp. J.A.
2. Voelker offered a similar account, claiming he was “coerced”
into participating because the commissioners and most audience
members stood and bowed their heads. Supp. J.A. 9. Voelker
also posited that any public opposition to the prayers could
negatively affect his business before the Board.
Based on these allegations, Plaintiffs sought a declaratory
judgment that the Board’s prayer practice violated the
Establishment Clause, along with an injunction preventing any
6
similar future prayers. Plaintiffs also moved for a preliminary
injunction based on then-controlling precedent that sectarian
legislative prayer was a constitutional violation. See Joyner
v. Forsyth Cty., 653 F.3d 341, 347 (4th Cir. 2011) (explaining
that our decisions “hewed to [the] approach [of] approving
legislative prayer only when it is nonsectarian in both policy
and practice”). Observing that “97% of the [Board’s recorded]
meetings[] have opened with a [commissioner] delivering a
sectarian prayer that invokes the Christian faith,” the district
court entered a preliminary injunction barring the County from
permitting such invocations. J.A. 296.
The Supreme Court then issued its decision in Town of
Greece, holding that the legislative prayer in that case,
although clearly sectarian, was constitutionally valid and did
not transgress the Establishment Clause. Id. at 1820 (“An
insistence on nonsectarian or ecumenical prayer as a single,
fixed standard is not consistent with the tradition of
legislative prayer outlined in [our] cases.”); see also id. at
1815, 1824. The parties filed cross-motions for summary
judgment in light of Town of Greece.
In reviewing the summary judgment motions, the district
court acknowledged that in Town of Greece the Supreme Court had
“repudiated” and “dismantled” “the Fourth Circuit’s legislative
prayer doctrine [that had] developed around the core
7
understanding that the sectarian nature of legislative prayers
was largely dispositive” of its constitutionality. Lund v.
Rowan Cty., N.C., 103 F. Supp. 3d 712, 719, 721 (M.D.N.C. 2015).
Moreover, the Plaintiffs did not raise the sectarian nature of
the prayers as part of their summary judgment motion.
Nonetheless, the district court struck down the Board’s
legislative invocation practice, concluding that “[s]everal
significant differences” between Town of Greece and this case
rendered that practice unconstitutional. Lund, 103 F. Supp. 3d
at 724. The district court thought the fact that the
commissioners delivered the prayers, instead of invited clergy,
“deviates from the long-standing history and tradition of a
chaplain, separate from the legislative body, delivering the
prayer.” Id. at 723. The district court further emphasized
that the Board’s practice created a “closed-universe of prayer-
givers” that “inherently discriminates and disfavors religious
minorities.” Id. at 723.
After finding the Board’s practice outside the
constitutionally protected historical practice of legislative
prayer, the district court went on to consider whether the
Board’s prayer practice otherwise “violate[d] the Establishment
Clause as a coercive religious exercise.” Id. at 724-25.
Although the unrefuted record disclosed that individuals could
leave the room or remain seated during the opening prayer, the
8
district court held the Board’s conduct was nonetheless coercive
because, among other things, the commissioners often invited the
public to stand before the invocation. In the court’s words,
the Board’s legislative prayer practice
leads to prayers adhering to the faiths of
five elected Commissioners. The Board
maintains exclusive and complete control
over the content of the prayers, and only
the Commissioners deliver the prayers. In
turn, the Commissioners ask everyone --
including the audience -- to stand and join
in what almost always is a Christian prayer.
On the whole, these details and context
establish that [the Board’s] prayer practice
is an unconstitutionally coercive practice
in violation of the Establishment Clause.
Id. at 733.
Based on this analysis, the district court granted
Plaintiffs’ motion for summary judgment and entered a permanent
injunction barring the Board’s legislative prayer practice. The
Board timely appealed, and we review the district court’s
decision de novo. Simpson v. Chesterfield Cty. Bd. of
Supervisors, 404 F.3d 276, 280 (4th Cir. 2005); see also
Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir.
2008) (“We review de novo a district court’s findings of
constitutional fact and its ultimate conclusions regarding a
First Amendment challenge.”).
9
II.
A.
Recognizing “this Nation’s history has not been one of
entirely sanitized separation between Church and State,” the
Supreme Court has acknowledged that government, in some
instances, may properly commemorate religion in public life.
Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S.
756, 760 (1973). Pertinent here, the Court has expressly
approved the practice of opening legislative sessions with
prayer. See Joyner, 653 F.3d at 347 (“There is a clear line of
precedent not only upholding the practice of legislative prayer,
but acknowledging the ways in which it can bring together
citizens of all backgrounds and encourage them to participate in
the workings of their government.”). In contrast to other
Establishment Clause jurisprudence, legislative prayer stands on
its own distinct ground owing to its historically based practice
and acceptance.
While legislative prayer is generally a type of government
speech, Turner v. City Council of Fredricksburg, 534 F.3d 352,
354 (4th Cir. 2008), the Supreme Court has always stressed its
unique status. That status was evident in Marsh v. Chambers,
463 U.S. 783 (1983), which involved a challenge to the
constitutionality of the Nebraska legislature’s practice of
having a paid chaplain offer a prayer to open each legislative
10
session. Applying the three-part test from Lemon v. Kurtzman,
403 U.S. 602 (1971), the Eighth Circuit had concluded such
invocations violated the Establishment Clause. The Supreme
Court disagreed.
Recounting the long-standing American tradition of opening
legislative sessions with prayer, the Supreme Court traced its
history “[f]rom colonial times through the founding of the
Republic and ever since.” Marsh, 463 U.S. at 786. The Court
noted that “the First Congress, as one of its early items of
business, adopted the policy of selecting a chaplain to open
each session with prayer.” Id. at 787–88. The Senate and
House, in turn, appointed official chaplains in 1789. Id.
Ascribing great significance to these events, the Court
explained they shed light on how the Founders viewed the
Establishment Clause in relation to legislative prayer. “It can
hardly be thought that . . . they intended the Establishment
Clause . . . to forbid what they had just declared acceptable.”
Id. at 790. “This unique history [led the Court] to accept the
interpretation of the First Amendment draftsmen who saw no real
threat to the Establishment Clause arising from [the] practice
of [legislative] prayer.” Id. at 791.
Having upheld legislative prayer in general, the Marsh
Court next considered whether specific features of Nebraska's
practice fell outside constitutional protection. In that
11
regard, the plaintiff raised three challenges: (i) Nebraska had
selected a representative of “only one denomination” for sixteen
years; (ii) the chaplain was a paid state employee; and (iii)
his prayers were offered “in the Judeo–Christian tradition.”
Id. at 792–93. The Supreme Court rejected all three claims,
noting that the First Congress “did not consider opening prayers
as a proselytizing activity or as symbolically placing the
government’s official seal of approval on one religious view.”
Id. at 792. Moreover, there was no evidence that the chaplain’s
long tenure “stemmed from an impermissible motive,” and thus his
continuous appointment did “not in itself conflict with the
Establishment Clause.” Id. at 793–94. That the chaplain was
paid from public funds was similarly “grounded in historic
practice” and thus not prohibited. Id. at 794. As for the
content of the prayers, the Court explained it was “not of
concern” because “there is no indication that the prayer
opportunity has been exploited to proselytize or advance any
one, or to disparage any other, faith or belief.” Id. at 794-
95. “That being so,” the Supreme Court concluded it would not
“embark on a sensitive evaluation or to parse the content of a
particular prayer.” Id. at 795.
The Supreme Court later referenced its holding in Marsh
during the course of ruling on the propriety of two religious
holiday displays located on public property in County of
12
Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 578-
79, 602 (1989). In dicta commenting about legislative prayer
practice permitted in Marsh, the Court noted that “[t]he
legislative prayers involved in Marsh did not violate [the
Establishment Clause] because the particular chaplain had
removed all references to Christ.” Id. at 603. The Court also
observed that “not even the unique history of legislative prayer
can justify contemporary legislative prayers that have the
effect of affiliating the government with any one specific faith
or belief.” Id.
Whatever fleeting validity those observations may have had,
the Supreme Court flatly rejected this approach in Town of
Greece. Clarifying its earlier holdings, the Court disavowed a
requirement that legislative prayers must be neutral and
reference only a generic God to comply with the Establishment
Clause: “An insistence on nonsectarian or ecumenical prayer as a
single, fixed standard is not consistent with the tradition of
legislative prayer outlined in [our] cases.” Town of Greece,
134 S. Ct. at 1820.
The Supreme Court’s decision in Town of Greece guides
review of this case, which, like other legislative prayer cases,
requires a case-specific evaluation of all the facts and
circumstances. See Lynch v. Donnelly, 465 U.S. 668, 678-79
(1984) (observing that the Establishment Clause cannot
13
mechanistically be applied to draw unwavering, universal lines
for the varying contexts of public life). To guide that review
we turn to a fuller examination of the Supreme Court’s
discussion in Town of Greece.
B.
The town of Greece opened its monthly legislative meetings
with an invocation delivered by volunteer clergy. It solicited
guest chaplains by placing calls to local congregations listed
in a directory. Town of Greece, 134 S. Ct. at 1816. Nearly all
of the local churches were Christian, as were the guest clergy,
and thus most invocations referenced some aspect of the
Christian faith. The town made no attempt to guide the prayer-
givers in the content of the prayer. Id. Although the district
court found the town’s practice constitutional the Second
Circuit disagreed and concluded that the “steady drumbeat of
Christian prayer . . . tended to affiliate the town with
Christianity,” in violation of the Establishment Clause. Id. at
1818. The Supreme Court reversed.
Beginning with a summary of Marsh, the Court explained
“that the Establishment Clause must be interpreted by reference
to historical practices and understandings.” Id. at 1819; see
also id. at 1818-19. “Marsh stands for the proposition that it
is not necessary to define the precise boundary of the
Establishment Clause where history shows that the specific
14
practice is permitted.” Id. at 1819. The pertinent inquiry in
legislative prayer cases, therefore, is whether the practice at
issue “fits within the tradition long followed in Congress and
the state legislatures.” Id. The Court added, “[a]ny test [we]
adopt[] [for analyzing invocations] must acknowledge a practice
that was accepted by the Framers and has withstood the critical
scrutiny of time and political change.” Id.
Rooted thus, the Court rejected the plaintiffs’ argument
that legislative prayer must be generic or nonsectarian under
the Establishment Clause. Observing that legislative
invocations containing explicitly religious themes were accepted
at the time of the first Congress and remain vibrant today, the
Court concluded, “[a]n insistence on nonsectarian or ecumenical
prayer as a single, fixed standard is not consistent with [our
accepted] tradition of legislative prayer.” Id. at 1820. On
this point, the Court disavowed Allegheny’s “nonsectarian”
interpretation of Marsh as dictum “that was disputed when
written and has been repudiated by later cases.” Id. at 1821;
see also id. (“Marsh nowhere suggested that the
constitutionality of legislative prayer turns on the neutrality
of its content.”).
The Court further observed that a content-based rule “would
force the legislatures that sponsor prayers and the courts that
are asked to decide these cases to act as supervisors and
15
censors of religious speech.” Id. at 1822. Enforcing such a
line would “involve government in religious matters to a far
greater degree than is the case under the town’s current
practice of neither editing or approving prayers in advance nor
criticizing their content after the fact.” Id. “Once it
invites prayer into the public sphere,” the Court stated,
“government must permit a prayer giver to address his or her own
God or gods as conscience dictates, unfettered by what an
administrator or judge considers to be nonsectarian.” Id. at
1822-23.
Noting that legislative prayer has historically served a
ceremonial function, “[t]he relevant constraint derives from its
place at the opening of legislative sessions, where it is meant
to lend gravity to the occasion and reflect values long part of
the Nation’s heritage.” Id. at 1823. Even so, the Court
cautioned there could be a circumstance where a legislative
prayer practice failed to “serve[] [its] legitimate function”:
“If the course and practice over time shows that the invocations
denigrate nonbelievers or religious minorities, threaten
damnation, or preach conversion[.]” Id. at 1823.
Synthesizing these factors, the Court held that the prayers
offered on behalf of the town, although almost exclusively
Christian, did not evidence any pattern of denigration or
proselytization. See id. (“Our tradition assumes that adult
16
citizens, firm in their own beliefs, can tolerate and perhaps
appreciate a ceremonial prayer delivered by a person of a
different faith.”). Though the plaintiffs pointed to at least
two prayers in the record that arguably contained disparaging
content, the Court concluded that the prayer practice as a whole
served only to solemnize the board meetings. A few deviating
prayers, the Court explained, were of no constitutional
consequence. Id. at 1824.
Relatedly, the Court also determined there was no
constitutional defect arising from the fact that the invited
prayer-givers were predominantly Christian: “[s]o long as the
town maintains a policy of nondiscrimination, the Constitution
does not require it to search beyond its borders for non-
Christian prayer givers in an effort to achieve religious
balancing.” Id. Continuing, the Court observed
[t]he quest to promote a diversity of religious views
would require the town to make wholly inappropriate
judgments about the number of religions [it] should
sponsor and the relative frequency with which it
should sponsor each, a form of government entanglement
with religion that is far more troublesome than the
current approach.
Id.
Lastly, the Court addressed the plaintiffs’ contention that
the prayers unconstitutionally “coerce participation by
nonadherents.” Id. (Kennedy, J., plurality opinion). In
jettisoning this argument, the Court acknowledged that
17
“coercion” could render legislative prayer beyond constitutional
protection in some outlier circumstances. But the justices
differed in their understandings of what constituted coercion.
Compare id. at 1824-28 (Sec. II.B of Justice Kennedy’s plurality
opinion), with id. at 1837-38 (Sec. II. of Justice Thomas’s
concurring opinion).
Justice Kennedy, joined by Chief Justice Roberts and
Justice Alito, framed the coercion inquiry as “a fact-sensitive
one that considers both the setting in which the prayer arises
and the audience to whom it is directed.” Id. at 1825 (Kennedy,
J., plurality opinion). These Justices found no coercion in the
town’s prayer practice and relied heavily on the historical
approach of Marsh. They presumed that reasonable observers are
aware of the multiple traditions acknowledging God in this
country, including legislative prayer, the pledge of allegiance,
and presidential prayers. They concluded that, because of these
traditions, citizens could appreciate the town’s prayer practice
without being compelled to participate. Id. Furthermore, they
observed that the purpose of the prayers was to put legislators
in a contemplative state of mind rather than have an effect on
observers. Id. at 1826. Justice Kennedy further stated that
“[o]ffense . . . does not equate to coercion.” Id. “Adults
often encounter speech they find disagreeable; and an
Establishment Clause violation is not made out any time a person
18
experiences a sense of affront from the expression of contrary
religious views in a legislative forum.” Id. 3
With these principles from Town of Greece in mind, we now
apply them to the facts presented here.
III.
Legislative prayer thus has a unique status relative to the
First Amendment that places it in a different legal setting than
other types of government conduct touching the Establishment
Clause. See Marsh, 463 U.S. at 792. Town of Greece reflects
that the constitutionality of legislative prayer hinges on its
historical precedence, as it “has become part of the fabric of
our society.” 134 S. Ct. at 1819. If a prayer exercise has
long been “followed in Congress and the state legislatures,”
Town of Greece reflects that a court must view it “as a
tolerable acknowledgement of beliefs widely held among the
people of this country.” Id. at 1818-19. A court reviewing a
challenge to legislative prayer “must acknowledge a practice
3
Justices Thomas and Scalia, on the other hand, interpreted
the Establishment Clause as prohibiting only “actual legal
coercion,” which they defined as the exercise of “government
power in order to exact financial support of the church, compel
religious observance, or control religious doctrine.” Town of
Greece, 134 S. Ct. at 1837 (Thomas J., concurring in part and
concurring in the judgment). As no such evidence was present in
the record, they concurred in the holding that the town’s prayer
practice should be upheld. Id. at 1837-38.
19
that was accepted by the Framers and has withstood the critical
scrutiny of time and political change.” Id. at 1819. “A test
that would sweep away what has so long been settled would create
new controversy and begin anew the very divisions along
religious lines that the Establishment Clause seeks to prevent.”
Id.
A.
Following Town of Greece, both parties correctly
acknowledge that sectarian legislative prayer, as a general
matter, is compatible with the Establishment Clause. 4 What
remains in dispute is whether the Board’s practice of the
elected commissioners delivering such prayers makes a
substantive constitutional difference. The district court found
this feature largely dispositive. See Lund, 103 F. Supp. 3d at
722. In its view, the prayer-giver’s status as “a member of the
legislative body” is a “crucial” and “determinative difference.”
Id. at 722, 724. The district court’s decision has the
practical effect of imposing a bright-line prohibition on
lawmaker-led prayer.
In reaching its conclusion, the district court observed
that the Supreme Court has never before sanctioned legislator-
4At oral argument before this Court, the Plaintiffs
specifically agreed the sectarian aspect of the invocation
prayers at the Board meetings was not an issue they raise. Oral
Argument at 17:10-17:32 and 20:10-21:24.
20
led prayers: “[I]t is telling that throughout its Town of Greece
opinion and the opinion in Marsh, the Supreme Court consistently
discussed legislative prayer practices in terms of invited
ministers, clergy, or volunteers providing the prayer, and not
once described a situation in which the legislators themselves
gave the invocation.” Id. at 722. In essence, the district
court treated the Supreme Court’s jurisprudential silence on
lawmaker-led prayer as conclusively excluding legislators from
being permissible prayer-givers to their own legislative bodies.
That conclusion is not supportable.
While Town of Greece involved a rotating group of local
clergy and Marsh concerned a paid chaplain, the Supreme Court
attached no significance to the speakers’ identities in its
analysis and simply confined its discussion to the facts
surrounding the prayer practices before it. See Town of Greece,
134 S. Ct. at 1816; Marsh, 463 U.S. at 784-85. Nowhere did the
Court say anything that could reasonably be construed as a
requirement that outside or retained clergy are the only
constitutionally permissible givers of legislative prayer.
Quite the opposite, Town of Greece specifically directs our
focus to what has been done in “Congress and the state
legislatures” without any limitation regarding the officiant.
Id. at 1819. We find the Supreme Court’s silence on the issue
of lawmaker-led prayer to be simply that: silence. See United
21
States v. Stewart, 650 F.2d 178, 180 (9th Cir. 1981) (remarking
it would be improper to draw any inference from the Supreme
Court’s silence on an issue not placed before it).
Nor has this Court previously assigned weight to the
identity of the prayer-giver. To the contrary, we have
suggested this feature is irrelevant. For example, in Wynne v.
Town of Great Falls, we remarked that “[p]ublic officials’ brief
invocations of the Almighty before engaging in public business
have always, as the Marsh Court so carefully explained, been
part of our Nation’s heritage.” 376 F.3d 292, 302 (4th Cir.
2004). Similarly, Joyner v. Forsyth County observed that “[i]t
[is] the governmental setting for the delivery of sectarian
prayers that courted constitutional difficulty, not those who
actually gave the invocation.” 653 F.3d at 350; see also id. at
351. And in Simpson v. Chesterfield County Board of
Supervisors, we noted that the Supreme Court, “neither in Marsh
nor in Allegheny, held that the identity of the prayer-giver,
rather than the content of the prayer, was what would affiliate
the government with any one specific faith or belief.” 404 F.3d
at 286. Although these cases ultimately turned on the now-
rejected position that sectarian prayer was constitutionally
invalid, none made the prayer-giver’s identity dispositive.
On a broader level, and more importantly, the very “history
and tradition” anchoring the Supreme Court’s holding in Town of
22
Greece underscores a long-standing practice not only of
legislative prayer generally but of lawmaker-led prayer
specifically. Opening invocations offered by elected
legislators have long been accepted as a permissible form of
religious observance. See S. Rep. No. 32-376, at 4 (1853)
(commenting that the authors of the Establishment Clause “did
not intend to prohibit a just expression of religious devotion
by the legislators of the nation, even in their public character
as legislators” (emphasis added)); see also Lynch, 465 U.S. at
674 (“There is an unbroken history of official acknowledgment by
all three branches of government of the role of religion in
American life from at least 1789.”). As just one example, the
South Carolina Provincial Congress -- South Carolina’s first
independent legislature -- welcomed an elected member to deliver
its opening invocations. See South Carolina Provincial
Congress, Thanks to the Continental Congress (Jan. 11, 1775),
http://amarch.lib.niu.edu/islandora/object/niu-amarch%3A94077
(last visited Aug. 31, 2016 and saved as ECF opinion
attachment). “The recognition of religion in these early public
pronouncements is important, unless we are to presume the
founders of the United States were unable to understand their
own handiwork.” Myers v. Loudoun Cty. Sch. Bd., 418 F.3d 395,
404 (4th Cir. 2005).
23
This tradition of legislative prayer has continued to
modern day. A majority of state and territorial assemblies
honor requests from individual legislators to give an opening
invocation. See National Conference of State Legislatures,
Inside the Legislative Process 5-151 to -152 (2002), http://
www.ncsl.org/documents/legismgt/ILP/02Tab5Pt7.pdf (observing
legislators may offer an opening prayer in at least thirty-one
states). Lawmaker-led prayer is especially prevalent in the
states under our jurisdiction, where seven of the ten
legislative chambers utilize elected members for this purpose.
See id.; Br. for State of W. Va. et al. as Amici Curiae
Supporting Defendant-Appellant at 14 & Addend. 2; see also
Prayers Offered in the North Carolina House of Representatives:
2011-2014, http://nchousespeaker.com/docs/opening-prayers-
nchouse-2011-2014.pdf (last visited July 12, 2016). Several of
these states have enacted legislation recognizing the historical
practice of legislative prayer. For example, a Virginia statute
protects legislators who deliver a sectarian prayer during
deliberative sessions. See Va. Code § 15.2-1416.1. And South
Carolina expressly authorizes its elected officials to open
meetings with prayer. See S.C. Code § 6-1-160(B)(1); see also
Mich. H.R. Rule 16 (requiring the clerk of the Michigan House of
Representatives to arrange “for a Member to offer an invocation”
at the beginning of each session).
24
Lawmaker-led prayer finds contemporary validation in the
federal government as well. Both houses of Congress allow
members to deliver an opening invocation. As recently as May
2015, Senator James Lankford commenced legislative business in
the Senate with a prayer invoking the name of Jesus. 161 Cong.
Rec. S3313 (daily ed. May 23, 2015). The congressional record
is replete with similar examples. See, e.g., 159 Cong. Rec.
S3915 (daily ed. June 4, 2013) (prayer by Sen. William M.
Cowan); 155 Cong. Rec. S13401-01 (daily ed. Dec. 18, 2009)
(prayer by Sen. John Barrasso); 119 Cong. Rec. 17,441 (1973)
(statement of Rep. William H. Hudnut III); see also 2 Robert C.
Byrd, The Senate 1789-1989: Addresses on the History of the
United States Senate 305 (Wendy Wolff ed., 1990) (“Senators
have, from time to time, delivered the prayer.”).
In view of this long and varied tradition of lawmaker-led
prayer, the district court’s judicial wall barring elected
legislators from religious invocations runs headlong into the
Supreme Court’s acknowledgement that “[a]ny test [we] adopt[]
must acknowledge a practice that was accepted by the Framers and
has withstood the critical scrutiny of time and political
change.” Town of Greece, 134 S. Ct. at 1819. As Justice Alito
aptly explained, “if there is any inconsistency between any
[Establishment Clause] test[] and the historic practice of
legislative prayer, the inconsistency calls into question the
25
validity of the test, not the historic practice.” Id. at 1834
(Alito, J., concurring). Heeding this advice, we decline to
accept the district court’s view that legislative prayer
forfeits its constitutionally protected status because a
legislator delivers the invocation. A legal framework that
would result in striking down legislative prayer practices that
have long been accepted as “part of the fabric of our society”
cannot be correct. Id. at 1819.
In reaching its decision, the district court seems to have
wholly ignored a foundational principle in Town of Greece. “The
principal audience for these invocations is not, indeed, the
public but lawmakers themselves, who may find that a moment of
prayer or quiet reflection sets the mind to a higher purpose and
thereby eases the task of governing.” Id. at 1825 (Kennedy, J.,
plurality opinion).
Not only are the legislators themselves the intended
“congregation” for legislative prayer, but the practice carries
special meaning to the thousands of state and local legislators
who are citizen representatives. In this respect, the Supreme
Court has specifically singled out “members of town boards and
commissions, who often serve part-time and as volunteers,” as
lawmakers for whom “ceremonial prayer may . . . reflect the
values they hold as private citizens.” Id. at 1826. If
legislative prayer is intended to allow lawmakers to “show who
26
and what they are” in a public forum, then it stands to reason
that they should be able to lead such prayers for the intended
audience: themselves. Id. Indeed, legislators are perhaps
uniquely qualified to offer uplifting, heartfelt prayer on
matters that concern themselves and their fellow legislators.
The district court’s determination that the fact that a
legislator delivers a legislative prayer is a significant
constitutional distinction, at least in the context of this
case, was error.
B.
We turn now to the question of whether some other facet of
the Board’s practice, beyond the bare fact that lawmaker-led
prayer is offered, takes this case outside the protective
umbrella of legislative prayer. Although the Supreme Court has
not forged a comprehensive template for all acceptable
legislative prayer, its decisions set out guideposts for
analyzing whether a particular practice goes beyond
constitutional bounds. See Snyder, 159 F.3d at 1233 (“Marsh
implicitly acknowledges some constitutional limits on the scope
and selection of legislative prayers[.]”).
1.
An initial guidepost relates to the selection of the
content of legislative prayer. In rejecting the plaintiffs’
position that invocations must be nonsectarian, the Supreme
27
Court in Town of Greece explained that such a rule “would force
the legislatures that sponsor prayers and the courts that are
asked to decide these cases to act as supervisors and censors of
religious speech.” 134 S. Ct. at 1822. Such an outcome, the
Court continued, “would involve government in religious matters
to a far greater degree than is the case under the town’s
current practice of neither editing or approving prayers in
advance nor criticizing their content after the fact.” Id.
The district court determined the Board’s practice was
invalid under this standard because the individual commissioners
author their own invocations, and by doing so act as
“supervisors of the prayers.” Lund, 103 F. Supp. 3d at 723. It
reasoned that “the government is [thus improperly] delivering
prayers that were exclusively prepared and controlled by the
government[.]” Id. We disagree. The Board’s practice here,
where each commissioner gives their own prayer without
oversight, input, or direction by the Board simply does not
present the same concerns of the “government [attempting] to
define permissible categories of religious speech.” Town of
Greece, 134 S. Ct. at 1822 (emphasis added).
What the Supreme Court has cautioned against in this
context is “for[cing] the legislatures that sponsor prayers . .
. to act as . . . supervisors and censors of religious speech.”
Id. (emphasis added). To be sure, in offering the invocations
28
the individual commissioners sometimes convey their personal
alignment with a particular faith. But the Court has always
looked to the activities of the legislature as a whole in
considering legislative prayer. This makes perfect sense; for
it is only through act of the deliberative body writing or
editing religious speech that government would impermissibly
seek “to promote a preferred system of belief or code of moral
behavior” with selected content. Town of Greece, 134 S. Ct. at
1822. There is no evidence that the Board, as a Board, had any
role in any of the prayers by the individual commissioners. The
record is devoid of any suggestion that any prayer in this case
is anything but a personal creation of each commissioner acting
in accord with his or her own personal views.
In effect, each commissioner is a free agent like the
ministers in Town of Greece and the chaplain in Marsh who gave
invocations of their own choosing. In other Establishment
Clause contexts, the Supreme Court has stressed this element of
private choice, holding that when a neutral government policy or
program merely allows or enables private religious acts, those
acts do not necessarily bear the state’s imprimatur. See Zelman
v. Simmons–Harris, 536 U.S. 639, 652 (2002) (school voucher
programs); Mueller v. Allen, 463 U.S. 388, 399 (1983) (school-
related income tax deductions). As the Supreme Court stated in
Town of Greece, “[o]nce it invites prayer into the public
29
sphere, government must permit a prayer giver to address his or
her own God or gods as conscience dictates, unfettered by what
an administrator or judge considers to be nonsectarian.” 134 S.
Ct. at 1822-23.
The Board’s legislative prayer practice amounts to nothing
more than an individual commissioner leading a prayer of his or
her own choosing.
2.
A second guidepost to acceptable legislative prayer
discussed in Town of Greece concerns its content. After
reaffirming the holding in Marsh that lower courts should
refrain from becoming embroiled in the review of the substance
of legislative prayer, the Supreme Court noted that there could
be certain circumstances where sectarian references cause a
legislative prayer practice to fall outside constitutional
protection. Id. at 1823. “If the course and practice over time
shows that the invocations denigrate nonbelievers or religious
minorities, threaten damnation, or preach conversion,” a
constitutional line can be crossed. Id. In that circumstance,
the Court observed, “many present may consider the prayer to
fall short of the desire to elevate the purpose of the occasion
and to unite lawmakers in their common effort.” Id.
To this end, courts need only assure themselves that
sectarian legislative prayer, viewed from a cumulative
30
perspective, is not being exploited to proselytize or disparage.
Below this threshold, the Supreme Court has disclaimed any
interest in the content of legislative invocations, announcing a
strong disinclination “to embark on a sensitive evaluation or to
parse the content of a particular prayer.” Marsh, 463 U.S. at
795.
The record in this case reflects that the Board’s prayer
practice did not stray across this constitutional line of
proselytization or disparagement. See Wynne, 376 F.3d at 300
(“To ‘proselytize’ on behalf of a particular religious belief
necessarily means to seek to ‘convert’ others to that
belief[.]”). The content of the commissioners’ prayers largely
encompassed universal themes, such as giving thanks and
requesting divine guidance in deliberations. References to
exclusively Christian concepts typically consisted of the
closing line, such as “In Jesus’ name. Amen.” See Supp. J.A.
29-31. There is no prayer in the record asking those who may
hear it to convert to the prayer-giver’s faith or belittling
those who believe differently. 5 And even if there were, it is
5 The four prayers that the dissent cites as
constitutionally offensive bear in common the fact that none
attempt to convert any hearer to change their faith; none
belittle those of another faith; and none portend that a person
of another faith would be treated any differently by the prayer-
giver in the business of the Board. In short, none of those
(Continued)
31
the practice as a whole -- not a few isolated incidents -- which
controls. Town of Greece, 134 S. Ct. at 1824 (“Absent a pattern
of prayers that over time denigrate, proselytize, or betray an
impermissible government purpose, a challenge based solely on
the content of a prayer will not likely establish a
constitutional violation.”).
The invocation delivered at the Board’s October 17, 2011,
meeting is illustrative of what the Board members and the public
in Rowan County would hear:
Let us pray. Father we do thank you for the
privilege of being here tonight. We thank
you for the beautiful day you’ve given us,
for health and strength, for all the things
we take for granted. Lord, as we read the
paper today, the economic times are not
good, and many people are suffering and
doing without. We pray for them; we pray
that you would help us to help. We pray for
the decisions that we will make tonight,
that God, they will honor and glorify you.
We pray that you would give us wisdom and
understanding. We’ll thank you for it. In
Jesus’ name. Amen.
Supp. J.A. 31. Such prayer comes nowhere near the realm of
prayer that is out of bounds under the standards announced in
Town of Greece. Prayers that chastise dissenters or attempt to
sway nonbelievers press the limits of the Supreme Court’s
instruction and may not merit constitutional protection, but no
cited prayers bears any of the hallmarks of constitutional
question set out in Town of Greece.
32
such prayers have been proffered in this case. See, e.g.,
Snyder, 159 F.3d at 1235 (finding the plaintiff’s proffered
prayers unconstitutional because they “strongly disparage[d]
other religious views” and “s[ought] to convert his audience”).
Plaintiffs call our attention to a few examples that
contain more forceful references to Christianity out of the
hundreds of legislative prayers delivered before Board meetings.
As an initial matter, the sectarian content cited in Plaintiffs’
opening brief (and referenced by the dissent) is austere and
innocuous when measured against invocations upheld in Marsh.
See 463 U.S. at 823 n.2 (Stevens, J., dissenting) (quoting an
exemplar challenged prayer). Regardless, Plaintiffs’
hypersensitive focus is misguided. Town of Greece “requires an
inquiry into the prayer opportunity as a whole, rather than into
the contents of a single prayer.” 134 S. Ct. at 1824. “Absent
a pattern of prayers that over time denigrate, proselytize, or
betray an impermissible government purpose, a challenge based
solely on the content of a prayer will not likely establish a
constitutional violation.” Id. Given the respectful tone of
nearly all the invocations delivered here, which largely mirror
those identified in Town of Greece, the Board’s practice crossed
no constitutional line. See id. at 1824 (holding that a few
stray remarks are insufficient to “despoil a practice that on
the whole reflects and embraces our tradition”).
33
3.
Moving beyond the invocations themselves, a third guidepost
to legislative prayer relates to the selection of the prayer-
giver. In Town of Greece, the challenged practice resulted in
“a predominately Christian set of ministers . . . lead[ing] the
prayer.” Id. The Court found this fact unremarkable because
“[t]he town made reasonable efforts to identify all of the
congregations located within its borders and represented that it
would welcome a prayer by any minister or layman who wished to
give one.” Id. “So long as the town maintains a policy of
nondiscrimination,” then “the Constitution does not require it
to search beyond its borders for non-Christian prayer givers in
an effort to achieve religious balancing.” Id.
The district court found the Board’s legislative prayer
practice objectionable because the invocation opportunity was
rotated among only the elected commissioners; that is, all of
the Board members. According to the district court, “[w]hen all
faiths but those of the five elected Commissioners are excluded,
the policy inherently discriminates and disfavors religious
minorities.” Lund, 103 F. Supp. 3d at 723. Marsh and Town of
Greece reflect that the district court’s conclusion was
mistaken.
The Supreme Court’s prohibition on discrimination in this
context is aimed at barring government practices that result
34
from a deliberate choice to favor one religious view to the
exclusion of others. As explained in Town of Greece, concerns
arise only if there is evidence of “an aversion or bias on the
part of town leaders against minority faiths” in choosing the
prayer-giver. 134 S. Ct. at 1824. The Marsh Court likewise
alluded to this requirement when it cautioned that the selection
of a guest chaplain cannot stem from “an impermissible motive.”
463 U.S. at 793. Read in context, this condition appears
directed at the conscious selection of the prayer-giver on
account of religious affiliation. See id. at 793.
The district court’s opinion aims elsewhere, essentially
mandating prayer-giver diversity. See Lund, 103 F. Supp. 3d at
723 (“[T]he present case presents a closed-universe of prayer-
givers, . . . [leaving] minority faiths [with] no means of being
recognized.”). For example, under the district court’s
framework, a legislature, including Congress, would be
prohibited from permitting individual members to deliver the
opening invocation to solemnize its proceedings unless an
unlimited number of faiths were actually represented by the
elected representatives. But diversity among the beliefs
represented in a legislature has never been the measure of
legislative prayer. Town of Greece specifically rejected the
notion that lawmaking bodies must “promote a diversity of
religious views.” 134 S. Ct. at 1824. Consequently, the town
35
was not obliged to “search beyond its borders for non-Christian
prayer givers in an effort to achieve religious balancing.” Id.
And in Marsh, the Nebraska legislature appointed the same
Presbyterian minister for sixteen years to the exclusion of all
other creeds. The Court was unpersuaded that this made a
constitutional difference. See Marsh, 463 U.S. at 793.
Thus, while the Board’s practice limits the represented
faiths to those of the individual commissioners, that is no
different from the limitations built into the constitutional
prayer practices in Town of Greece and Marsh. See Simpson, 404
F.3d at 285 (“A party challenging a legislative invocation
practice cannot . . . rely on the mere fact that the selecting
authority chose a representative of a particular faith, because
some adherent or representative of some faith will invariably
give the invocation.”). There is simply no requirement in our
case law that a legislative prayer practice reflect multiple
faiths or even more than one to be constitutionally valid.
Absent proof the Board restricted the prayer opportunity
among the commissioners as part of an effort to promote only
Christianity, we must view its decision to rely on lawmaker-led
prayer as constitutionally insignificant. See Pelphrey v. Cobb
Cty., 547 F.3d 1263, 1281 (11th Cir. 2008) (“[Marsh] does not
require that all faiths be allowed the opportunity to pray. The
standard instead prohibits purposeful discrimination.”).
36
Plaintiffs have not directed the Court to any evidence that
would suggest the Board harbored such a motive. It is
uncontested that the Board’s policy was facially neutral and
bereft of government discretion. A person of any creed can be
elected to the Board and is entitled to speak without
censorship. Furthermore, as far as we can tell, the Board never
altered its practice to limit a non-Christian commissioner or
attempted to silence prayers of any viewpoint. See Lund, 103 F.
Supp. 3d at 714-16.
The Supreme Court has determined that the selection of a
prayer-giver who represents a single religious sect, even over
many years, does not advance any one faith or belief over
another. See Marsh, 463 U.S. at 793 (“We cannot, any more than
Members of the Congresses of this century, perceive any
suggestion that choosing a clergyman of one denomination
advances the beliefs of a particular church.”); Ctr. for
Inquiry, Inc. v. Marion Circuit Court Clerk, 758 F.3d 869, 874
(7th Cir. 2014) (“Marsh and Greece show that a government may,
consistent with the First Amendment, open legislative sessions
with Christian prayers while not inviting leaders of other
religions[.]”). A party challenging a legislative prayer
practice cannot rely on the mere fact that the selecting
authority has confined the invocation speakers to a narrow
group. This is particularly true here as the Board has no voice
37
in the selection of commissioners, which is entirely up to the
citizens by election.
4.
A final guidepost to legislative prayer is found in the
statement from Town of Greece that the prayer practice “over
time” may not be “exploited to . . . advance any one . . . faith
or belief.” 134 S. Ct. at 1823. We must discern, then, whether
over time the Board’s practice conveys the view that Rowan
County “advance[d]” Christianity over other creeds. Id.
The Board has not picked any of the prayers under its
legislative prayer practice of ceremonial invocation by which
the commissioners’ prayers solemnize their meeting. Town of
Greece fully supports this approach, reaffirming the principle
first set out in Marsh that a governmental subdivision does not
endorse any one faith or belief by opening its forum to prayers,
even sectarian ones. See McCreary Cty. v. Am. Civil Liberties
Union of Ky., 545 U.S. 844, 859 n.10 (2005) (citing Marsh as an
example of a permissible governmental action whose “manifest
purpose was presumably religious”). And this remains true even
when sectarian religious content is communicated regularly. See
Galloway v. Town of Greece, 681 F.3d 20, 24-25 (2d Cir. 2012)
(observing that “[r]oughly two-thirds” of the prayers at issue
in that case “contained uniquely Christian language,” while
38
“[t]he remaining third of the prayers spoke in more generically
theistic terms”).
The prayers in this case, like those in Town of Greece,
were largely generic petitions to bless the commissioners before
turning to public business. References to Christian concepts
typically consisted of the closing statement “in Jesus’ name we
pray,” or a similar variation. Supp. J.A. 31. As Town of
Greece imparts, such prayers do not unconstitutionally convey
the appearance of an official preference for Christianity.
Rather, “[o]ur tradition assumes that adult citizens, firm in
their own beliefs, can tolerate and perhaps appreciate
[sectarian] ceremonial prayer[.]” Town of Greece, 134 S. Ct. at
1823.
Had a chaplain offered prayers identical to those in the
instant case, Town of Greece and Marsh would unquestionably
apply to uphold the Board’s practice. Unlike the district
court, we are unconvinced the feature of a legislator delivering
the prayer to fellow legislators signals an unconstitutional
endorsement of religion.
Practically speaking, the public seems unlikely to draw a
meaningful distinction between a state-paid chaplain and the
legislative body that appoints him. “Such chaplains speak for
the legislature.” Snyder, 159 F.3d at 1238 (Lucero, J.,
concurring in judgment). They are in essence “deputized” to
39
represent the governing body in this context. Cf. Town of
Greece, 134 S. Ct. at 1850 (Kagan, J, dissenting).
Consequently, when an elected representative underscores his
alignment with a particular faith during the invocation, as is
sometimes the case here, the risk of placing the government’s
weight behind this view is the same as those practices upheld in
Marsh and Town of Greece. In other words, the degree of
denominational preference projected onto the government with
lawmaker-led prayer is not significantly different from
selecting denominational clergy to do the same. Both prayers
arise in the same context and serve the same purpose.
If anything, allowing the legislative body to collectively
select a tenured chaplain as in Marsh would seem to pose a
greater problem. The presence of a single religious figure,
particularly a paid state employee, seems more likely to reflect
a perceived governmental endorsement of the faith that
individual represents. Yet, the Supreme Court has concluded
this more obvious preference is not constitutionally
significant. See Rubin v. Lancaster, 710 F.3d 1087, 1097 (9th
Cir. 2013) (“[W]hatever message Nebraska might have conveyed
through its practice of selecting, paying, and retaining for
sixteen years a Presbyterian chaplain who often delivered
explicitly Christian invocations, the Supreme Court concluded
that the legislature had not advanced Christianity.”).
40
Legislative prayer is constitutionally acceptable when it
“fits within the tradition long followed in Congress and the
state legislatures.” Town of Greece, 134 S. Ct. at 1819. The
Supreme Court has observed that prayers offered within this
tradition have a common theme and “respectful” tone –- they are
given “at the opening of legislative sessions, where it is meant
to lend gravity to the occasion.” Id. at 1823. Acceptable
legislative prayer thus “solemnize[s] the occasion” and “invites
lawmakers to reflect upon shared ideals and common ends before
they embark on the fractious business of governing[.]” Id. The
record here reflects just such prayers.
C.
We now turn to Plaintiffs’ claims that the Board’s
legislative prayer practice is impermissibly coercive. The
“coercion test” under the Establishment Clause reflects that the
government violates the Constitution if it compels religious
participation. See Allegheny, 492 U.S. at 660 (Kennedy, J.,
concurring in judgment in part and dissenting in part).
Although spurned by the Supreme Court for some time, see Sch.
Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223 (1963)
(noting that Free Exercise cases were “predicated on coercion
while [an] Establishment Clause violation need not be”), the
coercion test gradually emerged as part of Establishment Clause
doctrine in several decisions regarding school-sponsored prayer.
41
See Lee v. Weisman, 505 U.S. 577, 593 (1992) (striking down
clergy-led prayers at graduation ceremonies because the school
district’s “supervision and control . . . places public
pressure, as well as peer pressure, on attending students . . .
as real as any overt compulsion.”); Santa Fe Indep. Sch. Dist.
v. Doe, 530 U.S. 290, 310-17 (2000) (finding prayers at high
school football games unconstitutionally coercive).
Although previously unclear whether the coercion test
applied beyond the schoolhouse, see G. Sidney Buchanan, Prayer
in Governmental Institutions: The Who, the What, and the At
Which Level, 74 Temp. L. Rev. 299, 339-42 (2001); see also
Mellen v. Bunting, 327 F.3d 355, 366-72 (4th Cir. 2003)
(recognizing a gap in Supreme Court precedent with regard to
secular expression not directed to children), Town of Greece
settled that ambiguity by observing that a coercion-based
analysis applies to adults encountering religious observances in
governmental settings. See 134 S. Ct. at 1825 (Kennedy, J.,
plurality opinion) (“It is an elemental First Amendment
principle that government may not coerce its citizens to support
or participate in any religion or its exercise.”).
The Town of Greece majority, however, was unable to settle
on what constitutes coercion in the legislative prayer context.
Although five Justices agreed that the town did not engage in an
unconstitutional coercion, they reached this conclusion by
42
separate paths. Justices Thomas and Scalia would require
coercion to consist of “the coercive state establishments that
existed at the founding,” which essentially equates to religious
observance “by force of law and threat of penalty.” Town of
Greece, 134 S. Ct. at 1837 (Thomas J., concurring in part and
concurring in the judgment). Justice Kennedy, joined by Chief
Justice Roberts and Justice Alito, framed the inquiry as “a
fact-sensitive one that considers both the setting in which the
prayer arises and the audience to whom it is directed.” Id. at
1825 (Kennedy, J., plurality opinion). Under this view,
“[c]ourts remain free to review the pattern of prayers over time
to determine whether they comport with the tradition of solemn,
respectful prayer approved in Marsh, or whether coercion is a
real and substantial likelihood.” Id. at 1826-27. The history
and tradition of legislative prayer is relevant here, too, and
the “reasonable observer” is presumed to be aware of that
history and recognize the purpose of such practices. Id. at
1825.
The district court divided its coercion analysis into two
parts. First, it considered the issue under Town of Greece,
concluding “Justice Kennedy’s general rules for evaluating
potential coercion in the legislative prayer context . . . point
the [c]ourt in the direction of finding the practice of [the
Board] unconstitutionally coercive.” Lund, 130 F. Supp. 3d at
43
729. The district court then “turn[ed] to the principles of
[the] coercion doctrine developed prior to the Town of Greece
decision,” finding these cases likewise suggested the Board
violated the Establishment Clause. Id.
As noted above, the Supreme Court’s coercion doctrine prior
to Town of Greece developed in several cases involving public
school events with children. The potential for undue influence,
however, is less significant when dealing with prayer involving
adults, and this distinction warrants a difference in
constitutional analysis. The law recognizes a meaningful
distinction between children in a school setting and a
legislative session where adults are the participants. See
Stein v. Plainwell Cmty. Schs., 822 F.2d 1406, 1409 (6th Cir.
1987) (“The potential for coercion in the prayer opportunity was
one of the distinctions employed by the Court in Marsh to
separate legislative prayer from classroom prayer.”). The
Supreme Court assumes that adults are “not readily susceptible
to religious indoctrination or peer pressure.” Marsh, 463 U.S.
at 792; see also Town of Greece, 134 S. Ct. at 1823 (“[A]dult
citizens, firm in their own beliefs, can tolerate and perhaps
appreciate a ceremonial prayer delivered by a person of a
different faith.”).
Consistent with this distinction, we do not find the
Supreme Court’s prior coercion cases applicable in analyzing
44
legislative prayer like that at issue here. See Simpson, 404
F.3d at 281 (“Marsh, in short, has made legislative prayer a
field of Establishment Clause jurisprudence with its own set of
boundaries and guidelines.”). Thus, we look to the coercion
analysis in Town of Greece, recognizing first that the Board
clearly did not engage in coercion under the view expressed by
Justices Scalia and Thomas. But we analyze the issue under the
view more favorable to the Plaintiffs as expressed in Justice
Kennedy’s plurality opinion. Under that approach, the Court
must conduct a fact-sensitive inquiry “consider[ing] both the
setting in which the prayer arises and the audience to whom it
is directed.” Town of Greece, 134 S. Ct. at 1825 (Kennedy, J.,
plurality opinion).
In upholding the invocation practice in Town of Greece, the
Supreme Court plurality identified several “red flags” that
could signal when a prayer exercise is coercive and thus not
within the historical tradition of constitutionally protected
legislative prayer. See id. at 1825-27. Specifically, the
Court explained that coercion may exist “if town board members
directed the public to participate in the prayers, singled out
dissidents for opprobrium, or indicated that their decisions
might be influenced by a person’s acquiescence in the prayer
opportunity.” Id. at 1826. The Court also identified as
problematic “practice[s] that classified citizens based on their
45
religious views” or resulted in a pattern of prayers used to
“intimidate” or “chastise[] dissenters.” Id.
It is not difficult to understand why the Court placed the
coercion bar so high in this context. As noted, adults are not
presumed susceptible to religious indoctrination or pressure
simply from speech they would rather not hear. Thus, there is
limited risk that disenchanted listeners would be affected by
mere contact with lawmaker-led legislative prayer. “Adults
often encounter speech they find disagreeable; and an
Establishment Clause violation is not made out any time a person
experiences a sense of affront from the expression of contrary
religious views[.]” Id.; see also Elk Grove Unified Sch. Dist.
v. Newdow, 542 U.S. 1, 44 (2004) (O'Connor, J., concurring in
the judgment) (“[T]he Constitution does not guarantee citizens a
right entirely to avoid ideas with which they disagree.”).
The district court erred in concluding the Board’s prayer
practice was coercive under this framework. The commissioners’
prayers “neither chastised dissenters nor attempted lengthy
disquisition on religious dogma.” Town of Greece, 134 S. Ct. at
1826 (Kennedy, J., plurality opinion). Rather, as illustrated
previously, the content largely followed the spirit of solemn,
respectful prayer approved in Marsh and Town of Greece.
Moreover, the record shows that both attendance and
participation in the invocations were voluntary. The Board has
46
represented without contradiction that members of the public
were free to remain seated or otherwise “disregard the
Invocation in a manner that [was] not disruptive.” J.A. 277.
Thus, as a practical matter, citizens attending a Board meeting
who found the prayer unwanted had several options available --
they could arrive after the invocation, leave for the duration
of the prayer, or remain for the prayer without participating:
just like the audiences in Marsh and Town of Greece. And to the
extent individuals like Plaintiffs elected to stay, “their quiet
acquiescence [would] not, in light of our traditions, be
interpreted as an agreement with the words or ideas expressed.”
Town of Greece, 134 S. Ct. at 1827 (Kennedy, J., plurality
opinion).
The record is similarly devoid of evidence that anyone who
chose not to participate during the prayer suffered adverse
consequences, that their absence was perceived as disrespectful,
or was recognized by the Board in any way. To the contrary, the
Board has attested that such conduct would have “no impact on
[the constituent’s] right to fully participate in the public
meeting, including addressing the commission and participating
in the agenda items in the same matter as permitted any citizen
of Rowan County.” J.A. 277. Plaintiffs point us to no evidence
to the contrary. Thus, it is implausible on this record to
suggest that Plaintiffs were “in a fair and real sense” coerced
47
to participate in the Board’s exercise of legislative prayer.
Lee, 505 U.S. at 586.
Plaintiffs’ allegations that the prayer practice made them
feel subjectively “excluded at meetings” and that the Board’s
“disagreement with [their] public opposition to sectarian prayer
could make [them] less effective advocate[s]” does nothing to
change the outcome. Lund, 130 F. Supp. 3d at 715-16. Town of
Greece explicitly rejected the claim that a citizen’s perceived
“subtle pressure to participate in prayers that violate their
beliefs in order to please the board members from whom they are
about to seek a favorable ruling” constitutes coercion. 134 S.
Ct. at 1825 (Kennedy, J., plurality opinion). This is true even
where the legislative body may “know many of their constituents
by name,” making anonymity less likely for those citizens who
decline to rise or otherwise participate in the invocation. Id.
Likewise, merely exposing constituents to prayer they find
offensive is not enough. “[I]n the general course[,]
legislative bodies do not engage in impermissible coercion
merely by exposing constituents to prayer they would rather not
hear and in which they need not participate.” Id. at 1827.
To be sure, legislative prayer may stray across the
constitutional line if “town leaders allocate[] benefits and
burdens based on participation in the prayer, or that citizens
were received differently depending on whether they joined the
48
invocation or quietly declined.” Id. at 1826. But there must
be evidence in the record to support allegations of that sort.
There is no such evidence in this case.
Plaintiffs make several arguments in support of the
district court’s coercion ruling. They first claim that the
prayer practice here was “an external act focused on the broader
public,” which “has a type of coercive power that the internally
directed [prayers] in Town of Greece [did] not.” Response Br.
8, 11. Plaintiffs point to several invocations where the
commissioners offered prayers on behalf of others as well as
themselves. This evidence, in Plaintiffs’ view, shows that the
commissioners did “not consider the prayer practice an internal
act directed at one another, but rather, that it is also
directed toward citizens and for the benefit of all.” Id. at
11.
Town of Greece notes the internal or external nature of a
prayer practice in determining whether impermissible coercion
occurred. See 134 S. Ct. at 1825 (Kennedy, J., plurality
opinion) (“The principal audience for these invocations is not,
indeed, the public but lawmakers themselves, who may find that a
moment of prayer or quiet reflection sets the mind to a higher
purpose and thereby eases the task of governing.”). The Supreme
Court’s rationale here is obvious. The probability of coercion
can be heightened should the prayers be directed at those in
49
attendance. Plaintiffs’ argument, however, posits that any
prayer referencing a person or concern beyond the members of the
legislative body is externally directed and thus prohibited.
That cannot be. Legislative prayer does not lose its
constitutionally protected status because it includes a request
for divine protection for persons other than those serving in
office, such as our troops overseas or first responders. The
Supreme Court has never required such a single-minded purpose.
Indeed, the prayers in Town of Greece contained similar
expressions focused at persons other than fellow legislators.
See id. at 1824. The fact that individual commissioners here
sometimes prayed that God bless, protect, and heal wounded
soldiers in Iraq and injured police officers does not take the
prayers outside the realm of constitutionally protected
legislative prayer. 6
Plaintiffs next argue that the commissioners unacceptably
directed public participation in the prayers. To reiterate, the
Board’s opening ceremony usually began with the chairperson
asking everyone to stand “for the Invocation and Pledge of
6
Taking two of the exemplar prayers referenced by the
dissent, we do not understand the connection to coercion if the
gallery audience heard the Commissioner delivering the prayer
ask God to “continue to bless everyone in this room, our
families, our friends, and our homes” or to “forgive our pride
and arrogance, heal our souls, and renew our vision.” Cf. infra
70 (citing J.A. 16, 17).
50
Allegiance.” Lund, 103 F. Supp. 3d at 714. The designated
commissioner would then offer an invocation that typically
started with “let us pray” or “please pray with me.” Id.
Plaintiffs maintain that these statements amount to
unconstitutional coercion. The district court agreed,
concluding the commissioners’ statements “fall squarely within
the realm of soliciting, asking, requesting, or directing, and
thus within the territory of concern [in] Town of Greece.” Id.
at 728.
Again, we disagree. Similar invitations have been
routinely offered for over two centuries in the U.S. Congress,
the state legislatures, and countless local boards and councils.
No case has ever held such a routine courtesy opening a
legislative session amounts to coercion of the gallery audience.
It would come as quite a shock to the Founders if it had.
When the Supreme Court in Town of Greece expressed concern
about prayer-givers “direct[ing] the public to participate in
the prayers,” it did not have the foregoing in mind. 134 S. Ct.
at 1826 (Kennedy, J., plurality opinion). Coercion is measured
“against the backdrop of historical practice.” Id. at 1825.
“As a practice that has long endured, legislative prayer has
become part of our heritage and tradition . . . similar to the
Pledge of Allegiance [or] inaugural prayer[.]” Id. “It is
presumed that the reasonable observer is acquainted with this
51
tradition and understands that its purposes are to lend gravity
to public proceedings and to acknowledge the place religion
holds in the lives of many private citizens[.]” Id. Viewed
through this lens, no reasonable person would interpret the
commissioners’ commonplace invitations as government directives
commanding participation in the prayer. The phrase “let us
pray” is a familiar and “almost reflexive” call to open an
invocation that hardly compels in the rational mind thoughts of
submission. Id. at 1832 (Alito, J., concurring). The same goes
for the Board’s request for audience members to stand. We may
safely assume that mature adults, like Plaintiffs, can follow
such contextual cues without the risk of religious
indoctrination. See Marsh, 463 U.S. at 792. Telling here is
Plaintiffs’ own evidence, which indicates that some portion of
the audience often chose not to participate. See J.A. 12
(noting only “most” of the audience stood). In sum, opening a
legislative prayer with a short invitation to rise and join
hardly amounts to “orchestrat[ing] the performance of a formal
religious exercise in a fashion that practically obliges the
involvement of non-participants.” Myers, 418 F.3d at 406.
Lastly, Plaintiffs claim they were singled out for
opprobrium by “Board members signaling their disfavor of those
who did not fall in line.” Response Br. 20. Plaintiffs cite to
several public statements where acting commissioners were
52
critical of those in the religious minority. See, e.g., Lund,
103 F. Supp. 3d at 715. (then-chairman Jim Sides: “I am sick and
tired of being told by the minority what’s best for the
majority. My friends, we’ve come a long way -- the wrong way.
We call evil good and good evil.”). Even giving these comments
the weight Plaintiffs would like, which is itself doubtful
because most came post-litigation and in response to other
issues having nothing to do with legislative prayer, they are
insufficient to carry the day. Such isolated incidents do not
come close to showing, as Town of Greece requires, “a pattern of
prayers that over time denigrate, proselytize, or betray an
impermissible government purpose.” 134 S. Ct. at 1824.
Indeed, the comments cited here are not materially different
from those referenced in Town of Greece, where several
invocations referred to prayer opponents as the “minority” and
“ignorant.” Id. A few stray remarks are simply insufficient to
“despoil a practice that on the whole reflects and embraces our
tradition.” Id.
Participation in the Board’s opening ceremony, including
the invocation, is voluntary. Yet the district court concluded
that Plaintiffs are subject to unconstitutional coercion because
they claim to be compelled and coerced based on their subjective
speculation about how their abstention might be received. That
conclusion cannot be reconciled with Town of Greece and its
53
rejection of the notion of coercion of adults in similar
circumstances. Town of Greece identified a narrow range of
exceptional circumstances that could render a legislative prayer
practice coercive and outside the historical tradition of
invocations that comport with the Establishment Clause. The
Board’s legislative prayer practice is not close to crossing
that constitutional line.
IV.
None of the constitutional contentions raised by the
Plaintiffs have validity under the facts of this case for the
reasons set out above. Similarly, even taking all the
Plaintiffs’ claims as an amalgamated whole, they do not reflect
a meritorious claim for the same reasons such claims failed in
Marsh and Town of Greece.
The Board’s legislative prayer practice falls within our
recognized tradition and does not coerce participation by
nonadherents. It is therefore constitutional. The district
court erred in concluding to the contrary. Accordingly, the
judgment of the district court is reversed and remanded with
directions to dismiss the complaint.
REVERSED AND REMANDED
WITH DIRECTIONS
54
WILKINSON, Circuit Judge, dissenting:
Welcome to the meeting of the Rowan County Board of
Commissioners. As many of you are aware, we customarily begin
these meetings with an invocation. Those who deliver the
invocation may make reference to their own religious faith as
you might refer to yours when offering a prayer. We wish to
emphasize, however, that members of all religious faiths are
welcome not only in these meetings, but in our community as
well. The participation of all our citizens in the process of
self-government will help our fine county best serve the good
people who live here.
--Message of Religious Welcome
The message actually delivered in this case was not one of
welcome but of exclusion. That is a pity, because even a brief
prefatory statement akin to that above might have helped to set
a different tone for the meetings here while not requiring the
judiciary to police the content of legislative prayer.
I.
Religious faith is not only a source of personal guidance,
strength, and comfort. Its observance is also a treasured
communal exercise which serves in times of need as the
foundation for mutual support and charitable sustenance. But
when a seat of government begins to resemble a house of worship,
the values of religious observance are put at risk, and the
danger of religious division rises accordingly. S.A. 1-10
(affidavits of Nancy Lund, Liesa Montag-Siegel, and Robert
Voelker). This, I respectfully suggest, is what is happening
here. It cannot be right. This case is more than a factual
55
wrinkle on Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).
It is a conceptual world apart.
Rowan County’s prayer practice featured invocations week
after week, month after month, year after year, with the same
sectarian references. To be sure, Town of Greece ruled that
sectarian prayer is not by itself unconstitutional. 134 S. Ct.
at 1820-23. But the issue before us turns on more than just
prayer content, the primary concern in Town of Greece. Whereas
guest ministers led prayers in that case, it was public
officials who exclusively delivered the invocations in Rowan
County. Those prayers served to open a meeting of our most basic
unit of government, a local board of commissioners that passes
laws affecting citizens in the most daily aspects of their
lives. The prayers, bordering at times on exhortation or
proselytization, were uniformly sectarian, referencing one and
only one faith though law by definition binds us all.
I have seen nothing like it. This combination of
legislators as the sole prayer-givers, official invitation for
audience participation, consistently sectarian prayers
referencing but a single faith, and the intimacy of a local
governmental setting exceeds even a broad reading of Town of
Greece. That case in no way sought to dictate the outcome of
every legislative prayer case. Nor did it suggest that “no
constraints remain on [prayer] content.” Id. at 1823. The
56
Establishment Clause still cannot play host to prayers that
“over time . . . denigrate nonbelievers or religious minorities,
threaten damnation, or preach conversion.” Id. To assess those
risks, “[c]ourts remain free to review the pattern of prayers
over time.” Id. at 1826-27.
Above all, the Supreme Court stressed that “[t]he inquiry
[into legislative prayer] remains a fact-sensitive one that
considers both the setting in which the prayer arises and the
audience to whom it is directed.” Id. at 1825 (emphasis added).
The parties have not cited any legislative prayer decision
combining the particular speakers, audience involvement, prayer
content, and local government setting presented here. Rowan
County’s counsel conceded during oral argument that this case is
without precedent. Oral Argument at 9:20-10:08, Lund v. Rowan
Cty. (No. 15-1591). I am left to wonder what limits, if any, to
sectarian invocations at meetings of local government appellants
would be prepared to recognize.
No one disputes that localities enjoy considerable latitude
in opening their meetings with invocations and prayers. But the
legislative prayer practice here pushes every envelope. I would
not welcome this exceptional set of circumstances into the
constitutional fold without considering its implications. A
ruling for the County bears unfortunate consequences for
American pluralism, for a nation whose very penny envisions one
57
out of many, a nation whose surpassing orthodoxy belongs in its
constitutional respect for all beliefs and faiths, a nation
which enshrined in the First and Fourteenth Amendments the
conviction that diversity in all of its dimensions is our
abiding strength.
II.
Though the majority treats this case as all but resolved by
Town of Greece, that decision did not touch upon the combination
of factors presented here, particularly the question of
legislator-led prayer. Indeed, prayers by public officials form
a distinct minority within Establishment Clause case law. The
great majority of legislative prayer cases have not involved
legislators at all, but invocations by guest ministers or local
religious leaders. E.g., Marsh v. Chambers, 463 U.S. 783, 784-85
(1983) (invocation by a chaplain paid by the state at the
opening of state legislative sessions); Joyner v. Forsyth Cty.,
653 F.3d 341, 343 (4th Cir. 2011) (prayers by leaders of local
congregations at county commission meetings). The invocations in
Town of Greece were likewise delivered solely by ministers from
local congregations. 134 S. Ct. at 1816-17. Nearly all the
congregations were Christian, and every minister selected during
an eight-year period came from that faith. Id. But crucially, no
public officials delivered prayers or influenced their content
in any way. Id. As the district court noted, Town of Greece
58
“consistently discussed legislative prayer practices in terms of
invited ministers, clergy, or volunteers providing the prayer,
and not once described a situation in which the legislators
themselves gave the invocation.” Lund, 103 F. Supp. 3d at 722.
By contrast, the only eligible prayer-givers at Rowan
County commission meetings were the five board commissioners,
each of whom took up the responsibility in turn. Not only did
they lead the prayers, but they also composed all the
invocations “according to their personal faiths,” which were
uniformly Christian denominations. Id. at 724; J.A. 275-94
(affidavits of the five Rowan County commissioners). Compared to
Town of Greece, the “much greater and more intimate government
involvement” by the Rowan County board led the district court to
find its prayer practice unconstitutional. Lund, 103 F. Supp. at
723.
Of course, the prayer practice was not infirm simply
because it was led by the commissioners. As the majority and the
states’ amicus brief rightly remind, there exists a robust
tradition of prayers delivered by legislators. According to a
national survey and amici’s own research, all but two state
legislative bodies engage in legislative prayer or a moment of
silence. Br. of Amici Curiae State of West Virginia and 12 Other
States at 13. Lawmakers lead at least some legislative prayers
in just over half of those states, including seven of the ten
59
state legislative chambers within our circuit. Id. at 13-14.
Many county and city governments also call upon elected
officials to give prayer. Id. at 15.
The tradition of prayer by legislators is but one indicator
of how unrealistic it would be to divorce democratic life from
religious practice. We see their intertwined nature whenever
candidates for all levels of political office proclaim their
faith on the campaign trail. Voters may understandably wish to
factor the religious devotion of those they elect into their
political assessments. It could not be otherwise. As Justice
William O. Douglas aptly observed, “We are a religious people
whose institutions presuppose a Supreme Being.” Zorach v.
Clauson, 343 U.S. 306, 313 (1952).
The Supreme Court thus recognized that “a moment of prayer
or quiet reflection sets the mind[s] [of legislators] to a
higher purpose and thereby eases the task of governing.” Town of
Greece, 134 S. Ct. at 1825. The solemnizing effect for lawmakers
is likely heightened when they personally utter the prayer. In
deference to that purpose, I would not for a moment cast all
legislator-led prayer as constitutionally suspect. As the
Supreme Court has emphasized, “[L]egislative prayer lends
gravity to public business, reminds lawmakers to transcend petty
differences in pursuit of a higher purpose, and expresses a
common aspiration to a just and peaceful society.” Id. at 1818.
60
Prayers delivered by legislators, however, are themselves
quite diverse. We cannot discern from the general survey
proffered by amici which prayers were primarily for the benefit
of legislators or commissioners as in Town of Greece and which
focused, as the prayers did here, on requesting the citizens at
the meeting to pray. Nor do we know from the survey what
percentage of prayers given by elected officials generally
contain sectarian references or proselytizing exhortations, or
which are non-denominational or delivered by legislators of
diverse faiths. And in fact, the very survey on which the
majority and amici rely takes care to note that highly sectarian
prayers represent “not only a breach of etiquette,” but also an
“insensitivity to the faith of others.” National Conference of
State Legislatures, Inside the Legislative Process 5-145 (2002)
[hereinafter NCSL Survey]; see Maj. Op. at 24; Br. of Amici
Curiae State of West Virginia and 12 Other States at 13.
Further, the survey cautions, the prayer-giver “should be
especially sensitive to expressions that may be unsuitable to
members of some faiths.” NCSL Survey at 5-146.
We should focus then not on any general survey but on the
interaction among elements specific to this case -- legislative
prayer-givers exclusively of one faith, legislative invitation
to the citizens before them to participate, and exclusively
sectarian prayers referencing a single faith in every regular
61
meeting of a local governing body over a period of many years.
At a certain point, the interaction of these elements rises to
the level of coercion that Town of Greece condemned. Id. at
1823.
III.
A.
I shall discuss each of the aforementioned elements in
turn, beginning with the fact that the commissioners themselves
delivered the invocations. Legislator-led prayer, when combined
with the other elements, poses a danger not present when
ministers lead prayers. The Rowan County commissioners, when
assembled in their regular public meetings, are the very
embodiment of the state. From November 2007, when the county
began recording its board meetings, to the start of this lawsuit
in March 2013, 139 out of 143 meetings, or 97%, began with
legislators delivering prayers explicitly referencing
Christianity. Lund, 103 F. Supp. 3d at 714; see also Lee v.
Weisman, 505 U.S. 577, 588 (1992) (defining sectarian prayer as
“us[ing] ideas or images identified with a particular
religion”). The vast majority of those 139 prayers closed with
some variant of “in Jesus’ name.” S.A. 12-38 (transcript of all
Rowan County prayers on record). Only four invocations, given by
the same now-retired commissioner, were non-sectarian, J.A. 296
& n.2, and no prayer mentioned a religion other than
62
Christianity in five-and-a-half years, Lund, 103 F. Supp. 3d at
714.
The five commissioners, all Christian, “maintain[ed]
exclusive and complete control over the content of the prayers.”
Lund, 103 F. Supp. 3d at 733. At times, the prayers seemed to
blend into their legislative role. As one commissioner put it,
“Lord, we represent you and we represent the taxpayers of Rowan
County.” S.A. 16. When the state’s representatives so
emphatically evoke a single religion in nearly every prayer over
a period of many years, that faith comes to be perceived as the
one true faith, not merely of individual prayer-givers, but of
government itself. The board’s rules and regulations bind
residents of all faiths, Christian, Hindu, Jewish, Muslim, and
many other believers and non-believers as well. And yet those
laws that govern members of every faith are passed in meetings
where government overtly embraces only one. That singular
embrace runs up against “[t]he clearest command of the
Establishment Clause,” that “one religious denomination cannot
be officially preferred over another.” Larson v. Valente, 456
U.S. 228, 244 (1982).
An equally clear command is that “each separate government
in this country should stay out of the business of writing or
sanctioning official prayers.” Engel v. Vitale, 370 U.S. 421,
435 (1962). Town of Greece echoed that principle even as it
63
upheld legislative prayer: “Our Government is prohibited from
prescribing prayers to be recited in our public institutions in
order to promote a preferred system of belief or code of moral
behavior.” 134 S. Ct. at 1822. These age-old warnings have
apparently fallen on deaf ears here. By instituting its elected
officials as the sole proclaimers of the sole faith, Rowan
County is elbow-deep in the activities banned by the
Establishment Clause -- selecting and prescribing sectarian
prayers. Although the county contends that the prayer practice
reflects only the desire of individual members of the board,
Appellant’s Reply Br. at 8-9, it is hard to believe that a
practice observed so uniformly over so many years was not by any
practical yardstick reflective of board policy.
Further, the prayer-giver’s identity affects the range of
religions represented in legislative prayer. Because only
commissioners could give the invocation, potential prayer-givers
in Rowan County came from a “closed-universe” dependent solely
on electoral outcomes. Lund, 103 F. Supp. 3d at 723. Appellant
frames this as a benefit. The election process, it says, which
welcomes candidates of all faiths or no faith, holds greater
promise of diversity than the selection of ministers by
government officials, which, the county points out, resulted in
the same chaplain for sixteen years in the case of Marsh v.
Chambers. Appellant’s Br. at 26.
64
But the county is comparing apples and oranges. While a
small group of legislators can diversify their appointment of
prayer-givers at will, it may be more difficult to expect voters
to elect representatives of minority religious faiths. For
instance, after residents in the town of Greece complained about
the pervasive Christian prayers, local officials granted a
Jewish layman, a Baha’i practitioner, and a Wiccan priestess the
opportunity to lead prayers. Town of Greece, 134 S. Ct. at 1817.
The Court took comfort in the fact that “any member of the
public is welcome in turn to offer an invocation reflecting his
or her own convictions.” Id. at 1826. But no guest ministers or
clergy and no member of the public delivered an invocation here,
that being reserved for the commissioners belonging to the faith
that dominates the electorate.
Entrenching this single faith reality takes us one step
closer to a de facto religious litmus test for public office.
When delivering the same sectarian prayers becomes embedded
legislative custom, voters may wonder what kind of prayer a
candidate of a minority religious persuasion would select if
elected. Failure to pray in the name of the prevailing faith
risks becoming a campaign issue or a tacit political debit,
which in turn deters those of minority faiths from seeking
office. It should not be so.
65
None of this is to imply a need for “religious balancing”
among candidates, elected officials, or legislative prayers. Id.
at 1824. Without going so far, we still must contend with the
far-reaching implications of an unremitting record--
overwhelmingly sectarian prayers led solely by legislators
through many meetings over many years. No single aspect or
consequence of this case alone creates an Establishment Clause
problem. Rather, it is the combination of the role of the
commissioners, their instructions to the audience, their
invocation of a single faith, and the local governmental setting
that threatens to blur the line between church and state to a
degree unimaginable in Town of Greece.
B.
That brings us to the second problematic element in this
case: the fact that the prayers of the commissioners were
preceded by a request or encouragement for audience
participation. Town of Greece reminds us to look to the effect
of legislative prayer on the audience, not merely the actions of
the prayer-givers. See 134 S. Ct. at 1825-26. Here the effect is
apparent. The attendees at Rowan County board meetings, upon
hearing the invocations uttered by the state’s representatives
day in and day out, must have grasped the obvious: the Rowan
County commission favors one faith and one faith only. In the
eyes and ears of the attendees, that approval sets the tone for
66
the meetings to follow. As expressed by one plaintiff in this
case, “[T]he prayers sent a message that the County and Board
favors Christians and that non-Christians, like [her], are
outsiders.” S.A. 5 (affidavit of Liesa Montag-Siegel).
This message was amplified by frequent exhortations.
Commissioners spoke directly to the attendees during prayer,
asking them to stand and leading with phrases like “Let us pray”
or “Please pray with me.” Lund, 103 F. Supp. 3d at 714, 727. The
record reflects that the great majority of attendees did in fact
“join the Board in standing and bowing their heads,” id. at 714,
and that plaintiffs themselves “[a]s a result of the [Board]
Chair’s instructions” felt “compelled to stand” so that they
would not stand out, S.A. 1-10 (plaintiffs’ affidavits). When
reviewing phrases like “Let us pray” or “Please pray with me,”
Town of Greece underscored that the requests “came not from town
leaders but from the guest ministers.” 134 S. Ct. at 1826. The
Court noted that its “analysis would be different if town board
members directed the public to participate in the prayers.” Id.
(emphasis added). Here they did. “[T]he Board’s statements,” the
district court noted, “fall squarely within the realm of
soliciting, asking, requesting, or directing . . . of concern to
the Town of Greece plurality.” Lund, 103 F. Supp. 3d at 728.
A request to an audience to stand or pray carries special
weight when conveyed in an official capacity by an elected
67
commissioner facing his constituents, with his board arrayed
behind or beside him, directly before discharging his official
duties. Id. County board decisions affect both property and
livelihood, including zoning laws and variances, school funding,
police protection, fire prevention and sanitation budgets, and
the location of parks and other areas of recreation. Br. of
Amici Curiae Religious Liberty Orgs. at 25. I do not at all
suggest that commissioners would base their decisions on who
prays and who doesn’t. I do note, however, that the close
proximity of participatory sectarian exercises to citizen
petitions for the many benefits that local boards can withhold
or dispense presents, to say the least, the opportunity for
abuse.
C.
Nothing about the constitutional drawbacks of Rowan
County’s prayer practice should be construed as disparaging the
prayers themselves, which were moving and beautiful on many
levels. Each invocation was luminous in the language that many
millions of Americans have used over many generations to
proclaim the Christian faith. The constitutional challenge
directed at the invocations is in no sense a commentary on the
worth and value of prayer or on the devotion of the citizens of
Rowan County and their elected officials to their faith.
68
The prayers here, which would be so welcome in many a
setting, cannot be divorced from the proceedings in which they
were spoken. It is not the prayers but the context that invites
constitutional scrutiny. Establishment Clause questions are by
their nature “matter[s] of degree,” which indicates some
acceptable practices and others that cross the line. Van Orden
v. Perry, 545 U.S. 677, 704 (2005) (Breyer, J., concurring in
judgment). For the average citizen of Rowan County, these
meetings might well have been the closest interaction he or she
would have with government at any level. To reserve that setting
for an embrace of one and only one faith over a period of years
goes too far.
This is especially so where prayers have on occasion veered
from invocation to proselytization. Even with the greater
latitude afforded in Town of Greece, legislative prayer still
cannot be “exploited to proselytize or advance any one . . .
faith or belief.” 134 S. Ct. at 1823 (quoting Marsh, 463 U.S. at
794-95). Plaintiffs, all non-Christians, cited examples that
they found overtly sectarian or proselytizing:
• “As we get ready to celebrate the Christmas season, we’d
like to thank you for the Virgin Birth, we’d like to thank
you for the Cross at Calvary, and we’d like to thank you
for the resurrection. Because we do believe that there is
only one way to salvation, and that is Jesus Christ.” J.A.
16 (prayer of December 3, 2007).
• “Our Heavenly Father, we will never, ever forget that we
are not alive unless your life is in us. We are the
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recipients of your immeasurable grace. We can’t be
defeated, we can’t be destroyed, and we won’t be denied,
because of our salvation through the Lord Jesus Christ. I
ask you to be with us as we conduct the business of Rowan
County this evening, and continue to bless everyone in this
room, our families, our friends, and our homes. I ask all
these things in the name of Jesus, Amen.” Id. (prayer of
May 18, 2009).
• “Let us pray. Holy Spirit, open our hearts to Christ’s
teachings, and enable us to spread His message amongst the
people we know and love through the applying of the sacred
words in our everyday lives. In Jesus’ name I pray. Amen.”
Id. at 17 (prayer of March 7, 2011).
• “Let us pray. Merciful God, although you made all people in
your image, we confess that we live with deep division.
Although you sent Jesus to be Savior of the world, we
confess that we treat Him as our own personal God. Although
you are one, and the body of Christ is one, we fail to
display that unity in our worship, our mission, and our
fellowship. Forgive our pride and arrogance, heal our
souls, and renew our vision. For the sake of your Son, our
Savior, the Lord Jesus Christ, Amen.” Id. (prayer of
October 3, 2011).
The point here is not to pick apart these prayers or to
measure objectively their proselytizing content. It is to
consider how this language might fall on the ears of Hindu
attendees, Jewish attendees, Muslim attendees, or others who do
not share the commissioners’ particular view of salvation or
their religious beliefs. It is not right to think that adherents
of minority faiths are “hypersensitive.” Maj. Op. at 33. If we
Christians were a religious minority, we would surely be
sensitive to the invariable commencement of town hall meetings
through invocation of a faith to which we did not subscribe. And
if religious faith was not a matter of sensitivity, then why
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would two of our Constitution’s best known and most prominent
provisions have been devoted to it?
The invocations here can sound like an invitation to take
up the tenets of Christian doctrine. And an invitation can take
on tones of exhortation when issued from the lips of county
leaders. Although those attending the board meeting may have
“had several options available -- they could arrive after the
invocation, leave for the duration of the prayer, or remain for
the prayer without participating,” maj. op. at 47, such options
served only to marginalize.
Indeed, to speak of options masks important differences.
People often go to church or join groups and organizations out
of a sense of choice. It is the faith they have chosen or it is
a group to which they wish to belong. But people often go to
local government meetings in their capacity as citizens in order
to assert their views or defend their rights vis-à-vis an entity
with legal and coercive powers. These are two very different
forms of attendance. In board meetings, it fell to non-Christian
attendees, facing their elected representatives and surrounded
by bowed heads, to choose “between staying seated and
unobservant, or acquiescing to the prayer practice.” Lund, 103
F. Supp. 3d at 732. It is no trivial choice, involving, as it
does, the pressures of civic life and the intimate precincts of
the spirit.
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The Rowan County board can solemnize its meetings without
creating such tensions. The desire of this fine county for
prayer at the opening of its public sessions can be realized in
many ways, such as non-denominational prayers or diverse prayer-
givers. Another possibility, open to legislators of any faith,
might be the Message of Religious Welcome described above. Such
an expression of religious freedom and inclusion would promote
the core idea behind legislative prayer, “that people of many
faiths may be united in a community of tolerance and devotion.”
Town of Greece, 134 S. Ct. at 1823. A Message of Religious
Welcome separate from the invocation itself also reduces the
risk that courts will “act as supervisors and censors” of prayer
language, a major concern voiced by the Supreme Court. Id. at
1822. Indeed, the availability of so many inclusive alternatives
throws into relief the unfortunate confluence of factors in the
county’s practice. For the county to insist on uniformly
sectarian prayer led by legislators of one faith in a closed and
purely governmental space carries us far from the central
premise of the Establishment Clause.
IV.
By pairing the Free Exercise Clause with the Establishment
Clause in the First Amendment, the Framers struck a careful
balance. Americans are encouraged to practice and celebrate
their faith but not to establish it through the state. See
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Engel, 370 U.S. at 429-34 (discussing the historic roots of the
Establishment Clause as it relates to the Free Exercise Clause).
This seems an inapt moment to upset that ancient balance. The
violent sectarian tensions in the Middle East are only the most
visible religious divisions now roiling the globe. Are such
levels of hostility likely here? Probably not, but it behooves
us not to take our relative religious peace for granted and to
recognize that the balance struck by our two great religion
clauses just may have played a part in it. In venues large and
small, a message of religious welcome becomes our nation’s great
weapon, never to be sheathed in this or any other global
struggle. Believing that legislative prayer in Rowan County can
further both religious exercise and religious tolerance, I
respectfully dissent.
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