Nancy Lund v. Rowan County, North Carolina

Filing

AMENDED OPINION filed amending and superseding opinion dated 09/19/2016. Originating case number: 1:13-cv-00207-JAB-JLW Copies to all parties.. [15-1591]

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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
Amended:

Decided:

September 19, 2016

September 21, 2016

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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;
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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

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AGEE, Circuit Judge:
The Board of Commissioners of Rowan County, North Carolina,
(“the

Board”)

delivered

by

opens
a

its

member

public
of

the

meetings

with

Board.

The

an

invocation

district

court

determined that practice violates the Establishment Clause of
the

First

decision

Amendment.
explaining

Galloway,

134

legislative

S.

prayer

Under

the

legislative
Ct.

1811

practice

Supreme
prayer,

(2014),

Court’s
Town

we

of

find

constitutional

most

and

recent

Greece

the

v.

Board’s

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

1

The record does not reflect that the Board adopted a
written policy regarding the invocations but it followed a
relatively routine practice.
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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

commissioners invoked the Christian faith in some form.
example,

prayers

frequently

included

references

to

E.g., Supp. J.A. 36-37. 2

“Christ,” and “Lord.”

the
For

“Jesus,”

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

invocations
Clause.

and
The

commissioners

sent

the

asserting
Board

did

expressed

Board
a
not

their

a

letter

violation
formally
intent

of

objecting
the

but

continue

prayers consistent with their Christian faith.

the

Establishment

respond,
to

to

several

delivering

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.
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asking for guidance for my decisions from Jesus is the best I,
and Rowan County, can ever hope for.”
Subsequently,

Rowan

County

J.A. 325.

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]

meetings[.]”

practice

J.A. 10.

of

delivering

sectarian

prayer

at

Specifically, Plaintiffs alleged that

the prayer practice unconstitutionally affiliated the Board with
one

particular

“outsiders.”
Apart

faith

and

caused

them

to

feel

excluded

as

J.A. 12.
from

their

objections

to

the

prayers’

contents,

Plaintiffs further alleged that the overall atmosphere of the
meetings

coerced

attendance.

them

to

participate

as

a

condition

Lund stated she felt “compelled to stand [during

the invocation] so that [she] would not stand out.”
2.

of

Supp. J.A.

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
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similar future prayers.
injunction

based

on

Pg: 7 of 73

Plaintiffs also moved for a preliminary

then-controlling

precedent

that

legislative prayer was a constitutional violation.

sectarian
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[]

opened

have

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.
The
Greece,

Supreme
holding

Court
that

J.A. 296.

then
the

issued

its

legislative

decision
prayer

in

in

Town

that

of

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
prayer

doctrine

[that

had]

developed
7

around

legislative
the

core

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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

Nonetheless,

the

legislative

part

of

their

summary

district

court

struck

invocation

practice,

judgment
down

concluding

motion.

the

that

Board’s

“[s]everal

significant differences” between Town of Greece and this case
rendered that practice unconstitutional.
at

724.

The

district

court

thought

Lund, 103 F. Supp. 3d
the

fact

that

the

commissioners delivered the prayers, instead of invited clergy,
“deviates

from

the

long-standing

chaplain,

separate

prayer.”

Id. at 723.

from

the

history

legislative

and
body,

tradition

of

delivering

a

the

The district court further emphasized

that the Board’s practice created a “closed-universe of prayergivers” that “inherently discriminates and disfavors religious
minorities.”
After

Id. at 723.
finding

constitutionally
prayer,

the

the

protected

district

court

Board’s

practice

historical

practice

went

on

to

outside
of

consider

the

legislative
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
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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.
Board

timely

decision

appealed,

de

novo.

Supervisors,

404

and

we

Simpson

F.3d

276,

review
v.

280

the

district

Chesterfield
(4th

Cir.

Cty.

2005);

The

court’s
Bd.
see

of
also

Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir.
2008)

(“We

review

constitutional

fact

de
and

novo
its

a

district

ultimate

First Amendment challenge.”).

9

court’s

conclusions

findings
regarding

of
a

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II.
A.
Recognizing

“this

entirely

sanitized

Supreme

Court

instances,

separation

has

may

Nation’s

history

between

acknowledged

properly

has

Church

that

commemorate

not

been

and

State,”

government,

religion

in

one

of
the

in

some

public

life.

Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S.
756,

760

approved
prayer.

(1973).
the

Pertinent

practice

of

here,

opening

the

Court

has

legislative

expressly

sessions

with

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.
463

U.S.

783

That status was evident in Marsh v. Chambers,
(1983),

constitutionality

of

which

the

involved

Nebraska

a

challenge

legislature’s

to

practice

the
of

having a paid chaplain offer a prayer to open each legislative
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session.

Applying the three-part test from Lemon v. Kurtzman,

403

602

U.S.

invocations

(1971),

violated

the
the

Eighth

Circuit

Establishment

had

concluded

Clause.

The

such

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

Republic and ever since.”

through

the

founding

Marsh, 463 U.S. at 786.

of

the

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.”
House,

in

turn,

Ascribing

great

explained

they

appointed

Id. at 787–88.
official

significance
shed

light

to

on

chaplains
these

how

the

The Senate and
in

events,
Founders

1789.

Id.

the

Court

viewed

Establishment Clause in relation to legislative prayer.

the

“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.”
Having

upheld

Id. at 791.

legislative

prayer

in

general,

the

Marsh

Court next considered whether specific features of Nebraska's
practice

fell

outside

constitutional
11

protection.

In

that

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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

Id. at 792–93.

offered

“in

the

Judeo–Christian

tradition.”

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

Establishment Clause.”
paid

from

public

“not

in

itself

Id. at 793–94.

funds

was

similarly

practice” and thus not prohibited.
content
concern”

of

the

prayers,

because

“there

the
is

Court
no

conflict

with

the

That the chaplain was
“grounded

in

Id. at 794.
explained

indication

it

historic

As for the
was

that

the

“not

of

prayer

opportunity has been exploited to proselytize or advance any
one, or to disparage any other, faith or belief.”
95.

Id. at 794-

“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
12

property

in

County

of

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Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 57879, 602 (1989).
practice

In dicta commenting about legislative prayer

permitted

legislative

in

prayers

Establishment

Marsh,

involved

Clause]

the
in

because

Court

Marsh
the

removed all references to Christ.”

noted

did

that

not

“[t]he

violate
chaplain

had

particular

[the

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

Greece.

Court

flatly

rejected

this

approach

in

Town

of

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

circumstances.
(1984)

See

(observing

evaluation

Lynch

v.

that

the

of

Donnelly,

all
465

Establishment
13

the
U.S.

facts
668,

Clause

and

678-79
cannot

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mechanistically be applied to draw unwavering, universal lines
for the varying contexts of public life).
we

turn

to

a

fuller

examination

of

To guide that review
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

Christian faith.

referenced

found

the

aspect

of

the

The town made no attempt to guide the prayer-

givers in the content of the prayer.
court

some

town’s

Id.

practice

Although the district

constitutional

the

Second

Circuit disagreed and concluded that the “steady drumbeat of
Christian

prayer

.

.

.

tended

to

affiliate

the

town

Christianity,” in violation of the Establishment Clause.
1818.

with

Id. at

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.”
also id. at 1818-19.
is

not

necessary

Establishment

Id. at 1819; see

“Marsh stands for the proposition that it
to

Clause

define
where

the

history
14

precise
shows

boundary
that

the

of

the

specific

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practice is permitted.”

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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.”
this

point,

interpretation

the
of

Court
Marsh

disavowed
as

Id. at 1820.

Allegheny’s

dictum

“that

“nonsectarian”

was

disputed

written and has been repudiated by later cases.”
see

also

id.

(“Marsh

nowhere

On

suggested

when

Id. at 1821;
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
15

to

act

as

supervisors

and

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censors of religious speech.”

Pg: 16 of 73

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
invites

their

prayer

content

into

after

the

public

the

fact.”

sphere,”

Id.
the

“Once

Court

it

stated,

“government must permit a prayer giver to address his or her own
God

or

gods

as

conscience

dictates,

unfettered

by

what

administrator or judge considers to be nonsectarian.”

an

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

cautioned

heritage.”

there

could

Id.

be

a

at

1823.

Even
where

circumstance

so,
a

the

Court

legislative

prayer practice failed to “serve[] [its] legitimate function”:
“If the course and practice over time shows that the invocations
denigrate

nonbelievers

or

religious

damnation, or preach conversion[.]”

minorities,

threaten

Id. at 1823.

Synthesizing these factors, the Court held that the prayers
offered

on

Christian,

behalf
did

proselytization.

of

not

the

town,

evidence

any

although
pattern

almost
of

exclusively

denigration

or

See id. (“Our tradition assumes that adult
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citizens, firm in their own beliefs, can tolerate and perhaps
appreciate

a

ceremonial

different faith.”).

prayer

delivered

by

a

person

of

a

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.
prayers,

the

Court

consequence.

explained,

were

of

A few deviating
no

constitutional

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

prayer

givers

Christian
balancing.”

Id.

to

search

beyond

its

borders

for

in

effort

to

achieve

religious

an

non-

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

nonadherents.”
jettisoning

this

Id.

(Kennedy,

argument,

“coerce
J.,

the
17

participation

plurality
Court

opinion).

acknowledged

by
In
that

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“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

and

prayer

practice

approach of Marsh.
aware

of

the

relied

heavily

on

the

historical

They presumed that reasonable observers are

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.”
often

encounter

speech

they

find

Id.

disagreeable;

“Adults
and

an

Establishment Clause violation is not made out any time a person
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experiences a sense of affront from the expression of contrary
Id. 3

religious views in a legislative forum.”

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

Clause.

of

government

conduct

touching

the

Establishment

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

tolerable

Greece

reflects

acknowledgement

that
of

a

court

beliefs

must

view

it

widely

held

among

people of this country.”

Id. at 1818-19.

challenge

prayer

to

legislative

3

“must

“as

a

the

A court reviewing a

acknowledge

a

practice

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.

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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

acknowledge

that

matter,

is

compatible

remains

in

dispute

elected

Greece,

sectarian

legislative

with

is

the

the

prayer,

Board’s

delivering

such

substantive constitutional difference.
this feature largely dispositive.
722.

parties
as

correctly
a

general

Clause. 4

Establishment

whether

commissioners

both

practice

prayers

What
of

makes

the
a

The district court found

See Lund, 103 F. Supp. 3d at

In its view, the prayer-giver’s status as “a member of the

legislative body” is a “crucial” and “determinative difference.”
Id.

at

722,

practical

724.

effect

The
of

district

imposing

a

court’s

decision

bright-line

has

prohibition

the
on

lawmaker-led prayer.
In

reaching

its

conclusion,

the

district

court

observed

that the Supreme Court has never before sanctioned legislator4

At 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.
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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.”
court

treated

the

Id. at 722.

Supreme

Court’s

In essence, the district
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

analysis

significance

and

simply

to

the

confined

speakers’

its

identities

discussion

surrounding the prayer practices before it.

to

in

the

its

facts

See Town of Greece,

134 S. Ct. at 1816; Marsh, 463 U.S. at 784-85.

Nowhere did the

Court

construed

say

anything

requirement

that

constitutionally

that

outside

could
or

permissible

Quite

the

opposite,

Town

focus

to

what

been

has

any

of

reasonably
retained

givers
Greece

done

in

limitation

of

be

clergy

are

the

legislative

specifically
“Congress
regarding

as

only

prayer.

directs

and
the

the

a

our

state

legislatures”

without

Id. at 1819.

We find the Supreme Court’s silence on the issue

of lawmaker-led prayer to be simply that: silence.
21

officiant.

See United

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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

identity

of

this
the

Court

previously

prayer-giver.

To

suggested this feature is irrelevant.

assigned
the

weight

contrary,

to
we

the
have

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.”
2004).
[is]

376 F.3d 292, 302 (4th Cir.

Similarly, Joyner v. Forsyth County observed that “[i]t

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.

Chesterfield

And

in

Simpson

v.

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.”
at 286.
rejected

404 F.3d

Although these cases ultimately turned on the nowposition

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
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Greece

Filed: 09/21/2016

underscores

legislative

a

prayer

specifically.

Pg: 23 of 73

long-standing

generally

Opening

but

practice
of

invocations

not

only

lawmaker-led
offered

by

of

prayer
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.”).
South

Carolina

Provincial

Congress

As just one example, the
--

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

attachment).

Aug.

31,

2016

and

saved

as

ECF

opinion

“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

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This
modern

Filed: 09/21/2016

tradition

day.

A

of

Pg: 24 of 73

legislative

majority

of

state

prayer
and

has

continued

territorial

to

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).
states

Lawmaker-led prayer is especially prevalent in the
under

our

jurisdiction,

where

seven

of

the

ten

legislative chambers utilize elected members for this purpose.
See

id.;

Br.

Supporting

for

State

of

W.

Defendant-Appellant

Va.

at

14

et
&

al.

as

Amici

Addend.

2;

Curiae

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.
protects

legislators

deliberative sessions.
Carolina

expressly

who

deliver

a

sectarian

prayer

See Va. Code § 15.2-1416.1.

authorizes

meetings with prayer.

For example, a Virginia statute

its

elected

officials

during

And South
to

open

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

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Lawmaker-led
federal

prayer

government

as

finds

Pg: 25 of 73

contemporary
Both

well.

validation
of

houses

members to deliver an opening invocation.

in

Congress

the

allow

As recently as May

2015, Senator James Lankford commenced legislative business in
the Senate with a prayer invoking the name of Jesus.
Rec. S3313 (daily ed. May 23, 2015).
is replete with similar examples.
S3915

(daily

Cowan);

155

ed.

June

Cong.

4,

Rec.

2013)

161 Cong.

The congressional record
See, e.g., 159 Cong. Rec.

(prayer

S13401-01

by

(daily

Sen.

ed.

William

Dec.

18,

M.

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
United

Senate

States

1789-1989:

Senate

305

Addresses

(Wendy

on

Wolff

the

ed.,

History
1990)

of

the

(“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

change.”
aptly

the

critical

scrutiny

of

time

Town of Greece, 134 S. Ct. at 1819.

explained,

[Establishment

“if

Clause]

there

is

test[]

any
and

and

political

As Justice Alito

inconsistency

between

the

practice

historic

any
of

legislative prayer, the inconsistency calls into question the
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validity of the test, not the historic practice.”
(Alito, J., concurring).
accept

the

forfeits
legislator

district

its

Heeding this advice, we decline to

court’s

view

constitutionally

delivers

the

Id. at 1834

that

protected

invocation.

A

legislative
status
legal

prayer

because

framework

a

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
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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.

uniquely

qualified

Id.

to

Indeed,

legislators

offer

uplifting,

are

heartfelt

perhaps

prayer

on

matters that concern themselves and their fellow legislators.
The district court’s determination that the fact that a
legislator

delivers

constitutional

a

legislative

distinction,

at

prayer

least

in

is

the

a

significant

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

umbrella of legislative prayer.
not

forged

legislative
analyzing

a

comprehensive

prayer,
whether

its

constitutional bounds.

the

protective

Although the Supreme Court has
template

decisions

a

outside

for

set

particular

all

out

acceptable

guideposts

practice

goes

for

beyond

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

content of legislative prayer.
position

that

invocations

must
27

to

the

selection

of

the

In rejecting the plaintiffs’
be

nonsectarian,

the

Supreme

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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

current

greater

practice

degree
of

than

neither

is

the

editing

case

or

under

the

approving

prayers

advance nor criticizing their content after the fact.”
The

district

court

determined

the

Board’s

town’s
in

Id.

practice

was

invalid under this standard because the individual commissioners
author

their

own

invocations,

“supervisors of the prayers.”

and

by

doing

so

act

as

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[.]”
where

each

oversight,

Id.

We disagree.

commissioner
input,

or

gives

direction

by

The Board’s practice here,
their
the

own
Board

prayer
simply

without
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
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individual

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commissioners

Pg: 29 of 73

sometimes

alignment with a particular faith.
looked

to

the

activities

of

the

convey

their

personal

But the Court has always
legislature

as

a

whole

in

considering legislative prayer.

This makes perfect sense; for

it

deliberative

is

only

editing

through

religious

act

of

speech

the

that

government

body

would

writing

or

impermissibly

seek “to promote a preferred system of belief or code of moral
behavior” with selected content.
1822.

Town of Greece, 134 S. Ct. at

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.
v.

Simmons–Harris,

536

U.S.

639,

652

(2002)

See Zelman

(school

voucher

programs); Mueller v. Allen, 463 U.S. 388, 399 (1983) (schoolrelated income tax deductions).
Town

of

Greece,

“[o]nce

it

As the Supreme Court stated in

invites
29

prayer

into

the

public

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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

discussed

in

reaffirming

guidepost
Town

the

of

to

acceptable

Greece

holding

in

concerns
Marsh

legislative
its

that

prayer

content.

lower

courts

After
should

refrain from becoming embroiled in the review of the substance
of legislative prayer, the Supreme Court noted that there could
be

certain

circumstances

legislative

prayer

protection.

Id. at 1823.

where

practice

to

sectarian
fall

references

outside

cause

a

constitutional

“If the course and practice over time

shows that the invocations denigrate nonbelievers or religious
minorities,

threaten

damnation,

or

constitutional line can be crossed.

preach

Id.

conversion,”

a

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.”
To
sectarian

this

end,

courts

legislative

need

prayer,
30

only

assure

viewed

from

Id.
themselves
a

that

cumulative

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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

proselytization or disparagement.

constitutional

line

of

See Wynne, 376 F.3d at 300

(“To ‘proselytize’ on behalf of a particular religious belief
necessarily

means

belief[.]”).
encompassed
requesting
exclusively

to

seek

to

‘convert’

to

that

The content of the commissioners’ prayers largely
universal

divine

themes,

guidance

Christian

in

such

as

giving

deliberations.

concepts

typically

closing line, such as “In Jesus’ name.
29-31.

others

thanks

and

References

to

consisted

Amen.”

of

the

See Supp. J.A.

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

5

And even if there were, it is

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 prayergiver in the business of the Board.
In short, none of those
(Continued)
31

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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.
sway

Prayers that chastise dissenters or attempt to

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
question set out in Town of Greece.
32

of

constitutional

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such

Doc: 72

prayers

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have
F.3d

been
at

Pg: 33 of 73

proffered

Snyder,

159

1235

prayers

unconstitutional

in

(finding
because

this
the

they

case.

See,

plaintiff’s
“strongly

e.g.,

proffered

disparage[d]

other religious views” and “s[ought] to convert his audience”).
Plaintiffs
contain

more

call

our

forceful

attention

references

to

to

a

few

examples

Christianity

out

that

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).

hypersensitive focus is misguided.

Regardless,

Plaintiffs’

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”).
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3.
Moving beyond the invocations themselves, a third guidepost
to legislative prayer relates to the selection of the prayergiver.

In Town of Greece, the challenged practice resulted in

“a predominately Christian set of ministers . . .
prayer.”
“[t]he

Id.

town

lead[ing] the

The Court found this fact unremarkable because

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.”
The

district

court

practice objectionable

Id.

found

the

Board’s

legislative

because

the

invocation

prayer

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

minorities.”
Greece

inherently

discriminates

and

disfavors

Lund, 103 F. Supp. 3d at 723.

reflect

that

the

district

court’s

religious

Marsh and Town of
conclusion

was

mistaken.
The Supreme Court’s prohibition on discrimination in this
context is aimed at barring government practices that result
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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.

directed

at
at

793.
the

Read

in

conscious

context,

selection

account of religious affiliation.
The

district

court’s

this
of

condition

the

appears

prayer-giver

on

See id. at 793.

opinion

mandating prayer-giver diversity.

aims

elsewhere,

essentially

See Lund, 103 F. Supp. 3d at

723 (“[T]he present case presents a closed-universe of prayergivers, . . . [leaving] minority faiths [with] no means of being
recognized.”).

For

example,

framework,

a

legislature,

prohibited

from

permitting

opening

invocation

unlimited
elected

number

to

of

in

a

that

its

were
But

Congress,
members

diversity
never

court’s

would

be

deliver

to

proceedings

actually

has

district

the

unless

an

represented

by

among

beliefs

been

the

the

measure

the

of

Town of Greece specifically rejected the

lawmaking

religious views.”

individual

legislature

legislative prayer.
notion

faiths

the

including

solemnize

representatives.

represented

under

bodies

must

“promote

134 S. Ct. at 1824.
35

a

diversity

of

Consequently, the town

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was not obliged to “search beyond its borders for non-Christian
prayer givers in an effort to achieve religious balancing.”
And

in

Marsh,

the

Nebraska

legislature

appointed

the

Id.
same

Presbyterian minister for sixteen years to the exclusion of all
other

creeds.

The

Court

constitutional difference.
Thus,
faiths

to

different

while

the

those

of

from

the

was

practice

individual

limitations

limits

at

285

(“A

party

this

built

challenging

the

commissioners,
into

prayer practices in Town of Greece and Marsh.
F.3d

that

made

a

See Marsh, 463 U.S. at 793.

Board’s
the

unpersuaded

a

the

represented
that

is

no

constitutional

See Simpson, 404

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.
standard

instead

prohibits

purposeful
36

The

discrimination.”).

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Plaintiffs
would

Filed: 09/21/2016

have

not

suggest

the

directed
Board

Pg: 37 of 73

the

Court

harbored

to

such

any

a

evidence

motive.

that

It

is

uncontested that the Board’s policy was facially neutral and
bereft of government discretion.
elected

to

the

censorship.

Board

and

A person of any creed can be

is

entitled

to

speak

without

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,

another.

does

not

advance

any

one

faith

or

belief

over

See Marsh, 463 U.S. at 793 (“We cannot, any more than

Members

of

suggestion
advances

the
that

the

Congresses
choosing

beliefs

of

of

this

century,

a

clergyman

a

of

particular

one

perceive

any

denomination

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

religions[.]”).
practice

group.

A

cannot

authority

has

while

party

rely

on

confined

not

inviting

challenging
the

the

mere

a

fact

invocation

leaders

of

legislative
that

speakers

the
to

other
prayer

selecting
a

narrow

This is particularly true here as the Board has no voice
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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.”
over

time

134 S. Ct. at 1823.
the

Board’s

We must discern, then, whether

practice

conveys

the

view

County “advance[d]” Christianity over other creeds.
The

Board

has

not

picked

any

of

the

that

Rowan

Id.

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

purpose was presumably religious”).

action

whose

“manifest

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

38

Christian

language,”

while

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“[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

[sectarian] ceremonial prayer[.]”

and

perhaps

appreciate

Town of Greece, 134 S. Ct. at

1823.
Had a chaplain offered prayers identical to those in the
instant
apply

case,

to

Town

uphold

of

the

Greece

Board’s

and

Marsh

practice.

would
Unlike

unquestionably
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

legislative body that appoints him.
the

legislature.”

Snyder,

concurring in judgment).

159

chaplain

and

the

“Such chaplains speak for

F.3d

at

1238

(Lucero,

J.,

They are in essence “deputized” to
39

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represent

the

Greece,

Filed: 09/21/2016

governing

body

in

S.

Ct.

at

1850

when

an

134

Consequently,

Pg: 40 of 73

elected

this

context.

(Kagan,

Cf.

J,

representative

Town

of

dissenting).

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

denominational
lawmaker-led

of

Greece.

preference
prayer

In

other

projected

is

not

words,

onto

the

significantly

the

degree

of

government

with

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

individual represents.
this

more

obvious

significant.
Cir.

2013)

endorsement

of

the

faith

that

Yet, the Supreme Court has concluded
preference

is

not

constitutionally

See Rubin v. Lancaster, 710 F.3d 1087, 1097 (9th
(“[W]hatever

message

Nebraska

might

have

conveyed

through its practice of selecting, paying, and retaining for
sixteen

years

explicitly

a

Presbyterian

Christian

chaplain

invocations,

the

who

Supreme

often

delivered

Court

concluded

that the legislature had not advanced Christianity.”).
40

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Legislative prayer is constitutionally acceptable when it
“fits within the tradition long followed in Congress and the
state legislatures.”
Supreme

Court

has

Town of Greece, 134 S. Ct. at 1819.
observed

that

prayers

offered

within

The
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

legislative

turn
prayer

to

Plaintiffs’

practice

is

claims

that

impermissibly

the

Board’s

coercive.

The

“coercion test” under the Establishment Clause reflects that the
government

violates

participation.
concurring

in

the

Constitution

if

it

compels

religious

See Allegheny, 492 U.S. at 660 (Kennedy, J.,
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.
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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

Which

Level,

Mellen

v.

74

Institutions:
Temp.

Bunting,

L.

327

The

Rev.

Who,

299,

F.3d

355,

the

What,

and

339-42

(2001);

366-72

(4th

the

see

Cir.

At

also
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.
plurality

opinion)

See 134 S. Ct. at 1825 (Kennedy, J.,

(“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
42

reached

this

conclusion

by

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separate

paths.

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Justices

Pg: 43 of 73

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

Roberts

and

Justice

Justice Kennedy, joined by Chief
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.”
1825

(Kennedy,

J.,

plurality

opinion).

Under

Id. at

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

history and recognize the purpose of such practices.

of

that

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.”
43

Lund, 130 F. Supp. 3d at

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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

violated the Establishment Clause.

suggested

the

Board

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

constitutional
distinction
legislative

distinction

analysis.

between
session

warrants

The

children
where

law
in

adults

a
are

a

difference

recognizes
school
the

a

in

meaningful

setting

and

participants.

a
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

separate

distinctions

legislative

employed

prayer

from

by

the

Court

classroom

in

Marsh

prayer.”).

to
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
Supreme

Court’s

with
prior

this

distinction,

coercion
44

cases

we

do

applicable

not
in

find

the

analyzing

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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

legislative

historical
prayer.

tradition
See

id.

of

at

constitutionally

1825-27.

protected

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

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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.
presumed

susceptible

to

religious

As noted, adults are not

indoctrination

simply from speech they would rather not hear.

or

pressure

Thus, there is

limited risk that disenchanted listeners would be affected by
mere

contact

often

with

lawmaker-led

encounter

speech

they

legislative
find

prayer.

disagreeable;

“Adults
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

attempted

“neither

chastised

dissenters

disquisition on religious dogma.”

nor

lengthy

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

Moreover,

the

approved

record

in

shows

Marsh

and

that

both

Town

Greece.

attendance

participation in the invocations were voluntary.
46

of

and

The Board has

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represented

without

were

to

free

Pg: 47 of 73

contradiction

remain

seated

that

or

members

otherwise

of

the

public

“disregard

Invocation in a manner that [was] not disruptive.”

the

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.”
to the contrary.

J.A. 277.

Plaintiffs point us to no evidence

Thus, it is implausible on this record to

suggest that Plaintiffs were “in a fair and real sense” coerced
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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.
Ct. at 1825 (Kennedy, J., plurality opinion).

134 S.

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.
Likewise,

merely

offensive

is

legislative

exposing

not

bodies

constituents

enough.
do

not

“[I]n
engage

in

to
the

prayer

they

general

Id.
find

course[,]

impermissible

coercion

merely by exposing constituents to prayer they would rather not
hear and in which they need not participate.”
To

be

sure,

constitutional

line

legislative
if

“town

prayer
leaders

may

Id. at 1827.
stray

allocate[]

across

the

benefits

and

burdens based on participation in the prayer, or that citizens
were received differently depending on whether they joined the
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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

district court’s coercion ruling.

in

support

of

the

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.”
8,

11.

Plaintiffs

point

to

several

Response Br.

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

directed toward citizens and for the benefit of all.”

is

also

Id. at

11.
Town of Greece notes the internal or external nature of a
prayer

practice

occurred.

See

in
134

determining
S.

Ct.

at

whether
1825

impermissible

(Kennedy,

J.,

coercion
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.”).
Court’s rationale here is obvious.

The Supreme

The probability of coercion

can be heightened should the prayers be directed at those in
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Plaintiffs’

Pg: 50 of 73

argument,

however,

posits

that

any

prayer referencing a person or concern beyond the members of the
legislative
That

cannot

body

is

externally

be.

directed

Legislative

prayer

and

thus

does

not

prohibited.
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.
sometimes

prayed

The fact that individual commissioners here
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.
Board’s
asking

opening
everyone

ceremony
to

stand

usually
“for

6

began

the

To reiterate, the

with

Invocation

the
and

chairperson
Pledge

of

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

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Allegiance.”

Filed: 09/21/2016

Lund, 103 F. Supp. 3d at 714.

commissioner

would

started

“let

with

Plaintiffs

Pg: 51 of 73

then
us

maintain

unconstitutional

offer

pray”

an

or

that

coercion.

The designated

invocation

“please

these
The

pray

that
with

me.”

Id.

amount

statements
district

typically

to

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.
at 1826 (Kennedy, J., plurality opinion).

134 S. Ct.

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
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tradition and understands that its purposes are to lend gravity
to

public

proceedings

and

to

acknowledge

the

place

holds in the lives of many private citizens[.]”
through

this

lens,

no

reasonable

person

would

religion

Id.

Viewed

interpret

the

commissioners’ commonplace invitations as government directives
commanding
pray”

is

participation
a

familiar

in

and

the

prayer.

“almost

The

reflexive”

phrase

call

“let
open

to

us
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

indoctrination.

cues

without

the

risk

See Marsh, 463 U.S. at 792.

of

religious

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

to

prayer

with

a

short

invitation

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.”
Lastly,

Plaintiffs

claim

Myers, 418 F.3d at 406.
they

were

singled

out

for

opprobrium by “Board members signaling their disfavor of those
who did not fall in line.”
several

public

statements

Response Br. 20.
where
52

acting

Plaintiffs cite to
commissioners

were

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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

majority.

told

by

the

minority

what’s

best

for

the

My friends, we’ve come a long way -- the wrong way.

We call evil good and good evil.”).

Even giving these comments

the

which

weight

because

Plaintiffs

most

came

would

like,

post-litigation

and

in

is

itself

doubtful

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

impermissible

over

time

denigrate,

government

proselytize,

purpose.”

134

S.

or

betray

Ct.

at

an

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

the invocation, is voluntary.

opening

ceremony,

including

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.
conclusion

cannot

be

reconciled
53

with

Town

of

Greece

and

That
its

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rejection

of

circumstances.

Filed: 09/21/2016

the

notion

Town

of

of

Pg: 54 of 73

coercion

Greece

of

adults

identified

a

in

narrow

similar
range

of

exceptional circumstances that could render a legislative prayer
practice

coercive

and

outside

the

historical

tradition

invocations that comport with the Establishment Clause.

of
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

nonadherents.

and

does

not

coerce

participation

It is therefore constitutional.

court erred in concluding to the contrary.

by

The district

Accordingly, the

judgment of the district court is reversed and remanded with
directions to dismiss the complaint.
REVERSED AND REMANDED
WITH DIRECTIONS

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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,
communal

and

comfort.

exercise

foundation

for

Its

which

mutual

observance

serves

support

in

and

is

times

also
of

charitable

a

treasured

need

as

sustenance.

the
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

(affidavits

religious
of

Nancy

division
Lund,

rises

Liesa

accordingly.

Montag-Siegel,

S.A.
and

1-10
Robert

Voelker). This, I respectfully suggest, is what is happening
here. It cannot be right. This case is more than a factual

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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

officials

who

led

prayers

exclusively

in

that

delivered

case,

the

it

was

invocations

public

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

lives.

The

citizens

prayers,

in

the

bordering

most
at

daily

times

aspects
on

of

their

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

constraints

remain

prayer
on

case.

[prayer]
56

Nor

did

it

content.”

suggest
Id.

at

that

“no

1823.

The

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Establishment

Clause

still

Pg: 57 of 73

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

constitutional
ruling

for

exceptional

fold

the

without

County

set

of

circumstances

considering

bears

its

unfortunate

into

the

implications.
consequences

A

for

American pluralism, for a nation whose very penny envisions one
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out of many, a nation whose surpassing orthodoxy belongs in its
constitutional
which

respect

enshrined

conviction

that

in

for

the

all

First

diversity

in

beliefs
and
all

and

faiths,

Fourteenth
of

its

a

nation

Amendments

dimensions

is

the
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
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“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

invocations
uniformly

the

prayers,

“according
Christian

to

but

they

their

also

personal

denominations.

Id.

composed

at

724;

the

which

faiths,”

all

were

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
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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

Supreme

has

Court

as

constitutionally

emphasized,

suspect.

“[L]egislative

prayer

As

the
lends

gravity to public business, reminds lawmakers to transcend petty
differences

in

pursuit

of

a

higher

purpose,

and

expresses

common aspiration to a just and peaceful society.” Id. at 1818.
60

a

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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

percentage

to
of

pray.

Nor

prayers

do

given

we

know

by

from

elected

the

survey

officials

what

generally

contain sectarian references or proselytizing exhortations, or
which

are

diverse

non-denominational

faiths.

And

in

or

fact,

delivered

the

very

by

legislators

survey

on

which

of
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

Further,

the

of

West

survey

Virginia

and

12

Other

States

cautions,

the

prayer-giver

at

“should

13.
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
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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

ministers

lead

assembled

in

elements,
prayers.

their

poses

The

regular

a

Rowan
public

danger
County

not

present

when

commissioners,

when

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
62

a

religion

other

than

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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
embrace

government
runs

up

overtly
against

embraces
“[t]he

only

one.

clearest

That

command

singular
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
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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
County

as

is

the

sole

proclaimers

elbow-deep

Establishment

Clause

in

--

the

selecting

of

the

sole

activities
and

faith,

banned

prescribing

Rowan

by

the

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.
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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

legislative

the

custom,

same
voters

sectarian
may

prayers

wonder

what

becomes
kind

of

embedded
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

which

in

deters

turn

campaign

issue

those

of

office. It should not be so.

65

or

a

tacit

minority

political

faiths

from

debit,
seeking

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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

overwhelmingly
through

many

sectarian
meetings

of

an

prayers

over

led

many

unremitting
solely

years.

No

by

record-legislators

single

aspect

or

consequence of this case alone creates an Establishment Clause
problem.

Rather,

commissioners,

it

their

is

the

combination

instructions

to

of

the

the

role

of

audience,

the

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

preceded

fact
by

that
a

the

request

prayers
or

of

the

commissioners

encouragement

for

were

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
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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

Commissioners

spoke

was

amplified

directly

to

by

the

frequent
attendees

exhortations.
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
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commissioner

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facing

his

Pg: 68 of 73

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

proximity

who
of

doesn’t.

I

do

participatory

note,

however,

sectarian

that

exercises

the
to

close

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

proclaim

the

Americans
Christian

have

used

faith.

over

The

many

generations

constitutional

to

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.

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The

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prayers

here,

which

Pg: 69 of 73

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
consider

objectively
how

this

their

language

proselytizing
might

fall

content.

on

the

ears

It
of

is

to

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 prayergivers. 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

balance.
their

the

First

Americans

faith

but

Amendment,

are

not

to

the

Framers

struck

encouraged

to

practice

establish

it

through

72

and
the

a

careful

celebrate
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

respectfully dissent.

73

and

religious

tolerance,

I