Williamson et al v. Brevard County
Filing
105
ORDER granting in part and denying in part 54 Motion for Summary Judgment; granting in part and denying in part 55 Motion for Summary Judgment; and directing the parties to file their settlement agreement no later than October 13, 2017. Signed by Judge John Antoon II on 9/30/2017. (Attachments: # 1 Appendix Resolution 2015-101) (EK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DAVID WILLIAMSON, CHASE HANSEL,
KEITH BECHER, RONALD GORDON,
JEFFERY KOEBERL, CENTRAL
FLORIDA FREETHOUGHT
COMMUNITY, SPACE COAST
FREETHOUGHT ASSOCIATION and
HUMANIST COMMUNITY OF THE
SPACE COAST,
Plaintiffs,
v.
Case No: 6:15-cv-1098-0rl-28DCI
BREVARD COUNTY,
Defendant.
ORDER
The Board of County Commissioners of Brevard County, Florida, holds regular
meetings to conduct the business of the county, and it begins its meetings with invocations
delivered by citizens. But the County has a policy and practice barring certain citizens from
giving the invocation based on those citizens' religious beliefs.
The Plaintiffs in this case primarily assert that the County's invocation practice
violates the Establishment Clause of the First Amendment of the United States
Constitution. They also bring claims under the Free Exercise and Free Speech Clauses of
the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and
Article I, Sections 2 and 3 of the Florida Constitution.
Plaintiffs seek injunctive and
declaratory relief as well as money damages. The case is before the Court on the parties'
cross-motions for summary judgment, and as set forth below, both motions are granted in
part and denied in part.
I.
Factual and Procedural Background 1
A.
The Parties
This case was brought by eight Plaintiffs-five individuals and three organizations.
The individual Plaintiffs-David Williamson, Chase Hansel, Keith Becher, Ronald Gordon,
and Jeffrey Koeberl-identify themselves as atheists, and all but Gordon also identify
themselves as Secular Humanists. (ASOF
1f 85).
The American Humanism Association
describes Humanism as "a progressive philosophy of life that, without theism and other
supernatural beliefs, affirms our ability and responsibility to lead ethical lives of personal
fulfillment that aspire to the greater good of humanity." (kl 1f 86). Becher, Koeberl, and
Williamson are ordained as Humanist clergy by the Humanist Society; all three are
Humanist Celebrants, and Koeberl is also a Humanist Chaplain. (kl 1f 93).
Plaintiffs do not profess a belief in the existence of God. (kl 1f 209). Their beliefs
are strongly held, having a place in their lives equal to the significance of theistic beliefs in
the lives of monotheists. (kl 1f 91 ). They consider their beliefs to be a religion. (kl 1f 92).
Four of the individual Plaintiffs are residents of Brevard County; Williamson lives in
neighboring Seminole County. (kl
1f
83). Hansel and Gordon own homes in Brevard
County and pay property taxes there. (kl 1f 84).
The three organizational Plaintiffs are the Humanist Community of the Space Coast
1
The facts are not in dispute. After the Court heard oral argument on the parties'
cross-motions for summary judgment (Docs. 54 & 55), the parties submitted a 67-page,
301-paragraph Amended Stipulation of Facts Regarding Cross-Motions for Summary
Judgment (Doc. 83). The factual background is taken largely from that Amended
Stipulation of Facts, though other record evidence is also cited herein. References to the
Amended Stipulation of Facts are indicated by "ASOF" followed by the paragraph
number(s).
2
(HCSC), the Space Coast Freethought Association (SCFA), and the Central Florida
Freethought Community (CFFC), all of which "are organizations for nontheists" whose
members are principally atheists, agnostics, Humanists, and other nontheists.
(~
1J1l 94-
95). HCSC and SCFA are headquartered in Brevard County, where most of their members
live.
(~
1J 96). CFFC is headquartered in Seminole County, but some of its members
reside in Brevard County. (Id.). Plaintiff Gordon is a member of SCFA, (id.1J 101), and the
other individual Plaintiffs are leaders of the organizational Plaintiffs, 2 (id. 1J1J 98-99).
Defendant Brevard County is a political subdivision of the State of Florida that had
a population of nearly 550,000 in 2010.
(~
1J 1; Doc. 53-8 at 50). The County is known
as Florida's Space Coast because of the presence of NASA and the Kennedy Space
Center. (Doc. 53-8 at 37). The Brevard County Board of County Commissioners (the
Board) is the legislative and governing body of the County. (ASOF 1J 2). The Board has
five Commissioners, each of whom represents , and is elected by, voters residing in one of
five numbered single-member districts that make up the County.
(~
1J 8). Pursuant to a
state statute, "[t]he county commissioners shall sue and be sued in the name of the
County."
B.
(~ 1J9;
§ 125.15, Fla. Stat.).
Board Meetings
The Board meets regularly-typically more than once per month-to discuss issues,
hear from citizens, and carry out its responsibilities. (ASOF 1J 10). The meetings are
conducted in a boardroom that is approximately sixty feet wide and seventy feet deep and
2
Specifically, Becher is President and Organizer of HCSC and a member of the
boards of directors of all three organizational Plaintiffs. (ASOF 1J 98). Hansel is President
of SCFA and a member of its board of directors. (~). Koeberl is Vice-President and CoOrganizer of HCSC and a member of its board and SCFA's board. ~· Williamson is the
founder and Chair of CFFC and a member of its board. (~) .
3
has 196 seats for audience members and a total capacity of 270. 3 (kl. 1{1{ 10, 18, & 22).
During Board meetings, the five Commissioners, the County Manager, and the County
Attorney sit on a raised dais facing the audience; the number of attendees varies from
fewer than ten to a full house. (kl. 1{1{ 20-21, 27). Board meetings proceed according to
printed agendas, are open to the public, are carried live on cable television, are available
for public viewing on the Board's website, and can be watched live on a television in a
lobby just outside the boardroom entrance. (kl 1{1{ 12- 13). During its meetings, the Board
sometimes considers and votes on matters that affect only one person or a small group of
people. (kl. 1{ 30).
Board meetings typically begin with a call to order that is then followed by: an
invocation; the pledge of allegiance; "resolutions, awards, and presentations"; consent
agenda items; and other scheduled matters, including at least one "Public Comment"
period. 4 (kl_1{1{ 35, 64, & 141-43). During the "resolutions, awards, and presentations"
segment of the meetings, individuals or groups are recognized for contributions they have
made to the community, and children sometimes appear before the Board to be honored
or to watch those who are being honored . (kl_ 1{1{ 36-39). Generally, those who attend the
"resolutions, awards, and presentations" segment are also present in the boardroom during
the invocation. (kl. 1{1{ 38 & 42) . Ordinarily, there are more people at the beginning of
Board meetings than at the end; usually, some attendees leave before the "Public
3
The parties note in their stipulated facts that the Board also holds "workshop"
meetings and other special meetings outside the boardroom described in the text. (ASOF
1l 15). Those meetings are not opened with an invocation and are not at issue in this
lawsuit. (kl_ 1}1{ 16-17).
4 As explained later in this Order, the Board changed the timing and number of
Public Comment periods during the timeframe of the events at issue in th is case.
4
Comment" segment.
C.
(kl ~
145).
Invocations and Selection of Invocation Speakers in the County
Board meetings "are typically opened with a religious invocation" that is "generally,
but not always, given by a cleric from the faith-based community. "
(kl
~11
14, 56).
Invocation speakers are unpaid volunteers invited by an individual Commissioner or his or
her staff; the five Commissioners take turns inviting speakers according to an annual
schedule assigning that task for each meeting. (kl~~ 43, 45, & 49; Anderson Dep., Doc.
42, at 12- 13; see also 2013-2014 Invocation and Pledge Schedule, Pis.' Ex. 645 ). On
occasion, the assigned Commissioner has difficulty find ing someone to give an opening
invocation or a scheduled speaker does not show up, and on those occasions either a
Commissioner gives the invocation, a member of the audience is permitted to give the
invocation, or a moment of silence is held in lieu of the invocation. (ASOF 111150- 51 & 203;
see also. e.g., Pis.' Exs. 30 & V26 (transcript and video of Dec. 15, 2015 and Mar. 15, 2016
invocations) (pastor did not show up and a commissioner gave the invocation); Pis.' Exs.
29, 30, & V2 (speaker list, transcript, and video of Mar. 9, 2010 invocation) (reverend did
5
References to Plaintiffs' Exhibits 1 through 163 are to the exhibits filed with
Plaintiffs' summary judgment motion and their response to the County's motion. Exhibits
1-133 are attachments to their motion (Doc. 55), and Exhibits 134-163 are attachments to
their response (Doc. 60).
6 In addition to Exhibits 1 through 163, Plaintiffs have submitted two USB flash drives
containing video and audio evidence, and those exhibits are numbered V1 through V18.
(See Notices of Physical Filing, Docs. 57 & 61). Exhibits V1 through V13 are contained on
the USB flash drive that was filed with the first Notice of Physical Filing (Doc. 57), and
Exhibits V14 through V18 are contained on the USB flash drive that was filed with the
second Notice of Physical Filing (Doc. 61 ). Exhibit V2 contains all available videos of
invocations given at Board meetings between March 19, 2010, and March 15, 2016, and
Exhibit V14 contains all available videos of invocations given at Board meetings between
March 29, 2016, and May 26, 2016. (See Pis.' App. of Exs. , Doc. 55-1, at 14 (listing and
describing Pis.' Ex. V2); Pis.' App. of Suppl. Exs., Doc. 60-1 , at 5 (listing and describing
Pis.' Ex. V14)).
5
not show up and a Commissioner's assistant gave the invocation); Pis.' Exs. 30 & V2
(transcript and video of Sept. 13, 2011 invocation) (unidentified audience member gave
invocation when no one was scheduled); Pis.' Exs. 30 & V2 (transcript and video of Aug.
19, 2014 invocation) (moment of silence observed when pastor did not arrive on time to
meeting)).
Not all invited speakers are clergy; non-clergy who have delivered opening
invocations include police officers, staff members of a Congressman's office, a state judge,
aides to the Commissioners, and a lay leader of the Church of Jesus Christ of Latter-day
Saints. (ASOF ~ 57). Chaplains of hospitals, a baseball team, the Brevard County Sheriffs
Office, and a city police department have also given invocations. (J.sL. ~ 59).
The selected invocation speaker's name, along with the name of the organization
he or she represents, often appears on the meeting agenda. (~ ~ 65; see also July 7,
2015 Agenda, Doc. 54-2 at 6). The Commissioner who invites the speaker typically
introduces the speaker. (ASOF
~
66). Some Board Chairpersons ask the audience to
stand up for the invocation "out of respect for the religion of the person giving the
invocation."
(~ ~~
67-68).
Other Chairpersons merely stand up and the other
Commissioners and the audience generally follow suit and stand as well, though on
occasion some audience members do not stand. (J.sL. ~~ 69-72).
The invocation speaker stands at a lectern at the front of the boardroom and usually,
but not always, faces the Commissioners rather than the audience. 7 (~ ~ 76; see Pis.'
7
During one invocation, the invited clergyman, after remarking , "Not quite sure
where I need to face; my congregation [gesturing to the audience] or my choir [gesturing
to the Board members]," faced the audience while giving his invocation. (See Pis. Ex. V2
(Mar. 3, 2016)). Another speaker, a chaplain, asked which way he should face, and the
Chairwoman instructed him to face the Board. (See Pis.' Exs. 30 & V2 (Sept. 16, 2014)).
6
Exs. V2 & V14 (videos of invocations at Board meetings)). The inviting Commissioner
often encourages the invocation speaker to tell the audience about his or her house of
worship or organization and its activities before giving the invocation itself. (ASOF 1177).
After the invocation is given, a Commissioner usually leads the audience in the Pledge of
Allegiance , and after the Pledge the inviting Commissioner thanks the invocation speaker
for giving the invocation. (kl 111178-79).
Neither the Commissioners nor their staffs review drafts of invocations before they
are given. (kl
11
52). From January 1, 2010, through March 15, 2016, 195 invocations
were given at Board meetings, and all but seven of those were given by Christians or
contained Christian content. (kl 1153). Six of the seven "non-Christian" invocations were
given by Jews, and the other was "generally monotheistic." (kl 1154). All 195 invocations
"had at least some theistic content," (id.
11
60), and "[t]o the parties' knowledge , all the
opening invocations delivered at [Board] meetings have appealed to or invoked a divine
authority," (kl 11204).
D.
Requests to Give an Invocation and the Board's Reactions
On May 5, 2014, the United States Supreme Court issued its opinion in Town of
Greece v. Galloway, 134 S. Ct. 1811 (2014), upholding against an Establishment Clause
challenge the invocation practice employed at town board meetings in the town of Greece,
New York; that town's practice also involved invocations given by invited speakers. At that
time, the five Commissioners in Brevard County were Chairwoman Mary Bolin Lewis and
Commissioners Andy Anderson , Robin Fisher, Trudie lnfantini, and Chuck Nelson. Four
days after the Town of Greece decision, on May 9 , 2014, Plaintiff Williamson, as Founder
and Chair of Plaintiff CFFC, sent a letter to Chairwoman Lewis noting the decision and
requesting the opportunity to offer invocations at Brevard County Board meetings. (ASOF
7
11112; May 9, 2014 Letter, Pis.' Ex. 43). Williamson wrote to Chairwoman Lewis again two
months later, stating in a July 22, 2014 letter that he had not received a response to his
May 9 letter and demanding that the County permit a member of CFFC to deliver an
invocation and "ensure its selection procedures for invocations comport with the
Constitutions of Florida and the United States." (ASOF 11113; July 22, 2014 Letter, Pis.'
Ex. 44).
Williamson's second letter did prompt a response from the Board, but it was not the
response he had hoped for. Before responding , the Board considered a proposed letter to
Williamson that was attached to the agenda for its August 19, 2014 meeting. During that
meeting, after hearing comments from W illiamson and others, the Board unanimously
approved the sending of the pre-drafted response letter. 8 (ASOF 1111 114-15; Pis.' Ex. V3
(video excerpt of Aug . 19, 2014 Board meeting)). The letter thanked Williamson and CFFC
for their request but then stated:
The Invocation portion of the agenda is an opening prayer presented by
members of our faith community. The prayer is delivered during the
ceremonial portion of the County's meeting and typically invokes guidance
for the County Commission from the highest spiritual authority, a higher
authority which a substantial body of Brevard constituents believe to exist.
The invocation is also meant to lend gravity to the occasion, to reflect values
long part of the County's heritage and to acknowledge the place religion holds
in the lives of many private citizens in Brevard County.
You r website leads us to understand your organization and its members do
not share those beliefs or values which , of course , is your choice under the
laws of the United States. However, this Commission chooses to stand by
the tradition of opening its meetings in a manner acknowledging the beliefs
of a large segment of its constituents .. . .
(ASOF 11117; Aug . 19, 2014 Letter, Pis.' Ex. 46).
8
Incidentally, the pastor who was scheduled to give the invocation at the Aug ust 19,
2014 Board meeting was late, and in lieu of an invocation a moment of silence was
observed. (See Pis.' Exs. 30 & V2 (Aug. 19, 2014 invocation)).
8
The Board's August 19 letter went on to explain that although Williamson and CFFC
members would not be permitted to deliver an invocation at the beginning of Board
meetings, they could address the Board for three minutes during the Public Comment
portion of the meetings, which as of that date was held at the end of each meeting. (Aug.
19, 2014 Letter ("This Commission respectfully takes issue with the claim that members of
your organization are being excluded from presenting their viewpoint at County
Commission meetings. You or your Brevard members have the opportunity to speak for
three minutes on any subject involving County business during the Public Comment portion
of our meeting."); ASOF
1J
141). The letter noted that in the past, during the Public
Comment portion of the meeting the Board had "listened to Bible readings ; political points
of view of all varieties; and some of our citizens' sharpest critiques and criticisms of County
staff and the County Commission, among other things." (Aug. 19, 2014 Letter).
During discussion of the issue at the August 19, 2014 meeting, several of the
Commissioners commented.
Commissioner Anderson stated:
"For you to say that
Christianity isn't under attack, I'd like you to look over at Iraq right now and let me know if
Christianity is not under attack"; "I need all the prayer in my life I can get to get through
these meetings"; and "I just never understood the concept on- and this is no personal
slight to anybody-how you could possibly be offended by something that you do not
believe exists. I just never understood that. " (ASOF iJiJ 177-79; Pis.' Ex. V3 (video excerpt
of Aug. 19, 2014 Board meeting)). In addressing how speakers are chosen, Commissioner
lnfantini stated: "My staff and I, we search-I mean I don't have any specific religion- we
will go anywhere to find somebody. No, not anywhere. Okay, correct, not anywhere. Not
anywhere. There are certain places." (ASOF iJ 182; Pis.' Ex. V3 (video excerpt of Aug.
9
19, 2014 Board meeting)). And after seconding the motion to approve the response letter,
Commissioner Fisher stated: "I think the Public Comment section ... will give them an
opportunity to speak, we are opening the Commission up to that, .. . when I looked at their
website one of the things I noticed was it wasn't so much about prayer as it was about
trying to separate ... state and church, and if that's the issue, state and church, then I think
the Public Comment section of the agenda is probably the best place anyway." (Pis.' Ex.
V3 (video excerpt of Aug. 19, 2014 Board meeting)).
In August and September 2014, Plaintiff Gordon emailed Commissioner lnfantini,
asking that a member of CFFC be allowed to deliver an invocation and stating that he was
a Brevard County atheist who was willing to give an invocation. (ASOF 11118; Pis.' Ex.
47). Commissioner lnfantini did not accept Gordon's offer. (ASOF 11118).
On August 21, 2014, Brevard County resident Reverend Ann Fuller emailed all five
Commissioners, stating that she was "ordained clergy" and a "known humanist in the
community" and requesting "an opportunity to give an invocation at an upcoming board
meeting." (kl 11119). Reverend Fuller explained that she had "served Brevard County
humanists as a Community Minister since 2006 affiliated with the [Unitarian Universalist]
Church of Brevard." (kl_). That same day, Commissioner lnfantini responded in an email
that stated in part: "I am willing to have most anyone offer an invocation. However, by
definition, an invocation is seeking guidance from a higher power. Therefore, it would seem
that anyone without a 'higher power' would lack the capacity to fill that spot. .. . Further, I
welcome 'freethinkers[,]' being the only 'freethinker' on the board. It just doesn't seem like
the invocation is the correct place for it is all." (kl 11120).
On August 28, 2014, the Board received a letter from the Anti-Defamation League
10
objecting to the Board's decision on the issue of nontheistic invocations and suggesting
that the Board's "decision to prohibit an atheist from delivering an invocation would most
likely violate the standards set forth in the U.S. Supreme Court's recent decision in" Town
of Greece. (ASOF 11121 ; Anti-Defamation League Letter, Pis.' Ex. 48). At its November
6, 2014 meeting, the Board unanimously approved a response letter to be sent to the AntiDefamation League attempting to explain the Board's practice of excluding nontheists.
(ASOF 11122; November 6, 2014 Letter, Pis.' Ex. 49). That November 6 response letter
stated in part:
[Y]our suggestion to allow atheists to provide the invocation would, in fact,
show hostility toward the faith-based community-as evidenced by the
content on social media webpages maintained by [CFFC] and the Freedom
from Religion Foundation . . . . Therefore, this Board has no desire to follow
your suggested action since that action could be easily construed, either
overtly or by implication , as evidencing vicarious disdain, scorn or disrespect
for the beliefs of our faith-based community .
. . . It follows that the Board's decision to avoid hostility toward the faith-based
community precludes any claim of discrimination.
Indeed, if your
characterization of secular humanism as a religion is valid, modifying the
county's time-honored pre-meeting tradition by affording a secular humanist
the opportunity to recite a secular "prayer" during the faith-based invocation
portion of the Board's agenda could be perceived as [] endorsing a specific
religion-secular humanism-in violation of the Establishment Clause
because all Board actions at the meeting held following such a secular
"prayer'' invariably involve an underlying secular purpose. Atheists or secular
humanists are still afforded an opportunity to speak their thoughts or
supplications during the secular business portion of the agenda under "public
comment. "
(ASOF 11124; Nov. 6, 2014 Letter, Pis.' Ex. 49) (emphasis in original). Thus, the Board
maintained its stance that atheists and Secular Humanists could speak only during the
Public Comment period and could not give the opening invocation.
Prior to December 16, 2014, the Public Comment segment of a Board meeting
occurred at the end of the meeting. (ASOF 1111141-42). But on that date, the Board
11
adopted a resolution-Resolution No. 14-219-moving up the first thirty minutes of the
Public Comment section so that it occurs after the "consent agenda" section and before
the "public heari ngs" section of each regu lar Board meeting. (.kl 11142; Mins. of Dec. 16,
2014 Board Meeting, Pis.' Ex. 33; see
Ex. A to Whitten Aft., Doc. 54-2).
also . ~ .
Agenda for July 7, 2015 Board Meeting,
Under that December 16 resolution , if the Public
Comment section is not concluded within thirty minutes, the remainder occurs "at the
conclusion of business specified on the regular commission agenda." (ASOF 11143).
The terms of Commissioners Lewis and Nelson ended in November 2014, and at
that time new Commissioners Curt Smith and Jim Barfield began their terms. (.kl 11150).
On January 26, 2015, the then-legal Director for Americans United for Separation of
Church and State sent a letter to all five Commissioners with the subject line "Nontheists'
Delivery of Opening Invocations." (kl 11125; Jan. 26, 2015 Letter, Pis.' Ex. 50). The letter
noted that "requests from nontheists have been denied on the ground that belief in a higher
power is a precondition to offering the invocation" and stated that "[i]n light of the recent
change in the Board's leadership, we write on behalf of several national legal
organizations"- Americans United for Separation of Church and State, the Freedom From
Religion Foundation,9 the ACLU of Florida, and the ACLU Program on Freedom of Religion
and Belief-"to ask that you reconsider this limitation." (ASOF 1111125-26; Jan. 26, 2015
Letter, Pis.' Ex. 50). The letter requested that Plaintiff W illiamson, non-party Reverend Ann
Fuller, and Plaintiff Hansel be added to the roster of invocation givers and granted the
opportunity to give an opening invocation at a Board meeting . (ASOF 11127; Jan. 26, 2015
Letter, Pis.' Ex. 50).
9
Plaintiff CFFC is a Freedom From Religion Foundation chapter. (ASOF 11207).
12
Neither the Board nor any individual Commissioner responded to the January 26
letter, (ASOF ~ 128), and on May 26, 2015, the same four organizations sent another letter
to all five Commissioners,
(kl~
129; May 26, 2015 Letter, Pis.' Ex. 51). In that letter, the
organizations requested that one of the five individual Plaintiffs or another representative
of one of the three organizational Plaintiffs be permitted to deliver nontheistic invocations
at a Board meeting. (ASOF ~ 129; May 26, 2015 Letter, Pis.' Ex. 51 ). The County Attorney
responded to the letter on May 28, 2015, advising that the Board's next meeting was on
July 7, 2015, and that the attorney would present the letter to the Board at that time and
seek a response. (ASOF
~
130; May 28, 2015 Letter, Pis.' Ex. 52).
At its July 7, 2015 meeting, the Board "responded to the May 26, 2015 letter by
adopting Resolution 2015-101." (ASOF
~
131; Resolution 2015-101, Doc. 53-8 at 34
through 93 10 ) . Resolution 2015-101 , which is attached as an appendix to this Order, is
eleven pages long and consists of five "whereas clauses" followed by thirty-nine numbered
paragraphs of "findings" and "conclusions"; it concludes with an amendment to the Board's
Operating Procedures.
In the whereas clauses, the Resolution notes:
the Board's
"longstanding tradition of calling for an invocation before commencing a regular meeting at
which the secular business of the County will be reviewed and acted upon"; the Board's
prior responses to requests from atheists, which "identified an informal policy addressing
the issue of pre-meeting prayer"; that the Board had "not yet enacted a formal policy
10
Resolution 2015-101 appears in several places in the record, including as an
exhibit (Docs. 24-3 through 24-11) to the County's original Answer (Doc. 24) and as Exhibit
77 to the deposition of Plaintiff Williamson (Doc. 53-8 at 34 through 93). The parties
represent in their Amended Stipulation of Facts that the version that is Exhibit 77 to
Williamson's deposition is a true and correct copy with all exhibits attached to it, and the
Court accordingly refers to that version. (See ASOF ~ 131).
13
relating to pre-meeting prayer''; that Board members had received letters requesting "the
Board to allow . .. atheists, agnostics and secular humanists to give a pre-meeting prayer
at a regular Board meeting"; and that "the Board wishes to formalize a policy on invocations
that is not hostile to faith-based religions and that does not endorse secular humanism or
non-belief over traditional faith-based religions comprised of constituents who believe in
God." (Resolution 2015-101 at 1, Doc. 53-8 at 35).
The "findings" paragraphs in Resolution 2015-101 recount the County's tradition of
pre-meeting invocations; provide demographic data regarding Brevard County, including
that only 34.9% of the County's total population "claimed to be adherents to any religious
faith" in 2010; describe a webpage of the Freedom From Religion Foundation, with whom
CFFC is noted to be affiliated, that includes "Godless quotes," as well as a webpage of
Americans United for Separation of Church and State that "makes clear the organization's
calculated goal" to eliminate activity that it considers violative of its "views of what the
principles of separation of church and state should be"; examine Secular Humanism; and
discuss CFFC's Facebook page, on which CFFC "strategically seeks to offend faith-based
religions in open forums in order to pressure the local government into closing the forum
or censoring the content and exposing itself to liability." (Resolution 2015-101at1-9, Doc.
53-8 at 35-43).
The resolution then states "conclusions" based on the findings, including that:
"yielding . . . by supplanting traditional ceremonial pre-meeting prayer . . . with an
'invocation' by atheists, agnostics or other persons represented or associated with [the
Freedom From Religion Foundation] or [Americans United for Separation of Church and
State] could be viewed as County hostility toward monotheistic relig ions whose theology
14
and principles currently represent the minority view in Brevard County"; that allowing the
requesting organizations to give an invocation and "displac[e) representatives of the
minority faith-based monotheistic community . . . could be viewed as . . . Board
endorsement of Secular Humanist and Atheist principles" because of "the overwhelmingly
secular nature of the Board's business meeting following the invocation" and "evidence
suggesting that the requesting organizations are engaged in nothing more than a carefully
orchestrated plan to promote or advance principles of Secular Humanism through the
displacement or elimination of ceremonial deism [sic)
11
traditionally provided by
monotheistic clerics giving pre-meeting prayers"; that "[a)ll of the organizations seeking the
opportunity to provide an invocation have tenets or principles paying deference to science,
reason and ethics, which, in most cases, are the disciplines the Board must consider,
understand and utilize when acting upon secular items presented for consideration during
the Board's secular business agenda" and that "deferring consideration or presentation of
a secular humanist supplication during the Public Comment portion of the agenda
immediately after the consent agenda . . . does not deny or unreasonably restrict the
opportunity of the requesting parties to present their Secular Humanist or atheistic
11
The word "deism" appears to be a clerical error in the resolution. "Deism" is "a
movement or system of thought advocating natural religion, emphasizing morality, and in
the 18th century denying the interference of the Creator with the laws of the universe."
Merriam Webster's Collegiate Dictionary (10th ed. 1993). Scholars have noted that "[m]any
of our founding fathers, including Thomas Paine, Thomas Jefferson, [and] Benjamin
Franklin, ... were flat-out deists, and many others, such as John Adams, James Madison,
Alexander Hamilton , James Monroe, and George Washington, were at least partial deists."
Geoffrey V. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1, 7
(Oct. 2008). In light of the deposition testimony of several Commissioners that they would
not allow a deist to give an invocation , (see. e.g. , Doc. 43 at 12; Doc. 44 at 9; Doc. 46 at
11 ; & Doc. 48 at 10), it is likely that "theism"- "belief in the existence of a god or gods,"
Merriam Webster's Collegiate Dictionary (10th ed. 1993)-was the word that was intended
in this sentence of Resolution 2015-101.
15
invocations, supplications, instruction, petitions for redress of grievances or comments."
(Resolution 2015-101 at 9- 10, Doc. 53-8 at 43-44).
The amendment portion of Resolution 2015-101 adds a new section to the Board's
Operating Procedures and provides:
In view of the requests by secular, humanist, atheist and Secular Humanist
organizations to provide a secular, Secular Humanist or an atheist invocation,
the Board hereby clarifies the intent of the Board's existing policies allowing
Public Comment to include individual or representative comments intended
to instruct the Board ; to petition for redress of grievances; to comment upon
matters within the control, authority and jurisdiction of the Board; and to
comment on matters that are relevant to business of the County Commission,
as well as matters upon which the Board has traditionally expressed a
position for the betterment of the community interest. Secular invocations
and supplications from any organization whose precepts, tenets or principles
espouse or promote reason, science, environmental factors, nature or ethics
as guiding forces , ideologies, and philosophies that should be observed in
the secular business or secular decision making process involving Brevard
County employees, elected officials, or decision makers including the Board
of County Commissioners, fall within the current policies pertaining to Public
Comment and must be placed on the Public Comment section of the secular
business agenda. Pre-meeting invocations shall continue to be delivered by
persons from the faith-based community in perpetuation of the Board's
tradition for over forty years.
(Resolution 2015-101at10- 11, Doc. 53-8 at 44-45). Thus, as stipulated by the parties,
the resolution "adopted a formal policy that allows the traditional faith-based invocation
prior to the beginning of the Board's secular business agenda and subsequent 'secular
invocations' during the Public Comment section of that secular agenda." (ASOF 11 133
(further internal quotation omitted)). None of the Plaintiffs has ever delivered a "secular
invocation" during the Public Comment segment of a Board meeting. (kl 11149).
E.
This Lawsuit
After the Board passed Resolution 2015-101, Plaintiffs filed this lawsuit. (Com pl.,
Doc. 1). In their six-count Amended Complaint (Doc. 28), Plaintiffs allege violations of: the
Establishment Clause of the First Amendment to the U.S. Constitution (Count I); the Free
16
Exercise Clause of the First Amendment (Count II); the Free Speech Clause of the First
Amendment (Count Ill); the Equal Protection Clause of the Fourteenth Amendment (Count
IV); Article I, Section 2 of the Florida Constitution (Count V); and Article I, Section 3 of the
Florida Constitution (Count VI). (Doc. 28 at 66-71). The Amended Complaint seeks an
injunction, a declaratory judgment, and damages. (kl at 72-74). However, at mediation
the parties resolved the issue of damages. (See Mediation Report, Doc. 39). Plaintiffs'
counsel explained during oral argument on the parties' cross-motions for summary
judgment that at mediation the parties reached a settlement on what the amount of the
damages should be if the Plaintiffs prevail on the merits and that the Court should allow
the parties to file their settlement agreement with the Court if it finds in favor of Plaintiffs.
(See Hr'g Tr., Doc. 93, at 32- 33). The parties agree that no facts are in dispute and that
this case may be appropriately resolved on their cross-motions. 12 (See Mins., Doc. 69).
II.
Analysis 13
A.
Establishment Clause (Count I)
Plaintiffs' primary claim is under the Establishment Clause of the First Amendment,
12
In addition to the declarations, depositions, voluminous exhibits, several notices
of supplemental authority, and the Amended Stipulation of Facts (Doc. 83), the pertinent
filings are: the County's Motion for Summary Judgment (Doc. 54); Plaintiffs' Motion for
Summary Judgment (Doc. 55); the County's Notice of Filing Supplemental Inadvertently
Omitted Footnote References (Doc. 58); the County's Response to Plaintiffs' Motion for
Summary Judgment (Doc. 59); Plaintiffs' Opposition to the County's Motion for Summary
Judgment (Doc. 60); the County's Reply regarding its motion (Doc. 62); Plaintiffs' Reply
regarding its motion (Doc. 63); the County's Supplemental Memorandum of Law (Doc. 84);
Plaintiffs' Supplemental Brief (Doc. 85); Plaintiffs' Supplemental Summary-Judgment Brief
on Their Free-Speech Claim (Doc. 95); the County's Corrected Supplemental Summary
Judgment Brief on Plaintiffs' Free Speech Claim (Doc. 97-1 ); and Plaintiffs' Supplemental
Summary-Judgment Reply Brief on Their Free-Speech Claim (Doc. 98).
13 In some of its filings the County asserts, albeit cursorily, that Plaintiffs lack
standing to bring one or more of their claims. (See. e.g. , Doc. 54 at 19 (asserting that
"none of the Plaintiffs has standing to sue for coercion because none has alleged a
concrete and particular injury in fact"); id . at 21 (arguing lack of standing because "Plaintiffs
17
which provides that "Congress shall make no law respecting an establishment of religion."
U.S. Const. amend. I, cl. 1. This clause, like the other clauses of the First Amendment,
applies to the states and their subdivisions via the Fourteenth Amendment. See Cantwell
v. Connecticut, 310 U.S. 296, 303 (1940); accord Sch. Dist. of Abington Twp. v.
Pennsylvania, 374 U.S. 203, 215-16 (1963).
Plaintiffs contend that the County's invocation practice violates the Establishment
Clause in three ways:
by purposefully discriminating based on religious beliefs; by
entangling public officials in religious judgments; and by coercing audience members to
take part in religious exercises.
The County, on the other hand, maintains that its
invocation practice "conforms to Establishment Clause principles promulgated by the U.S.
Supreme Court." (Doc. 54 at 1). Each side asserts that Supreme Court jurisprudenceespecially the Court's 2014 decision in Town of Greece v. Galloway-supports its position.
Marsh v. Chambers and Town of Greece v. Galloway
Although Establishment Clause claims are typically analyzed using one of several
formal "tests" established by the Supreme Court for such claims-such as the coercion
test, 14 the endorsement test, 15 or the Lemon test 16- the Supreme Court has declined to
cannot show an injury that can be redressed by a favorable decision from this Court"); Doc.
62 at 7 (averring that Plaintiffs lack standing because their injuries are "self-created" and
because of "their inability to give a religious prayer"). These contentions are without merit.
The Court is satisfied that Plaintiffs have standing to pursue their claims, and the County's
arguments go to the merits of Plaintiffs' claims rather than to the issue of standing.
14
See, e.g., Lee v. Weisman, 505 U.S. 577 (1992).
15 See, e.g ., Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573
(1989).
16 See Lemon v. Kurtzman, 403 U.S. 602, 612- 13 (1971) (establishing three-part
test providing that to pass muster under the Establishment Clause, (1) a statute "must have
a secular legislative purpose," (2) the statute's "principal or primary effect must be one that
neither advances nor inhibits religion," and (3) "the statute must not foster 'an excessive
government entanglement with religion"' (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674
18
apply any of those tests in the context of legislative prayer. But relying on other principles,
the Supreme Court has addressed legislative prayer in two landmark cases- Marsh v.
Chambers, 463 U.S. 783 (1983), and Town of Greece-and those decisions inform this
Court's analysis here.
At issue in Marsh was the prayer practice of the Nebraska Legislature. That body
opened each of its sessions with a prayer given by a chaplain who was paid with public
funds and chosen every two years by the Executive Board of the Legislative Council. By
the time the case made its way to the Supreme Court, the same Presbyterian minister had
served as chaplain for nearly twenty years. Although some of the minister's earlier prayers
"were often explicitly Christian," the minister "removed all references to Christ after a 1980
complaint from a Jewish legislator." 463 U.S. at 793 n.14. The plaintiff-a member of the
legislature and a Nebraska taxpayer-brought an Establishment Clause challenge,
seeking to enjoin the prayer practice. 17 The district court found no violation of the
Establishment Clause from the prayers themselves but concluded that the paying of the
chaplain with public funds did violate the clause. Chambers v. Marsh, 504 F. Supp. 585
(0. Neb. 1980). On appeal, the Eighth Circuit applied the Lemon test, found that the
Nebraska practice failed all three prongs of that test, and prohibited Nebraska from
continuing to engage in the prayer practice. Chambers v. Marsh, 675 F.2d 228 (8th Cir.
1982).
The Supreme Court reversed, finding- without applying Lemon or any other formal
(1970))).
17
It is not clear from the court opinions whether the plaintiff in Marsh was the
legislator who complained about references to Christ in the prayers. The district court
opinion describes him as "a non-Christian member of the legislature." Chambers v. Marsh,
504 F. Supp. 585, 591 n.14 (0. Neb. 1980).
19
test-that neither the prayers themselves nor the use of public funds to pay the chaplain
violated the Establishment Clause. The Marsh Court noted that "[t]he opening of sessions
of legislative and other deliberative public bodies with prayer is deeply embedded in the
history and tradition of this country" and that throughout this country's history "the practice
of legislative prayer has coexisted with the principles of disestablishment and religious
freedom." 463 U.S. at 786. After tracing the history of legislative prayer and noting that
the First Congress selected a chaplain to open each session with prayer, the Court
concluded that "[t]his unique history leads us to accept the interpretation of the First
Amendment draftsmen who saw no real threat to the Establishment Clause from a practice
of prayer similar to that now challenged."
kl at 791.
The Marsh Court explained:
In light of the unambiguous and unbroken history of more than 200
years, there can be no doubt that the practice of opening legislative sessions
with prayer has become part of the fabric of our society. To invoke Divine
guidance on a public body entrusted with making laws is not, in these
circumstances, an 'establishment' of religion or a step toward establishment;
it is simply a tolerable acknowledgment of beliefs widely held among the
people of this country. As Justice Douglas observed [in Zorach v. Clauson,
343 U.S. 306, 313 (1952)], "[w]e are a religious people whose institutions
presuppose a Supreme Being."
kl
at 792 (citation omitted).
The Court rejected the plaintiff's contention that the
Establishment Clause was violated due a minister of only one denomination having been
selected for sixteen years. Perceiving no "suggestion that choosing a clergyman of one
denomination advances the beliefs of a particular church," the Court concluded that
"(a]bsent proof that the chaplain's reappointment stemmed from an impermissible motive,
... his long tenure does not in itself conflict with the Establishment Clause."
kl at 793-
94.
Nor was the Marsh Court troubled by the fact that the prayers given in the Nebraska
20
Legislature were in the Judeo-Christian tradition. The Court explained that "[t]he content
of the prayer is not of concern to judges where, as here, there is no indication that the
prayer opportunity has been exploited to advance any one, or to disparage any other, faith
or belief" and that under those circumstances "it is not for [the Court] to embark on a
sensitive evaluation or to parse the content of a particular prayer."
kl at 794- 95.
The Supreme Court took up the issue of legislative prayer again in 2014 in Town of
Greece. In the town of Greece, New York, for some time prior to 1999 the town board
began its monthly board meetings with a moment of silence. But in 1999, a newly elected
town supervisor began inviting local clergymen to deliver invocations at the beginnings of
meetings.
"The prayer was intended to place town board members in a solemn and
deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition
practiced by Congress and dozens of state legislatures." 134 S. Ct. at 1816. Prayer givers
in Greece were unpaid volunteers, and the town "followed an informal method for selecting
prayer givers"-a town employee called congregations listed in a local directory until she
found an available minister for that month's meeting.
kl
And "[t]he town eventually
compiled a list of willing 'board chaplains' who had accepted invitations and agreed to
return in the future."
kl
The town "at no point excluded or denied an opportunity to a
would-be prayer giver," and "[i]ts leaders maintained that a minister or layperson of any
persuasion, including an atheist, could give the invocation ."
kl
The town did not review
the prayers in advance or provide guidance on tone or content; "[t]he town instead left the
guest clergy free to compose their own devotions."
kl
From 1999 to 2007, all of the
participating minsters were Christian, and "[s]ome of the ministers spoke in a distinctly
Christian idiom."
kl
21
The two plaintiffs in Town of Greece-one Jewish, the other an Atheist 18-attended
town board meetings to address issues of local concern, and they took offense to the
prayers and the pervasive Christian themes in them.
!!i
at 1817. After the plaintiffs
complained, the town invited a Jewish layman and the chairman of a Baha'i temple to give
prayers; additionally, a Wiccan priestess requested and was given a chance to give an
invocation .
!!i
The plaintiffs nevertheless filed suit, alleging that the town's prayer practice
violated the Establishment Clause. They sought not to end the practice but to limit the
prayers to "nonsectarian" prayers-"inclusive and ecumenical" prayers referring only to a
"generic God" and "not identifiable with any one religion."
!!i at 1817 & 1820.
After the district court upheld the practice and the Second Circuit reversed, the
Supreme Court reversed the appellate court, finding that the town's invocation practice
passed muster under the Establishment Clause. The Court began by discussing Marsh,
noting that "Marsh is sometimes described as 'carving out an exception' to the Court's
Establishment Clause jurisprudence, because it sustained legislative prayer without
subjecting the practice to 'any of the formal "tests" that have traditionally structured' this
inquiry." 134 S. Ct. at 1818 (quoting Marsh, 463 U.S. at 796 & 813 (dissenting opinion of
Brennan, J.)).
"The Court in Marsh found those tests unnecessary because history
supported the conclusion that legislative invocations are compatible with the Establishment
Clause."
!!i
The Town of Greece Court noted that like Congressional prayer, the practice
of local legislative bodies opening their meetings with prayer also "has historical
precedent," id . at 1819, but the Court emphasized that "Marsh must not be understood as
permitting a practice that would amount to a constitutional violation if not for its historical
18
See Galloway v. Town of Greece, 732 F. Supp. 2d 195, 196 (W.D.N.Y. 2010).
22
foundation" and explained that Marsh "teaches instead that the Establishment Clause must
be interpreted by reference to historical practices and understandings," id. (internal
quotation and citation omitted).
The Supreme Court then turned to "whether the prayer practice in the town of
Greece fits within the tradition long followed in Congress and the state legislatures."
kl
The plaintiffs made two arguments: first, that Marsh does not countenance sectarian
prayers, and second, that the town's practice was coercive because the setting and nature
of the town meetings "create social pressures that force nonadherents to remain in the
room or even feign participation in order to avoid offending [those who] sponsor the prayer
and will vote on matters citizens bring before the board."
kl at 1820.
The Supreme Court
rejected both of these contentions.
First, the Court concluded that "insistence on nonsectarian or ecumenical prayer as
a single, fixed standard is not consistent with the tradition of legislative prayer outlined in
the Court's cases."
kl19
The Town of Greece Court explained that Marsh upheld the
Nebraska legislative prayers "because our history and tradition have shown that prayer in
this limited context could 'coexis[t] with the principles of disestablishment and religious
freedom'" rather than "because they espoused only a generic theism."
kl (alteration
in
original) (quoting Marsh, 463 U.S. at 786). The Marsh Court did not "imply the rule that
prayer violates the Establishment Clause any time it is given in the name of a figure deified
19
Prior to Town of Greece, some courts had held that only "nonsectarian" legislative
prayers were permissible under the Establishment Clause. See, e.g., Wynne v. Town of
Great Falls, S.C., 376 F.3d 292 (4th Cir. 2004); accord. Joyner v. Forsyth Ctv .. N.C., 653
F.3d 341 (4th Cir. 2011 ). The Eleventh Circuit, however, did not, pre-Greece, read Marsh
as authorizing only nonsectarian prayers. See generally Pelphrey v. Cobb Cty., 547 F.3d
1263 (11th Cir. 2008).
23
by only one faith or creed," id. at 1821 , and "[t]o hold that invocations must be nonsectarian
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, a rule that would involve
government in religious matters to a far greater degree than is the case under the town's
current practice of neither editing or approving prayers in advance nor criticizing their
content after the fact," id. at 1822. 20
The Town of Greece Court emphasized that "[o]ur 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" and that "[g]overnment may not mandate a civic
religion that stifles any but the most generic reference to the sacred any more than it may
prescribe a religious orthodoxy."
!fl
And "[o]nce it invites prayer into the public 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."
!fl at 1822- 23.
Although the Town of Greece Court rejected the notion that legislative prayer must
be nonsectarian, it did "not imply that no constraints remain on its content."
!fl at
1823.
"The relevant constraint derives from its place at the opening of legislative sessions, where
it is meant to lend gravity to the occasion and reflect values long part of the Nation's
heritage."
!fl
"Prayer that is solemn and respectful in tone, that invites lawmakers to reflect
20
In holding that legislative prayer need not be nonsectarian in order to remain
within the confines of the Establishment Clause, the Town of Greece Court receded from
dictum in County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989).
See Town of Greece, 134 S. Ct. at 1821 (finding some statements in County of Allegheny
"irreconcilable with the facts of Marsh and with its holding and reasoning" and explaining
that "Marsh nowhere suggested that the constitutionality of legislative prayer turns on the
neutrality of its content").
24
upon shared ideals and common ends before they embark on the fractious business of
governing, serves that legitimate function." !sl
The Town of Greece Court also rejected the Second Circuit's conclusion that the
town violated the Establishment Clause "by inviting a predominantly Christian set of
ministers to lead the prayer." !slat 1824. Noting that "[t]he town made reasonable efforts
to identify all of the congregations located within its borders and represented that it would
welcome a prayer by any minister or layman who wished to give one," the Court
emphasized that "[s]o long as the town maintains a policy of nondiscrimination, the
Constitution does not require it to search beyond its borders for non-Christian prayer givers
in an effort to achieve religious balancing." !sl; see also id. at 1831 (Alito, J., concurring)
("I would view this case very differently if the omission of . . . synagogues [from the list of
congregations] were intentional.").
Second, the Town of Greece Court addressed plaintiffs' assertions that the prayer
practice was unconstitutionally coercive. The plaintiffs asserted "that the public may feel
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," id. at 1825, arguing that
prayer in the setting of a town board meeting "differs in fundamental ways from the
invocations delivered in Congress and state legislatures, where the public remains
segregated from legislative activity and may not address the body except by occasional
invitation," id. at 1824-25. Though no rationale garnered a majority of votes, five justices
rejected the plaintiffs' coercion argument.
Application
In view of this precedent, this Court must assess Plaintiffs' Establishment Clause
25
claim. Plaintiffs assert that the County's invocation practice is distinguishable from the
practice approved in Town of Greece, while the County maintains that its practice is
consistent with the facts of, and principles established in, that case. As set forth below,
the facts of th is case indeed distinguish it from Town of Greece, and the overwhelming
evidence of purposeful discrimination and "impermissible purpose" here demonstrates the
constitutional infirmity in the County's invocation practice.
1.
Purposeful Discrimination
Although the County contends that its invocation practice passes constitutional
muster under Town of Greece, the Supreme Court's opinion in that case cannot be read to
condone the deliberate exclusion of citizens who do not believe in a traditional monotheistic
religion from eligibility to give opening invocations at County Board meetings. Neither
Town of Greece nor any other binding precedent supports the County's arguments, and
none of the County's asserted justifications for its practice holds water.
The Town of Greece Court upheld an invited-speaker invocation practice that
resulted in the prayers being given predominantly by Christians, but in doing so it
repeatedly emphasized the inclusiveness of the town's practice. There was no evidence
in that case that the town leaders intended to exclude anyone from participation in the
giving of invocations; in fact, there was evidence to the contrary. "The town at no point
excluded or denied an opportunity to a would-be prayer-giver." 134 S. Ct. at 1816. That
invitees were solely Christian was not the product of intentional discrimination but instead
due merely to the fact that the speakers were selected from a directory of the town's
religious organizations. The Supreme Court expressly noted a lack of evidence of "an
aversion or bias on the part of town leaders against minority faiths, " and, on the contrary,
there was evidence of "a policy of nondiscrimination" with regard to who was allowed to
26
give the invocation.
kl at 1824.
Similarly, thirty years earlier, the Marsh Court noted lack
of evidence of "impermissible motive" in the repeated reappointment of the same chaplain.
And after Marsh but six years prior to Town of Greece, the Eleventh Circuit-in a
decision entirely consistent with Town of Greece-found that an invocation practice
violated the Establishment Clause where there was evidence of intentional discrimination
in the selection of invocation speakers. In that case, Pelphrey v. Cobb County, 547 F.3d
1263 (11th Cir. 2008), two county commissions allowed volunteer religious leaders to offer
invocations at the commissions' meetings on a rotating basis. The Eleventh Circuit agreed
with the district court's finding that the invocation practice of one of the two commissions
was unconstitutional during two years of the time period at issue because of the way in
which speakers were selected, finding that "the selection procedures [in those two years]
violated the 'impermissible motive' standard of Marsh." 547 F.3d at 1281. The Pelphrey
court noted that the "impermissible motive" standard "prohibits intentional discrimination,"
id., and during the two years at issue, the employee who selected speakers for one of the
commissions '"categorically excluded' certain faiths from the list of potential invocation
speakers," id. at 1282. 21 The Eleventh Circuit "agree[d] with the district court that the
categorical exclusion of certain faiths based on their beliefs is unconstitutional."
kl
Marsh, Town of Greece, and Pelphrey thus make clear that while legislative
prayer- even sectarian legislative prayer- is, as a general matter, constitutional,
intentional discrimination and improper motive can take a prayer practice beyond what the
Establishment Clause permits. Cf. Lund v. Rowan Ctv .. N.C., 863 F.3d 268, 278 (4th Cir.
21
That practice was evidenced by a "long and continuous line through certain
categories of faiths" in the phone book that the employee used to compile the list of
potential speakers. Pelphrey, 547 F.3d at 1282.
27
2017) (en bane) ("Marsh and Town of Greece, while supportive of legislative prayer, were
measured and balanced decisions .... Town of Greece told the inferior federal courts ...
to grant local governments leeway in designing a prayer practice that brings the values of
religious solemnity and higher meaning to public meetings, but at the same time to
recognize that there remain situations that in their totality exceed what Town of Greece
identified as permissible bounds."). The undisputed facts of the case at bar establish that
the bounds of the clause have been exceeded in Brevard County.
The facts here differ in significant ways from those in Town of Greece. In Greece,
"a minister or layperson of any persuasion, including an atheist, could give the invocation."
19.:. at 1816.
"[A]ny member of the public [wa]s welcome ... to offer an invocation reflecting
his or her own convictions."
19.:. at
1826. And when the plaintiffs complained about the
pervasive Christian themes in the prayers, the town responded by inviting non-Christians
to give prayers and granted a Wiccan priestess's request for an opportunity to give the
invocation.
19.:. at 1817; accord id. at 1829 (Alita, J. , concurring) ("[W)hen complaints were
received , the town made it clear that it would permit any interested residents, including
nonbelievers, to provide an invocation, and the town has never refused a request to offer
an invocation.").
What happens in Brevard County is a far cry from what happens in the town of
Greece. Brevard County does not allow everyone to give an invocation. Instead, it limits
the prayer opportunity to those it "deems capable" of doing so-based on the beliefs of the
would-be prayer giver. And after Plaintiffs requested to give an invocation at a Board
meeting , the County responded not with an attitude of inclusion but with an express
statement and policy of exclusion. Cf. Lund, 863 F.3d at 282 ("By opening its prayer
28
opportunity to all comers, the town [of Greece] cultivated an atmosphere of greater
tolerance and inclusion. Rowan County regrettably sent the opposite message.").
With regard to the County's "policy," Resolution 2015-101-the resolution that the
Board passed in July 2015 in response to Plaintiffs' repeated requests to give an
invocation-is neither a novel statement of the County's position with regard to
"nonbelievers" giving invocations nor a complete invocation policy. The resolution merely
codifies the County's previously existing practice of denying nontheists an opportunity to
give an invocation and relegating them to the Public Comment portion of Board meetingsa practice described in the August 19, 2014 letter (Pis.' Ex. 46) from the Board to Plaintiff
Williamson . And although the resolution concludes with the statement that "Pre-meeting
invocations shall continue to be delivered by persons from the faith-based community in
perpetuation of the Board's tradition for over forty years," (Resolution 2015-11 at 11), the
resolution does not define "faith-based community" or explain how invocation givers are
invited or selected. Thus, at issue here is not just Resolution 2015-101 but the County's
actual, overall invocation practice, which is evidenced by the events of this case, the text
of the resolution itself, and statements made by the Commissioners in their depositions
and elsewhere.22
22
The Court asked the parties whether it was appropriate to consider the deposition
testimony and other statements of the Commissioners, and the parties briefed that issue.
(See Docs. 84 & 85). The County (despite citing Commissioner deposition testimony in its
own summary judgment filings, (see. e.g., Doc. 59 at 10)), took the position that the Court
could properly consider only statements made prior to or contemporaneous with Resolution
2015-101 , but the Court disagrees. The Supreme Court and the Eleventh Circuit have
relied on statements of legislators in gauging motive and intent. See. e.g. , Wallace v.
Jaffree, 472 U.S. 38, 57 (1985) (considering district court testimony of legislator); Church
of Scientology Flag Serv. Org. v. City of Clearwater, 2 F.3d 1514, 1530 (1 1th Cir. 1993)
(considering materials including newspaper articles, that "tend[ed] to show sectarian
motivation"). This Court finds an even more compelling basis for doing so here than in
29
When Plaintiff Williamson wrote to the Board in 2014 requesting an opportunity to
give an invocation, the Board eventually responded with a letter that the Commissioners
approved at the August 19, 2014 meeting. As earlier noted, that letter stated in part: that
the invocation was "an opening prayer presented by members of our faith community"; that
the invocation "typically invokes guidance ... from the highest spiritual authority, a higher
authority which a substantial body of Brevard constituents believe to exist"; that CFFC's
website "leads [the Board] to understand [that CFFC] and its members do not share those
beliefs or values" and that the Board "chooses to stand by the tradition of opening its
meetings in a manner acknowledging the beliefs of a large segment of its constituents."
(Aug. 19, 2014 Letter, Pis.' Ex. 46). Two days later, Commissioner lnfantini responded to
a Humanist who requested to give an invocation with an email stating that "by definition,
an invocation is seeking guidance from a higher power" and that therefore "anyone without
a 'higher power' would lack the capacity to fill that spot." (ASOF 1f1f 119- 20).
And when letters were sent to the Board in January and May 2015 asking that one
of the five individual Plaintiffs or another representative of one of the three organizational
Plaintiffs be permitted to give an invocation, the Board ultimately responded by passing
.
Resolution 2015-101 at its July 7, 2015 meeting. That resolution states in one of its
"whereas" clauses that "the Board wishes to formalize a policy on invocations that is not
hostile to faith-based religions and that does not endorse secular humanism or non-belief
over traditional faith-based religions comprised of constituents who believe in God."
those cases; as noted in the text, this case concerns not only Resolution 2015-101 but also
the County's overall invocation policy and practice, and the statements of the
Commissioners both before and after passage of Resolution 2015-101 bear on that overall
practice.
30
(Resolution 2015-101 at 1). The resolution then notes that "(o]n a rotating basis, individual
Board members have predominately selected clerics from monotheistic religions and
denominations-including Christian, Jewish, and Muslim- to present the invocation," (id.
at 2), and that "(p]rior to the invocation, in recognition of the traditional positive role faithbased monotheistic religions have historically played in the community, the Board . ..
typically . .. offer[s] the cleric the opportunity to tell the Board, meeting attendees and the
viewing audience something about their religious organization," (id.).
The resolution then purports to describe the "relevant demographics" of the County,
stating that "[i]n Brevard County, the faith-based community is a minority component of the
larger majority community [sic] represented by the Board" and that data from the
Association of Religious Data Archives indicate that in 2010, only 34.9% of the County's
residents claimed to be adherents to any religious faith . (J.QJ. The "demographics" section
of the resolution also notes that the County "is home to a large population of rocket
scientists" and a technological university that offers programs in various scientific areas.
(kl at 3).
Three pages of Resolution 2015-101 describe Secular Humanism, noting that the
website of the Council on Secular Humanism describes Secular Humanism as
"nonreligious" and "espousing no belief in a realm or [sic] beings imagined to transcend
ordinary experience" and that Secular Humanism "is philosophically naturalistic." (!!;lat 6).
Further, the resolution refers to the requesting organizations as wanting to "conduct a premeeting invocation by displacing representatives of the minority faith-based monotheistic
community which has traditionally given the pre-meeting prayer" and expresses the
concern that this "displac[ement]" "could be viewed as . .. Board endorsement of Secular
31
Humanist and Atheist principles."
(kt. at 9- 10).
In their depositions, the seven Commissioners who served on the Board during 2008
to 2016 were asked about whom they would allow to give an invocation and what the
purpose of the invocation is. Several testified that they would "say no" to invocation givers
of certain religions or belief systems or that they would "have to look into" or "do more
research" about whether to allow those potential speakers to give an invocation.
For
example, several Commissioners would not allow a Wiccan to give an invocation, (see,
~.
Fisher Dep. , Doc. 46, at 10; Smith Dep., Doc. 43, at 10), would "want to do more
research to understand what that particular religion was about" before allowing it, (Nelson
Dep., Doc. 47, at 8), "guess(e]d" she would allow it, (lnfantini Dep., Doc. 45, at 9), or "wou ld
probably suggest that they do it during" the Public Comment period, (Lewis Dep., Doc. 44,
at 8). Similar testimony was given regarding whether an adherent to a Native American
religion would be permitted to give an invocation. (See, e.g., id. at 9 (would "have to think
on" traditional Native American religion); (Barfield Dep. , Doc. 48, at 10 (unsure about a
Native American shaman); Doc. 43 at 11 (would "talk to them" and "see what they had to
say")). Others were unsure if they would allow a Muslim to give an invocation, (Doc. 47 at
8; Doc. 44 at 8), and several would not allow a deist23 to do so, (Doc. 46 at 11; Doc. 44 at
8-9; Doc. 48 at 10; Doc. 43 at 12).
Several Commissioners expressed doubt about allowing a member of a polytheistic
religion-including Hinduism-to give an invocation. (See. e.g., Doc. 46 at 11 - 12; Doc. 44
at 9). One Commissioner would not consider inviting a member of a polytheistic religion
or anybody who does not believe in a monotheistic religion. (Doc. 43 at 12). Another
23
See n.11 supra.
32
testified that he would not invite an adherent of a polytheistic religion because he "just
doesn't think that's representative of our community," yet he inexplicably maintained that
he would be willing to invite a Hindu. (Doc. 48 at 10).
One Commissioner testified that she has never invited someone she knew not to be
a Christian to give an invocation because "[t]he purpose of the prayer or the invocation was
in respect to the Christian community." (Doc. 44 at 10-11 ). That Commissioner explained
that she would be willing to invite a believer in any "God-fearing religion" to give an
invocation, (id . at 9), and that the invocation is "a long-standing tradition of honoring the
Christian community in Brevard County," (id. at 27).
Another Commissioner stated in his deposition that invocations "are reserved for
faith-based organizations to introduce their church," and "[i]t gives them an opportunity to
promote their church, established church, recognized church." (Doc. 42 at 38). Another
said that an invocation is "more for a faith-based monotheological type of situation" where
people can speak about whatever they believe. (Doc. 48 at 19). Another explained that
he believes in Resolution 2015-101 because he believes "that the long history in this
country gives people of the faith-based community the ability to speak and speak freely"
and that "the Constitution says we have freedom of religion, not from religion. " (Doc. 43 at
21 ). That same Commissioner explained, "[W]e don't set time aside for non faith-based
people to speak during the invocation," (id. at 24), and the Board "endorses faith-based
religions," (id. at 27). Additionally, that Commissioner acknowledged saying to a radio
station that "[t]he invocation is for worshiping the God that created us," by which he means
"[t]he one and only true God"-"[t]he God of the Bible."
iliL at 37; see also Pis.'
Ex. V13
(audio recording of radio interview)). He also acknowledged being quoted as saying that
33
"[i]f they were a religion and they honored the word of God" set forth in "[t]he Holy Bible"
"they would have every opportunity to speak to us during that period that we set aside to
honor God." (Doc. 43 at 38).
This overwhelming, undisputed record evidence clearly demonstrates that the
County's invocation practice runs afoul of the principles set forth in Marsh, Town of Greece,
and Pelphrey. It reveals "impermissible motive" in the selection of invocation givers, Marsh,
463 U.S. at 793, and reflects a "policy of []discrimination," Town of Greece, 134 S. Ct. at
1824, as well as "purposeful discrimination" and "categorical[] exclusion" of certain potential
invocation givers, Pelphrey, 547 F.3d at 1281 & 1282. It also demonstrates that through
its practice, the County has strayed from invocations' traditional purpose.
The County cannot and does not deny that it has imposed a categorical ban on
Plaintiffs and other nontheists as givers of opening invocations at its Board meetings.
Nevertheless, the County describes its invocation practice as "purposefully inclusive"
rather than exclusive, (see Doc. 59 at 7-8 & 20), and it attempts to justify its practice on
several bases. None of these asserted justifications, however, withstands analysis.
"Invocations Must Invoke A Higher Power"
The County attempts to defend its exclusion of Plaintiffs as invocation-givers by
imposing a "theism" requirement for invocations. As is apparent from evidence already
discussed, the County maintains that an invocation must be "religious" and "invoke a higher
power" and that because the Plaintiffs are not "religious" and do not believe in a higher
power they are "not qualified" to give an opening invocation at Board meetings. The Court
rejects this asserted justification or the County's policy and practice of exclusion.
As Plaintiffs note, the Supreme Court and other courts have recognized atheism
34
and Humanism as religions entitled to First Amendment protection. See, e.g., Torcaso v.
Watkins, 367 U.S. 488, 495 n.11 (1961) (noting that "[a]mong religions in this country which
do not teach what would generally be considered a belief in the existence of God [is] . . .
Secular Humanism"); Glassroth v. Moore, 335 F.3d 1282, 1294 (11th Cir. 2003) ("The
Supreme Court has instructed us that for First Amendment purposes religion includes nonChristian faiths and those that do not profess a belief in the Judeo-Christian God; indeed,
it includes the lack of any faith ."). To this, the County responds that atheism and Humanism
are not necessarily religions "for all purposes," (see Doc. 93 at 52), and insists that an
invocation is "an appeal to divine authority" that Plaintiffs are "incapable" of offering.
The County's assertion that a pre-meeting, solemnizing invocation necessarily
requires that a "higher power" be invoked is an overly narrow view of an invocation. The
County relies largely on the Supreme Court's description in Santa Fe Independent School
District v. Doe, 530 U.S. 290 (2000), of "invocation" as "a term that primarily describes an
appeal for divine assistance." 530 U.S. at 306-07. But, as Plaintiffs counter, "'primarily'
does not mean 'exclusively, "' (Doc. 60 at 5), and the Santa Fe Court also noted that the
purpose of the message there was "to solemnize the event" and, in striking down a prayer
practice as improperly encouraging religious messages at high school football games, "[a]
religious message is the most obvious method of solemnizing an event," id. at 306; "most
obvious" does not mean "exclusive" either.
And Town of Greece, though addressing whether "sectarian" religious prayer is
permissible in the legislative setting rather than whether a legislative invocation necessarily
is religious, suggests that there is no such requirement. There, the Court noted that the
invocation in that town was- apparently as described by the parties-"intended to place
35
town board members in a solemn and deliberative frame of mind, invoke divine guidance
in town affairs, and follow a tradition practiced by Congress and dozens of state
legislatures," 134 S. Ct. at 1816 (record citation omitted). The Supreme Court noted in
Town of Greece that "[a]s practiced by Congress since the framing of the Constitution,
legislative prayer lends gravity to public business, reminds lawmakers to transcend petty
differences in pursuit of a higher purpose, and expresses a common aspiration to a just
and peaceful society."
kl
at 1818. These purposes and effects may have bases in
monotheistic religions, but they are not necessarily dependent on "religion." In discussing
permissible constraint on the content of legislative prayer, the Town of Greece Court stated
that an opening invocation "is meant to lend gravity to the occasion and reflect values long
part of the Nation's heritage," id. at 1823-again, functions that do not necessitate religious
references-and the Court then explained that "[p]rayer that is solemn and respectful in
tone, that invites lawmakers to reflect upon shared ideals and common ends before they
embark on the fractious business of governing, serves that legitimate function," id.
Other aims of legislative prayer identified in Town of Greece include "to elevate the
purpose of the occasion and to unite lawmakers in their common effort."
kl
And while the
Court did note that "[t]he tradition reflected in Marsh permits chaplains to ask their own God
for blessings of peace, justice, and freedom that find appreciation among people of all
faiths," id., it then stated that "[t]hese religious themes provide particular means to universal
ends," id., suggesting that religiously themed invocations are but one method of achieving
the overarching goal of solemnizing governmental proceedings. The Court further noted
that prayers offered to Congress "vary in their degree of religiosity" but "often seek peace
for the Nation, wisdom for its lawmakers, and justice of its people, values that count as
36
universal and that are embodied not only in religious traditions, but in our founding
documents and laws."
!fl
And, of course, the Town of Greece Court emphasized that the
town would allow anyone, "including an atheist," to "give the invocation."
!fl at 1816; accord
id. at 1829 (Alito, J., concurring) (noting that the town "would permit any interested
residents, including nonbelievers, to provide an invocation"). This suggests that an atheist
or other "nonbeliever" is capable of giving an invocation and that an "invocation" need not
"invoke a higher power." A recent decision of the en bane Sixth Circuit buttresses this
conclusion. See Bormuth v. Cty of Jackson, -- F.3d --, No. 15-1869, 2017 WL 3881973, at
*1 (6th Cir. Sept. 6, 2017) (en bane) (upholding commissioner-led legislative prayer
practice where each commissioner, "regardless of his religion or lack thereof, is afforded
an opportunity to open a session with a short invocation based on the dictates of his own
conscience"); id. at *14 (noting that the county's "prayer policy permits prayers of any-or
no-faith") (emphasis removed).
Moreover, as earlier noted, on those occasions when a speaker is not scheduled in
Brevard County or does not show up, either a moment of silence is observed or an
audience member is solicited to give an invocation. Obviously, a moment of silence does
not invoke "a higher power" or anything else. And when audience members fill in for an
absent speaker, they apparently do not have their beliefs vetted before being permitted to
speak. These facts only further emphasize the differential treatment to which Plaintiffs
have been subjected in Brevard County. The record also reflects that Plaintiffs and other
nontheists have given invocations before other governmental bodies and have even been
invited back. Those invocations do not "invoke a higher power," yet they fit within the
purposes described in Town of Greece-to solemnize the meeting, "lend gravity to the
37
occasion and reflect values long part of the Nation's heritage." 134 S. Ct. at 1823.24
24
Examples of these invocations include the following:
Martin County is a diverse community representing a wide spectrum of religious,
secular, political, ethnic, and racial perspectives. Despite our diversity we are united by
the democratic principles of equal treatment for all as contained in our Constitution and
Bill of Rights. We are also united in our desire to develop policies and legislation for the
benefit of Martin County and its residents.
We come to this meeting with divergent points of view that need to be discussed
and carefully evaluated to ensure that wise decisions are made. While we may believe
that our perspectives on issues like All Aboard Florida or the Indian River Lagoon are
preferable, it is important that we express ourselves in ways that demonstrate respect for
others as we plant the seeds of cooperation that are necessary for us to work together for
the common good.
Let us be guided by reason and compassion in our quest to solutions for life's
problems. Should we find ourselves becoming displeased over what someone has said it
can be helpful to remember that harsh words don't educate others about our points of
view. They only create tension and interfere with decision making.
Let us be guided by the advice that Aristotle offered the world twenty-four hundred
years ago when he said, "We should conduct ourselves towards others as we would have
them act towards us.
(Invocation given by Joe Beck at the June 17, 2014 Meeting of the Martin County, Florida
Board of County Comm'rs, Pis.' Ex. 14 at 23). And:
Through the millennia we as a society have learned the best way to govern the
people is for the people to govern themselves. Today, in this tradition, we travel from our
homes and businesses across the county; citizens, staff, and those elected converge on
this chamber to work as one community united and indivisible by nearly every measure.
Each of us arrives as individuals with unique ideas and experiences but all with a need
or, in a spirit of goodwill, to fulfill the needs of others.
Citizens request assistance and offer their concerns and we are ever grateful for
their interest and for their trust in the process. Staff provides invaluable expertise in their
particular field and we truly appreciate their continued service. Elected officials listen,
debate, and choose the path forward for us all out of a sincere desire to serve and honor
the people of Osceola County while shaping its future. We all offer our thanks in that
often thankless task.
When we leave this chamber this evening let us carry with us this same spirit of
service and goodwill tomorrow and every day that follows.
This is how we assemble to serve and to govern, ourselves.
(Invocation given by David Williamson at the June 16, 2014 Meeting of the Osceola County,
Florida Board of County Comm'rs, Pis.' Ex. 14 at 24).
38
Furthermore, in holding that legislative prayer was not required to be "nonsectarian"
in order to pass constitutional muster, the Supreme Court emphasized in Town of Greece
that "government may not seek to define permissible categories of religious speech" and
that "[o]nce it invites prayer into the public sphere, government must permit a prayer giver
to address his or her own God or gods as conscience dictates."
~
at 1822. The Court
explained that "[t]o hold that invocations must be nonsectarian 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."
~
And, "[o]ur 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."
~
For a governmental entity to require , or attempt to require, "religious" content in
invocations is, in effect (or, at best, but a step removed from) that entity composing prayers
for public consumption or censoring the content of prayers-in contravention of the
principles set forth in the Town of Greece. Here, the County is attempting to require that
God be mentioned in invocations by limiting the sphere of invocation givers to those who
believe- or who the County thinks believe- in one God. This practice cannot be squared
with controlling precedent, and the County's invocation practice cannot be defended based
on a "religiosity" requirement.
The Minority and the Majority
The County also argues that it is not discriminating against a minority because
atheists and secularists are a "clear majority" and "religious adherents ... are the statistical
minority in Brevard County." (Doc. 59 at 13). This contention touches on a confusing and
sometimes conflicting theme in the record evidence and the County's filings- the notion of
39
a "majority" versus a "minority." At times, the County casts the facts as if the "faith-based
community" is an endangered and oppressed minority in the County, while at others it relies
on the "substantial" number of monotheists in the County as part of its justification for
rejecting Plaintiffs' requests to give an invocation. (See, e.g., Aug. 19, 2014 Letter from
Board to Plaintiffs Williamson and CFFC, Pis.' Ex. 46 (referring to "a higher authority which
a substantial body of Brevard constituents believe to exist" and stating that "this
Commission chooses to stand by the tradition of opening its meetings in a manner
acknowledging the beliefs of a large segment of its constituents" (emphasis added));
Resolution 2015-101 at 2 ("In Brevard County the faith-based community is a minority
component of the . .. community represented by the Board . . .."); id. at 9 (stating that
allowing atheist invocations "could be viewed as County hostility toward monotheistic
religions whose theology and principles currently represent the minority view in Brevard
County"); id. (referring to "displacing representatives of the minority faith-based
monotheistic community"); Cty.'s Resp. Mem., Doc. 59, at 7 (referring to the County as one
"where 94% of persons with a religious affiliation belong to Christian congregations"); id. at
13 ("[T]his case does not involve discrimination against a minority faith because atheists,
as a subset of secularists[,] are members of a clear majority when compared to the number
of people who regularly attend religious services. It is religious adherents ... who are the
statistical minority in Brevard County."); id. at 16 (referring to "faith-based" invocators as
"representing a substantial body-though a minority- of constituents" and noting that "the
County Commission currently governs an overwhelmingly secular community"); id. at 18
(referring to the Board as "placed in the tenuous position of governing a secular county");
id. at 19 (referring to the County's "minority faith-based community")).
40
Although the County attempts to ascribe relevance to the statistical breakdown of
"religious adherents" versus "those who attend religious services" versus "nonbelievers," it
is not germane to Establishment Clause analysis whether a particular segment of the
County's population is the majority or minority. "The First Amendment is not a majority rule
... ." Town of Greece, 134 S. Ct. at 1822; see also McCreary Cty., Ky. v. Am. Civil Liberties
Union of Ky., 545 U.S. 844, 884 (2005) (O' Connor, J., concurring) ("[W]e do not count
heads before enforcing the First Amendment."); Doe v . Pittsylvania Cty., Va., 842 F. Supp.
2d 906, 927 (W.D. Va. 2012) ("The Bill of Rights exists to protect the rights of individuals
from popular tyranny."). In sum, the County's vacillating assertions regarding majorities
and minorities do not advance its cause here.
The Public Comment Period
The County next insists that it has not denied Plaintiffs the opportunity to give an
invocation because it allows nontheists to give a "secular invocation" during the Public
Comment portion of Board meetings- which the County describes as "an alternative and
comparable opportunity." (Doc. 62 at 3).25 The County maintained at oral argument that
anyone can give an invocation and "(i]t's just a matter of where [and when] they're gonna
give it"- at the beginning of the meeting or during Public Comment. (Hr'g Tr. , Doc. 93, at
49). This argument fails.
First of all, the County's argument that an "invocation"- "secular" or otherwisegiven during the Public Comment period is comparable to an opening, pre-meeting
invocation is unpersuasive. A pre-meeting invocation is given before the meeting starts
25
The County also argues that it created separate "limited public forums" in its
invocation period and Public Comment periods. That contention is addressed in the next
subsection of this Order.
41
and serves to solemnize the entire meeting. That is its purpose. The Town of Greece
Court noted the invocation's "place at the opening of legislative sessions, where it is meant
to lend gravity to the occasion and reflect values long part of the Nation's heritage." 134
S. Ct. at 1823. Here, Plaintiffs are not seeking to discuss their beliefs in a Public Comment
setting but to participate in the solemnizing function that is afforded to others at the outset
of meetings; they "want to give invocations that call on the kinds of nontheistic higher
authorities and values approved in [Town of Greece], such as the U.S. Constitution,
democracy, equality, cooperation, fairness, and justice." (Doc. 60 at 4).
The County cites Town of Greece in support of its Public Comment justification, but
in doing so it distorts the Supreme Court's opinion. The County relies on the statement
that in the town of Greece, "any member of the public is welcome in turn to offer an
invocation reflecting his or her own convictions." 134 S. Ct. at 1826 (emphasis added). In
the County's view, this "in turn" language means that the Supreme Court did not "say it has
to be at the beginning of the meeting, as long as they have an opportunity to do it." (Hr'g
Tr., Doc. 93, at 50).
But the County's argument that "in turn" supports the validity of its practice of
allowing "separate invocations" during different parts of a meeting fails. First of all, this "in
turn " language is from the discussion of coercion in Justice Kennedy's plurality opinion in
Town of Greece-not from the part of the opinion that addresses the requirement of a
policy of nondiscrimination with regard to inviting invocation-givers.
sentence reads:
In context, the
"Adults often encounter speech they find disagreeable; and an
Establishment Clause violation is not made out any time a person experiences a sense of
affront from the expression of contrary religious views in a legislative forum, especially
42
where, as here, any member of the public is welcome in turn to offer an invocation
reflecting his or her own convictions." 134 S. Ct. at 1826 (emphasis added). Moreover,
Town of Greece did not involve bifurcated invocation-presentation periods, and there is no
basis to infer that Justice Kennedy was using "in turn" to refer to different parts of a meeting.
In context, it is clear that Justice Kennedy was referring to an opportunity to give an
invocation at the beginning of a future meeting rather than during a later "Public Comment"
period or other section of the agenda after a meeting is already underway and has been
solemnized.
In attempting to justify its "bifurcated invocation periods," the County also seizes on
language from Town of Greece referring to the need for a court to make "inquiry into the
prayer opportunity as a whole." !slat 1824 (citing Marsh, 453 U.S. at 794- 95). The County
argues that "as a whole," it "affords an invocation opportunity to the Plaintiffs." (Doc. 54 at
24). Again, however, the County takes language from Town of Greece out of context. The
"prayer opportunity as a whole" language appears in the Supreme Court's discussion of
the plaintiffs' assertions regarding the allegedly disparaging content of some of the prayers
given there. In that vein, the Court explained:
Although these two remarks strayed from the rationale set out in Marsh, they
do not despoil a practice that on the whole reflects and embraces our
tradition. 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.
Marsh, indeed, requires an inquiry into the prayer opportunity as a whole,
rather than into the contents of a single prayer.
134 S. Ct. at 1824 (emphasis added) . Here, although the County has conceded that some
of the invocations at its meetings have crossed the line into proselytizing , (see Hr'g Tr.,
Doc. 93, at 57), Plaintiffs' claims are not based on the content of the prayers, and Plaintiffs
are not arguing this aspect of Town of Greece. The "prayer opportunity as a whole"
43
language in Town of Greece does not lend viability to the County's requiring separation of
"religious invocations" from "secular invocations," the latter being relegated to the Public
Comments portions of the meeting.
Furthermore, as a factual matter the County's description of two "separate but
comparable" invocation periods-one for "religious invocations" at the outset of the meeting
and one for "secular invocations" during Public Comment is belied by the record in this
case. It is undisputed that the Public Comment period is indeed not reserved for secular
invocations but is open to discussion of any subject involving County business, and a
"Christian prayer" would be permitted both at the beginning of the meeting and during
Public Comment. (ASOF 1J 148). Thus, "religious" invocators have multiple opportunities
to speak, whereas "secular invocations" can only be given during Public Comment.
Limited Public Forums and ':A voiding an Establishment Clause Violation"
The County also attempts to justify its invocation practice by asserting that the
invocation period is a "limited public forum" as to which the County has defined the
permissible content. 26 And the County avers that in creating these separate forums, it was
trying to avoid an Establishment Clause violation because allowance of atheist or Secular
Humanist invocations would show hostility toward monotheism or "faith-based" religions
and because it is trying to avoid "a pattern of proselytizing secular invocations." These
arguments are also rejected .
26
The County argues that "(l]ike Greece, the Brevard policy allows atheists to
present invocations in a separate limited public forum during the Public Comment section
of the agenda." (Doc. 54 at 18-19). The County's likening of its policy to the invocation
practice in Greece is puzzling. Greece's practice did not involve separate invocation
"forums," and there, anyone-including an atheist- could give an invocation at the
beginning of a meeting.
44
The County asserts that it has created two limited public forums-one for "religious
invocations" and one for "secular invocations." As stated by the County, "under [its] policy,
only members of the faith-based community are permitted to give the invocation during the
limited public forum set aside by the Commission solely for the purpose of recognizing the
faith-based community prior to the commencement of the secular business meeting." (Doc.
54 at 16). And, says the County, it has created not one but "two limited public forums for
secular invocations" during the two Public Comment periods. (!slat 17).
Plaintiffs urge that the invocation portion of a meeting is not a limited public forum
and that even if it is, the County has engaged in impermissible viewpoint discrimination by
excluding nontheists from it. The Court agrees with Plaintiffs on the latter point and thus
need not resolve the first.
"[W]hen the State establishes a limited public forum, the State is not required to and
does not allow persons to engage in every type of speech." Good News Club v. Milford
Cent. Sch., 533 U.S. 98, 106 (2001). "The State may be justified 'in reserving [its forum]
for certain groups or for the discussion of certain topics."'
~
(quoting Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)) (alteration in original). But
"[t]he State's power to restrict speech ... is not without limits. The restriction must not
discriminate against speech on the basis of viewpoint, and the restriction must be
'reasonable in light of the purpose served by the forum."' ~(citations omitted) (quoting
Cornelius v . NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)).
The County insists that its restrictions are viewpoint neutral, but this Court
disagrees. The County discriminates among invocation speakers on the basis of viewpoint,
and its restriction on invocation givers is not reasonable in light of the purpose of the
45
invocation. Thus, even if the pre-meeting invocation period is a limited public forum, this
viewpoint discrimination renders the County's practice unconstitutional.
The County tries to define its proposed forum as available "to members of the faithbased community capable and desirous of delivering faith-based religious invocations, "
(Doc. 54 at 23), and asserts that Plaintiffs' "secular invocations" "do not fit within the
limitations of the limited public forum established for [these] religious invocations." (!!;l).
Again, however, the purpose of an invocation is to solemnize a meeting, "lend gravity to
the occasion," and "reflect values long part of the Nation's heritage." Town of Greece, 134
S. Ct. at 1823. The County declares that its purpose for the invocations is to "recogni[ze]
the contribution of the faith-based community to the county," (ASOF
11
199), (and the
Commissioners themselves described the purpose in various ways, including to "worship[]
... the one and only true God, the God of the Bible" and "to honor God", Doc. 43 at 3738) and then tries to justify exclusion of nontheists using its "faith-based " requirement. But
exclusion of nontheists-who, as discussed earlier, are indeed "capable" of providing an
invocation within the meaning of Town of Greece-is impermissible viewpoint
discrimination.
The County argues that its creation of different forums was attempt to avoid an
Establishment Clause violation rather than to commit one.
The County asserts that
allowing nontheistic invocations would send a message of hostility toward "believers" and
that because nontheistic invocations are secular and the Board's meeting agendas deal
with secular business, allowing secular invocations would violate the Establishment Clause
by "establishing" secularism. This argument is baseless. The Court simply cannot fathom
how the County would be committing an Establishment Clause violation or showing hostility
46
toward anyone by allowing Plaintiffs to give an invocation at the beginning of a Board
meeting. "While the Supreme Court has recognized that 'the State may not establish a
"religion of secularism" in the sense of affirmatively opposing or showing hostility to religion,
thus 'preferring those who believe in no religion over those who do believe,' that Court also
has made it clear that the neutrality commanded by the establishment clause does not itself
equate with hostility towards religion." Smith v. Bd. of Sch. Comm'rs of Mobile Cty., 827
F.2d 684, 692 (11th Cir. 1987) (citations omitted) (quoting Sch. Dist. of Abington Twp. v.
Schempp, 374 U.S. 203, 225 (1963)). As noted earlier, moments of silence are sometimes
observed in lieu of a "religious invocation," and the County does not claim that such silence
represents hostility toward religion- nor could it. Indeed, obviously the County need not
have any kind of invocation practice at all, and not having one could not reasonably be
construed as hostility toward the "religious."
The County's argument regarding "avoiding a pattern of proselytization" is also
misguided. This argument is based on the County's assertion that because Plaintiffs or
affiliates of Plaintiffs have posted on websites invocations that are hostile to theistic
religions, it must refuse to allow them to give an invocation in order to avoid running afoul
of Town of Greece. Here, however, the County is mixing apples and oranges. The portion
of Town of Greece that the County relies upon here pertained to the plaintiffs' reliance, in
support of their "nonsectarian" argument-on "invocations that disparaged those who did
not accept the town 's prayer practice." 134 S. Ct. at 1824. The Court then acknowledged
a few invocations that strayed in their content from what Marsh approved, but the Court
held that "[a]bsent 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
47
wi ll not likely establish a constitutional violation."
kl
The relevant pattern is the pattern that might appear over time in the governmental
venue, not a pattern of statements by would-be invocation givers outside the invocation
forum. That Town of Greece instructs that assessment of the pattern of invocations given
at a government meeting may sometimes be called for to determine whether a prayer
practice has crossed the line to disparaging or proselytizing does not mean that the County
is justified in denying Plaintiffs the opportunity to give an invocation based on website
contents or past invocations-most of which occurred prior to Town of Greece 27 especially not w here, as here, Plaintiffs have repeatedly attested in sworn declarations that
they understand the purpose of an invocation and will not proselytize or disparage, (see,
gjL, Williamson Deel., Pis'. Ex. 7, ~ 25; Second Williamson Deel., Pis'. Ex.
138, ~ 4). The
County's alleged concern about "allowing such patterns to manifest" is not realistic;
Plaintiffs are not seeking to give an invocation at every meeting, and surely if they crossed
the line once they would not be invited back, so no "pattern" could emerge. Moreover,
Plaintiffs have countered with evidence of disparaging and proselytizing comments made
in sermons or on the Internet by those whom the County has allowed to give "religious
invocations." (See Pis.' Exs. 147-163, V14-18). So long as an invocation giver-whether
nontheistic or theistic-does not disparage or proselytize during the invocation itself, the
County need not be concerned. Again , the relevant "pattern" is the pattern at the meetings,
27
Plaintiff Williamson explains in his Second Declaration that before Town of
Greece, he "sometimes advocated against the inclusion of invocations" at local government
meetings but that he recognizes that the Supreme Court has ru led that invocations are
permissible. (Second Williamson Deel., Pis.' Ex. 138, ~ 2). Abiding by Town of Greece,
he and CFFC no longer seek to end invocations but "to receive treatment equal to that of
the theists and theistic organizations who are welcome to present opening invocations."
(kl_~ 3).
48
not outside them.
Conclusion as to Intentional Discrimination
In sum, the County's attempted justifications for its policy and practice ring hollow.
The County's reliance to support its position is misplaced. Both Marsh and Town of Greece
establish that theistic invocations are permissible in legislative prayer, but they did not
establish that a governmental entity may require theistic content in invocations. Indeed ,
Town of Greece made clear that an invocation giver must be permitted to give an invocation
as his conscience dictates, limited only by a prohibition on proselytizing and disparaging .
And although the cases speak of permissible effects of theistic invocations, permissible
effects are not the same as permissible purposes for an invocation in the first instance. By
straying from the historical purpose of an invocation and intentionally discriminating against
potential invocation-givers based on their beliefs, the County runs afoul of the
Establishment Clause. Plaintiffs are thus entitled to summary judgment on th is claim.
2.
Entanglement
Plaintiffs also argue that the County's invocation policy violates the Establishment
Clause because it excessively entangles the County with religion.
Plaintiffs note that
Resolution 2015-101 includes "a five-page dissection of the beliefs of Secular Humanists
and organizations affiliated with" Plaintiffs, (Doc. 55 at 19), and that the Commissioners
testified in their depositions that they would "have to examine" the beliefs of various other
groups before deciding whether to allow a representative of that group to give an
invocation , (id .).
In support of their entanglement argument, Plaintiffs cite Lemon v. Kurtzman, 403
U.S. 602 (1971), which established a three-part test for Establishment Clause cases, one
part of which examines whether a law fosters "an excessive government entanglement with
49
religion," id. at 612; Hernandez v. Comm'r, 490 U.S. 680, 696- 97 (1989), which applied
the Lemon test; and Town of Greece. As noted earlier, in Marsh and Town of Greece the
Supreme Court declined to apply the Lemon test in the legislative prayer context, and to
the extent Plaintiffs are urging application of all or part of that test here, this Court declines
to formulaically apply it.
Nevertheless, entanglement remains relevant to Establishment Clause analysis
even when legislative prayer is involved. In rejecting the argument that the town of Greece
violated the Establishment Clause "by inviting a predominantly Christian set of ministers to
lead the prayer," the Town of Greece Court noted that a "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." 134 S. Ct. at 1824 (alteration in original) (internal
quotations and citation omitted). As made plain by the discussion of Plaintiffs' purposeful
discrimination argument above, the County is clearly entangling itself in religion by vetting
the beliefs of those groups with whom it is unfamiliar before deciding whether to grant
permission to give invocations.
3.
Next,
Coercion
Plaintiffs assert that the County's invocation practice violates the
Establishment Clause by coercing participation in religious exercises. Plaintiffs base this
argument on the fact that "Commissioners regularly direct audience members to rise for
invocations .. . in the coercive environment of meetings in a small boardroom that are
sometimes attended by (fewer] than ten people" and "go on to vote on issues, such as
zoning variances, that may greatly affect attendees, who may need to address the Board
50
about those items." (Doc. 55 at 21 ). The County denies that its practice is coercive. Again,
both sides rely on Town of Greece in support of their positions.
In arguing coercion in Town of Greece, the plaintiffs contended "that prayer
conducted in the intimate setting of a town board meeting differs in fundamental ways from
the invocations delivered in Congress and state legislatures, where the public remains
segregated from legislative activity and may not address the body except by occasional
invitation." 134 S. Ct. at 1824-25. In the town board meeting setting, on the other hand,
"(c]itizens attend .. . to accept awards; speak on matters of local importance; and petition
the board for action that may affect their economic interests, such as the granting of
permits, business licenses, and zoning variances. "
!sL. at 1825.
In light of these differences,
the plaintiffs argued "that the public may feel subtle pressure to participate in the prayers
that violate their beliefs in order to please the board members from whom they are about
to seek a favorable ruling. "
!sL.
In Greece, "board members themselves stood, bowed their
heads, or made the sign of the cross during the prayer, (but] they at no point solicited similar
gestures by the public"; although audience members were sometimes "asked to rise for
the prayer," the plurality noted that those requests to rise "came not from town leaders but
from the guest ministers."
!sL. at 1826.
As earlier noted, the Town of Greece plaintiffs' coercion argument was rejected by
a divided Court, with no majority rationale. The plurality-Justices Kennedy and Alita and
Chief Justice Roberts-was "not persuaded that the town of Greece, through the act of
offering a brief, solemn, and respectful prayer to open its monthly meetings, compelled its
citizens to engage in a religious observance," but it emphasized that "[t]he inquiry remains
a fact-sensitive one that considers both the setting in which the prayer arises and the
51
audience to whom it is directed."
~
at 1825 (plurality opinion). Although it found no
coercion on the facts of Town of Greece, the plurality noted that "[t]he analysis would be
different 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."28 ~ at 1826. A nd whi le the Town of
Greece plaintiffs stated in declarations that the prayers offended them and made them "feel
excluded and disrespected," the plurality held that "[o]ffense ... does not equate to
coercion ."
~
Concurring with the plurality's conclusion that the town's invocation practice was not
coercive, Justice Thomas, joined by Justice Scalia, noted that historically, coercion meant
'"coercion of religious orthodoxy and of financial support by force of Jaw and threat of
penalty."'
~
at 1837 (Thomas, J., concurring) (emphasis in original) (quoting Lee v.
Weisman, 505 U.S. 577, 640 (1992)). "Thus," said Justice Thomas, "to the extent coercion
is relevant to the Establishment Clause analysis, it is actual legal coercion that countsnot the 'subtle coercive pressures' allegedly felt by respondents in this case."
~at
1838.
Justices Thomas and Scalia agreed with the plurality's conclusion that "[o]ffense .. . does
not equate to coercion" and noted that they "would simply add . . . that '[p)eer pressure,
unpleasant as it may be, is not coercion ' either."
~
(alterations in original) (quoting Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 49 (2004)).
Here, Plaintiffs focus their coercion argument on the fact that from 2010- 2016,
28
Plaintiffs do not allege that they were "singled out .. . for opprobrium" or that the
Board members "indicated that their decisions might be influenced by a person's
acquiescence in the prayer opportunity." Their coercion argument is based only on the
requests from Commissioners to stand for the invocation.
52
sometimes-indeed, more often than not-a Commissioner in Brevard County asked the
audience to stand before the invocation was given, followed by the Pledge of Allegiance. 29
In addition to noting the "coercive environment" of the boardroom, Plaintiffs urge that the
presence of children at some of the meetings supports their coercion argument, citing Doe
v. Indian River Sch. Dist., 653 F.3d 256, 275-80 (3d Cir. 2011), a case involving prayer at
school board meetings.
In Doe, the Third Circuit reiterated "the Supreme Court's
observation that students are particularly vulnerable to peer pressure in social context."
kl
at 277 (citing Santa Fe lndep. Sch. Dist. v. Doe, 530 U.S. 290, 311-12 (2000)).
Regardless of whether Justice Kennedy's plurality opinion or Justice Thomas's
Town of Greece concurrence governs the coercion issue,30 on the facts of this case the
29
The parties phrased their stipulated facts regarding the audience being asked to
stand in terms of Chairpersons- suggesting that some Chairpersons ask the audience to
stand and some do not, as a matter of individual practice or habit. (See ASOF 1f 67
("[S]ome Board chairpersons ask the audience to stand for a prayer and the Pledge of
Allegiance.")). However, the Court's review of the transcripts and videos of the invocations
given from 2010 through May 2016 reveals that: during a clear majority of those
invocations, a Commissioner asked the audience to stand; individual Commissioners were
inconsistent in whether they asked the audience to stand; and every Commissioner asked
the audience to stand on at least two occasions, with several doing so much more
frequently. (See Pis.' Exs. 30, 144, V2, & V14). There is, however, a noticeable change
in the regular practice beginning in 2016: only once (on March 29, 2016) did a
Commissioner ask the audience to stand from January 2016 through May 26, 2016-the
date of the last transcript and video in the record . (See Pis.' Exs. 30, 144, V2, & V14). This
lawsuit was filed in July 2015.
30 Even though Justice Kennedy's opinion on coercion garnered three votes and
Justice Thomas's only two, Justice Kennedy's plurality opinion is not necessarily controlling
on the coercion issue. "When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, 'the holding of the Court may be
viewed as that position taken by those Members who concurred in the judgments on the
narrowest grounds .... "' Marks v. United States, 430 U.S. 188, 193 (1977) (alteration in
original) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). Judges have
disagreed as to whether Justice Kennedy's plurality opinion or Judge Thomas's
concurrence constitutes the "narrowest grounds" on the coercion issue. See. e.g., Bormuth
v. Cty. of Jackson, No. 15-1869, -- F.3d --, 2017 WL 3881973, at *15 & n.10 (6th Cir. Sept.
6, 2017) (en bane) (finding it unnecessary to resolve the issue but noting division among
53
Court cannot find that any of the Plaintiffs was subjected to unconstitutional coercion under
either rationale. The evidence does not support a finding of "actual legal coercion," and
many of the arguments made here-including the notion that a municipal board meeting
setting is different from a state legislature setting-were noted by Justice Kennedy in the
plurality opinion. Analyzing the specific facts here, this Court does not conclude that the
occasional presence of children or the fact that requests to stand-for both the invocation
and the Pledge of Allegiance that followed- were often made by Commissioners, without
more, amounts to unconstitutional coercion, especially where the two Plaintiffs-adultswho have attended Board meetings did not feel so pressured that they actually stood if
asked to do so. See. e.g., Williamson Dep., Doc. 53-1, at 44-45 (testimony that Williamson
was filling out a comment card at the time of the invocation, had not yet taken a seat, and
did not recall whether the audience was asked to stand for the invocation during meeting
Sixth Circuit judges about which opinion is narrowest, with at least three judges viewing
Judge Thomas's opinion as narrowest); id. at *15 (Rogers, J., concurring) (discussing the
issue and concluding that Justice Thomas's opinion is not controlling); Smith v. Jefferson
Cty. Bd . of Sch. Comm'rs, 788 F.3d 580, 602 n.9 (6th Cir. 2015) (Batchelder, J. , concurring
in part) (concluding that Justice's Kennedy's plurality opinion "is controlling on the lower
courts, as it is narrower than the accompanying two-justice concurring opinion); Lund v.
Rowan County, 837 F.3d 407, 426-28 (4th Cir. 2016) (panel opinion) (mentioning the
different rationales of the Town of Greece coercion opinions and then applying Justice
Kennedy's opinion without mentioning "narrowest grounds" analysis), rev'd on other
grounds on reh'g en bane, 863 F.3d 268 (2017); Fields v. Speaker of the Pa. House of
Representatives, Civ. Action No. 1:16-CV-1764, 2017 WL 1541665, at *13 (M.D. Pa. Apr.
28, 2017) (concluding that Justice Kennedy's "three-Justice plurality represents the
narrowest grounds to" the coercion ruling); see also Elmbrook Sch. Dist. v. Doe, 134 S. Ct.
2283, 2285 (2014) (Scalia, J., dissenting from denial of certiorari petition) ("It bears
emphasis that the original understanding of the kind of coercion that the Establishment
Clause condemns was far narrower than the sort of peer-pressure coercion that this Court
has recently held unconstitutional . . . ." (citing Justice Thomas's Town of Greece
concurrence)). In the instant case, the parties did not brief the issue of which coercion
opinion is controlling. Because this Court reaches the same conclusion under either
opinion, it need not determine which opinion constitutes the "narrowest grounds."
54
he attended); Becher Dep., Doc. 52-1 , at 12-13 (testimony that Becher attended several
meetings, did not stand up when asked to stand for the invocations, and had no business
on the agenda before the Board at those meetings). And to the extent Plaintiffs were
offended , "[o]ffense ... does not equate to coercion." 134 S. Ct. at 1826 (plurality opinion);
id . at 1838 (Thomas, J., concurring) ("The majority properly concludes that 'offense ...
does not equate to coercion."' (emphasis in original)).
Thus, insofar as Plaintiffs'
Establishment Clause claim is based on coercion, the claim fails.
8.
Other Federal Constitution Claims
In addition to their Establishment Clause claim, Plaintiffs also bring claims under the
Free Exercise and Free Speech Clauses of the First Amendment and the Equal Protection
Clause of the Fourteenth Amendment.
Some courts have held that challenges to
legislative prayer practices are appropriately analyzed only under the Establishment
Clause and that claims under other clauses are not viable in this context. Although the
County does not rely on that proposition in defending against these "other clause" claims, 31
the Court will nevertheless discuss it before proceeding to analyze Plaintiffs' Free Exercise,
Free Speech, and Equal Protection claims.
Before Town of Greece, the Fourth Circuit twice found legislative prayer claims
subject to analysis only under the Establishment Clause. In Simpson v. Chesterfield Cty.
Bd. of Supervisors, 404 F.3d 276 (4th Cir. 2005), a Wiccan who requested but was denied
an opportunity to give an invocation sued under all four of the clauses asserted in the
instant case. In affirming the district court's grant of summary judgment on the plaintiffs
31
The County does not defend these claims on any basis other than the "avoidance
of an Establishment Clause violation" argument discussed and rejected elsewhere in this
Order.
55
free exercise, free speech, and equal protection claims, the Fourth Circuit "agree[d] with
the district court's determination that the speech in th[at] case was government speech
'subject only to the proscriptions of the Establishment Clause."' 404 F.3d at 288 (quoting
the district court decision). The district court had noted that "[t]he invocation is not intended
for the exchange of views or other public discourse" or "for the exercise of one's religion"
and that "the Board may regulate the content of what is or is not expressed when it 'enlists
private entities to convey its own message."'
Simpson v. Chesterfield Cty. Bd of
Supervisors, 292 F. Supp. 2d 805, 819 (E.D. Va. 2003), quoted in Simpson, 404 F.3d at
288.
Three yea rs after Simpson, the Fourth Circuit again addressed the issue in Turner
v. City Council of the City of Fredericksburg, Va. , 534 F.3d 352 (2008), cert. denied, 555
U.S. 1099 (2009). There, the city council began each meeting with an opening prayer
delivered by one of the Council's elected members, and the council required that prayers
be nondenominational and not invoke Jesus Christ. One of the council members, wanting
to pray in the name of Jesus Christ, was denied his turn to give a prayer and filed suit,
claiming that the "nondenominational" requirement violated the Establishment, Free
Exercise, and Free Speech Clauses. The Fourth Circuit concluded that the prayers were
government speech, that the plaintiff "was not forced to offer a prayer that violated his
deeply-held relig ious beliefs," and that instead "he was given the chance to pray on behalf
of the government."
clauses.
kl
at 356. The Turner court thus found no violation of any of the
kl
In addition to the Fourth Circuit's Simpson and Turner opinions, several district court
decisions have addressed the viability of legislative prayer claims grounded in clauses
56
other than the Establishment Clause. In Atheists of Fla., Inc. v City of Lakeland, 779 F.
Supp. 2d 1330 (M.D. Fla. 2011) (Kovachevich, J.), atheists sued to enjoin a prayer practice
involving
invocations given
by religious
ministers,
asserting
claims
under the
Establishment, Free Speech, and Equal Protection Clauses. The district court found that
the Establishment Clause claim survived the defendants' motion to dismiss. 779 F. Supp.
2d at 1340-41. However, with regard to the free speech and equal protection claims, the
plaintiffs conceded that the prayers involved were "government speech" and the court,
relying on Simpson, concluded that as such, the prayers at issue were '"subject only to the
proscriptions of the Establishment Clause."
!
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