Coleman et al v. Hamilton County Government et al

Filing 66

ORDER denying 16 Motion for Preliminary Injunction.The parties are ORDERED to appear in chambers for a scheduling conference at 11:00 a.m. on October 2, 2012. Signed by District Judge Harry S Mattice, Jr on 8/29/2012. (SAC, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
BRANDON RAYMOND JONES and
THOMAS JOSEPH COLEMAN, III,
Plaintiffs,
v.
HAMILTON COUNTY, TENNESSEE,
Defendant.

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Case No. 1:12-cv-190
Judge Mattice

ORDER
Before the Court is Plaintiffs’ Motion for Preliminary Injunction. (Doc. 16).
Plaintiffs move the Court to enjoin Defendant Hamilton County, Tennessee (“Hamilton
County” or “the County”) from continuing its practice of commencing meetings of the
Hamilton County Commission (“the Commission”) with a prayer. This case presents a
unique question, the legal underpinnings of which the United States Court of Appeals
for the Sixth Circuit has yet to address. For the reasons explained below, Plaintiffs’
Motion for Preliminary Injunction (Doc. 16) will be DENIED.
I.
In large measure, the parties have stipulated to the relevant facts in this case.
(Doc. 38). Their stipulation binds the parties and the court alike. Parks v. LaFace
Records, 329 F.3d 437, 444 n.2 (6th Cir. 2003).
Hamilton County is a political subdivision of the State of Tennessee, and the
Commission is its elected legislature and final policymaker. The Commission conducts
the County’s business during its regularly scheduled public meetings. It begins those
meetings with a prayer.

Prior to July 3, 2012, the Commission had no formal written prayer policy, but
according to the parties, “invocation speakers came from a variety of faith traditions,
including non-Christian faith traditions, and some speakers were invited by the County
without knowing the faith tradition followed by the speaker.” Invocations were offered
by various individuals, including private citizens, local clergy, and the commissioners
themselves. Some of the invocations “referred to a deity in a way consistent with the
Christian faith.”
In May 2012, the Freedom From Religion Foundation (“the Foundation”) sent a
letter to the Commission, objecting to the Commission’s practice of beginning its
meetings with prayer. (Doc. 17-2).

The Foundation requested that the Commission

discontinue all prayer before meetings.
The prayers continued, however, and at the Commission’s June 14, 2012 meeting,
a Christian pastor recited the “Lord’s Prayer” as the invocation. (Doc. 38). During the
prayer, some commissioners (as well as members of the audience) stood and joined in
the spoken recitation of the prayer. Others bowed their heads. On June 15, 2012,
Plaintiffs filed the instant suit. (Doc. 1).
The record demonstrates that prayers (both of which were invoked “in the name
of Jesus”) were also offered at the June 20 and June 28, 2012 Commission meetings.
(DVD, June 20 & June 28 invocations).1 On July 3, 2012, the invocation speaker recited
the “Lord’s Prayer,” during which all visible commissioners are standing, and some are
participating in the spoken recitation. (DVD, July 3 invocation).

Occasionally herein, the Court will cite to digital recordings of prayers organized by date and stored on a
DVD received into evidence on July 31, 2012. The videos are not contained within the Court’s electronic
record, but a physical copy of the DVD has been made a part of the record in this action. (See
unnumbered docket entry dated July 31, 2012).
1

2 

Also on July 3, 2012 – after the recitation of the “Lord’s Prayer” – the
Commission adopted Resolution 712-13, entitled “A Resolution Adopting a Policy
Regarding Opening Invocations Before Meetings of the Hamilton County Commission”
(“the prayer policy” or “the policy”).

(Doc. 38-1). It expressly repealed and replaced

any prior practices concerning opening invocations at Commission meetings. (Id. at 5).
The resolution is nine pages in length, and it contains approximately five pages of
preamble, in which various clauses set forth, inter alia, the Commission’s intention to
“invoke divine guidance”; quotes from Supreme Court and federal appellate cases
concerning the constitutionality of legislative prayer; and the resolution’s goal of
adopting a policy that does not “proselytize or advance any particular faith, or show any
purposeful preference of one religious view to the exclusion of others.” (Id. at 1-5).
The policy permits “an eligible member of the clergy in Hamilton County,
Tennessee,” to give an invocation at the opening of Commission meetings. (Id. at 5).
The invocation speakers are drawn from a list of “all the religious congregations with an
established presence in Hamilton County.”

(Id.).

Legislative Administrator Chris

Hixson testified at the hearing on the instant Motion that she compiled the list based on
local listings for religious institutions found within the Yellow Pages.

The

denominational character of all institutions on the list is not clear from the evidence of
record, but the substantial majority is comprised of Christian churches. Institutions
representing Muslim, Jewish, and Baha’i faiths, as well as others, are also included.
(See Doc. 38-2). If an institution is not represented on the list, it may request inclusion
via letter, with any dispute as to an organization’s religious bona fides being resolved by
reference to the Internal Revenue Code’s guidelines for tax-exempt status. (Doc. 38-1 at
6).
3 

The Commission does not engage in any content review of the invocations, and it
places no guidelines on what may be said, except: “[T]he Commission requests that no
invocation should proselytize or advance any faith, disparage the religious faith or nonreligious views of others, or exceed five minutes in length.” (Doc. 38). To that end, the
policy dictates the contents of a letter to be mailed to religious leaders. (Doc. 38-1 at 78). It states that:
This opportunity is voluntary, and you are free to offer the invocation
according to the dictates of your own conscience. However, please try not
to exceed no [sic] more than five (5) minutes for your presentation. To
maintain a spirit of respect for all, the Commission requests only that the
opportunity not be exploited as an effort to convert others to the particular
faith of the invocation speaker, nor to disparage any faith or belief
different than that of the invocation speaker.

(Id. at 7).

Additionally, Commission agendas will include the following printed

language:
Any invocation that may be offered before the official start of the
Commission meeting shall be the voluntary offering of a private citizen,
to and for the benefit of the Commission. The views or beliefs expressed
by the invocation speaker have not been previously reviewed or
approved by the Commission and do not necessarily represent the
religious beliefs or views of the Commission in part or as a whole. No
member of the community is required to attend or participate in the
invocation and such decision will have no impact on their right to
actively participate in the business of the Commission.

(Id. at 8) (emphasis original).
Religious leaders will notify the Commission of their willingness to offer an
invocation via reply letter. (Id. at 7-8). The policy provides that religious leaders will
then be selected on a “first-come, first-serve basis.” (Id. at 8). Since the adoption of the
policy, religious leaders of various congregations – including Baptist, Lutheran, Church
of God, Presbyterian, Jewish, and Unitarian Universalist – have volunteered to be
placed on future meetings’ agendas as the invocation speaker. (Doc. 38).
4 

Since the adoption of the policy, the Commission’s invocation practice has
continued to involve Christian prayer, though the record contains evidence of
invocations offered at only two subsequent meetings. The July 12, 2012 prayer asks for
divine guidance and blessings on the Commission “in Jesus’ name.” (DVD, July 12
invocation). The July 18 prayer seeks the same, but it is sought “in the name of Jesus
Christ, our savior, your son, and our only hope, in Jesus’ name.”

(DVD, July 18

invocation).
Plaintiffs have moved the Court to issue a preliminary injunction. (Doc. 16).
They ask the Court to “halt the prayer activities of the defendant[] pending a final
disposition of this matter.”

Plaintiffs essentially contend that, under Lemon v.

Kurtzman, 403 U.S 602, 612 (1971), the Commission’s practice of beginning its
meetings with an invocation is unconstitutional. (Id.; see Docs. 17, 19, 21, 24, 60). They
characterize the prayer policy as a “sham,” and they therefore ask the Court to
temporarily enjoin the County from beginning Commission meetings with a prayer.
(See, e.g., Docs. 24, 60).
Defendant opposes Plaintiffs’ Motion. (Docs. 39, 63). Succinctly put, it asserts
that the challenge to the policy is necessarily facial and that the policy, as written,
withstands constitutional scrutiny. (See Doc. 63 at 3-5). It further asserts that the
Supreme Court has “clearly approved legislative prayers that are explicitly Christian,”
and, alternatively, that the entire question before the Court may be non-justiciable. (Id.
at 11-15).

5 

II.
A.
At this stage of litigation, the only relief sought is Plaintiff’s requested
preliminary injunction.

The United States Court of Appeals for the Sixth Circuit

recently reiterated that, when reviewing motions for preliminary injunctions, courts
must consider:
(1) the movant’s likelihood of success on the merits; (2) whether the
movant will suffer irreparable injury without a preliminary injunction; (3)
whether issuance of a preliminary injunction would cause substantial
harm to others; and (4) whether the public interest would be served by
issuance of a preliminary injunction.

McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012) (citing Am. Imaging Svcs., Inc. v.
Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.), 963 F.2d 855, 858 (6th Cir.
1992)).

In First Amendment cases, “the crucial inquiry is usually whether the plaintiff

has demonstrated a likelihood of success on the merits. This is so because the issues of
the public interest and harm to the respective parties largely depend on the
constitutionality of the state action.” Bays v. City of Fairborn, 668 F.3d 814, 819 (6th
Cir. 2012) (quotation and alterations omitted).
The preliminary injunction considerations are factors to be balanced; they are not
prerequisites that must each be satisfied before preliminary relief may issue. EaglePicher, 963 F.2d at 859. Nor are they “rigid and unbending requirements” – rather,
“[t]hese factors simply guide the discretion of the court.” Id.

The party seeking a

preliminary injunction bears the burden of justifying such relief. Id.
The issuance of a preliminary injunction is an “extraordinary remedy” that may
only occur “upon a clear showing that the plaintiff is entitled to such relief.” Winter v.
NRDC, 555 U.S. 7, 22, 24 (2008).

Plaintiffs seeking preliminary relief must
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demonstrate not only the possibility of future harm, but “that in the absence of a
preliminary injunction, the applicant is likely to suffer irreparable harm before a
decision on the merits can be reached.”

Id. (emphasis added) (citation omitted).

“Because injunctive relief is drafted in light of what the court believes will be the future
course of events, a court must never ignore significant changes in the law or
circumstances underlying an injunction lest the decree be turned into an ‘instrument of
wrong.’” Salazar v. Buono, 130 S. Ct. 1803, 1816 (2010) (plurality opinion) (citation
omitted).
Inasmuch as a preliminary injunction is designed to stave off irreparable harm an
applicant is likely to suffer before resolution of a case’s merits, it is necessarily
prospective in nature. See, e.g., Doe v. Briley, 562 F.3d 777, 781 (6th Cir. 2009) (noting
that permanent and temporary injunctions are “prospective judgments,” subject to
revisitation when their prospective application is no longer equitable). On July 3, 2012
– after the initiation of the instant litigation – the Commission passed Resolution
712-13, officially adopting a new written policy to govern its invocation practices. The
new policy unambiguously replaces any prior policy or practice concerning opening
invocations at Commission meetings. Therefore, any future constitutional violation that
the Commission and Hamilton County may commit – and any resulting harm visited
upon Plaintiffs and the public – must necessarily occur under the auspices of the July 3,
2012 prayer policy.
Consequently, when reviewing Plaintiffs’ Motion for Preliminary Injunction and
the likelihood of their success on the merits, the Court will assess whether, based on the
present record before it, they have demonstrated that the newly implemented prayer
policy is likely to result in a constitutional violation.
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B.
Plaintiffs have sued Hamilton County for a purported constitutional violation
pursuant to 42 U.S.C. § 1983. In pertinent part, § 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured . . . .
42 U.S.C. § 1983.
It is well settled that municipalities and other local governing bodies may be sued
under § 1983. See Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). In order to
establish municipal liability under § 1983, however, “the plaintiff must establish that: (1)
the plaintiff’s harm was caused by a constitutional violation; and (2) the [municipality]
was responsible for that violation.” Spears v. Ruth, 589 F.3d 249, 256 (6th Cir. 2009).
To demonstrate that a municipality is responsible for a constitutional violation, a
plaintiff must point to some “policy” or “custom” of the municipal defendant causing the
complained-of constitutional violation. Monell, 436 U.S. at 691. This “official policy”
requirement is intended to ensure that a municipality is held liable only for its own acts
rather than the acts of its employees – a municipality cannot be held responsible under
a theory of respondeat superior. See id.; Pembaur v. City of Cincinnati, 475 U.S. 469,
479 (1986).
There are a variety of ways in which a plaintiff may establish the existence of a
policy or custom sufficient to implicate § 1983 municipal liability. See Thomas v. City of
Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). First, and most obviously, “official
policies” are often considered to be “formal rules or understandings – often but not

8 

always committed to writing – that are intended to, and do, establish fixed plans of
action to be followed under similar circumstances consistently and over time.”
Pembaur, 475 U.S. at 480-81. Thus, a plaintiff may point to legislative enactments or
officially adopted policies. Thomas, 398 F.3d at 429; see Monell, 436 U.S. at 690.
Second, actions taken by officials with final decision-making authority may render a
municipal entity liable under § 1983.

Thomas, 398 F.3d at 429; see Bd. of Cnty.

Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397 (1997). Third, § 1983 plaintiffs
may identify a policy of inadequate training or supervision. Thomas, 398 F.3d at 429.
Finally, a municipality can be shown to have a “custom” that causes constitutional
violations – even if that custom was not formally sanctioned – “provided that the
plaintiff offers proof of policymaking officials’ knowledge and acquiescence to the
established practice.” Id.; Spears, 589 F.3d at 256 (citing Monell, 436 U.S. at 690-91;
Memphis, Tenn. Area Local, Am. Postal Workers Union v. City of Memphis, 361 F.3d
898, 902 (6th Cir. 2004)). In other words, a plaintiff may establish § 1983 municipal
liability by establishing “a custom of tolerance or acquiescence of federal rights
violations.” Id.
In any case, a plaintiff must also demonstrate a “direct causal link” between the
challenged policy or custom and the alleged constitutional violation. Spears, 589 F.3d
at 256 (citation omitted).

That is, the “plaintiff must establish that his or her

constitutional rights were violated and that a policy or custom of the municipality was
the ‘moving force’ behind the deprivation of the plaintiff’s rights.” Miller v. Sanilac
Cnty., 606 F.3d 240, 254-55 (6th Cir. 2010).
Here, Hamilton County recently adopted a formal resolution permitting “opening
invocations before meetings of the Hamilton County Commission.”
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It has also

stipulated that, prior to the implementation of the formal policy, the Commission
“start[ed] [its] meetings with an invocation.” There can be little doubt that, within the
meaning of § 1983, Hamilton County operated for all relevant times under a policy of
permitting prayer at the beginning of Commission meetings. The Court must therefore
determine whether that policy, as written or implemented, violates the First
Amendment.
III.
A.
The First Amendment to the United States Constitution provides: “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.” U.S.
Const. amend. I. At issue here is the Establishment Clause – providing that “Congress
shall make no law respecting an establishment of religion” – which has been
incorporated against the states via the Fourteenth Amendment. See Everson v. Bd. of
Educ., 330 U.S. 1, 5 (1947).
The language of the Establishment Clause is “at best opaque” and, as the Sixth
Circuit has noted, “far from self-defining.” ACLU v. DeWeese, 633 F.3d 424, 430 (6th
Cir. 2011) (quotation omitted). Rather, “[t]he Clause erects a blurred, indistinct, and
variable barrier depending on all the circumstances of a particular relationship.” Lynch
v. Donnelly, 465 U.S. 668, 679 (1984) (quotation omitted). In 1971, recognizing the
need for analytical guidance as well as the importance (and murkiness) of the First
Amendment’s prohibition on the establishment of religion, the Supreme Court
articulated a three-part test for determining whether government conduct violates the
10 

Establishment Clause. See Lemon v. Kurtzman, 403 U.S 602, 612 (1971). That test “asks
(1) whether the challenged government action has a secular purpose; (2) whether the
action’s primary effect neither advances nor inhibits religion; and (3) whether the action
fosters an excessive entanglement with religion.”

DeWeese, 633 F.3d at 430-31

(alterations omitted) (quoting ACLU v. Ashbrook, 375 F.3d 484, 490 (6th Cir. 2004),
and citing Lemon, 403 U.S. at 612-13).2
Plaintiffs urge the Court to adopt the so-called “Lemon test,” apply it to the facts
at hand, determine that Hamilton County’s practice of beginning Commission meetings
with prayer offends the First Amendment, grant the Motion for Preliminary Injunction,
and be done with the matter altogether. Undeniably, this would be a straightforward
approach that – if applicable – would produce a clear result based on a succinct
three-pronged inquiry. However, considerations of brevity notwithstanding, Lemon is
not, and cannot be, the foundation on which the Court’s analysis rests.
Purported Establishment Clause violations appear in a variety of contexts. In
Lemon, for example, the Supreme Court considered statutory programs that provided
financial support to church-related elementary and secondary schools. See Lemon, 403
U.S. at 606-07.

Other cases have involved governmental displays of the Ten

Commandments, e.g., Van Orden v. Perry, 545 U.S. 677 (2005), or of other religious
imagery on public property, e.g., Cnty. of Allegheny v. ACLU, 492 U.S. 573 (1989). Still
others implicate the constitutionality (or lack thereof) of prayers offered during public

The first and second prongs of the Lemon test were reformulated in view of the Supreme Court’s opinion
in McCreary Cnty., Ky. v. ACLU, 545 U.S. 844 (2005). See ACLU v. Mercer Cnty., Ky., 432 F.3d 624 (6th
Cir. 2005) (“The first and second prongs [of the Lemon test] have since been reformulated. After
McCreary County, the first is now the predominant purpose test . . . The second, the so-called
“endorsement” test, asks whether the government action has the purpose or effect of endorsing religion.”)
(citing, inter alia, McCreary Cnty., 545 U.S. at 860-61; id. at 900-02 (Scalia, J., dissenting)).
2

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school events, e.g, Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (addressing
prayer at public school football games).
At times, the Supreme Court has invoked Lemon with scant explanation. See,
e.g., Bowen v. Kendrick, 487 U.S. 589, 602 (1988) (“As in previous cases involving facial
challenges on Establishment Clause grounds . . . we assess the constitutionality of an
enactment by reference to the three factors first articulated in Lemon v. Kurtzman . . . .)
(citations omitted). On other occasions, the Court has cited Lemon, but “emphasized
[its] unwillingness to be confined to any single test or criterion in this sensitive area.”
Lynch, 465 U.S. at 679.

In yet other Establishment Clause cases, the Court has

disregarded Lemon altogether. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639
(2002) (addressing a school voucher program). As the Sixth Circuit has observed, this
approach has, at times, yielded inconsistent holdings.3 Compare Van Orden, 545 U.S.

It has also received the sharp disapproval of more than one Supreme Court Justice. In Lamb’s Chapel v.
Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993), Justice Scalia considered the Court’s
disposition of various Establishment Clause cases, writing:
3

As to the Court’s invocation of the Lemon test: Like some ghoul in a late-night horror
movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed
and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening
the little children and school attorneys of Center Moriches Union Free School District. Its
most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision
in Lee v. Weisman, 505 U.S. 577, 586–587 (1992), conspicuously avoided using the
supposed “test” but also declined the invitation to repudiate it. Over the years, however,
no fewer than five of the currently sitting Justices have, in their own opinions, personally
driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and
a sixth has joined an opinion doing so. . . .
The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to
scare us (and our audience) when we wish it to do so, but we can command it to return to
the tomb at will. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances
in which Court has not applied Lemon test). When we wish to strike down a practice it
forbids, we invoke it, see, e.g., Aguilar v. Felton, 473 U.S. 402, (1985) (striking down
state remedial education program administered in part in parochial schools); when we
wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463
U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle
course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair, 413
U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in
a somnolent state; one never knows when one might need him.

12 

at 684 n.3 (considering the display of the Ten Commandments at the Texas State
Capitol, declining to apply Lemon, and noting “[d]espite Justice Stevens’ recitation of
occasional language to the contrary . . . we have not, and do not, adhere to the principle
that the Establishment Clause bars any and all governmental preference for religion
over irreligion”) (plurality opinion) with McCreary Cnty., Ky. V. ACLU, 545 U.S. 844,
860 (2005) (considering the display of the Ten Commandments in state courthouses,
applying Lemon, and holding that “[t]he touchstone for our analysis is the principle that
the ‘First Amendment mandates governmental neutrality between religion and religion,
and between religion and nonreligion’”); but see DeWeese, 633 F.3d at 431 (taking note
of this inconsistency and holding: “Nevertheless, Lemon remains the law governing
Establishment Clause cases.”); ACLU v. Mercer Cnty., Ky., 432 F.3d 624, 636 (6th Cir.
2005) (“[W]e remain in Establishment Clause purgatory.”).
Unlike the parties to the cases listed above, the Plaintiffs in this suit do not seek
redress based on prayers offered at public school functions. They do not challenge a
government’s religious display.

They do not attempt to limit the government’s

interaction with religious schools. They instead seek to halt prayers said before an
elected legislature. This, then, is not a case about the Establishment Clause in general.
It is a case about legislative prayer – a peculiar subspecies of government conduct
implicating the First Amendment. See, e.g., Joyner v. Forsyth Cnty., 653 F.3d 341, 345
(4th Cir. 2011) (“[T]his is not a case about the Establishment Clause in general, but
about legislative prayer in particular.”); Snyder v. Murray City Corp., 159 F.3d 1227,

Lamb’s Chapel, 508 U.S. at 398-99 (Scalia, J. concurring); see also, e.g., Utah Highway Patrol Ass’n v.
Am. Atheists, Inc., 132 S.Ct. 12 (mem.) (2011) (Thomas, J. dissenting from denial of certiorari) (noting
that lower courts have expressed confusion as to the applicability of Lemon and stating that “[o]ur
jurisprudence provides no principled basis by which a lower court could discern whether
Lemon /endorsement, or some other test, should apply in Establishment Clause cases”).

13 

1232 (10th Cir. 1999) (en banc) (“[T]he evolution of Establishment Clause jurisprudence
indicates that the constitutionality of legislative prayers is a sui generis legal
question.”).4
Viewing the case law on the whole, there is a lack of guidance as to Lemon’s
applicability within the greater universe of Establishment Clause jurisprudence.
However, one thing at least appears settled: regardless of when and how Lemon may
steer the course of courts’ Establishment Clauses analyses, in the narrow context of
legislative prayer, it simply does not apply.
The Court reaches this conclusion (and begins its analysis of the merits of
Plaintiffs’ Motion), as it must, in view of the Supreme Court’s decision in Marsh v.
Chambers, 463 U.S. 783 (1983), the first and only opinion in which the Supreme Court
has squarely addressed the issue of legislative prayer. In Marsh, the Court considered
“whether the Nebraska Legislature’s practice of opening each legislative day with a
prayer by a chaplain paid by the State violates the Establishment Clause of the First
Amendment.” Id. at 784. In its analysis, the Court made no mention of Lemon or the
syllabus it established.5 Instead, the Court focused on the unique position legislative
prayer occupies in American history, beginning with the recognition 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. From colonial times through the founding of the Republic and
ever since, the practice of legislative prayer has coexisted with the
principles of disestablishment and religious freedom.

4 The Sixth Circuit also appears to have recognized – albeit indirectly – a distinction between the analysis
in legislative prayer cases and that which is employed in other Establish Clause contexts. See, e.g., ACLU
v. Ashbrook, 375 F.3d 484, 494-95 (6th Cir. 2004) (rejecting the application of Marsh v. Chambers, infra,
to the display of the Ten Commandments in county courthouses); Coles v. Cleveland Bd. of Educ., 171
F.3d 369, 381 (6th Cir. 1999) (en banc) (“Marsh is one-of-a-kind . . . .”) .
5 A careful reading of Marsh demonstrates that the decision to forgo the Lemon test was more than mere
oversight. The Supreme Court expressly noted that the appellate court applied Lemon’s three-part test,
but it declined to do so in its own analysis. Marsh, 463 U.S. at 786.

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Id. at 786. The Court engaged in a lengthy historical analysis, recognizing that Members
of the First Congress approved the First Amendment and appointed a legislative
chaplain in the same week, and concluding that “[i]t can hardly be thought that . . . they
intended the Establishment Clause . . . to forbid what they had just declared acceptable.”
Id. at 790. Ultimately, “in light of the unambiguous and unbroken history of more than
200 years,” the Court concluded that
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 the 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, “[w]e
are a religious people whose institutions presuppose a Supreme Being.”

Id. at 792 (citing Zorach v. Clauson, 343 U.S. 306, 313 (1952)).
After determining that legislative prayer was generally constitutionally
permissible, the Court addressed the chaplain’s lengthy appointment and the nature of
the prayers he offered before the legislature. The Court suggested that the selection and
retention of the minister may violate the Establishment Clause if based on an
“impermissible motive.” Id. at 793-94. Absent evidence of such motivation, the Court
rejected the argument that his long tenure had “the effect of giving preference to his
religious views,” noting that the minister characterized his prayers as “nonsectarian,”
“Judeo Christian,” and involving “elements of the American civil religion.” Id. at 793
n.14.

Though some of his earlier prayers were overtly Christian, he removed all

references to Christ after receiving a complaint from a Jewish legislator. Id. The Court
noted:
Beyond the bare fact that a prayer is offered, three points have been made:
first, that a clergyman of only one denomination – Presbyterian – has
been selected for 16 years; second, that the chaplain is paid at public
15 

expense; and third, that the prayers are in the Judeo-Christian tradition.
Weighed against the historical background, these factors do not serve to
invalidate Nebraska’s practice.

Id. at 793. The Court cautioned: “The 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
proselytize or advance any one, or to disparage any other, faith or belief. That being so,
it is not for us to embark on a sensitive evaluation or to parse the content of a particular
prayer.” Id. at 794-95.
In Marsh, the Supreme Court essentially dictated that the guidance offered by
Lemon (and other traditional Establishment Clause jurisprudence) does not extend to
the realm of legislative prayer. The Court has recognized as much itself. See, e.g.,
Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987) (“The Lemon test has been applied
in all cases since its adoption in 1971, except in Marsh[, supra] . . . . The Court based its
conclusion in that case on the historical acceptance of the practice.”); Lynch, 465 U.S. at
679 (“In two cases, the Court did not even apply the Lemon ‘test.’ We did not, for
example, consider that analysis relevant in Marsh, supra.”). This Court thus concludes
that its decision concerning the constitutionality of the legislative prayer practice at
issue in this lawsuit will turn largely on an interpretation and application of the
standards articulated in Marsh.6
In 1989, the Supreme Court had occasion to revisit Marsh and provide some
direction as to its application, albeit in a case not involving legislative prayer. See Cnty.

The Court’s research yielded – and the parties have identified – no legislative prayer case that post-dates
Marsh and either (1) disregards Marsh or (2) relies on Lemon to test the constitutionality of a challenged
prayer practice. See, e.g., Galloway v. Town of Greece, 681 F.3d 20, 26 (2d Cir. 2012); Joyner v. Forsyth
Cnty., 653 F.3d at 345; Pelphrey v. Cobb Cnty., 547 F.3d 1263, 1268-69 (11th Cir. 2008); Hinrichs v.
Bosma, 440 F.3d 393 (7th Cir. 2006); Snyder v. Murray City Corp., 159 F.3d 1227, 1232 (10th Cir. 1999)
(en banc).

6

16 

of Allegheny v. ACLU, 492 U.S. 573 (1989).7 In Allegheny, the Court concluded in part
that a crèche displayed in a county courthouse violated the Establishment Clause
(though, for reasons not relevant to this case, the display of a Menorah at a different
public building did not). See id. at 595-602. In response to Justice Kennedy’s dissent,
the majority specifically addressed the contours of its holding in Marsh:
However history may affect the constitutionality of nonsectarian
references to religion by the government, history cannot legitimate
practices that demonstrate the government’s allegiance to a particular sect
or creed.
Indeed, in Marsh itself, the Court recognized that not even the “unique
history” of legislative prayer . . . can justify contemporary legislative
prayers that have the effect of affiliating the government with any one
specific faith or belief. . . . The legislative prayers involved in Marsh did
not violate this principle because the particular chaplain had “removed all
references to Christ.” . . . Thus, Marsh plainly does not stand for the
sweeping proposition Justice Kennedy apparently would ascribe to it,
namely, that all accepted practices 200 years old and their equivalents are
constitutional today. Nor can Marsh, given its facts and its reasoning,
compel the conclusion that the display of the crèche involved in this
lawsuit is constitutional. Although Justice Kennedy says that he “cannot
comprehend” how the crèche display could be invalid after Marsh . . .,
surely he is able to distinguish between a specifically Christian symbol, like
a crèche, and more general religious references, like the legislative prayers
in Marsh.
Justice Kennedy’s reading of Marsh would gut the core of the
Establishment Clause, as this Court understands it. The history of this
Nation, it is perhaps sad to say, contains numerous examples of official
acts that endorsed Christianity specifically. Some of these examples date
back to the Founding of the Republic, but this heritage of official
discrimination against non-Christians has no place in the jurisprudence of
the Establishment Clause. Whatever else the Establishment Clause may
mean (and we have held it to mean no official preference even for religion
over nonreligion, see, e.g., Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109
S.Ct. 890, 103 L.Ed.2d 1 (1989)), it certainly means at the very least that

Hamilton County characterizes the Allegheny Court’s elucidation of Marsh as Justice Blackmun’s
“plurality opinion.” (See Doc. 63 at 6-7 n.3). The County is incorrect. Justice Blackmun “announced the
judgment of the Court and delivered the opinion of the Court with respect to parts III-A, IV, and V, in
which Brennan, Marshall, Stevens, and O’Connor, JJ. joined . . . .” Allegheny, 492 U.S. at 577. The
Court’s discussion of Marsh is contained within part V of the opinion, which was written on behalf of the
majority. Thus, it is the opinion of the Court, not of Justice Blackmun.

7

17 

government may not demonstrate a preference for one particular sect or
creed (including a preference for Christianity over other religions). “The
clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another.” Larson v.
Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 1683, 72 L.Ed.2d 33 (1982).
There have been breaches of this command throughout this Nation’s
history, but they cannot diminish in any way the force of the command.

Id. at 602-05 (footnotes and select internal citations omitted). The Court went on to
recognize “the bedrock Establishment Clause principle that, regardless of history,
government may not demonstrate a preference for a particular faith . . . .” Id. at 605.
In Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court considered a school
principal’s directive that commencement prayers be nondenominational. The court
clarified that the government should not ordinarily dictate the content of prayer. See id.
at 588-90. Notably, Lee involved a situation the Court expressly recognized as distinct
from legislative prayer: a benediction offered as part of public school graduation
ceremonies.

See id. at 580-81, 597-98. While Lee’s applicability to the case at bar is

somewhat unclear, the Court spoke in relatively broad terms: “It is a cornerstone
principle of our Establishment Clause jurisprudence that it is no part of the business of
government to compose official prayers for any group of the American people to recite
as a part of a religious program carried on by government . . . .” Id. at 588 (quotation
omitted). The Court held that “the First Amendment does not allow the government to
stifle prayers which aspire to [nonsectarian] ends, neither does it permit the
government to undertake that task for itself.” Id. at 589. In short, the Court rejected
“[t]he suggestion that government may establish an official or civil religion as a means
of avoiding the establishment of a religion with more specific creeds . . . .” Id. at 590.
It is largely within this framework that circuit courts have taken up the difficult
task of evaluating the constitutionality of legislative prayer. As represented by the
18 

parties and confirmed by the Court’s independent research, it appears that the Sixth
Circuit has yet to address the issue head-on.

It has, however, discussed the

Establishment Clause and Marsh generally; these cases provide some guidance.
In Stein v. Plainwell Cmty. Schs., 822 F.2d 1406, 1409 (6th Cir. 1987), the Sixth
Circuit provided its interpretation of the holding in Marsh:
In Marsh v. Chambers, the Supreme Court, looking primarily to the
intent of the framers of the Constitution and historical practice since 1789,
upheld “nonsectarian,” . . . “nonproselytizing” legislative invocations that
do not “symbolically place the government’s official seal of approval on
one religious view.” . . . The Court emphasized that “civil” or secularized
invocations are used across the country to open legislative, judicial, and
administrative sessions of state legislatures, city councils, courts and other
public bodies, as well as by private institutions of all kinds. So long as the
invocation or benediction on these public occasions does not go beyond
“the American civil religion,” so long as it preserves the substance of the
principle of equal liberty of conscience, no violation of the Establishment
Clause occurs under the reasoning of Marsh.

Id. (citations and footnote omitted). Importantly, the holding in Stein was announced
before Allegheny and Lee were decided, the latter of which specifically addressed Stein
and affirmed an appellate court opinion that found Stein to be “flawed.” See id. at 586;
Weisman v. Lee, 908 F.2d 1090 (1st Cir. 1990).
In 1992, after both Allegheny and Lee were decided, the Sixth Circuit held that
the privately funded menorah display erected in a traditional public form did not violate
the Establishment Clause. Americans United for Separation of Church and State v.
City of Grand Rapids, 980 F.2d 1538 (6th Cir. 1992) (en banc). In reaching its decision,
the court quoted Justice O’Connor’s concurrence in Allegheny, in which she discussed
the constitutional permissibility of legislative prayer: “It is the combination of the
longstanding existence of practices such as opening legislative sessions with legislative
prayers, as well as their nonsectarian nature, that lead me to the conclusion that those

19 

particular practices, despite their religious roots, do not convey a message of
endorsement of particular religious beliefs.” Id. at 1544 (quoting Allegheny, 492 U.S at
630-31) (emphasis supplied by the Sixth Circuit).
Other more recent cases reach conclusions similar to those in Stein and
Americans United. See, e.g., ACLU v. Capitol Square Review & Advisory Bd., 243 F.3d
289, 300 (6th Cir. 2001) (en banc) (citing Marsh and concluding that Ohio’s Motto,
“With God, All Things are Possible,” was “[l]ike state-financed prayers by a legislative
chaplain . . . simply a tolerable acknowledgement of beliefs widely held among the
people of this country.”); Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 379-80 (6th Cir.
1999) (recognizing what the court called Marsh’s “Legislative Prayer Exception” and
noting that such prayer was permissible due to its unique history); Washegesic v.
Bloomingdale Pub. Schs., 33 F.3d 679, 683 (6th Cir. 1994) (relying on Stein, and
characterizing Marsh as “upholding ‘non-sectarian’ legislative invocations”). None of
these holdings, however, dealt squarely with the issue of legislative prayer. Thus, the
Court turns its attention to other circuits’ attempts to define the constitutional
boundaries of legislative prayer in the wake of Marsh.
Most recently, the Second Circuit considered a case in which residents brought a
civil rights action against a town, alleging that the practice of opening town board
meetings with a prayer violated the Establishment Clause. Galloway v. Town of Greece,
681 F.3d 20 (2012). For all relevant periods, the town did not have a formal prayer
policy, but the opportunity to conduct the invocation at board meetings was open:
anyone (including atheists and nonreligious individuals) were permitted to request
permission to offer the meeting invocation, and the town had never rejected a request.
Id. at 23. A Wiccan priestess, a Baha’i congregant, and other non-Christians had offered
20 

invocations, but the town was largely Christian, and Christian clergy members gave the
majority of prayers. Id. at 23-25. Roughly two-thirds of the prayers given in the tenyear period at issue made some reference to Jesus Christ, and the remaining third made
general theistic references. Id. at 24-25.
Discussing Marsh and Allegheny, the court surveyed other appellate opinions
and concluded that a legislature’s prayer practice – when viewed in its entirety – cannot
advance a single religious sect, or otherwise “proselytize,” “disparage,” or “have the
effect of affiliating the government with any one specific faith or belief.” Id. at 28 (citing
Allegheny, 492 U.S. at 603; Marsh, 463 U.S. at 794-95). Nevertheless, the court held
that the Establishment Clause did not preclude all legislative invocations “that are
denominational in nature,” and it emphasized that the sectarian nature of some
individual prayers was not inherently a problem.8 Id. at 28, 31-32. Instead, the court
asked “whether the town’s practice, viewed in its totality by an ordinary, reasonable
observer, conveyed the view that the town favored or disfavored certain religious
beliefs.” Id. at 29-30. It found that it did not need to “embark on a sensitive evaluation”
or “parse the content of a particular prayer” (as prohibited by Marsh) to recognize that
the vast majority of prayers offered were uniquely Christian. Further noting that the
town’s process of inviting prayer-givers from only within the town borders “virtually
ensured” a Christian viewpoint, the court found that the town’s prayer practice violated
the Establishment Clause.
The Fourth Circuit has had several opportunities to take up the issue of legislative
prayer. See Joyner v. Forsyth Cnty., 653 F.3d 341 (4th Cir. 2011), cert. denied, 132 S.Ct.

The Second Circuit left open the possibility that “Stein might be read simply to reiterate” the standard
articulated in Allegheny rather than “precluding denominational content in any individual prayer.” See
Galloway, 681 F.3d at 28-29 (citing Stein, 822 F.2d at 1409).

8

21 

1097 (2012); Simpson v. Chesterfield Cnty. Bd. of Supervisors, 404 F.3d 276 (4th Cir.
2005), cert. denied, 546 U.S. 937 (2005); Wynne v. Town of Great Falls, 376 F.3d 292
(4th Cir. 2004), cert. denied, 545 U.S. 1152 (2005). In Joyner, the most recent of those
instances, the court considered a case that was, in some respects, similar to the one
before this Court: residents brought suit against a county board of commissioners,
alleging that its policy of opening public meetings with clergy-led prayers violated the
Establishment Clause. Joyner, 653 F.3d at 343-44. As in this case, the county did not
have a written policy in place at the time the suit was filed but adopted one after
litigation began.9 See id. at 343-44. Unlike this case, however, the plaintiffs in Joyner
put before the court a post-policy record of prayers spanning approximately one-and-ahalf years, in which “almost four-fifths” of the prayers made explicit references to Jesus
Christ. See id. at 344.
Joyner relied on past Fourth Circuit cases – namely Simpson and Wynne – in
noting that the court had “repeatedly [upheld] the practice of legislative prayer,” and
that invocations at the start of legislative sessions serve many functions, such as

The Court notes that the policy at issue in Joyner was remarkably similar – and in parts, nearly identical
– to the one adopted by Hamilton County. Compare, e.g., (Doc. 38-1 at 7), stating in the letter sent to
invited religious leaders that:
9

This opportunity is voluntary, and you are free to offer the invocation according to the
dictates of your own conscience. However, please try not to exceed no [sic] more than
five (5) minutes for your presentation. To maintain a spirit of respect for all, the
Commission requests only that the opportunity not be exploited as an effort to convert
others to the particular faith of the invocation speaker, nor to disparage any faith or belief
different than that of the invocation speaker.
with Joyner, 653 F.3d at 343, noting that the letter sent to invocation speakers in that case stated:
This opportunity is voluntary, and you are free to offer the invocation according to the
dictates of your own conscience. To maintain a spirit of respect and ecumenism, the
Board requests only that the prayer opportunity not be exploited as an effort to convert
others to the particular faith of the invocational speaker, nor to disparage any faith or
belief different than that of the invocational speaker.
(See also M.D.N.C. Case No. 1:07-cv-243, Doc. 65-2).

22 

solemnizing the occasion, urging participants to act “on their noblest instinct,” and
fostering humility. Id. at 346-47. However, the Fourth Circuit placed “clear boundaries
on invocations . . . approving legislative prayer only when it is nonsectarian in both
policy and practice.” Id. at 347-48. The court determined that “infrequent” references
to specific deities, standing alone, do not constitute a violation of the First Amendment,
but that “legislative prayer must strive to be nondenominational so long as that is
reasonably possible – it should send a signal of welcome rather than exclusion.” Id. at
349. The court characterized the county’s policy as facially neutral, but referencing
specific prayers said before the board, it noted that the policy, as implemented, resulted
in “sectarian invocations meeting after meeting that advanced Christianity and that
made at least two citizens feel uncomfortable, unwelcome, and unwilling to participate
in the public affairs of Forsyth County.”

Id. at 354 (noting further that “citizens

attending [b]oard meetings hear the prayers, not the policy.”). The court therefore held
that the facially neutral policy, as implemented, violated the Establishment Clause.
In 2008, the Eleventh Circuit upheld a county prayer practice in deciding a case
on which Hamilton County now heavily relies, Pelphrey v. Cobb Cnty., Ga., 547 F.3d
1263 (11th Cir. 2008).10

The Court in that case considered whether a county

commission’s practice of allowing volunteer religious leaders to offer invocations on a
rotating basis violated the Establishment Clause. Id. at 1266. The Eleventh Circuit
determined that, even though 70 percent of the invocations offered over 10 years
contained Christian references, there was no evidence of exploitation of the practice to

10 In Pelphrey, the Eleventh Circuit considered separately whether a county planning commission’s
invocation practice violated the Establishment Clause. It upheld the county commission’s practice, but it
found that the planning commission’s ran afoul of the First Amendment, as the planning commission had
“categorically excluded” certain faiths from offering prayers. Pelphrey, 547 F.3d at 1282.

23 

advance religious particular beliefs. Id. at 1278. Thus, the court declined to “parse or
censor the legislative prayers” at issue. Id.
Even though the county relied on predominantly Christian speakers, the Eleventh
Circuit noted that the prayers were also offered by members of the Jewish, Unitarian,
and Muslim faiths. Id. at 1277.

This, the court declared, “represented ‘a wide cross-

section of the [c]ounty’s religious leaders.’” Id. (quoting Simpson, 404 F.3d at 285).
Viewing the prayers cumulatively, the court determined that the “diversity of the
religious expressions” supported a finding that the prayer practice did not advance any
particular faith. Id. at 1278. Consequently, the court upheld the prayer practice as
constitutional. Id. Notably, in so doing, the Eleventh Circuit characterized relevant
portions of Stein (specifically, the Sixth Circuit’s statements concerning Marsh) as
“dicta” later rejected by the Supreme Court. Id. at 1274.
Other courts have addressed the scope of Marsh’s reasoning, some more
permissively than others. For example, the Tenth Circuit summarized: “[T]he kind of
legislative prayer that will run afoul of the Constitution is one that proselytizes a
particular religious tenet or belief, or that aggressively advocates a specific religious
creed, or that derogates another religious faith or doctrine.” Snyder, 159 F.3d at 1234.
In refusing to stay an injunction against a prayer policy employed by the Indiana House
of Representatives, the Seventh Circuit “read Marsh as hinging on the nonsectarian
nature of the invocations at issue there.” Hinrichs v. Bosma, 440 F.3d 393, 400-01 (7th
Cir. 2006) (rejecting the argument that, under Marsh, “all legislative prayer is
constitutionally permissible”). And in an unpublished opinion, the Ninth Circuit held
that a school board’s practice of nearly uniformly praying “in the Name of Jesus” would
have violated the Establishment Clause as interpreted by Marsh. Bacus v. Palo Verde
24 

Unified Sch. Dist. Bd. of Educ., 52 F. App’x 355, 356-57 (9th Cir. 2002) (addressing
without deciding whether a school board was more similar to a “school prayer” or a
“legislative prayer” setting).
When taken together, Marsh, Allegheny, and the circuit courts’ subsequent
jurisprudence yield certain broad themes. First, as discussed above, legislative prayer
has a unique and well-established history that, relative to the First Amendment, renders
it unlike other types of government conduct. It presents a sui generis legal question,
one that the Sixth Circuit has yet to fully address.
Second, in large measure due to the unique historical place it occupies, legislative
prayer is, in general, permissible. Marsh, 463 U.S. at 795. Legislatures may call upon –
or even employ – ordained ministers to invoke divine guidance on a group of elected
officials. Id. Although such conduct may “harmonize with the tenets of some or all
religions,” it does not “symbolically plac[e] the government’s official seal of approval on
one religious view.”

Id. at 792 (quotation omitted).

It is instead “a tolerable

acknowledgement of beliefs widely held among the people of this country.” Id. Thus, to
the extent a clear message can be heard from Marsh, it is this: as a basic legal principle,
the Establishment Clause is not offended if a legislature formally invokes divine
blessings on its official business.
Finally, despite its marked differences from other governmental involvement
with the sacred, a legislature’s ability to call on the divine at public meetings is not
limitless. Historical patterns, standing alone, cannot justify violations of constitutional
guarantees, and the government may not express its allegiance to a particular sect or
creed. Marsh, 463 U.S. at 790; Allegheny, 492 U.S. at 603. It is for that reason that the
prayer opportunity cannot be used to proselytize listeners. See, e.g., Marsh, 463 U.S. at
25 

794; Allegheny, 492 U.S. at 603; Joyner, 653 F.3d at 350-51; Snyder, 159 F.3d at 1234.
Likewise, such prayer practices may not be used to advance any one belief or to
disparage any other. See, e.g., Marsh, 463 U.S. at 794; Allegheny, 492 U.S. at 603;
Galloway, 681 F.3d at 28. Nor may legislative prayers “have the effect of affiliating the
government with one specific faith or belief.” Allegheny, 492 U.S. at 603. Even when
operating under a facially neutral policy, a legislature may not select invocational
speakers based on impermissible motives or sectarian preferences. Marsh, 463 U.S. at
793-94; see, e.g., Pelphrey, 547 F.3d at 1278. In short, nothing in Marsh or its progeny
diminishes the force of the “clearest command of the Establishment Clause[, which] is
that one religious denomination cannot be officially preferred over another.” Allegheny,
492 U.S. at 605.
It is with these precepts in mind that this Court undertakes the task of
determining whether Hamilton County’s prayer practice, as established by the language
of the policy itself and the facts currently of record, violates the Constitution.
B.
As a preliminary matter, the Court notes that Plaintiffs primarily assert that the
policy violates the First Amendment, in that it permits expressions of faith in excess of
“moments of silence.” Plaintiffs’ thus appear to challenge the County’s prayer policy on
its face. See, e.g., John Doe #1 v. Reed, 130 S.Ct. 2811, 2817 (2010) (holding that if the
“plaintiffs’ claim and the relief that would follow . . . reach beyond the particular
circumstances of these plaintiffs,” then a challenge is a facial challenge, even if the
plaintiffs bringing the claim label it otherwise) (quotation and alteration omitted).
Although efficiency normally dictates that the “usual judicial practice is to address an
as-applied challenge before a facial challenge,” such an approach is not practicable in
26 

this case. See Connection Distrib. Co. v. Holder, 557 F.3d 321, 327 (6th Cir. 2009) (en
banc).
Plaintiffs’ facial challenge to the policy requires them to scale a “steep standard
of review.” Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 554
(6th Cir. 2012). “A facial challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.” United States v. Salerno, 481
U.S. 739, 745 (1987).
Facial challenges to legislative acts are disfavored for several reasons, not the
least of which is a consideration particularly noteworthy in this case: claims of facial
invalidity often rest on speculation. Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 450 (2008).

“As a consequence, they raise the risk of premature

interpretation of statutes on the basis of factually barebones records.” Id. (quotation
omitted). Further, facial challenges threaten to undermine democratic processes, in
that they may frustrate the will of the people as implemented by elected representatives.
Id. Finally, facial challenges may run afoul of judicial restraint: “courts should neither
anticipate a question of constitutional law in advance of the necessity of deciding it nor
formulate a rule of constitutional law broader than is required by the precise facts to
which it is to be applied.” Id. (quotations omitted).
Bearing this in mind, the Court cannot say that Hamilton County’s prayer policy,
on its face, violates the Establishment Clause.
It appears to the Court that, at least as written, the policy strives for neutrality.
The policy specifically states it is not intended to “proselytize or advance any particular
faith, or show any purposeful preference of one religious view to the exclusion of
27 

others.” (Doc. 38-1 at 4). It expressly contemplates invocations that do not constitute
prayer, but instead include only “a reflective moment of silence, or a short solemnizing
message.” (Id. at 5). It does not require the participation of Commissioners or meeting
attendees. (Id.). Additionally, it provides that: “all religious congregations with an
established presence in Hamilton County” may be included on the list from which
prayer-givers will be drawn, any congregation may request inclusion, and all questions
of “authenticity” will be resolved by reference to the Internal Revenue Code’s criteria for
religious entities. (Id. at 6). In extending invitations to local religious leaders, the
Commission will request that the speaker “maintain a spirit of respect for all,” not
attempt to use the opportunity to convert others, and refrain from disparaging any other
faith. (Id. at 7).
No doubt the policy permits – and arguably even encourages – private citizens to
solemnize public meetings with prayers to a divine being.

Plaintiffs quite

understandably recite the language oft-repeated by the Supreme Court: “[T]he First
Amendment mandates governmental neutrality between religion and religion, and
between religion and nonreligion.”
(emphasis added).

See, e.g., McCreary Cnty., 545 U.S. at 860

It is undeniably difficult to square that language with Marsh’s

holding, i.e., that a legislature may officially employ a Christian chaplain and endorse
his practice of beginning legislative sessions with prayers to “God” offered in the “JudeoChristian tradition.” Marsh, 463 U.S. at 793. The Court can reach only one logical
conclusion: this apparent disparity merely serves to underscore the fundamental
differences between the law governing the “mainline body of Establishment Clause case
law” and that governing the discrete subject of legislative prayer. Simpson, 404 F.3d at
281 (quoting Snyder, 159 F.3d at 1232). As to the latter, Marsh controls.
28 

Plaintiffs have not clearly established that there is no set of circumstances under
which the policy could be implemented in a way that does not offend the First
Amendment. They suggest that the policy is a “sham,” implying that it is merely legal
cover for Hamilton County to select speakers who will inevitably advance the Christian
faith.

To that end, they point to the County’s compilation of local congregations, the

majority of which are Christian. (Doc. 38-2). At present, it would be premature and
judicially improvident for the Court to predict the identity of the individuals who will be
selected or the nature and character of prayers that have yet to be offered. See Wash.
State Grange, 552 U.S. at 450. For example, the mere fact that a prayer-giver may be
Christian does not necessarily mean that his or her invocations will call on Christ – a
member of the Christian faith may call for a moment of silence with no more difficulty
than could a Muslim, a Jew, or an atheist. Alternatively, if the Commission’s practice
develops into one that is inclusive of all faiths and creeds, or that represents the
participation of a wide cross-section of diverse religious leaders, it can hardly be said to
violate the First Amendment. See, e.g., Galloway, 681 F.3d at 29 (“Accordingly, our
inquiry cannot look solely to whether the town’s legislative prayer practice contained
sectarian references. We must ask, instead, whether the town’s practice, viewed in its
totality by an ordinary, reasonable observer, conveyed the view that the town favored or
disfavored certain religious beliefs.”); Simpson, 404 F.3d at 284 (concluding that a
policy had not “crossed the constitutional line,” in part because of the county’s “effort to
include diverse creeds, . . . [with] a wide variety of prayers, the richness of which is quite
revealing”); Pelphrey, 547 F.3d at 1278 (“The diversity of the religious expressions, in
contrast with the prayers in the Judeo-Christian tradition allowed in Marsh, supports
the finding that the prayers, taken as a whole, did not advance any particular faith.”)
29 

Plaintiffs’ speculation as to invocations not yet made cannot form the basis of a
successful facial challenge to prayer policy. See id.; Sabri v. United States, 541 U.S. 600,
609 (2004).
Hamilton County’s prayer policy evinces no impermissible motive that may be
fairly ascribed to the Commission. There is no evidence that the County seeks to use the
prayer opportunity to advance one faith or disparage another. The policy’s overt goals
are all-inclusive, contemplating invocations offered by citizens of various creeds. In
short, the policy appears on its face to foster the kind of official solemnizations that, by
“harmoniz[ing] with the tenets of some or all religions,” do not run afoul of the
Establishment Clause. Marsh, 463 U.S. at 792 (quotation omitted).
To the extent Plaintiffs allege that, when applied, the prayer policy will violate the
First Amendment, their claim is not ripe. Typically, determining whether a policy runs
afoul of the Establishment Clause requires the Court to engage in “delicate and factsensitive inquiry.” Lee, 505 U.S. at 597. But at this point, the factual record before the
Court is far too attenuated to permit any reasoned conclusion concerning the
constitutionality of the policy’s application. As above, the preliminary relief Plaintiffs
seek is necessarily prospective. It therefore relates to – and must be premised upon –
invocations under the policy as presently written. See Briley, 562 F.3d at 781. The
evidence before the Court concerns only two post-policy Commission meetings: those
held on July 12 and July 18, 2012.11
This dearth of evidence – necessarily brought about by the brevity of the period
between the adoption of the policy and the hearing on Plaintiffs’ Motion – is drawn into

As Plaintiffs acknowledged at the injunction hearing, the invocation used to open the July 3 meeting was
said under the auspices of the prior unwritten prayer practice.
11

30 

sharp relief when compared with the facts before other courts presented with similar
questions. For example, in Hinrichs, the Seventh Circuit considered a prayer practice
that dated back 188 years, and it reviewed over 50 individual invocations. See Hinrichs,
440 F.3d at 395. The plaintiffs in Pelphrey presented seven years’ worth of legislative
prayer. See Pelphrey, 547 F.3d at 1267. And in Joyner, even though a written policy was
adopted mid-litigation, the Fourth Circuit was presented with a record comprising more
than one year of post-policy prayers. See Joyner, 653 F.3d at 344.
Here, any challenge to the application of the policy or to the Commissioners’
motives would be predicated on scant facts: two prayers, each of which appealed to God
and to Jesus Christ. See Sabri, 541 U.S. at 609 (discouraging constitutional challenges
“on fact-poor records”).

In light of the Supreme Court’s unambiguous holding in

Marsh, legislative prayers containing references to God are constitutionally permissible.
See Marsh, 463 U.S. at 794. Consequently, the only remaining question is whether the
two prayers offered “in Jesus’ name” are tantamount to the County’s impermissible
expression of official allegiance to Christianity.

Based on the guidance of Marsh,

Allegheny, and subsequent appellate cases, the Court answers in the negative. Without
more, two prayers made in the name of a sectarian sacred figure (be it Christ,
Muhammad, Buddha, or another) are insufficient to “symbolically place the
government’s official seal of approval” on the religion the holy figure represents. Id. at
792; see, e.g., Galloway, 681 F.3d at 29 (“But this does not mean that any single
denominational prayer has the forbidden effect of affiliating the government with any
one faith.”) (emphasis original); Joyner, 653 F.3d at 354-55; Pelphrey, 547 F.3d at 127778 (upholding a finding that, even though some prayers referenced Jesus Christ, “the
prayers, viewed cumulatively, did not advance a single faith . . .”).
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In sum, Plaintiffs have failed to establish that there is no set of circumstances
under which Hamilton County’s prayer policy may be implemented in a manner that
comports with the First Amendment. Thus, their facial challenge to the policy fails. See
Salerno, 481 U.S. at 745. Inasmuch as they claim the policy is unconstitutional as
applied, the record before the Court is far too underdeveloped to adequately analyze
their claim. While there may be a possibility for future constitutional violations under
the policy, Plaintiffs have not demonstrated that they are “likely to suffer irreparable
harm before a decision on the merits can be reached.” Winter, 555 U.S. at 20 (emphasis
added). Consequently, the Court will DENY their Motion for Preliminary Injunction
(Doc. 16).
To be clear, the Court acknowledges two explicit conclusions that may be drawn
from this Order. First, a legislative body may begin its public meetings with some type
of prayer to a deity. Marsh, 463 U.S. at 794. Compliance with the First Amendment
does not mandate that a legislature limit its invocations to nothing more than a
“moment of silence.” See, e.g., id.; Galloway, 681 F.3d at 33-34; Joyner, 653 F.3d at
354; Pelphrey, 547 F.3d at 1277-78. Second, the Court cannot conclude on the record
before it that two prayers referencing Jesus Christ, offered by ministers at a time set
aside for prayer by the Commission, constitute an impermissible affiliation of the
government with Christianity.
C.
Hamilton County urges the Court to go further. It suggests that its facially
neutral prayer policy has entirely mooted any future possibility of its invocation practice
violating the First Amendment. The Court cannot agree.

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The Court is not prepared to hold that, through its adoption of the July 3 prayer
policy, the County has permanently insulated itself from all liability for future violations
of the Establishment Clause. Plaintiffs’ “as-applied” challenge to the prayer policy is not
yet ripe. Because there is no meaningful record of the policy’s application, the Court is
unable to gauge the likely success of Plaintiffs’ constitutional claim, and a preliminary
injunction cannot issue. Nevertheless, this litigation is not over, and eventually, a
sufficient record will develop.
The County argues that “Marsh clearly approved legislative prayers that are
explicitly Christian,” suggesting that subsequent conflicting “dicta” should be
disregarded. Put generously, the County’s reading of Marsh is strained. First, in Marsh
itself, the Court took pains to note that although the prayers at issue were offered “in the
Judeo-Christian tradition,” the chaplain “removed all references to Christ” after a
legislator complained. Marsh, 463 U.S. at 793 n.14. It also suggested at least that an
inquiry into the content of legislative prayers may be appropriate when evidence
demonstrates that the prayers advance one religion, disparage another, or proselytize
the audience. Id. at 794-95.
Moreover, the County disregards the Supreme Court’s own subsequent
interpretation of Marsh, which it announced in Allegheny. There, the Court stated that
even the unique history of legislative prayers does not allow them to “have the effect of
affiliating the government with any one specific faith or belief. . . . The legislative prayers
involved in Marsh did not violate this principle because the particular chaplain had
removed all references to Christ.” Allegheny, 492 U.S. at 603. As noted above (see FN
7, supra), the County is incorrect in characterizing Allegheny’s discussion of Marsh as
Justice Blackmun’s “plurality opinion.”

In stating that “government may not
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demonstrate a preference for one particular sect or creed (including a preference for
Christianity over other religions),” Justice Blackmun did more than merely speak for
himself – he announced the opinion of the United States Supreme Court.

Even

assuming the statements are dicta, they plainly post-date Marsh, and they are no less
binding on this Court. See, e.g., Murray v. U.S. Dep’t of Treasury, 681 F.3d 744, 751 n.5
(6th Cir. 2012) (“Lower courts are obligated to follow Supreme Court dicta, particularly
where there is not substantial reason for disregarding it, such as age or subsequent
statements undermining its rationale.”) (quotation omitted).
At this stage of the litigation, at least, the Court is not prepared to accept that,
after Marsh, a legislative body may uniformly open meeting after meeting with explicitly
Christian prayers without facing some constitutional scrutiny. At the very least, that is
a proposition called into question by Allegheny and explicitly rejected by several courts
of appeal. See, e.g., Allegheny, 492 U.S. at 602-06, Galloway, 681 F.3d at 31-32;
Joyner, 653 F.3d at 353-54; Hinrichs, 440 F.3d at 398-402. Indeed, in an en banc
opinion, the Sixth Circuit has implied that the constitutional permissibility of a
legislative prayer may be tied in part to its nonsectarian character. Americans United,
980 F.2d at 1544.
The County argues that the Supreme Court’s holding in Lee renders it
constitutionally unable to regulate what prayers are offered at its meetings. It further
argues that, in any event, “the impossibility of determining what language is ‘sectarian’
may render the issue nonjusticiable.” (Doc. 63 at 3). These issues are not before the
Court at this stage of litigation. However, two brief observations are warranted. First,
at least one court of appeals has flatly rejected the County’s argument that Lee restricts
its ability to regulate the character of prayers offered at Commission meetings: “We do
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not read Lee as holding that a government cannot require legislative prayers to be
nonsectarian. Instead, Lee established that government cannot compel students to
participate in a religious exercise as part of a school program.” Turner, 534 F.3d at 355.
Second, of all the cases to address legislative prayer, Hamilton County has identified
none that raise meaningful questions of non-justiciability.12
It is not the role of this Court, or of any other court, to craft a constitutionally
acceptable policy concerning legislative prayer at Hamilton County Commission
meetings.13 See U.S. Const. art. III, § 2. That responsibility rests – as it should – solely
with the Commission, which is comprised of the elected representatives of the people of
Hamilton County. There appears to the Court to be a continuum of options from which
policymakers may choose when crafting such a policy. It includes: (1) permitting no
prayer whatsoever; (2) allowing for only a reflective moment of silence; (3) permitting
ecumenical, nondenominational prayers of the kind found acceptable in Marsh; or (4)

The burden of distinguishing between “sectarian” and “non-sectarian” prayers may be less
insurmountable than the County would suggest. Many Courts to have confronted the issue – including
those cited by the County – have reached a conclusion concerning the meaning of such classifications.
See, e.g., Galloway, 681 F.3d at 28 (“[T]he distinction between sectarian and nonsectarian prayers merely
serves as a shorthand, albeit a potentially confusing one, for the prohibition on religious advancement or
affiliation outlined in Marsh and Allegheny.”).

12

13

On this point, the Second Circuit summarized:
It is true that contextual inquiries like this one can give only limited guidance to
municipalities that wish to maintain a legislative prayer practice and still comply with the
mandates of the Establishment Clause. As the foregoing indicates, a municipality cannot
– in our judgment – ensure that its prayer practice complies with the Establishment
Clause simply by stating, expressly, that it does not mean to affiliate itself with any
particular faith. Nor can a municipality insulate itself from liability by adopting a lottery
to select prayer-givers or by actively pursuing prayer-givers of minority faiths whose
members reside within the town. Similarly, there is no substantive mixture of prayer
language that will, on its own, necessarily avert the appearance of affiliation. Ultimately,
municipalities must consider their prayer practices in context and as a whole. A
municipality must ask itself whether what it does, in context, reasonably can be seen as
endorsing a particular faith or creed over others. That is the delicate balancing act
required by the Establishment Clause and its jurisprudence.

Galloway, 681 F.3d at 33 (footnotes omitted).

35 

authorizing some denominational prayer while taking care to ensure that its public
recitation does not proselytize listeners, advance one religion or disparage another, or
otherwise affiliate the government with any specific faith.

No one option is

constitutionally mandated to the exclusion of the others.
The Commission has chosen the fourth of these four options, and it is entirely
within its rights to do so. However, in so choosing, it has assumed – on its own behalf
and on behalf of the citizens and taxpayers of Hamilton County – the responsibility of
ensuring that its policy is implemented in a manner that respects both the rights of its
citizens and the commands of the First Amendment. Whether it will actually effect its
policy in such a fashion has yet to be seen.
D.
Having disposed of Plaintiffs Motion for Preliminary Injunction, litigation will
proceed on the merits of Plaintiffs’ Complaint. Thus, the Court will ORDER the parties
to appear in chambers for a scheduling conference, to be conducted at 11:00 a.m. on
October 2, 2012.
The Court recognizes that this Order may be immediately appealable as of right
pursuant to 28 U.S.C. § 1292(a)(1). See, e.g., Freeman v. Helldoerfer, 208 F.3d 213
(table), 2000 WL 125885 at *1 (6th Cir. Jan. 28, 2000) (“While a party generally can
only appeal a district court order ending the litigation, [a court of appeals] has
jurisdiction to consider an appeal from the denial of a preliminary injunction under 28
U.S.C. § 1292(a)(1).”).

Should a party elect to appeal this Order, the scheduling

conference will be canceled.

36 

IV.
Accordingly, and for the reasons stated, Plaintiffs’ Motion for Preliminary
Injunction (Doc. 16) is hereby DENIED.
The parties are ORDERED to appear in chambers for a scheduling conference
at 11:00 a.m. on October 2, 2012. If a party elects to appeal this Order to the United
States Court of Appeals for the Sixth Circuit, that conference will be canceled.
SO ORDERED this 29th day of August, 2012.

/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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