Hudson v. Pittsylvania County, Virginia et al

Filing 83

MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 3/26/13. (ham)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
BARBARA HUDSON,
Plaintiff,
v.
PITTSYLVANIA COUNTY, VIRGINIA and
BOARD OF SUPERVISORS OF
PITTSYLVANIA COUNTY, VIRGINIA,
Defendants.

)
)
)
) Civil Action No. 4:11cv00043
)
)
)
) By: Michael F. Urbanski
)
United States District Judge
)
)

MEMORANDUM OPINION

This matter is before the court on cross motions for summary judgment filed by plaintiff
Barbara Hudson (Dkt. # 57), and defendants Board of Supervisors of Pittsylvania County and
Pittsylvania County, Virginia (Dkt. # 59).1 Hudson argues that the Board’s consistent practice of
opening its meetings with sectarian prayers led by Board members violates the First Amendment
of the United States Constitution, and she seeks a permanent injunction prohibiting the Board
from continuing to engage in that practice. The Board’s principal contention is that Hudson
lacks standing to bring an Establishment Clause challenge to the Board’s prayer practice. The
court exhaustively addressed the Board’s standing argument at the motion to dismiss stage, Doe
v. Pittsylvania County, 842 F. Supp. 2d 906 (W.D. Va. 2012), and nothing revealed in discovery
changes the conclusion reached there that Hudson has standing to assert this claim. In its
summary judgment brief, the Board again asks the court to conclude that the Board’s practice of
regularly opening its meetings with sectarian prayers led by Board members does not violate the

1

Defendant Board of Supervisors of Pittsylvania County is the governing body of defendant Pittsylvania County,
Virginia. Defendants are hereinafter collectively referred to as “the Board.”

Establishment Clause. As was explained in great detail in the court’s memorandum opinion
denying the Board’s motion to dismiss, the Board advocates a view of the law inconsistent with
controlling United States Supreme Court and Fourth Circuit Court of Appeals precedent. As
such, the Board’s motion for summary judgment must be DENIED, Hudson’s motion for
summary judgment GRANTED, and a Permanent Injunction Order entered. 2
I.
Although this case is now before the court on a motion for summary judgment3 as
opposed to a motion to dismiss, nothing of substance has changed since the court determined that
Hudson had standing to bring her Establishment Clause claim at the motion to dismiss stage.
The facts are undisputed that prior to the entry of the preliminary injunction on February 3, 2012,
the Board consistently opened each of its meetings with a prayer from a Board member making a
specific reference to the Christian faith.4 It is likewise undisputed that Hudson regularly
attended Board meetings. Hudson, a non-Christian, has averred and testified under oath that she
2

As section III of this memorandum opinion explains, the court will not address the issue raised in Hudson’s
summary judgment motion that the actions of Board members in bowing their heads or saying “Amen” following
prayers offered by the members of the public during the “Hearing of the Citizens” public comment portion of Board
meetings violates the Establishment Clause as those claims were neither alleged in the complaint nor brought before
the court by means of an amended complaint.
3
Under Federal Rule of Civil Procedure 56, the court “shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th Cir. 1995). When
making this determination, the court should consider “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with [any] affidavits” filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is
material depends on the relevant substantive law, and “[o]nly disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323; Nguyen, 44 F.3d at 237. If that burden has been met, the non-moving party must then come forward
and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “All reasonable inferences drawn from the evidence must be
viewed in the light most favorable to the party opposing the motion,” but “[a] mere scintilla of evidence supporting a
case is insufficient.” Nguyen, 44 F.3d at 237 (quoting Straw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994)).
4
For example, the Board’s opening prayer on August 17, 2010 was as follows: “Gracious heavenly father, we thank
you for the opportunity to address you, and thank you O Lord, because you made all of this possible. You are our
God, you are our King, you are the reason we are here. God, without you, and Jesus, without you, there would be no
life on earth, and we would not be able to sit down and express our Christian values before the good people of
Pittsylvania County. Amen.”

2

was offended and made to feel an outsider by the repeated invocation of the Christian faith by
the Board members. The court has reviewed all of the exhibits filed with the summary judgment
briefs, including the complete transcript of Hudson’s deposition and her interrogatory answers,
and believes, consistent with the memorandum opinion entered on February 3, 2012, that Hudson
has standing to complain about sectarian prayers offered in her presence by members of the
Board at public meetings.
The fact that Hudson has been an outspoken critic of the Board and has opposed positions
taken by the Board both inside and outside of court does not change two facts critical to the
standing inquiry in this circuit: (1) prior to the preliminary injunction, members of the Board
regularly opened its public meetings with sectarian prayers; and (2) Hudson, witnessing these
prayers, was offended by them and made to feel an outsider in her community. As addressed at
length in the memorandum opinion on the motion to dismiss, Doe v. Pittsylvania County, 842
F. Supp. 2d at 911-915, the Fourth Circuit Court of Appeals in Suhre v. Haywood County, 131
F.3d 1083 (4th Cir. 1997), has held such facts to be sufficient to confer standing.
Suhre involved a display of the Ten Commandments in the main courtroom of the
Haywood County, North Carolina courthouse. Plaintiff Richard Suhre, a “contentious character
in Haywood County,” 131 F.3d at 1085, was exposed to the courtroom display as a party to two
court proceedings and four other public meetings held in the courtroom. Rejecting Haywood
County’s standing challenge, the Fourth Circuit recognized that “[t]he injury that gives standing
to plaintiffs in these cases is that caused by unwelcome direct contact with a religious display
that appears to be endorsed by the state. Such personal contact with state-sponsored religious
symbolism is precisely the injury that was sufficient to confer standing in School District of
Abington v. Schempp, 374 U.S. 203 (1963).” Suhre, 131 F.3d at 1086.

3

In Schempp, school children and their parents sued the school district, complaining of the
school’s practice of reading Bible verses and reciting The Lord’s Prayer each morning before
classes began. The Supreme Court had little difficulty finding that the students and their parents
had standing to challenge the practice of school prayer:
The parties here are school children and their parents, who are
directly affected by the laws and practices against which their
complaints are directed. These interests surely suffice to give the
parties standing to complain.
374 U.S. at 224 n.9. As the Fourth Circuit noted in Suhre, “Schempp thus recognized ‘a spiritual
stake in First Amendment values sufficient to give standing to raise issues concerning the
Establishment Clause and the Free Exercise Clause’ to those persons directly affected by alleged
violations of the First Amendment.” 131 F.3d at 1086 (citing Ass’n of Data Processing Serv.
Organizations, Inc. v. Camp, 397 U.S. 150, 154 (1970)).
Just as the plaintiffs in Schempp and Suhre, Hudson has had direct personal contact with
the sectarian prayer practices of the Board. Hearing with her own ears the Christian prayers
offered by Board members as part of a formal governmental meeting, Hudson’s contact is neither
casual nor remote. It is direct injury, and, as such, Hudson has standing to pursue an
Establishment Clause claim concerning the Christian prayers she repeatedly heard.
In her interrogatory answers, Hudson outlined her injury as follows:
Plaintiff’s injury consists in unwelcome and direct contact with
sectarian prayers delivered or endorsed by the Board of
Supervisors. Such prayers convey to plaintiff and other nonChristian citizens the message that they are not welcome at Board
meetings. These prayers create a perception that the Board is
unlikely to treat non-Christians fairly because they do not follow
the Board’s preferred faith. Such prayers make plaintiff feel like an
outsider in her own community.

4

Hudson’s Answers to Interrogatories (Dkt. # 60-6), at 4. Likewise, in her deposition, Hudson
testified that, as a non-Christian, she objected to the exclusively Christian prayer and was
frightened by it. Hudson Deposition (Dkt. # 60-3), at 81-82. Hudson explained:
When sectarian prayer is being given in the name of Christianity,
that has become – in the Board of Supervisor’s Meeting, that has
become the official religion of your governing body, and that
scares me.
* * * *
It’s saying to me, if I convert to Christianity I will be a part of this
group – this government. I will have equal footing.
* * * *
I think it’s frightening to have government advance their religion
over everybody else.
Id. Hudson also testified that the sectarian prayers of the Board members made her feel
“like an outsider” or “lesser citizen.” Id. at 212, 220.
In her Declaration filed in this case, Hudson averred consistently:
4. Until February 3, 2012, when this Court issued its preliminary
injunction in this case, the Board opened all of its meetings with a
prayer delivered by a member of the Board of Supervisors.
5. The opening invocation at nearly every meeting was explicitly
Christian in nature; that is, it invoked the name of “Jesus Christ”
“Jesus” or “Christ.”
6. The audience was asked to stand while the prayer was
delivered. The supervisors and the audience bowed their heads
during the prayer.
7. The Board’s practice of opening meetings with a sectarian
prayer distressed me because I do not subscribe to the particular
faith promoted by the Board’s opening prayers. The Christian
prayers conveyed to me and other non-Christians the message that
we are not welcome at Board meetings. The prayers made me feel
like an outsider in my own community.
8. Although the sectarian prayers greatly upset me for years, I did
not complain about them to the Board or the County until the
5

Fourth Circuit issued its opinion in Joyner v. Forsyth County, 653
F.3d 341 (4th Cir. 2011). Having had numerous relatives die in the
Holocaust during my lifetime, and having myself been beaten up
for being Jewish when I was a child, I was very wary of taking any
action that would make me stand out for my religious beliefs, or
that could be perceived as challenging the majority religion.
Hudson Decl. (Dkt. # 58-1), at ¶¶ 5-8.
After listening to the Board’s consistently Christian prayers for some years, Hudson first
objected to the practice by sending an email to the Pittsylvania County Attorney on August 11,
2011, after she learned of the Fourth Circuit’s decision in Joyner v. Forsyth County, 653 F.3d
341 (4th Cir. 2011), cert. denied, 132 S. Ct. 1097 (2012). Hudson testified that the Board
responded to her objection by ramping up its Christian prayer. Hudson testified: “At the board
meeting on August 16th, instead of one sectarian prayer, every single member of the board got
up and did Christian prayers, knowing that it was me. And I felt that I was being assaulted.
They were using prayer to assault.” Hudson Deposition (Dkt. # 60-3), at 214. She explained
further:
The board, when they were praying one time, they were praying
and establishing basically a religious board – a religious
government. When they got up to pray seven times, they had
already received my letter in which I informed them that as a nonChristian, making a sectarian prayer makes me uncomfortable.
* * * *
It was seven prayers that made me seven times more
uncomfortable than one prayer.
Id. at 218-19.
The Board takes issue with Hudson’s assertion of injury, contending that her history of
antagonism towards the Board suggests that her opposition to the Board’s sectarian prayer
practice is simply part of a broader pattern of vexatious litigation against the Board. The Board

6

cites lawsuits filed against it by Hudson on behalf of various clients5 and editorials penned by
Hudson expressing criticism and hostility towards the Board. As was the case with Richard
Suhre, Hudson appears to be a “contentious character” in Pittsylvania County. Suhre, 131 F.3d
at 1085. However, Hudson’s historic role as a Board antagonist is beside the point. The fact that
Hudson has clashed with the Board in the past cannot absolve the Board of its clear violation of
the Establishment Clause or change the fact that Hudson personally experienced the Board’s
practice of opening each meeting with a Christian prayer that was offensive to her.
The Board disputes that Hudson was genuinely offended by its Christian prayer practice,
arguing that she put up with it for years without complaint, took no action in response to its
prayers and only raised the issue in an email to the County Attorney once the Fourth Circuit
decided Joyner.6 In this regard, Hudson testified, “[t]he fact that they give prayers was upsetting
to me, but that didn’t stop me from going to the meetings.” Hudson Deposition (Dkt. # 60-3), at
96. To establish standing, Hudson need not demonstrate that she avoided the government’s
religious practice or changed her behavior as a result of it. All she need prove is that she has had
“direct unwelcome contact” with the offending practice. Suhre, 131 F.3d at 1088. In Suhre, the
Fourth Circuit put to rest the argument that an Establishment Clause plaintiff must demonstrate
that the conduct was so offensive that she must have taken action to avoid it or otherwise
changed her behavior. The court reasoned:
Absent Supreme Court direction, we are unwilling to craft a rule of
standing for religious display cases that would effectively add
5

Hudson, a lawyer, has filed suit against the County in the past over various Board decisions.
Joyner was decided on July 29, 2011. The Board argues that Hudson’s August 11, 2011 email to the Pittsylvania
County Attorney complaining about the Board’s Christian prayer practice was not motivated by the Joyner decision,
but rather by revenge. The Board contends that Hudson had just been denied an appeal of a suit she lost against
Pittsylvania County, in which she and her clients were assessed fees and sanctions. The Board claims that the email
she sent to the County Attorney over the Board’s prayer practice was in retaliation for her loss in this unrelated case,
rather than a good faith concern over the Board’s prayer practice. The Board’s argument is entirely conjectural.
Hudson avers that she did not learn of the decision on her appeal until August 13, 2011, two days after she sent the
email referencing Joyner. The Board has offered no evidence creating a genuine issue of material fact on this point.

6

7

“insult” to the existing “injury” requirement. Compelling plaintiffs
to avoid public schools or buildings is to impose on them a burden
that no citizen should have to shoulder. A public school or county
courthouse exists to serve all citizens of a community, whatever
their faith may be. Rules of standing that require plaintiffs to
avoid public places would make religious minorities into outcasts.
Forcing an Establishment Clause plaintiff to avoid the display of
which he complains in order to gain standing to challenge it only
imposes an extra penalty on individuals already alleged to be
suffering a violation of their constitutional rights. We do not think
Article III requires as much.
131 F.3d at 1088 (emphasis in original). The Fourth Circuit concluded as follows: “The
cognizable injury caused by personal contact with a public religious display may thus satisfy the
injury-in-fact requirement for standing to bring an Establishment Clause case. The plaintiff need
not meet any additional change-in-behavior or avoidance requirement.” Id. at 1090. Although
Suhre was a public display case, the standing calculus is no different here. Hudson’s personal
contact with the Board’s Christian prayer practice is sufficient to meet the standing requirement
in this case.
As it did at the motion to dismiss stage, the Board argues that Hudson’s issue with the
Board’s opening prayers does not rise above the generalized grievance level, and, as such, she
lacks standing to assert an Establishment Clause claim. The memorandum opinion denying the
Board’s motion to dismiss addressed the cases cited by the Board, including Valley Forge
Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464
(1982), finding these precedents distinguishable as they did not involve the kind of personal
contact with the Board’s sectarian prayer practice involved in this case. 7 Doe v. Pittsylvania
7

At summary judgment, the Board cites a few additional cases, none of which change the conclusion that Hudson
has standing. Indeed, most of the new cases cited by the Board reflect broad standing principles, each of which
Hudson readily meets. For example, the Board cites Warth v. Seldin, 422 U.S. 490, 503 (1975), a case concerning
zoning practices in Rochester, New York, for the proposition that a plaintiff must have a personal stake in the
outcome. In Warth, none of the plaintiffs could establish that they were affected by the zoning ordinance. In
contrast, Hudson’s repeated, personal exposure to the Board’s consistently Christian prayers and the offense she
took from them establishes her personal stake. Friends of the Earth v. Laidlaw Environmental Services, Inc., 528

8

County, 842 F. Supp. 2d 906, 912 n.3 (W.D. Va. 2012). The Fourth Circuit’s decision in Suhre
also forecloses the Board’s generalized grievance argument:
[D]irect contact with an unwelcome religious exercise or display
works a personal injury distinct from and in addition to each
citizen’s general grievance against unconstitutional government
conduct. Plaintiffs were denied standing in Valley Forge because
they had absolutely no personal contact with the alleged
establishment of religion.
Suhre, 131 F.3d at 1086. This is not a case, as in Valley Forge, where the plaintiff’s stake was a
“mere abstract objection to unconstitutional conduct.” 131 F.3d at 1086. Rather, it is plain that
plaintiff, having personally heard the consistently Christian prayers of the Board at its meetings,
has sustained direct injury sufficient to confer standing to bring an Establishment Clause
challenge.
In footnote 1 of its reply brief (Dkt. # 65), the Board categorizes a 2011 decision by a
district court in Texas as being a “similar situation.” The court does not find the circumstances
of that case, Freedom From Religion Foundation, Inc. v. Perry, No. H-11-2585, 2011 WL
3269339 (S.D. Tex. July 28, 2011), or those presented in the Seventh Circuit’s opinion on which
it relied, Freedom From Religion Foundation, Inc. v. Obama, 641 F.3d 803, 806 (7th Cir. 2011),
to be sufficiently similar to warrant their application to this case. Each of these cases involved a
declaration by an executive, the Governor of Texas and the President of the United States,
U.S. 167, 180-81 (2000), a suit by environmental groups for various permit violations, is cited by the Board for the
plain vanilla proposition that injury must be concrete, particularized, actual and imminent, as opposed to conjectural
or hypothetical. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (same). As the Fourth Circuit
noted in Suhre, had Hudson lived somewhere outside of Pittsylvania County and not personally experienced the
Board’s repeatedly Christian prayers, her injury would have been of the abstract, generalized grievance variety.
Such is not the case with the direct contact both Suhre and Hudson experienced. The landmark case of Baker v.
Carr, 369 U.S. 186, 204-08 (1962), affords no assistance to the Board. There, the Supreme Court recognized that
voters had standing to challenge a Tennessee statute which debased their vote. Flast v. Cohen, 392 U.S. 83 (1986),
involved taxpayer standing, again of no application here. Steel Co. v. Citizens for a Better Environment, 523 U.S.
83 (1998), is likewise not on point. That case concerned a suit by an environmental group against a steel
manufacturer for failing to make a report required by a federal statute. Rather than concern the injury requirement
of standing at issue in this case, Steel Co. concerned the third element of standing, redressability, i.e., the likelihood
that the requested relief will redress the alleged injury. As the injunction in this case clearly redresses the regular
sectarian prayer practice complained of by Hudson, the redressability requirement is plainly met.

9

respectively, calling for a day of prayer. In these cases, the court considered the executives’
statements to be mere requests or invitations to pray, “and no injury flows from a mere request.”
Perry, 2011 WL 3269339, at *4. In Freedom From Religion Foundation v. Obama, the sentence
at issue in the statement issued by the President was: “I call upon the citizens of our Nation to
pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our
many freedoms and blessings, and I invite all people of faith to join me in asking for God’s
continued guidance, grace, and protection as we meet the challenges before us.” 641 F.3d at 807
(emphasis in original). The Seventh Circuit reasoned: “[L]et us suppose that plaintiffs
nonetheless feel slighted. Still, hurt feelings differ from legal injury. The ‘value interests of
concerned bystanders’ do not support standing to sue.” Id. (internal citation omitted).
These cases differ in two material respects from the case presented here. First, the
invitations to pray issued by Governor Perry and President Obama are fundamentally different
from the consistent practice of offering sectarian prayers as part of the official meetings of the
governing body of Pittsylvania County. Second, Hudson is not merely a bystander to the
request. Over and over again, she was directly and personally exposed to sectarian prayers
offered as part of the official proceedings of the Pittsylvania County Board of Supervisors.
Last year, in Delaware, a district court was asked to consider a case far closer to the facts
of this case than these two invitation to pray cases. In Mullin v. Sussex County, 861 F. Supp. 2d
411 (D. Del. 2012), the court found that the practice of Sussex County Council of opening its
meetings with a recitation of The Lord’s Prayer violated the Establishment Clause and
preliminarily enjoined this practice. The court concluded that plaintiffs adequately alleged
standing as a result of their direct and unwelcome exposure to the Sussex County Council’s
prayer practice. In so doing, the court addressed both Valley Forge and Freedom From Religion

10

Foundation v. Obama, noting that in each case “the plaintiffs had no direct contact with the
challenged conduct but, instead, merely heard of the conduct from others. . . . Conversely, here,
the Complaint alleges that all of the Plaintiffs attended the Council meetings and directly heard
and were exposed to the recitation of The Lord’s Prayer.” Id. at 420 n.4. The opinion of the
federal district court in Mullin, issued after this court denied the Board’s motion to dismiss and
entered the preliminary injunction in the instant case, squarely supports this court’s decision. As
the Mullin court concluded:
First, Plaintiffs assert their own legal rights and interests. Second,
Plaintiffs’ injuries of being directly exposed to the Council’s
allegedly unconstitutional recitation of The Lord’s Prayer are not
generalized grievances that would be more appropriately addressed
in the representative branches. Finally, Plaintiffs’ allegations that
the Council violated the Establishment Clause by endorsing one
religion – Christianity, and specifically Protestant Christianity –
over all other religions is at least one of the exact interests
protected by the Establishment Clause.
Id. at 419.
In sum, nothing raised in the Board’s briefs or argument suggests that the court should
stray from the controlling precedent in this circuit, the Suhre decision, compelling the conclusion
that Hudson has standing to assert an Establishment Clause claim.
II.
Hudson argues on summary judgment that the Board’s practice of opening its meetings
with Christian prayers violates the Establishment Clause. Disagreeing with the clear holdings of
the Fourth Circuit on the unconstitutionality of sectarian legislative prayer, the Board argues that
its practice of opening each meeting with Christian prayers is constitutional. Bound by
controlling Fourth Circuit and Supreme Court precedent, the court must reject the Board’s
argument.

11

In Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004), cert. denied, 545 U.S.
1152 (2005), and Joyner, 653 F.3d 341, the Fourth Circuit makes it very clear that a local
government violates the Establishment Clause by opening its meetings with sectarian prayers.
The Supreme Court denied certiorari review in each case. Those decisions are the law of this
circuit and binding precedent on this court.
A.
The facts in Wynne bear a strong resemblance to this case. There, the Town Council of
Great Falls, South Carolina opened its meetings with a prayer led by a member of the Council.
Wynne, 376 F.3d at 294. Each of the Council members was a Christian, and the opening or
closing portion of the prayers frequently referred to “Jesus,” “Jesus Christ,” “Christ,” or
“Savior.” Id. During the prayers, citizens attending the meetings customarily stood and bowed
their heads, and town residents participated in the prayers by saying “Amen” at the end. Id.
Wynne, a follower of the Wiccan faith, objected to the Town Council’s practice of referring to
“Jesus Christ” in its prayers and requested that the prayers be limited to God and that members
of different religions be invited to give prayers. Id. at 294-95. The Mayor responded at the
meeting that the Council had always done it that way and was not going to change. Id. at 295.
Wynne testified that thereafter she became very uncomfortable, and claimed to be ostracized and
treated differently by the Council. Id. at 295-96. Her Establishment Clause suit followed. Id. at
296. After suit was filed, but before trial, the Town Council adopted a resolution providing, inter
alia, that “[t]he invocation shall not contain or address any specific beliefs . . . of any specific
religion.” Id. at 296 n.2. Regardless, after adoption of the resolution, the Mayor announced that
he would not prohibit any Council member from making a specific reference to “Jesus,” “Jesus
Christ,” or “Christ.” Id. As the resolution did not discontinue the practice of Christian prayer

12

challenged by Wynne, the district court concluded that the resolution did not moot Wynne’s
request for injunctive relief, and the Fourth Circuit agreed.
In Wynne, the Fourth Circuit discussed in detail the Supreme Court’s legislative prayer
decision in Marsh v. Chambers, 463 U.S. 783 (1983), and the further guidance on the proper
scope of the Marsh decision provided by the Supreme Court in County of Allegheny v. ACLU
Greater Pittsburgh Chapter, 492 U.S. 573 (1989). The Fourth Circuit summarized the holding in
Marsh as follows:
In Marsh, the Court upheld the Nebraska legislature’s practice of
opening each session with a nonsectarian prayer led by a chaplain
paid with public funds. The Court based this holding on an
extensive historical inquiry, concluding that since members of the
First Congress had authorized the appointment of paid chaplains
only three days before agreeing to the language of the
Establishment Clause, they could not have intended the
Establishment Clause “to forbid what they had just declared
acceptable.” [463 U.S.] at 786-90. The Marsh Court also pointed
out that the “practice of opening sessions with prayer has
continued without interruption ever since that early session of
Congress” and has “been followed consistently in most of the
states.” Id. at 788-89.
“This unique history” led the Court to “accept the interpretation of
the First Amendment draftsmen who saw no real threat to the
Establishment Clause arising from a practice of prayer similar to
that now challenged.” Id. at 791. Thus, the Court concluded that
“[t]o invoke Divine guidance on a public body entrusted with
making the laws is not, in these circumstances, an ‘establishment’
of religion.” Id. at 792 (emphasis added). The Marsh Court
emphasized, however, that the legislative prayer at issue there did
not attempt “to proselytize or advance any one, or to disparage any
other, faith or belief.” Id. at 794-95.
Wynne, 376 F.3d at 297.
The Wynne decision went on to explain that six years later, in Allegheny, the Court
provided further guidance on Marsh by explaining that “not even the ‘unique history’ of
legislative prayer can justify contemporary legislative prayers that have the effect of affiliating
13

the government with any one specific faith or belief.” Wynne, 376 F.3d at 297 (quoting
Allegheny, 492 U.S. at 603). As the Fourth Circuit explained, “[t]he [Allegheny] Court further
stressed that while Marsh may have found that history can ‘affect the constitutionality of
nonsectarian references to religion by the government,’ the Court had never held that ‘history
can[ ] legitimate practices that demonstrate the government’s allegiance to a particular sect or
creed.’” Id. (quoting Allegheny, 492 U.S. at 603 (emphasis added by Fourth Circuit)). As the
Fourth Circuit in Wynne recognized, the Allegheny Court concluded that:
Marsh plainly does not stand for the sweeping proposition . . . that
all accepted practices 200 years old and their equivalents are
constitutional today . . . . 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 nonChristians 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), it certainly
means at the very least that 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. 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. (quoting Allegheny, 492 U.S. at 603-05 (emphasis added by Fourth Circuit) (internal
quotations and citations omitted)).
The Fourth Circuit in Wynne concluded its summary of Marsh and Allegheny as follows:
Thus, Marsh and Allegheny teach that, in view of our Nation’s
long and “unique history,” a legislative body generally may,
without violating the Establishment Clause, invoke Divine
guidance for itself before engaging in its public business. But
Marsh and Allegheny also teach that a legislative body cannot,
consistent with the Establishment Clause, “exploit” this prayer
opportunity to “affiliate” the Government with one specific faith or
belief in preference to others.
14

376 F.3d at 298.
Applying those precedents to the opening prayers of the Great Falls Town Council that,
as here, routinely invoked the name of Jesus Christ, the Fourth Circuit held in Wynne that the
Town Council’s practice of Christian prayer crossed the constitutional line established in Marsh
and Allegheny:
The prayers challenged here stand in sharp contrast to the prayer
held not to constitute an “‘establishment’ of religion” in Marsh. In
Marsh, the approved prayer was characterized as “nonsectarian”
and “civil”; indeed, the chaplain had affirmatively “removed all
references to Christ.” Marsh, 463 U.S. at 793 n.14. Here, on the
other hand, the prayers sponsored by the Town Council
“frequently” contained references to “Jesus Christ,” and thus
promoted one religion over all others, dividing the Town’s citizens
along denominational lines.
* * * *
In sum, we must reject the Town Council’s arguments that Marsh
renders the challenged prayers constitutional. Marsh does not
permit legislators to do what the district court, after a full trial,
found the Town Council of Great Falls did here – that is, to
engage, as part of public business and for the citizenry as a whole,
in prayers that contain explicit references to a deity in whose
divinity only those of one faith believe. The invocations at issue
here, which specifically call upon Jesus Christ, are simply not
constitutionally acceptable legislative prayer like that approved in
Marsh. Rather, they embody the precise kind of “advance[ment]”
of one particular religion that Marsh cautioned against.
Accordingly, we hold the district court did not err in finding that
the challenged prayers violated the Establishment Clause and
enjoining the Town Council “from invoking the name of a specific
deity associated with any one specific faith or belief in prayers
given at Town Council meetings.”
Id. at 298-99, 301-302. This case is factually and legally indistinguishable from Wynne, which,
as controlling precedent, requires the court to reject the Board’s argument that its prayer practice
passes constitutional muster.

15

B.
The Fourth Circuit’s 2011 Joyner decision reaffirms this conclusion. In Joyner, plaintiffs
sued the Forsyth County Board of Commissioners, challenging its practice of opening its
meetings with sectarian invocations delivered by local religious leaders. The invocation at the
December 17, 2007 Forsyth County Board meeting attended by plaintiffs, like almost every
previous invocation, invoked the name of Jesus. The December 17, 2007 prayer also made a
number of other references to specific tenets of Christianity.
Joyner thus differed from Wynne in that the invocations were given by religious leaders
from the community, as opposed to the Board members themselves. The Fourth Circuit did not
find this distinction to be dispositive, holding that “[i]t was the governmental setting for the
delivery of sectarian prayers that courted constitutional difficulty, not those who actually gave
the invocation.” 653 F.3d at 350.
As was the case in Wynne, and here,8 after the constitutional challenge to the sectarian
prayer practice was raised, the Forsyth County Board decided to formalize its legislative prayer
policy:
Under the written policy, the invocation would no longer be “listed
or recognized as an agenda item for the meeting so that it may be
clear the prayer is not considered a part of the public business.”
The policy also stated that nobody “shall be required to participate
in any prayer that is offered,” and that “[n]either the Board nor the
Clerk shall engage in any prior inquiry, review of, or involvement
in, the content of any prayer to be offered by an invocational
speaker.” Finally, the Board clarified that the prayers were “not
intended, and shall not be implemented or construed in any way, to
affiliate the Board with, nor express the Board’s preference for,
any faith or religious denomination.” Instead, the stated goal of
the policy was to “acknowledge and express the Board’s respect
8

After Hudson complained about the Board’s practice of opening its meetings with Christian prayers, the Board
adopted a prayer policy mimicking the facially neutral policies adopted by the Town Council in Wynne and Board
of Commissioners in Joyner. See Doe v. Pittsylvania County, 842 F. Supp. 2d at 909-10. Despite the adoption of
this policy, it is undisputed that the Board continued to regularly open its meetings with Christian prayers.

16

for the diversity of religious denominations and faiths represented
and practiced among the citizens of Forsyth County.”
Joyner, 653 F.3d at 344.
To be sure, the written policy adopted by the Forsyth County Board, like that adopted in
Wynne and at issue here, is facially neutral. Joyner, 653 F.3d at 353. Despite adoption of this
policy, however, the prayers at the Forsyth County Board meetings “repeatedly continued to
reference specific tenets of Christianity.” Id. “These were not isolated occurrences [as] . . .
almost four-fifths of the prayers referred to ‘Jesus,’ ‘Jesus Christ,’ ‘Christ,’ or ‘Savior.’” Id.
The Joyner court declined to “turn a blind eye to the practical effects of the invocations at issue,”
and concluded that references to Christian beliefs in sectarian invocations given at “meeting after
meeting . . . advanced Christianity and . . . made at least two citizens feel uncomfortable,
unwelcome, and unwilling to participate in the public affairs of Forsyth County.” Id. at 354. As
such, the Fourth Circuit held that the legislative prayer of the Forsyth County Board violated the
Establishment Clause because it “‘engage[d], as part of public business and for the citizenry as a
whole, in prayers that contain[ed] explicit references to a deity in whose divinity only those of
one faith believe.’” Id. at 349 (quoting Wynne, 376 F.3d at 301). The court explained:
To be sure, citizens in a robust democracy should expect to hear all
manner of things that they do not like. But the First Amendment
teaches that religious faith stands on a different footing from other
forms of speech and observance. Because religious belief is so
intimate and so central to our being, government advancement and
effective endorsement of one faith carries a particular sting for
citizens who hold devoutly to another. This is precisely the
opposite of what legislative invocations should bring about. In
other words, whatever the Board’s intentions, its policy, as
implemented, has led to exactly the kind of “divisiveness the
Establishment Clause seeks rightly to avoid.”
Id. at 354-55 (quoting Simpson v. Chesterfield County Board of Supervisors, 404
F.3d 276, 284 (4th Cir.), cert. denied, 546 U.S. 937 (2005)).
17

The Fourth Circuit distinguished the sectarian invocations in Wynne and Joyner from the
circumstances in Simpson, where the invocations preceding meetings of the Chesterfield County
Board of Supervisors were nonsectarian in both policy and practice. The written prayer policy in
Simpson mandated nonsectarian prayer, and the Fourth Circuit “upheld the policy precisely
because the prayers were nondenominational.” Joyner, 653 F.3d at 348. Unlike the
governmental bodies in Wynne and Joyner, the Chesterfield County Board of Supervisors had
“aspired to non-sectarianism and requested that invocations refrain from using Christ’s name, or,
for that matter, any denominational appeal.” Simpson, 404 F.3d at 284. In stark contrast to the
practices of the Great Falls Town Council in Wynne, the Forsyth County Board in Joyner, and
the Pittsylvania County Board here, the Chesterfield County Board practiced what its policy
preached, resulting in “a wide variety of prayers” that “described divinity in wide and embracive
terms,” displaying “ecumenism . . . consonant with our character both as a nation of faith and as
a country of free religious exercise and broad religious tolerance.” Id.9
The Fourth Circuit in Joyner sets out “clear boundaries” for legislative prayer:
[L]egislative prayer must strive to be nondenominational so long
as that is reasonably possible – it should send a signal of welcome
rather than exclusion. It should not reject the tenets of other faiths
in favor of just one. Infrequent references to specific deities,
standing alone, do not suffice to make out a constitutional case.
9

The Fourth Circuit’s 2008 holding in Turner v. City of Fredericksburg, 534 F.3d 352 (4th Cir. 2008), cert. denied,
555 U.S. 1099 (2009), is consistent. In Turner, an ordained minister and member of the City Council of
Fredericksburg, Virginia sought to include a reference to Jesus Christ in his prayer opening City Council meetings,
contrary to Council policy of opening its meetings with nonsectarian prayer. Retired Supreme Court Justice Sandra
Day O’Connor, writing for the Fourth Circuit panel, dismissed Turner’s request, concluding as follows:
The Council’s decision to provide only nonsectarian legislative prayers places it squarely within
the range of conduct permitted by Marsh and Simpson. The restriction that prayers be
nonsectarian in nature is designed to make the prayers accessible to people who come from a
variety of backgrounds, not to exclude or disparage a particular faith. The Council’s decision to
open its legislative meetings with nondenominational prayers does not violate the Establishment
Clause.

534 F.3d at 356.

18

But legislative prayers that go further – prayers in a particular
venue that repeatedly suggest the government has put its weight
behind a particular faith – transgress the boundaries of the
Establishment Clause. Faith is as deeply important as it is deeply
personal, and the government should not appear to suggest that
some faiths have it wrong and others got it right.
653 F.3d at 349. By consistently opening its meetings with Christian prayers delivered by Board
members, the Board plainly has run afoul of Joyner’s “clear boundaries.”
C.
Despite the clear circuit and Supreme Court precedent controlling the decision of this
court, the Board argues that the court lacks jurisdiction to determine whether prayer by a
governmental body violates the Establishment Clause. Citing the Eleventh Circuit’s opinion in
Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008), and the Second Circuit’s decision in
Galloway v. Town of Greece, 681 F.3d 20 (2d Cir. 2012), the Board argues that a court is
incapable of drawing a line between governmental conduct – here, prayer – which does and does
not violate the Establishment Clause. Again, the Board’s argument both misses the point and
ignores the holdings of those cases. To be sure, it is not the province of the court to “parse the
content of a particular prayer,” Marsh, 463 U.S. at 795; however, the hands-off approach
advocated by the Board would render a court powerless to review an Establishment Clause
challenge to the advancement of one religion by the government. The Fourth Circuit in Joyner
rejected this very argument:
Quite simply, this stark approach leaves the court without the
ability to decide the case, by barring any substantive consideration
of the very practice under challenge. It is to say the least an odd
view of the judicial function that denies courts the right to review
the practice at issue. For to exercise no review at all – to shut our
eyes to patterns of sectarian prayer in public forums – is to
surrender the essence of the Establishment Clause and allow
government to throw its weight behind a particular faith. Marsh
did not countenance any such idea.
19

653 F.3d at 351.
Nor do the holdings in Pelphrey or Galloway provide any support to the Board’s position.
In Joyner, the Fourth Circuit reconciled the Eleventh Circuit’s decision in Pelphrey by noting
that the court’s decision to uphold the prayer policy of Cobb County principally relied on the fact
that in that case “the prayers, taken as a whole, did not advance any particular faith.” 653 F.3d at
353 (citing Pelphrey, 547 F.3d at 1278).10 The Joyner court continued:
In other words, the Pelphrey court adopted the same approach we
did in Wynne and Simpson: it determined as a threshold matter
whether the invocations exploited the opportunity for legislative
prayer. Indeed, the Eleventh Circuit made this point itself,
observing that the “Fourth Circuit read[s] Marsh [ ] as we do.”
[547 F.3d] at 1273. It further noted that Wynne and Simpson had
likewise focused their analysis on the threshold inquiry of whether
or not the prayer opportunity had “been exploited to proselytize or
advance” a particular faith. Id. at 1273 (quoting Marsh, 463 U.S.
at 794-95).
Joyner, 653 F.3d at 353. In contrast, just as in Joyner, the consistent practice of the Pittsylvania
County Board of Supervisors has been to open each official meeting with a overtly Christian
prayer. As was true in Joyner, “the prayers here, taken as a whole, ‘advance[d one] single faith’
to the exclusion of all others.” Id. (quoting Pelphrey, 547 F.3d at 1277).
In Galloway, the Second Circuit agreed with Joyner and the decisions of other circuits “to
the extent that these circuit cases stand for the proposition that a given legislative prayer practice,
viewed in its entirety, may not advance a single religious sect. . . .” Galloway, 681 F.3d at 28.
While the Second Circuit in Galloway was uncomfortable in applying a test which drew a line
between sectarian and non-sectarian prayer, it did not, as the Board would have this court do,
wash its hands of the Establishment Clause issue. Rather, the Second Circuit proposed an

10

The prayers were offered by Christian, Jewish, Unitarian, and Muslim speakers, which the court noted represented
“a wide cross-section of the County’s religious leaders.” Pelphrey, 547 F.3d at 1277.

20

alternate totality of the circumstances test, i.e., “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. In short, neither Pelphrey nor Galloway supports
the Board’s argument that a court must abstain from deciding whether sectarian prayers
advanced by a governmental entity run afoul of the Establishment Clause.11
Other arguments advanced by the Board also ask the court to disregard binding precedent
in this circuit, which the court cannot do. “The clearest command of the Establishment Clause is
that one religious denomination cannot be officially preferred over another.” Larsen v. Valente,
456 U.S. 228, 244 (1982). The Board’s practice of consistently opening its meetings with
Christian prayer violates this command.
III.
Finally, in her summary judgment briefs and at oral argument, Hudson asks the court to
find that the conduct of the Board following issuance of the preliminary injunction in this case
violates the Establishment Clause. Hudson contends that when faced with the preliminary
injunction prohibiting routine sectarian prayer delivered by Board members, certain members of
the Board invited local clergy to offer Christian prayers during the “Hearing of the Citizens”
public comment portion of Board meetings. Hudson complains that this, too, violates the
Establishment Clause because the members of the Board, upon hearing these prayers from
citizens, bowed their heads or said “Amen.” Hudson argues that this practice, coming as it does
on the heels of years of Christian prayers delivered by Board members, reflects approval and
solidarity with the Christian prayers offered by citizens. Hudson argues that this conduct
violates the Establishment Clause, citing Borden v. School District of Township of East

11

To be sure, given the undisputed fact that the Board routinely opened its meetings with Christian prayer, the
conduct of the Board here plainly fails Galloway’s totality of circumstances test.

21

Brunswick, 523 F.3d 153 (3d Cir. 2008), and Doe v. Duncanville School District, 70 F.3d 402
(5th Cir. 1995), cases involving the participation of school coaches in sectarian prayer.
These allegations are not part of the complaint filed in this case, nor has any amended
complaint been filed making this subsequent Board practice an issue in this case. Because the
practices of the Board after the entry of the preliminary injunction are not part of the pleadings in
this case, the court cannot rule on them.
IV.
Consistent with the foregoing and the memorandum opinions entered on February 3,
2012 on the motion to dismiss, Doe v. Pittsylvania County, 842 F. Supp. 2d 906 (W.D. Va.
2012), and the motion for preliminary injunction, Doe v. Pittsylvania County, 842 F. Supp. 2d
927 (W.D. Va. 2012), it is clear that Hudson is entitled to summary judgment on the claims
alleged in the complaint and that a permanent injunction must be entered. Accordingly,
Hudson’s motion for summary judgment (Dkt. # 57) is GRANTED, to the extent it concerns the
practice of the Board of opening each of its meetings with sectarian prayers led by Board
members, as alleged in the complaint. The Board’s motion for summary judgment (Dkt. # 59) is
DENIED.
As set forth in the accompanying Order, the Board is ENJOINED from repeatedly
opening its meetings with prayers associated with any one religion, which practice has the
unconstitutional “effect of affiliating the government with any one specific faith or belief.”
Allegheny, 492 U.S. at 603 (citing Marsh, 463 U.S. at 794-95); accord Wynne, 376 F.3d at 302
(approving injunction prohibiting Town Council “from invoking the name of a specific deity
associated with any one specific faith or belief in prayers given at Town Council meetings.”).

22

Certainly, defendants may believe that this decision “indicate[s] a hostility toward
religion or toward prayer. Nothing, of course, could be more wrong.” Engel v. Vitale, 370 U.S.
421, 434 (1962). The founders of our nation, possessing “faith in the power of prayer . . . led the
fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of
religious freedom that forbid the sort of governmental activity which [the Board] has attempted
here.” Id. at 434-35. Fifty years ago, Justice Black writing for the Court in the landmark school
prayer case of Engel v. Vitale continued:
These men knew that the First Amendment, which tried to put an
end to governmental control of religion and of prayer, was not
written to destroy either. They knew rather that it was written to
quiet well-justified fears which nearly all of them felt arising out of
an awareness that governments of the past had shackled men’s
tongues to make them speak only the religious thoughts that
government wanted them to speak and to pray only to the God that
government wanted them to pray to. It is neither sacrilegious nor
antireligious to say that each separate government in this country
should stay out of the business of writing or sanctioning official
prayers and leave that purely religious function to the people
themselves and to those the people choose to look to for religious
guidance.
370 U.S. at 435. These words are as true today as they were in 1962.
“The Establishment Clause thus stands as an expression of principle on the part of the
Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its
‘unhallowed perversion’” by government. Id. at 431-32 (quoting Memorial and Remonstrance
against Religious Assessments, II Writings of James Madison 183, 187). Indeed, viewed in this
light, a permanent injunction in this case is necessary to protect, rather than abjure, religious
freedom.
Following the lead of the Fourth Circuit in Joyner, the court will not “set forth some sort
of template for an ideal legislative prayer policy.” 653 F.3d at 354.

23

After all . . . “too much judicial fine-tuning of legislative prayer
policies risks unwarranted interference in the internal operations of
a coordinate branch.” The bar for [Pittsylvania] County is hardly a
high one. Public institutions throughout this country manage to
regularly commence proceedings with invocations that provide all
the salutary benefits of legislative prayer without the divisive
drawbacks of sectarianism. And religious leaders throughout this
country have offered moving prayers on multitudinous occasions
that have managed not to hurt the adherents of different faiths. In
the end, the constitutional standard asks of the County no more
than what numerous public and governmental entities already
meet.
Id. (internal citations omitted). Therefore, consistent with controlling Fourth Circuit precedent,
the permanent injunction in this case is narrowly crafted to respect the religious freedom and
constitutional rights of all.
As reflected in the accompanying Order, the Clerk is directed to enter judgment for
plaintiff Hudson and strike the case from the docket. The court will retain jurisdiction over this
matter for the purposes of enforcement of the injunction and consideration of any motions for
attorney’s fees and costs by Hudson, the prevailing party, pursuant to 42 U.S.C. § 1988.
Entered: March 26, 2013

/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge

24