NANCY LUND; LIESA MONTAG-SIEGEL; ROBERT VOELKER, Plaintiffs - Appellees,
ROWAN COUNTY, NORTH CAROLINA, Defendant-Appellant. STATE OF WEST VIRGINIA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF INDIANA; STATE OF MICHIGAN; STATE OF NEBRASKA; STATE OF NEVADA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; MEMBERS OF CONGRESS; UNITED STATES JUSTICE FOUNDATION; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND; CITIZENS UNITED; CITIZENS UNITED FOUNDATION, Amici Supporting Appellant, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; AMERICAN HUMANIST ASSOCIATION; ANTI-DEFAMATION LEAGUE; CENTER FOR INQUIRY; FREEDOM FROM RELIGION FOUNDATION; INTERFAITH ALLIANCE FOUNDATION; SIKH COALITION; UNION FOR REFORM JUDAISM; WOMEN OF REFORM JUDAISM, Amici Supporting Appellees.
Argued: March 22, 2017
REHEARING EN BANC
from the United States District Court for the Middle District
of North Carolina, at Greensboro. James A. Beaty, Jr., Senior
District Judge. (1:13-cv-00207-JAB-JLW)
Allyson Newton Ho, MORGAN, LEWIS & BOCKIUS LLP, Dallas,
Texas, for Appellant.
Christopher Anderson Brook, AMERICAN CIVIL LIBERTIES UNION OF
NORTH CAROLINA, Raleigh, North Carolina, for Appellees.
Lin, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia, for Amici State of West Virginia
and 12 Other States.
C. Gibbs, III, THE NATIONAL CENTER FOR LIFE AND LIBERTY,
Flower Mound, Texas; John C. Sullivan, Dallas, Texas, Judd E.
Stone, Michael E. Kenneally, MORGAN, LEWIS & BOCKIUS LLP,
Washington, D.C.; David A. Cortman, Brett B. Harvey, ALLIANCE
DEFENDING FREEDOM, Scottsdale, Arizona; Hiram S. Sasser, III,
Kenneth A. Klukowski, LIBERTY INSTITUTE, Plano, Texas, for
Mach, Heather L. Weaver, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, Washington, D.C., for Appellees.
Patrick Morrisey, Attorney General, Julie Marie Blake,
Christopher W. Carlson, Assistant Attorneys General, OFFICE
OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Amicus State of West Virginia;
Strange, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
ALABAMA, Montgomery, Alabama, for Amicus State of Alabama;
Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
ARIZONA, Phoenix, Arizona, for Amicus State of Arizona;
Rutledge, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
ARKANSAS, Little Rock, Arkansas, for Amicus State of
Jo Bondi, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
FLORIDA, Tallahassee, Florida, for Amicus State of Florida;
Gregory F. Zoeller, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF INDIANA, Indianapolis, Indiana, for Amicus State
Schuette, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
MICHIGAN, Lansing, Michigan, for Amicus State of Michigan;
Douglas J. Peterson, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF NEBRASKA, Lincoln, Nebraska, for Amicus State of
Paul Laxalt, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF NEVADA, Carson City, Nevada, for Amicus State of Nevada;
Michael DeWine, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF OHIO, Columbus, Ohio, for Amicus State of Ohio;
Scott Pruitt, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF OKLAHOMA, Oklahoma City, Oklahoma, for Amicus
State of Oklahoma;
Wilson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
SOUTH CAROLINA, Columbia, South Carolina, for Amicus State of
Paxton, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
TEXAS, Austin, Texas, for Amicus State of Texas.
Sandoloski, Dallas, Texas, Thomas G. Hungar, Douglas R. Cox,
Alex Gesch, Lindsay S. See, Russell Balikian, GIBSON, DUNN
& CRUTCHER LLP, Washington, D.C., for Amici Members of
W. Miller, Ramona, California, for Amicus United States
Michael Boos, Washington, D.C., for Amici Citizens United and
Citizens United Foundation;
William J. Olson, Herbert W. Titus, Jeremiah L. Morgan,
Robert J. Olson, John S. Miles, WILLIAM J. OLSON, P.C.,
Vienna, Virginia, for Amici United States Justice Foundation,
Citizens United, Citizens United Foundation, and Conservative
Legal Defense and Education Fund.
Richard B. Katskee, Gregory M. Lipper, AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE, Washington, D.C., for Amici
Americans United for Separation of Church and State, American
Humanist Association, Anti-Defamation League, Center for
Inquiry, Freedom From Religion Foundation, Interfaith
Alliance Foundation, Sikh Coalition, Union for Reform
Judaism, and Women of Reform Judaism.
GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, TRAXLER,
KING, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD,
THACKER, and HARRIS, Circuit Judges.
WILKINSON, CIRCUIT JUDGE:
case requires that we decide whether Rowan County's
practice of lawmaker-led sectarian prayer runs afoul of the
Establishment Clause. For years on end, the elected members
of the county's Board of Commissioners composed and
delivered pointedly sectarian invocations. They rotated the
prayer opportunity amongst themselves; no one else was
permitted to offer an invocation. The prayers referenced one
and only one faith and veered from time to time into overt
proselytization. Before each invocation, attendees were
requested to rise and often asked to pray with the
commissioners. The prayers served to open meetings of our
most basic unit of government and directly preceded the
business session of the meeting. The district court, applying
the Supreme Court's decision in Town of Greece v.
Galloway, 134 S.Ct. 1811 (2014), held the county's
prayer practice unconstitutional. A panel of this court
reversed. See Lund v. Rowan Cty., 837 F.3d 407 (4th
Cir. 2016). The full court then granted rehearing en banc.
conclude that the Constitution does not allow what happened
in Rowan County. The prayer practice served to identify the
government with Christianity and risked conveying to citizens
of minority faiths a message of exclusion. And because the
commissioners were the exclusive prayer-givers, Rowan
County's invocation practice falls well outside the more
inclusive, minister-oriented practice of legislative prayer
described in Town of Greece. Indeed, if elected
representatives invite their constituents to participate in
prayers invoking a single faith for meeting upon meeting,
year after year, it is difficult to imagine constitutional
limits to sectarian prayer practice.
great promise of the Establishment Clause is that religion
will not operate as an instrument of division in our nation.
Consistent with this principle, there is a time-honored
tradition of legislative prayer that reflects the respect of
each faith for other faiths and the aspiration, common to so
many creeds, of finding higher meaning and deeper purpose in
these fleeting moments each of us spends upon this earth.
Instead of drawing on this tradition, Rowan County elevated
one religion above all others and aligned itself with that
faith. It need not be so. As the history of legislative
invocations demonstrates, the desire of this good county for
prayer at the opening of its public sessions can be realized
in many ways that further both religious exercise and
begin by describing the challenged prayer practice itself.
Rowan County, North Carolina is governed by an elected body
known as the Rowan County Board of Commissioners. The
five-member Board convenes twice a month. The commissioners
sit at the front of the room facing their constituents.
Board meeting begins in the same way: with a prayer composed
and delivered by one of the commissioners. After calling the
meeting to order, the chairperson asks everyone in
attendance-commissioners and constituents alike-to stand up.
All five Board members rise and bow their heads, along with
most of the attendees. A commissioner then asks the community
to join him in worship, using phrases such as "Let us
pray, " "Let's pray together, " or
"Please pray with me." The invocations end with a
communal "Amen, " and the Pledge of Allegiance
follows a moment later. Next, the Board typically approves
the previous meeting's minutes, schedules future items of
business, and holds a public comment period before continuing
on to the day's work.
members rotate the prayer opportunity amongst themselves as a
matter of long-standing custom. The content of the prayer is
"entirely at the discretion of the commissioner."
J.A. 284. No one outside the Board is
permitted to offer an invocation.
prayers are invariably and unmistakably Christian in content.
Over the five-and-a-half years for which video recordings are
available, 97% of the Board's prayers mentioned
"Jesus, " "Christ, " or the
"Savior." See Lund v. Rowan Cty., 103
F.Supp.3d 712, 714 (M.D. N.C. 2015). No religion other than
Christianity was represented. Sectarian references often
appeared at the conclusion of the prayer. See, e.g.,
S.A. 14 (prayer of April 21, 2008) ("I ask all these
things in the name of Jesus, the King of Kings and the Lord
of Lords. Amen."). Several prayers confessed sin and
asked for forgiveness on the community's behalf. See,
e.g., S.A. 30 (prayer of August 1, 2011) ("Lord, we
confess that we have not loved you with all our heart, and
mind and strength, and that we have not loved one another as
Christ loves us. We have also neglected to follow the
guidance of your Holy Spirit, and have allowed sin to enter
into our lives."). Other prayers implied that
Christianity was superior to other faiths. See,
e.g., S.A. 33 (prayer of March 5, 2012) ("[A]s we
pick up the Cross, we will proclaim His name above all names,
as the only way to eternal life."). On occasion, Board
members appeared to implore attendees to accept Christianity.
See, e.g., S.A. 21 (prayer of October 5, 2009)
("Father, I pray that all may be one as you, Father, are
in Jesus, and He in you. I pray that they may be one in you,
that the world may believe that you sent Jesus to save us
from our sins.").
response to the growing controversy over the prayer practice,
a number of commissioners publicly announced that they would
continue delivering Christian invocations for the
community's benefit. Prior to the filing of this lawsuit,
the American Civil Liberties Union of North Carolina Legal
Foundation notified the Board that sectarian prayers violated
the Establishment Clause under then-applicable Fourth Circuit
precedent. The Board did not respond, but several members
stated that they would not stop praying in Jesus' name.
"[A]sking for guidance for my decisions from Jesus,
" one commissioner explained, "is the best I, and
Rowan County, can ever hope for." Lund, 103
F.Supp.3d at 715 (quoting Commissioner Ford). Another
commissioner remarked, "I volunteer to be the first to
go to jail for this cause . . . ." Id. (quoting
Commissioner Sides). After the district court enjoined the
county prayer practice, a third commissioner issued a
statement noting, "I will always pray in the name of
Jesus. . . . God will lead me through this persecution and I
will be His instrument." See Pls.' Mem. Law
Supp. Mot. Summ. J. at 9 (quoting Commissioner Barber).
three plaintiffs in this case are long-time residents of
Rowan County. Active in the community, each one has attended
multiple Board meetings to follow issues of public
importance. Nancy Lund, a volunteer tutor, cares about school
funding. So does Liesa Montag-Siegel, a retired middle school
librarian. Robert Voelker is interested in education policy
and the county's provision of social services. The
plaintiffs, none of whom identify as Christian, encountered
prayers of the sort described above at Board meetings.
March 2013, Lund and her co-plaintiffs filed this action
against Rowan County, asserting that the Board's prayer
practice violated the Establishment Clause. They argued that
the Board, by delivering exclusively Christian prayers,
affiliated the county with Christianity, advanced
Christianity, and coerced the plaintiffs into participating
in religious exercises. According to the plaintiffs, the
prayers "sen[t] a message that the County and the Board
favor Christians" and caused the plaintiffs to feel
"excluded from the community and the local political
process." J.A. 11-12. The plaintiffs also averred that
they felt compelled to stand for the invocations to avoid
sticking out. Voelker added that he felt pressured to stand
because "the invocation is immediately followed by the
Pledge of Allegiance, for which [he] feels strongly that he
needs to stand." J.A. 12. At one meeting, Voelker
proposed a nondenominational prayer and later worried that
his "open questioning" of the Board's sectarian
invocations would impair his advocacy on other matters. J.A.
13. The plaintiffs sought declaratory and injunctive relief
as well as a preliminary injunction against sectarian prayers
at Board meetings.
County responded with affidavits from each Board member
adding new details on the prayer practice. According to these
affidavits, the Board has no written policy on the
invocations. The commissioners also claimed that the Board
has "no expectation . . . regarding the form or
content" of the prayers, J.A. 291, which are offered
"for the edification and benefit of the commissioners
and to solemnize the meeting, " J.A. 293. Finally, the
affidavits clarified that attendees may leave the room or
arrive after the invocation and that the Board "respects
the right of any citizen" to remain seated or disregard
the invocation. J.A. 277.
the district court preliminarily enjoined the Board from
delivering sectarian prayers, the Supreme Court decided
Town of Greece v. Galloway. The Court upheld the
town's practice of opening its legislative sessions with
sectarian prayers and ruled that sectarian prayers, while
subject to some limits, are constitutional as a general
light of Town of Greece, both the plaintiffs and
Rowan County moved for summary judgment. The district court
held that Rowan County's prayer practice remained
unconstitutional and issued a permanent injunction.
Lund, 103 F.Supp.3d at 733-34. The court found that
the practice was unconstitutionally coercive and
"deviate[d] from the long-standing history and
tradition" of legislative prayer. Id. at 723.
That tradition, as articulated by the Supreme Court, involved
the delivery of prayers by "a chaplain, separate from
the legislative body." Id. Here, the court
reasoned, the prayers were "exclusively prepared and
controlled" and delivered by the government,
"constituting a much greater and more intimate
government involvement in the prayer practice than that at
issue in Town of Greece." Id. Further,
restricting the prayer opportunity to the Board resulted in
"a closed-universe of prayer-givers . . . who favored
religious beliefs believed to be common to the majority of
voters in Rowan County." Id. The district court
noted that although lawmaker-led prayer "is not per
se unconstitutional, " the prayer-giver's
identity is relevant to the constitutional inquiry "in
relation to the surrounding circumstances." Id.
at 722 n.4.
appeal, this court reversed the district court's judgment
and upheld the county's prayer practice. Lund,
837 F.3d at 411-31. The panel majority recognized that
"[t]he five commissioners, all Christian,
'maintain[ed] exclusive and complete control over the
content of the prayers.'" Id. at 434
(quoting Lund, 103 F.Supp.3d at 733). Nonetheless,
the majority held that the identity of the prayer-giver was
not "a significant constitutional distinction, at least
in the context of this case." Id. at 420.
Having discounted the source of the prayer as a relevant
consideration, the majority next examined the other elements
of the Board's practice seriatim. The majority held that
the practice was consistent with tradition as outlined in
Town of Greece and was not coercive. Id. at
Wilkinson dissented. The dissent argued that the
"combination of legislators as the sole prayer-givers,
official invitation for audience participation, consistently
sectarian prayers referencing but a single faith, and the
intimacy of a local governmental setting exceed[ed] even a
broad reading of Town of Greece." Id.
at 431 (Wilkinson, J., dissenting) (hereinafter panel
dissent). After examining "the interaction among
elements specific to this case, " id. at 433,
the dissent concluded that the county's prayer practice
granted rehearing en banc, and we now affirm. Reviewing the
district court's decision de novo, see Simpson v.
Chesterfield Cty. Bd. of Supervisors, 404 F.3d 276, 280
(4th Cir. 2005), we hold that Rowan County's prayer
practice violated the Establishment Clause of the First
moment of prayer or quiet reflection sets the mind[s] [of
legislators] to a higher purpose and thereby eases the task
of governing." Town of Greece, 134 S.Ct. at
1825 (plurality opinion). Legislative prayer "lends
gravity to public business, reminds lawmakers to transcend
petty differences in pursuit of a higher purpose, and
expresses a common aspiration to a just and peaceful
society." Id. at 1818 (majority opinion). Owing
to its unique history and longstanding role in public life,
legislative prayer occupies "a field of Establishment
Clause jurisprudence with its own set of boundaries and
guidelines." Simpson, 404 F.3d at
general principles animating the Establishment Clause remain
relevant even in the context of legislative prayer. First,
the Constitution "affirmatively mandates accommodation,
not merely tolerance, of all religions, and forbids hostility
toward any." Lynch v. Donnelly, 465 U.S. 668,
673 (1984). Second, the government "may not coerce
anyone to support or participate in religion or its exercise,
or otherwise act in a way which 'establishes a [state]
religion or religious faith, or tends to do so.'"
Lee v. Weisman, 505 U.S. 577, 587 (1992) (quoting
Lynch, 465 U.S. at 678). By "ensuring
governmental neutrality in matters of religion, "
Gillette v. United States, 401 U.S. 437, 449 (1971),
the Establishment Clause safeguards religious liberty and
wards off "political division along religious lines,
" Lemon v. Kurtzman, 403 U.S. 602, 622 (1971).
An instrument of social peace, the Establishment Clause does
not become less so when social rancor runs exceptionally
addition, "[b]y pairing the Free Exercise Clause with
the Establishment Clause, " the Framers sought to
prevent government from choosing sides on matters of faith
and to protect religious minorities from exclusion or
punishment at the hands of the state. Lund, 837 F.3d
at 438 (panel dissent). "Americans are encouraged to
practice and celebrate their faith but not to establish it
through the state." Id.
legislative prayer context, the Supreme Court has given
meaning to the abstract guarantees of the Establishment
Clause by considering "historical practices and
understandings." Town of Greece, 134 S.Ct. at
1819 (internal quotation marks omitted). This history
"shed[s] light on how the Founders viewed the
Establishment Clause in relation to legislative prayer."
Lund, 837 F.3d at 414. The resulting principles,
first elucidated in Marsh v. Chambers, 463 U.S. 783
(1983), and refined in Town of Greece, reflect
"what history reveals was the contemporaneous
understanding" of the Establishment Clause.
Lynch, 465 U.S. at 673.
and Town of Greece, however, in no way sought to
dictate the outcome of every subsequent case. The Court
acknowledged that it has not "define[d] the precise
boundary of the Establishment Clause." Town of
Greece, 134 S.Ct. at 1819. Accordingly, when the
historical principles articulated by the Supreme Court do not
direct a particular result, a court must conduct a
"fact-sensitive" review of the prayer practice.
Id. at 1825 (plurality opinion).
and Town of Greece do not settle whether Rowan
County's prayer practice is constitutional. Those
decisions did not concern lawmaker-led prayer, nor did they
involve the other unusual aspects of the county's prayer
practice. And they certainly did not address the confluence
of these elements. That said, Marsh and Town of
Greece provide our doctrinal starting point. We shall
begin by describing the principles they developed and then
proceed to apply those principles to this case.
Marsh v. Chambers, the Supreme Court upheld the
Nebraska legislature's practice of opening its sessions
with nonsectarian prayers delivered by a paid chaplain. 463
U.S. at 793 n. 14. The Court noted that legislative prayer
"has coexisted with the principles of disestablishment
and religious freedom" since the colonial period.
Id. at 786. In addition, the First Congress
"authorized the appointment of paid chaplains"
shortly after finalizing language for the First Amendment.
Id. at 788. Accordingly, the Court reasoned, the
Framers could not have viewed "paid legislative
chaplains and opening prayers as a violation of that
then, stands for the principle that "legislative prayer,
while religious in nature, has long been understood as
compatible with the Establishment Clause." Town of
Greece, 134 S.Ct. at 1818. But even as the Court
concluded that legislative prayer is constitutional as a
general matter, Marsh recognized certain limits on
the practice. Namely, the prayer opportunity may not be
"exploited to proselytize or advance [a particular
faith] or to disparage any other." Marsh, 463
U.S. at 794-95.
years later, in Town of Greece v. Galloway, the
Court held that sectarian prayer is not by itself
unconstitutional. 134 S.Ct. at 1820. In that case, the town
board in Greece, New York began its monthly meetings with
sectarian invocations given by volunteer guest ministers.
Id. at 1816. Because "nearly all of the
congregations in town turned out to be Christian, " most
of the ministers were Christian too. Id. at 1824.
Nonetheless, the town also invited a Jewish layman and
Baha'i practitioner to deliver prayers and granted a
Wiccan priestess's request to do so. Id. at
1817. The town "neither reviewed the prayers in advance
of the meetings nor provided guidance as to their tone or
content." Id. at 1816.
the historical tradition first described in Marsh,
the Court held that the Establishment Clause does not require
"nonsectarian or ecumenical prayer as a single, fixed
standard." Id. at 1820. As a result, "a
challenge based solely on the content of a prayer
will not likely establish a constitutional violation."
Id. at 1824 (emphasis added).
same time, the Court was quick to clarify that invocation
content is still germane to the constitutionality of a prayer
practice. The "relevant constraint" on
faith-specific prayer "derives from its place at the
opening of legislative sessions, where it is meant to lend
gravity to the occasion and reflect values long part of the
Nation's heritage." Id. at 1823. Prayer
that "invites lawmakers to reflect upon shared ideals
and common ends before they embark on the fractious business
of governing" serves that purpose. Id. But the
Establishment Clause does not countenance prayers that
"denigrate nonbelievers or religious minorities,
threaten damnation, or preach conversion" or, per
Marsh, prayers that proselytize or advance or
disparage a particular faith. Id.
these principles, the Court concluded that the sectarian
prayers offered by guest ministers fell within the historical
tradition outlined in Marsh. Id. at 1824.
The Court also emphasized that Greece selected chaplains
without discriminating among faiths and "welcome[d] a
prayer by any minister or layman who wished to give
the Court concluded that the town's prayer practice did
not coerce participation by meeting attendees. Id.
at 1828. While no single test commanded a majority, Justice
Kennedy's opinion for the plurality explained that
"[t]he analysis would be different if town board members
directed the public to participate in the prayers, singled
out dissidents for opprobrium, or indicated that their
decisions might be influenced by a person's acquiescence
in the prayer opportunity." Id. at 1826.
and Town of Greece thus show a Court generally
supportive of legislative prayer, careful to emphasize that
sectarian references are permissible in proper context, but
cautioning that the prayer opportunity not get out of hand.
This case differs from Marsh and Town of
Greece in two crucial respects that, in combination with
other aspects of the Board's prayers, give rise to an
unprecedented prayer practice. First, whereas guest ministers
delivered the prayers in those cases, the legislators
themselves gave the invocations in Rowan County. Second, the
prayer opportunity here was exclusively reserved for the
commissioners, creating a "closed-universe" of
prayer-givers. Lund, 103 F.Supp.3d at 723. This case
is therefore "more than a factual wrinkle on Town of
Greece." Lund, 837 F.3d at 431 (panel
dissent). "It is a conceptual world apart."
begin, Town of Greece simply does not address the
constitutionality of lawmaker-led prayer. The Court has
"consistently discussed legislative prayer practices in
terms of invited ministers, clergy, or volunteers providing
the prayer." Lund, 103 F.Supp.3d at 722. And in
elaborating on our national tradition of legislative
prayer-the history informing its interpretation of the
Establishment Clause-the Court has "not once described a
situation in which the legislators themselves gave the
invocation." Id. Town of Greece instead
recounts how "[t]he First Congress made it an early item
of business to appoint and pay official chaplains,
" adding that "both the House and Senate have
maintained the office virtually uninterrupted since that
time." 134 S.Ct. at 1818 (emphasis added).
extent that Town of Greece touches on the
constitutional relevance of the prayer-giver's identity,
the decision takes for granted the use of outside clergy. The
Court emphasized that the town "neither edit[ed] [n]or
approv[ed] prayers" offered by the guest ministers.
Id. at 1822. Addressing the fact that attendees were
asked to stand, the plurality reasoned that "[t]hese
requests . . . came not from town leaders but from the guest
ministers, who presumably are accustomed to directing their
congregations in this way." Id. at 1826. And
"[t]he inclusion of a brief, ceremonial prayer as part
of a larger exercise in civic recognition, " the
plurality explained, "suggests that its purpose and
effect are to acknowledge religious leaders and the
institutions they represent." Id. at 1827.
the historical "practice of prayer, " at least as
described by the Supreme Court, is not entirely "similar
to that now challenged." Marsh, 463 U.S. at
791. In Rowan County, the commissioners themselves, not guest
ministers, led the community in prayer, and they composed
each invocation "according to their personal
faiths." Lund, 103 F.Supp.3d at 724;
see J.A. 275-94 (affidavits of the commissioners).
Relative to Town of Greece, the county's prayer
practice featured "much greater and more intimate
government involvement." Lund, 103 F.Supp.3d at
723. The conspicuous absence of case law on lawmaker-led
prayer is likely no accident. As elaborated below, this type
of prayer both identifies the government with religion more
strongly than ordinary invocations and heightens the
constitutional risks posed by requests to participate and by
especially true where legislators are the only
eligible prayer-givers. Both Town of Greece and
Marsh involved open, inclusive prayer opportunities.
In the former case, the town "at no point excluded or
denied an opportunity to a would-be prayer giver, " and
town leaders affirmed that "a minister or layperson of
any persuasion, including an atheist, could give the
invocation." Town of Greece, 134 S.Ct. at 1816.
Marsh emphasized that the ordinary chaplain
"was not the only clergyman heard by the Legislature;
guest chaplains . . . officiated at the request of various
legislators and as substitutes during [the regular
chaplain's] absences." Marsh, 463 U.S. at
793. The openness evinced by these other elected bodies
contrasts starkly with Rowan County's policy of
restricting the prayer opportunity to the commissioners
and Town of Greece, while supportive of legislative
prayer, were measured and balanced decisions. See
134 S.Ct. at 1824-25 (describing the proper inquiry as
"fact-sensitive" and the analysis as "an
inquiry into the prayer opportunity as a whole"). The
dissents in this case, by contrast, are wholly bereft of any
sense of balance. Any balanced assessment of Marsh
and Town of Greece makes clear the dissents'
lack of fidelity to those decisions. The dissents'
reading of Town of Greece is faithful only to what
the dissents wish that opinion would say, not to what it
actually said. As Town of Greece makes plain, the
Court has never approved anything like what has transpired
here or anything resembling the dissents' invitation to
local government to work sectarian practices into public
meetings in whatever manner it wishes. Id. at 1826.
Rather Town of Greece told the inferior federal
courts to do exactly what the majority has done here- that is
to grant local governments leeway in designing a prayer
practice that brings the values of religious solemnity and
higher meaning to public meetings, but at the same time to
recognize that there remain situations that in their totality
exceed what Town of Greece identified as permissible
bounds. It is the dissents' unwillingness to identify any
meaningful limit to any sort of sectarian prayer practice in
local governmental functions that draws their fidelity to
Town of Greece into serious question.
county, bolstered by amici, argues that there is "a long
tradition of opening legislative sessions-at all levels of
government-with prayer by legislators themselves." Supp.
Br. of Appellant at 3. Members of Congress have occasionally
delivered invocations in the Senate and House of
Representatives. See Br. of Amici Curiae Members of
Congress at 6. The state amici, drawing on a national survey,
assert that a majority of state legislatures allow lawmakers
to offer invocations "on at least some occasions, "
including seven of the ten state legislative chambers in the
Fourth Circuit. Br. of Amici Curiae State of West Virginia
and 12 Other States at 13-14. Many county and city
governments also permit elected officials to deliver
invocations. Id. at 15. Setting aside the question
of whether contemporaneous practices provide compelling
evidence of historical tradition, it is clear that
lawmaker-led prayer is far from rare.
evidence collected by Rowan County and amici, however, only
reinforces our conclusion that the county's prayer
practice falls outside the tradition of legislative prayer
elaborated in Marsh and Town of Greece.
First, while lawmakers may occasionally lead an invocation,
this phenomenon appears to be the exception to the rule, at
least at the state and federal levels. Amici members of
Congress note that "Senators have, from time to time,
delivered the prayer, " but that "[m]embers
routinely invite guest ministers" to offer the
invocation. Br. of Amici Curiae Members of Congress at 6-7
(citations omitted). The survey cited by the state amici
clarifies that "it is a tradition for a chaplain to be
selected to serve the [legislative] body." National
Conference of State Legislatures, Inside the Legislative
Process 5-147 (2002) (hereinafter NCSL Survey).
Twenty-seven state legislative chambers designate an official
chaplain. Id. Seventy-nine invite "visiting
chaplains [who] usually rotate among religions."
Id. Second, Rowan County and amici elide the
distinction between extending the prayer opportunity to
lawmakers (as many legislatures do) and restricting it to
those lawmakers (as Rowan County did here). For the reasons
we discuss below, the latter approach poses greater risks
under the Establishment Clause.
marshaling the historical and contemporaneous evidence of
lawmaker-led prayer, Rowan County and its amici are waging
war against a phantom. The plaintiffs have never contended
that the Establishment Clause prohibits legislators from
giving invocations, nor did the district court so conclude.
See Lund, 103 F.Supp.3d at 722 n.4 ("[T]he
Commissioners' provision of prayers is not per
se unconstitutional. . . . Under a different, inclusive
prayer practice, Commissioners might be able to provide
prayers . . . ."). Like the plaintiffs and the district
court, we "would not for a moment cast all
legislator-led prayer as constitutionally suspect."
Lund, 837 F.3d at 433 (panel dissent). Religious
faith is "a source of personal guidance, strength, and
comfort." Id. at 431. And legislative
prayer's "solemnizing effect for lawmakers is likely
heightened when they personally utter the prayer."
Id. at 433. Accordingly, the Establishment Clause
indeed allows lawmakers to deliver invocations in appropriate
circumstances. Legislator-led prayer is not inherently
simply conclude, as the district court did, that the identity
of the prayer-giver is relevant to the constitutional
inquiry. Establishment Clause questions are by their nature
"matter[s] of degree, " presupposing some
acceptable practices and others that cross the line. Van
Orden v. Perry, 545 U.S. 677, 704 (2005) (Breyer, J.,
concurring in the judgment); see also Lynch, 465
U.S. at 678-79 ("In each case, the inquiry calls for
line drawing; no fixed, per se rule can be framed. .
. . The line between permissible relationships and those
barred by the [Establishment] Clause can no more be straight
and unwavering than due process can be defined in a single
stroke or phrase or test."). Prayers led by lawmakers,
like sectarian prayers, may violate the Establishment Clause
in some circumstances. And just as sectarian prayer has its
limits, so, too, does legislator-led prayer.
the universe of prayers delivered by legislators, the
constitutionality of a particular government's approach
ultimately will depend on other aspects of the prayer
practice. In fact, the very survey proffered by state amici
illustrates the importance of viewing lawmaker-led prayer in
context. The survey recommends that the prayer-giver "be
especially sensitive to expressions that may be unsuitable to
members of some faiths" when "opening and closing
the prayer." NCSL Survey at 5-146. Because
legislator-led invocations vary so widely, "[w]e cannot
discern from the general survey proffered by amici which
prayers were primarily for the benefit of legislators or
commissioners as in Town of Greece and which
focused, as the prayers did here, on requesting the citizens
at the meeting to pray." Lund, 837 F.3d at 433
(panel dissent). "Nor do we know from the survey what
percentage of prayers given by elected officials generally
contain sectarian references or proselytizing exhortations,
or which are non-denominational or delivered by legislators
of diverse faiths." Id.
the elected members of Rowan County's Board of
Commissioners composed and delivered their own sectarian
prayers featuring but a single faith. They prevented anyone
else from offering invocations. The Board's prayer
practice thus pushes this case well outside the confines of
Town of Greece and indeed outside the realm of
lawmaker-led prayer itself. To see just how far outside those
boundaries the prayer practice was, we must turn to the
operation of the practice itself. Because Town of
Greece does not resolve this challenge, we must decide
whether the county's prayer practice, taken as a whole,
exceeded constitutional limits on legislative prayer.
a seat of government begins to resemble a house of worship,
the values of religious observance are put at risk, and the
danger of religious division rises accordingly."
Lund, 837 F.3d at 431 (panel dissent). That is why
"[t]he 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 (1982). Rowan County's prayer practice
violated this maxim by so clearly identifying the government
with a particular faith.
adjudicating a challenge to legislative prayer inquire
"into the prayer opportunity as a whole, rather than
into the contents of a single prayer." Town of
Greece, 134 S.Ct. at 1824. They must conduct a
"fact-sensitive" review of "the setting in
which the prayer arises and the audience to whom it is
directed, " id. at 1825 (plurality opinion), as
well as "the pattern of prayers over time, "
id. at 1827.
exclusive prayer-givers, Rowan County's elected
representatives-the very embodiment of the state-delivered
sectarian invocations referencing one and only one religion.
They asked their constituents to join them in worship. They
did so at every meeting of a local governing body for many
years. We examine each of these features in turn:
commissioners as the sole prayer-givers; invocations that
drew exclusively on Christianity and sometimes served to
advance that faith; invitations to attendees to participate;
and the local government setting.
respect the Supreme Court's insistence on a
fact-sensitive inquiry, we must also pay close attention to
the interplay between the various facets of the county's
prayer practice. As previously noted, the invocations here
were written and given by elected representatives acting in
their official capacity. This fact interacts with the other
aspects of the county's practice, altering their
constitutional significance. Accordingly, we must evaluate
these other elements through the lens of the
prayer-giver's identity. We conclude that it is the
combination of these elements-not any particular feature
alone-that "threatens to blur the line between church
and state to a degree unimaginable in Town of
Greece." Lund, 837 F.3d at 435 (panel
is a cornerstone principle of our Establishment Clause
jurisprudence that 'it is no part of the business of
government to compose official prayers . . . .'"
Lee, 505 U.S. at 588 (quoting Engel v.
Vitale, 370 U.S. 421, 425 (1962)). The government
"is without power to prescribe . . . any particular form
of prayer which is to be used as an official prayer in
carrying on any program of governmentally sponsored religious
activity." Engel, 370 U.S. at 430. The Court
reiterated this foundational point in Town of
Greece: "Our Government is prohibited from
prescribing prayers to be recited in our public institutions
in order to promote a preferred system of belief or code of
moral behavior." 134 S.Ct. at 1822.
that is precisely what happened in Rowan County, where the
five commissioners "maintain[ed] exclusive and complete
control over the content of the prayers." Lund,
103 F.Supp.3d at 733. In Marsh, the prayer-giver was
paid by the state. In Town of Greece, the
prayer-giver was invited by the state. But in Rowan County,
the prayer-giver was the state itself. The Board was thus
"elbow-deep in the activities banned by the
Establishment Clause-selecting and prescribing sectarian
prayers." Lund, 837 F.3d at 434 (panel
arrogating the prayer opportunity to itself, the Board also
restricted the number of faiths that could be referenced at
its meetings. When guests are allowed to deliver invocations,
as in Marsh and Town of Greece, legislators
can easily expand the religions represented (perhaps in
response to requests or on their own initiative). In
upholding sectarian prayer, Town of Greece
emphasized that legislatures are typically able and willing
to accommodate diverse faiths. The way to acknowledge
"our growing diversity, " the Court suggested, is
"not by proscribing sectarian content but by welcoming
ministers of many creeds." Town of Greece, 134
S.Ct. at 1820-21 (citing congressional prayers referencing
Buddhism, Hinduism, Islam, and Judaism).
the county's rigid, restrictive practice with the more
flexible, inclusive approach upheld in Town of
Greece. Greece welcomed adherents of all faiths,
allowing "any member of the public [the chance] to offer
an invocation reflecting his or her own convictions."
Id. at 1826 (plurality opinion). Most of the guest
ministers were Christian, owing to the fact that "nearly
all of the congregations in town turned out to be
Christian." Id. at 1824 (majority opinion). To
address complaints, however, the town "invited a Jewish
layman and the chairman of the local Baha'i temple to
deliver prayers" and granted a Wiccan priestess's
request to participate. Id. at 1817. By opening its
prayer opportunity to all comers, the town cultivated an
atmosphere of greater tolerance and inclusion.
County regrettably sent the opposite message. Instead of
embracing religious pluralism and the possibility of a
correspondingly diverse invocation practice, Rowan
County's commissioners created a
"closed-universe" of prayer-givers dependent solely
on election outcomes. Lund, 103 F.Supp.3d at 723.
The commissioners effectively insulated themselves from
requests to diversify prayer content. And we cannot overlook
the fact that the decision to restrict the prayer opportunity
to the commissioners was not made by the citizens of Rowan
County or some disinterested group but perpetuated by the
commissioners themselves-all of whom identify as Protestant
Christian. See J.A. 275 (United Methodist); J.A. 287
(same); J.A. 279 (Independent Baptist); J.A. 291 (same); J.A.
283 (Southern Baptist).
Buddhists, Hindus, Jews, Muslims, Sikhs, or others who sought
some modest place for their own faith or at least some less
insistent invocation of the majority faith, the only recourse
available was to elect a commissioner with similar religious
views. See Br. of Appellant at 26. We find this
point troubling. "[V]oters may wonder what kind of
prayer a candidate of a minority religious persuasion would
select if elected. Failure to pray in the name of the
prevailing faith risks becoming a campaign issue or a tacit
political debit, which in turn deters those of minority
faiths from seeking office." Lund, 837 F.3d at
435 (panel dissent). Further, allowing the county to restrict
to one the number of faiths represented at Board meetings
would warp our inclusive tradition of legislative prayer into
a zero-sum game of competing religious factions. Our
Constitution safeguards religious pluralism; it does not
sanction activity which would take us "one step closer
to a de facto religious litmus test for public office."
we note that the risk of political division stemming from
prayer practice conflict is no mere abstract matter. At one
meeting, an individual who "expressed opposition to the
Board's prayer practice" was booed and jeered by the
audience. Lund, 103 F.Supp.3d at 729. In addition,
the prayer practice became a campaign issue in the 2016 Board
elections. The two incumbent commissioners favored continuing
the county's defense of the prayer practice, while two
challengers opposed it. See Supp. Br. of Appellees
at 16 n.6. The incumbents ultimately prevailed. Id.
Almost four decades ago, the Supreme Court cautioned that
"political division along religious lines . . . is a
threat to the normal political process, " and is
therefore "one of the principal evils against which the
First Amendment was intended to protect."
Lemon, 403 U.S. at 622. Time has done nothing to
diminish the salience of this warning.
structured the prayer opportunity so that Board members alone
could give voice to their religious convictions, the
commissioners unceasingly and exclusively invoked
Christianity. Even more problematic, the prayer practice at
times "promote[d]" Christianity, the
commissioners' "preferred system of belief."
Town of Greece, 134 S.Ct. at 1822.
County makes the entirely fair point that courts must not
become censors of public prayer. The Supreme Court echoed
this concern, warning courts away from becoming
"supervisors and censors of religious speech."
Id. A single prayer will thus not "despoil a
practice that on the whole reflects and embraces our
tradition" of legislative prayer. Id. at 1824.
At the same time, however, courts must decide the case before
them, which cannot be done without "review[ing] the
pattern of prayers over time." Id. at 1826-27
(plurality opinion). Where even the most cursory look reveals
a constitutionally problematic prayer practice, courts have
no choice but to examine the entire record, which of course
includes the invocations. A proper sensitivity toward the
dangers of judicial overreach in this area cannot divest us
of a duty which if not performed would grant free rein to
governmental sectarian abuse.
lead dissent decries this inquiry as "judicial review
run amok." Infra
Lead Dissent at 98. But while judicial review of prayer
practices might indeed pose a danger in some instances, there
is no danger here. Every single individual in Rowan County
remains free to pray as he or she sees fit and in the
individual or collective setting that he or she finds most
meaningful. What government is not free to do, however, is
link itself persistently and relentlessly to a single faith.
See Larson, 456 U.S. at 244 ("The clearest
command of the Establishment Clause is that one religious
denomination cannot be officially preferred over
another."). This evident an identification of the state
with one and only one faith is not, we repeat, some marginal
or peripheral constitutional violation that we can just shrug
off and wish away. For to do so here would wish away the
Establishment Clause itself. The overwhelming majority of the
Board's invocations referenced tenets of Christianity.
Over a period of more than five years, only 4 of 143 prayers
were non-sectarian. Lund, 103 F.Supp.3d at 714. The
remaining 139 prayers, or 97%, "use[d] ideas or images
identified with [Christianity], " Lee, 505 U.S.
at 588, such as "Jesus, " "Christ, " or
the "Savior, " Lund, 103 F.Supp.3d at 714.
No other religion was ever represented in the invocations.
Id. Sectarian references were especially common at
the conclusion of the prayer. To list but a few
representative examples: "I ask this in the name of the
King of Kings, the Lord of Lords, Jesus Christ, " S.A.
33 (prayer of March 5, 2012); "[I] ask these things in
the name of Jesus and for the sake of His Kingdom, "
S.A. 15 (prayer of June 2, 2008); "For the sake of your
Son, our Savior, the Lord Jesus Christ, " S.A. 31
(prayer of October 3, 2011); and "In Jesus' name we
pray, " S.A. 22 (prayer of November 16, 2009). Several
invocations delved into the finer points of Christian
theology. One prayer during the holiday season began,
"[W]e'd like to thank you for the Virgin Birth,
we'd like to thank you for the Cross at Calvary, and
we'd like to thank you for the resurrection." S.A.
12 (prayer of December 3, 2007). Another remarked,
"Father God, . . . [w]e thank you so much for sending
your Son Jesus Christ to this world, and we always remember
that this time of year, Lord, and we should remember it
always." S.A. 27 (prayer of December 6, 2010).
of Greece instructs courts to consider a prayer practice
from the perspective of the "reasonable observer, "
who is presumed to be "acquainted with [the]
tradition" of legislative prayer. 134 S.Ct. at 1825
(plurality opinion). Although "adult citizens, firm in
their own beliefs, can tolerate and perhaps appreciate a
ceremonial prayer delivered by a person of a different faith,
" id. at 1823 (majority opinion), the
"reasonable observer"-or even the exceptionally
well-informed citizen steeped in the Court's legislative
prayer jurisprudence-would be surprised to find exclusively
sectarian invocations being delivered exclusively by the
commissioners because, as noted, the Court has consistently
spoken in terms of guest ministers and outside volunteers.
addition, as noted, no religion other than Christianity was
ever represented at Board meetings. "When the
state's representatives so emphatically evoke a single
religion in nearly every prayer over a period of many years,
that faith comes to be perceived as the one true faith, not
merely of individual prayer-givers, but of government
itself." Lund, 837 F.3d at 434 (panel dissent).
Faced with this unchanging tableau, attendees must have come
to the inescapable conclusion that the Board "favors one
faith and one faith only." Id. at 435. This was
the inference drawn by the plaintiffs, who described their
sense of separation from their own government and the
political process itself. See S.A. 1-10 (affidavits
of the plaintiffs).
not necessary, of course, for governments to go out of their
way "to achieve religious balancing" in prayer
content or to represent some minimum number of faiths.
Town of Greece, 134 S.Ct. at 1824. But in
considering whether government has aligned itself with a
particular religion, a tapestry of many faiths lessens that
risk whereas invoking only one exacerbates it. Here, the