Lund v. Rowan County.

Rowan County, North Carolina opens its board of commissioners meetings with a prayer. It is a routine practice, and the invocations rotate between board members. The bulk of the prayers invoke Christianity in some form.

In 2012, the ACLU sent a letter to Rowan County objecting to the invocations, asserting a violation of the Establishment Clause of the Constitution. The Board did not respond.

Plaintiffs filed a lawsuit in federal District Court. They alleged that the prayer unconstitutionally affiliated the board with one religion, and that the meetings coerced them to participate in the prayers as a condition of attendance.

In May 2014, the Supreme Court issued its opinion in Town of Greece v. Galloway. Then, both parties filed motions for summary judgment.

The Fourth Circuit opinion includes a long history of legislative prayer jurisprudence, which culminated in Town of Greece. Prior to Town of Greece, the Fourth Circuit had primarily looked at whether legislative prayer was sectarian in nature to determine if the prayer was constitutional. Town of Greece instead focuses the determination on tradition, non-discrimination and ensuring their is no coercion.

The District Court ruled that the closed-universe of prayer givers (the board itself), deviated from the tradition of invited third-party invocations and inherently discriminated against and disfavored religious minorities. The District Court also concluded that the board’s asking the audience to stand, while allowing them not to, was coercive. It therefore granted summary judgment to the plaintiffs.

The Fourth Circuit disagreed:

In essence, the district court treated the Supreme Court’s jurisprudential silence on lawmaker-led prayer as conclusively excluding legislators from being permissible prayer-givers to their own legislative bodies. That conclusion is not supportable.

The opinion goes on to argue that the Supreme Court has never placed any significance on the identity of the prayer giver, and that Town of Greece does not include that identity in its analysis. It discusses the fact that the majority of state legislatures and both houses of Congress allow members to deliver opening invocations.

In reaching its decision, the district court seems to have wholly ignored a foundational principle in Town of Greece. “The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.” Id. at 1825 (Kennedy, J., plurality opinion).

The Fourth Circuit also rejects any content-based challenge to the prayers in Rowan County.

… courts need only assure themselves that sectarian legislative prayer, viewed from a cumulative perspective, is not being exploited to proselytize or disparage. Below this threshold, the Supreme Court has disclaimed any interest in the content of legislative invocations, announcing a strong disinclination “to embark on a sensitive evaluation or to parse the content of a particular prayer.” Marsh, 463 U.S. at 795.

The record in this case reflects that the Board’s prayer practice did not stray across this constitutional line of proselytization or disparagement.

… Prayers that chastise dissenters or attempt to sway nonbelievers press the limits of the Supreme Court’s instruction and may not merit constitutional protection, but no such prayers have been proffered in this case.

And, likewise, the Fourth Circuit rejects the argument that limiting the prayer givers to the board itself inherently limits the types of prayers.

The district court’s opinion aims elsewhere, essentially mandating prayer-giver diversity. … For example, under the district court’s framework, a legislature, including Congress, would be prohibited from permitting individual members to deliver the opening invocation to solemnize its proceedings unless an unlimited number of faiths were actually represented by the elected representatives. But diversity among the beliefs represented in a legislature has never been the measure of legislative prayer.  (Citations Omitted).

Finally, the Fourth Circuit concludes that the prayers in Rowan County did not, over time, promote Christianity. Rather, like in Town of Greece and other cases, the prayers were more “generic” blessings.

In considering whether the practice was coercive, the opinion points out that the majority in Town of Greece was unable to settle what constitutes coercion:

Justices Thomas and Scalia would require coercion to consist of “the coercive state establishments that existed at the founding,” which essentially equates to religious observance “by force of law and threat of penalty.” Town of Greece, 134 S. Ct. at 1837 (Thomas J., concurring in part and concurring in the judgment). Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, framed the inquiry as “a fact-sensitive one that considers both the setting in which the prayer arises and the audience to whom it is directed.” Id. at 1825 (Kennedy, J., plurality opinion). Under this view, “[c]ourts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood.” Id. at 1826-27.

The Fourth Circuit interprets the actions in Rowan County under the “view more favorable to the Plaintiffs” expressed by Justice Kennedy. The opinion looks at the fact that adults are less susceptible to coercion than children (children form the basis of most of the case law on coercion in the context of the Establishment Clause), that adults are often faced with disagreeable messages and that there was on chastising or dogmatic disquisition here.

The record is similarly devoid of evidence that anyone who chose not to participate during the prayer suffered adverse consequences, that their absence was perceived as disrespectful, or was recognized by the Board in any way. To the contrary, the Board has attested that such conduct would have “no impact on [the constituent’s] right to fully participate in the public meeting, including addressing the commission and participating in the agenda items in the same matter as permitted any citizen of Rowan County.” J.A. 277. Plaintiffs point us to no evidence to the contrary.

To the Fourth Circuit, the instruction to join in the prayer by the board was not sufficiently coercive to change this outcome. Nor was the subjective feeling of the plaintiffs that they were being treated as outsiders.

The Board’s legislative prayer practice falls within our recognized tradition and does not coerce participation by nonadherents. It is therefore constitutional. The district court erred in concluding to the contrary. Accordingly, the judgment of the district court is reversed and remanded with directions to dismiss the complaint.

Judge Wilkinson dissented from the Fourth Circuit’s opinion. His dissent opens with a hypothetical prefatory statement that, he concludes, would have obviated the need for this litigation. Instead, “the message actually delivered in this case was not one of welcome but of exclusion.”

The dissent looks at the pattern of sectarian prayer, the aggregate treatment of prayer in this case.

I have seen nothing like it. This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece. That case in no way sought to dictate the outcome of every legislative prayer case. Nor did it suggest that “no constraints remain on [prayer] content.” Id. at 1823. The Establishment Clause still cannot play host to prayers that “over time . . . denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.” Id. To assess those risks, “[c]ourts remain free to review the pattern of prayers over time.” Id. at 1826-27.

A few more excerpts that illuminate the dissent’s position:

Legislator-led prayer, when combined with the other elements, poses a danger not present when ministers lead prayers. The Rowan County commissioners, when assembled in their regular public meetings, are the very embodiment of the state. From November 2007, when the county began recording its board meetings, to the start of this lawsuit in March 2013, 139 out of 143 meetings, or 97%, began with legislators delivering prayers explicitly referencing Christianity.

…While a small group of legislators can diversify their appointment of prayer-givers at will, it may be more difficult to expect voters to elect representatives of minority religious faiths. For instance, after residents in the town of Greece complained about the pervasive Christian prayers, local officials granted a Jewish layman, a Baha’i practitioner, and a Wiccan priestess the opportunity to lead prayers. Town of Greece, 134 S. Ct. at 1817. The Court took comfort in the fact that “any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.” Id. at 1826. But no guest ministers or clergy and no member of the public delivered an invocation here, that being reserved for the commissioners belonging to the faith that dominates the electorate.  … Entrenching this single faith reality takes us one step closer to a de facto religious litmus test for public office.

… That brings us to the second problematic element in this case: the fact that the prayers of the commissioners were preceded by a request or encouragement for audience participation. … The attendees at Rowan County board meetings, upon hearing the invocations uttered by the state’s representatives day in and day out, must have grasped the obvious: the Rowan County commission favors one faith and one faith only. …A request to an audience to stand or pray carries special weight when conveyed in an official capacity by an elected commissioner facing his constituents, with his board arrayed behind or beside him, directly before discharging his official duties.

…The invocations here can sound like an invitation to take up the tenets of Christian doctrine. And an invitation can take on tones of exhortation when issued from the lips of county leaders. Although those attending the board meeting may have “had several options available — they could arrive after the invocation, leave for the duration of the prayer, or remain for the prayer without participating,” maj. op. at 47, such options served only to marginalize. Indeed, to speak of options masks important differences. People often go to church or join groups and organizations out of a sense of choice. It is the faith they have chosen or it is a group to which they wish to belong. But people often go to local government meetings in their capacity as citizens in order to assert their views or defend their rights vis-à-vis an entity with legal and coercive powers. These are two very different forms of attendance.

…By pairing the Free Exercise Clause with the Establishment Clause in the First Amendment, the Framers struck a careful balance. …This seems an inapt moment to upset that ancient balance. …In venues large and small, a message of religious welcome becomes our nation’s great weapon, never to be sheathed in this or any other global struggle. Believing that legislative prayer in Rowan County can further both religious exercise and religious tolerance, I respectfully dissent.

In prior position, I was a municipal attorney. I would sit on the dais with the boards and councils to opine on legal matters affecting their legislative deliberations. In some cities, I was asked – as the town or city attorney – to lead the town in prayer.

Our office had a prayer binder, and we used to note in the binder when a prayer was given so as not to repeat them too close together. I always, always chose prayers that made no explicit references to Christianity or Christian symbols. Still, the practice made me uncomfortable.

Even though I was uncomfortable, I justified it to myself that this was not me speaking, it was the town council. It was their voice, their meeting, I was just being asked to read a message they supported. We were non-partisan support staff; I think I thought of this as non-sectarian support.

My point here is that I think this is going to go forward to an en banc decision, and potentially an appeal to SCOTUS. I think the majority opinion puts too much emphasis on taking apart the broad strokes of the plaintiffs arguments with tradition and history, without diving into the facts of the Rowan County commissioners actions and whether or not they were coercive. I think that coercion is the key factor here. I think whether the Constitution was violated should depend on whether the individual rights of those in the audience to be represented by their government and not subjected to the establishment of a single religion were violated. Just my 2 cents.