Nancy Lund v. Rowan County, North Carolina

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1591

NANCY LUND; LIESA MONTAG-SIEGEL; ROBERT VOELKER,

Plaintiffs - Appellees,

v.

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,

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.

Appeal 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)

Argued: January 27, 2016 Decided: September 19, 2016
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Reversed and remanded with directions by published opinion.
Judge Agee wrote the majority opinion, in which Judge Shedd
concurs. Judge Wilkinson wrote a dissenting opinion.

ARGUED: 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. ON BRIEF: David C. Gibbs, III, THE
NATIONAL CENTER FOR LIFE AND LIBERTY, Flower Mound, Texas; John
C. Sullivan, MORGAN, LEWIS & BOCKIUS LLP, Dallas, Texas; David
A. Cortman, Brett B. Harvey, ALLIANCE DEFENDING FREEDOM,
Scottsdale, Arizona; Hiram S. Sasser, III, LIBERTY INSTITUTE,
Plano, Texas, for Appellant. Daniel Mach, Heather L. Weaver,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C., for
Appellees. Patrick Morrisey, Attorney General, Elbert Lin,
Solicitor General, Julie Marie Blake, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia, for Amicus State of West Virginia;
Luther Strange, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF ALABAMA, Montgomery, Alabama, for Amicus State of Alabama;
Mark Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF ARIZONA, Phoenix, Arizona, for Amicus State of Arizona;
Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of
Arkansas; Pamela 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 of Indiana; Bill 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 Nebraska; Adam 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; E. Scott Pruitt, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City,
Oklahoma, for Amicus State of Oklahoma; Alan Wilson, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Amicus State of South Carolina;
Ken Paxton, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
TEXAS, Austin, Texas, for Amicus State of Texas. Sean

2
Sandoloski, Dallas, Texas, Thomas G. Hungar, Alex Gesch, Lindsay
S. See, Russell Balikian, GIBSON, DUNN & CRUTCHER LLP,
Washington, D.C., for Amici Members of Congress. 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.

3
AGEE, Circuit Judge:

The Board of Commissioners of Rowan County, North Carolina,

(“the Board”) opens its public meetings with an invocation

delivered by a member of the Board. The district court

determined that practice violates the Establishment Clause of

the First Amendment. Under the Supreme Court’s most recent

decision explaining legislative prayer, Town of Greece v.

Galloway, 134 S. Ct. 1811 (2014), we find the Board’s

legislative prayer practice constitutional and reverse the

judgment of the district court.

I.

The relevant facts are undisputed. Rowan County, North

Carolina, exercises its municipal power through an elected Board

of Commissioners, which typically holds public meetings twice a

month. For many years prior to this proceeding, the Board has

permitted each commissioner, on a rotating basis, to offer an

invocation before the start of the Board’s legislative agenda. 1

At most Board meetings, the chairperson would call the

meeting to order and invite the Board and audience to stand for

the ceremonial opening. A designated commissioner would then

1The record does not reflect that the Board adopted a
written policy regarding the invocations but it followed a
relatively routine practice.

4
deliver an invocation of his or her choosing followed by the

pledge of allegiance. The content of each invocation was

entirely in the discretion of the respective commissioner; the

Board, as a Board, had no role in prayer selection or content.

The overwhelming majority of the prayers offered by the

commissioners invoked the Christian faith in some form. For

example, prayers frequently included references to “Jesus,”

“Christ,” and “Lord.” E.g., Supp. J.A. 36-37. 2 It was also

typical for the invocation to begin with some variant of “let us

pray” or “please pray with me.” Id. Although not required to

do so, the audience largely joined the commissioners in standing

and bowing their heads during the prayer and remained standing

for the pledge of allegiance.

In February 2012, the American Civil Liberties Union of

North Carolina sent the Board a letter objecting to the

invocations and asserting a violation of the Establishment

Clause. The Board did not formally respond, but several

commissioners expressed their intent to continue delivering

prayers consistent with their Christian faith. For example, a

then-commissioner stated, “I will continue to pray in Jesus’

name. I am not perfect so I need all the help I can get, and

2
This opinion omits internal marks, alterations, citations,
emphasis, and footnotes from quotations unless otherwise noted.

5
asking for guidance for my decisions from Jesus is the best I,

and Rowan County, can ever hope for.” J.A. 325.

Subsequently, Rowan County residents Nancy Lund, Liesa

Montag–Siegel, and Robert Voelker (collectively, “Plaintiffs”)

filed a complaint in the U.S. District Court for the Middle

District of North Carolina “to challenge the constitutionality

of [the Board’s] practice of delivering sectarian prayer at

meetings[.]” J.A. 10. Specifically, Plaintiffs alleged that

the prayer practice unconstitutionally affiliated the Board with

one particular faith and caused them to feel excluded as

“outsiders.” J.A. 12.

Apart from their objections to the prayers’ contents,

Plaintiffs further alleged that the overall atmosphere of the

meetings coerced them to participate as a condition of

attendance. Lund stated she felt “compelled to stand [during

the invocation] so that [she] would not stand out.” Supp. J.A.

2. Voelker offered a similar account, claiming he was “coerced”

into participating because the commissioners and most audience

members stood and bowed their heads. Supp. J.A. 9. Voelker

also posited that any public opposition to the prayers could

negatively affect his business before the Board.

Based on these allegations, Plaintiffs sought a declaratory

judgment that the Board’s prayer practice violated the

Establishment Clause, along with an injunction preventing any

6
similar future prayers. Plaintiffs also moved for a preliminary

injunction based on then-controlling precedent that sectarian

legislative prayer was a constitutional violation. See Joyner

v. Forsyth Cty., 653 F.3d 341, 347 (4th Cir. 2011) (explaining

that our decisions “hewed to [the] approach [of] approving

legislative prayer only when it is nonsectarian in both policy

and practice”). Observing that “97% of the [Board’s recorded]

meetings[] have opened with a [commissioner] delivering a

sectarian prayer that invokes the Christian faith,” the district

court entered a preliminary injunction barring the County from

permitting such invocations. J.A. 296.

The Supreme Court then issued its decision in Town of

Greece, holding that the legislative prayer in that case,

although clearly sectarian, was constitutionally valid and did

not transgress the Establishment Clause. Id. at 1820 (“An

insistence on nonsectarian or ecumenical prayer as a single,

fixed standard is not consistent with the tradition of

legislative prayer outlined in [our] cases.”); see also id. at

1815, 1824. The parties filed cross-motions for summary

judgment in light of Town of Greece.

In reviewing the summary judgment motions, the district

court acknowledged that in Town of Greece the Supreme Court had

“repudiated” and “dismantled” “the Fourth Circuit’s legislative

prayer doctrine [that had] developed around the core

7
understanding that the sectarian nature of legislative prayers

was largely dispositive” of its constitutionality. Lund v.

Rowan Cty., N.C., 103 F. Supp. 3d 712, 719, 721 (M.D.N.C. 2015).

Moreover, the Plaintiffs did not raise the sectarian nature of

the prayers as part of their summary judgment motion.

Nonetheless, the district court struck down the Board’s

legislative invocation practice, concluding that “[s]everal

significant differences” between Town of Greece and this case

rendered that practice unconstitutional. Lund, 103 F. Supp. 3d

at 724. The district court thought the fact that the

commissioners delivered the prayers, instead of invited clergy,

“deviates from the long-standing history and tradition of a

chaplain, separate from the legislative body, delivering the

prayer.” Id. at 723. The district court further emphasized

that the Board’s practice created a “closed-universe of prayer-

givers” that “inherently discriminates and disfavors religious

minorities.” Id. at 723.

After finding the Board’s practice outside the

constitutionally protected historical practice of legislative

prayer, the district court went on to consider whether the

Board’s prayer practice otherwise “violate[d] the Establishment

Clause as a coercive religious exercise.” Id. at 724-25.

Although the unrefuted record disclosed that individuals could

leave the room or remain seated during the opening prayer, the

8
district court held the Board’s conduct was nonetheless coercive

because, among other things, the commissioners often invited the

public to stand before the invocation. In the court’s words,

the Board’s legislative prayer practice
leads to prayers adhering to the faiths of
five elected Commissioners. The Board
maintains exclusive and complete control
over the content of the prayers, and only
the Commissioners deliver the prayers. In
turn, the Commissioners ask everyone --
including the audience -- to stand and join
in what almost always is a Christian prayer.
On the whole, these details and context
establish that [the Board’s] prayer practice
is an unconstitutionally coercive practice
in violation of the Establishment Clause.

Id. at 733.

Based on this analysis, the district court granted

Plaintiffs’ motion for summary judgment and entered a permanent

injunction barring the Board’s legislative prayer practice. The

Board timely appealed, and we review the district court’s

decision de novo. Simpson v. Chesterfield Cty. Bd. of

Supervisors, 404 F.3d 276, 280 (4th Cir. 2005); see also

Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir.

2008) (“We review de novo a district court’s findings of

constitutional fact and its ultimate conclusions regarding a

First Amendment challenge.”).

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 II.

A.

Recognizing “this Nation’s history has not been one of

entirely sanitized separation between Church and State,” the

Supreme Court has acknowledged that government, in some

instances, may properly commemorate religion in public life.

Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S.

756, 760 (1973). Pertinent here, the Court has expressly

approved the practice of opening legislative sessions with

prayer. See Joyner, 653 F.3d at 347 (“There is a clear line of

precedent not only upholding the practice of legislative prayer,

but acknowledging the ways in which it can bring together

citizens of all backgrounds and encourage them to participate in

the workings of their government.”). In contrast to other

Establishment Clause jurisprudence, legislative prayer stands on

its own distinct ground owing to its historically based practice

and acceptance.

While legislative prayer is generally a type of government

speech, Turner v. City Council of Fredricksburg, 534 F.3d 352,

354 (4th Cir. 2008), the Supreme Court has always stressed its

unique status. That status was evident in Marsh v. Chambers,

463 U.S. 783 (1983), which involved a challenge to the

constitutionality of the Nebraska legislature’s practice of

having a paid chaplain offer a prayer to open each legislative

10
session. Applying the three-part test from Lemon v. Kurtzman,

403 U.S. 602 (1971), the Eighth Circuit had concluded such

invocations violated the Establishment Clause. The Supreme

Court disagreed.

Recounting the long-standing American tradition of opening

legislative sessions with prayer, the Supreme Court traced its

history “[f]rom colonial times through the founding of the

Republic and ever since.” Marsh, 463 U.S. at 786. The Court

noted that “the First Congress, as one of its early items of

business, adopted the policy of selecting a chaplain to open

each session with prayer.” Id. at 787–88. The Senate and

House, in turn, appointed official chaplains in 1789. Id.

Ascribing great significance to these events, the Court

explained they shed light on how the Founders viewed the

Establishment Clause in relation to legislative prayer. “It can

hardly be thought that . . . they intended the Establishment

Clause . . . to forbid what they had just declared acceptable.”

Id. at 790. “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 [the] practice

of [legislative] prayer.” Id. at 791.

Having upheld legislative prayer in general, the Marsh

Court next considered whether specific features of Nebraska's

practice fell outside constitutional protection. In that

11
regard, the plaintiff raised three challenges: (i) Nebraska had

selected a representative of “only one denomination” for sixteen

years; (ii) the chaplain was a paid state employee; and (iii)

his prayers were offered “in the Judeo–Christian tradition.”

Id. at 792–93. The Supreme Court rejected all three claims,

noting that the First Congress “did not consider opening prayers

as a proselytizing activity or as symbolically placing the

government’s official seal of approval on one religious view.”

Id. at 792. Moreover, there was no evidence that the chaplain’s

long tenure “stemmed from an impermissible motive,” and thus his

continuous appointment did “not in itself conflict with the

Establishment Clause.” Id. at 793–94. That the chaplain was

paid from public funds was similarly “grounded in historic

practice” and thus not prohibited. Id. at 794. As for the

content of the prayers, the Court explained it was “not of

concern” because “there is no indication that the prayer

opportunity has been exploited to proselytize or advance any

one, or to disparage any other, faith or belief.” Id. at 794-

95. “That being so,” the Supreme Court concluded it would not

“embark on a sensitive evaluation or to parse the content of a

particular prayer.” Id. at 795.

The Supreme Court later referenced its holding in Marsh

during the course of ruling on the propriety of two religious

holiday displays located on public property in County of

12
Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 578-

79, 602 (1989). In dicta commenting about legislative prayer

practice permitted in Marsh, the Court noted that “[t]he

legislative prayers involved in Marsh did not violate [the

Establishment Clause] because the particular chaplain had

removed all references to Christ.” Id. at 603. The Court also

observed that “not even the unique history of legislative prayer

can justify contemporary legislative prayers that have the

effect of affiliating the government with any one specific faith

or belief.” Id.

Whatever fleeting validity those observations may have had,

the Supreme Court flatly rejected this approach in Town of

Greece. Clarifying its earlier holdings, the Court disavowed a

requirement that legislative prayers must be neutral and

reference only a generic God to comply with the Establishment

Clause: “An insistence on nonsectarian or ecumenical prayer as a

single, fixed standard is not consistent with the tradition of

legislative prayer outlined in [our] cases.” Town of Greece,

134 S. Ct. at 1820.

The Supreme Court’s decision in Town of Greece guides

review of this case, which, like other legislative prayer cases,

requires a case-specific evaluation of all the facts and

circumstances. See Lynch v. Donnelly, 465 U.S. 668, 678-79

(1984) (observing that the Establishment Clause cannot

13
mechanistically be applied to draw unwavering, universal lines

for the varying contexts of public life). To guide that review

we turn to a fuller examination of the Supreme Court’s

discussion in Town of Greece.

B.

The town of Greece opened its monthly legislative meetings

with an invocation delivered by volunteer clergy. It solicited

guest chaplains by placing calls to local congregations listed

in a directory. Town of Greece, 134 S. Ct. at 1816. Nearly all

of the local churches were Christian, as were the guest clergy,

and thus most invocations referenced some aspect of the

Christian faith. The town made no attempt to guide the prayer-

givers in the content of the prayer. Id. Although the district

court found the town’s practice constitutional the Second

Circuit disagreed and concluded that the “steady drumbeat of

Christian prayer . . . tended to affiliate the town with

Christianity,” in violation of the Establishment Clause. Id. at

1818. The Supreme Court reversed.

Beginning with a summary of Marsh, the Court explained

“that the Establishment Clause must be interpreted by reference

to historical practices and understandings.” Id. at 1819; see

also id. at 1818-19. “Marsh stands for the proposition that it

is not necessary to define the precise boundary of the

Establishment Clause where history shows that the specific

14
practice is permitted.” Id. at 1819. The pertinent inquiry in

legislative prayer cases, therefore, is whether the practice at

issue “fits within the tradition long followed in Congress and

the state legislatures.” Id. The Court added, “[a]ny test [we]

adopt[] [for analyzing invocations] must acknowledge a practice

that was accepted by the Framers and has withstood the critical

scrutiny of time and political change.” Id.

Rooted thus, the Court rejected the plaintiffs’ argument

that legislative prayer must be generic or nonsectarian under

the Establishment Clause. Observing that legislative

invocations containing explicitly religious themes were accepted

at the time of the first Congress and remain vibrant today, the

Court concluded, “[a]n insistence on nonsectarian or ecumenical

prayer as a single, fixed standard is not consistent with [our

accepted] tradition of legislative prayer.” Id. at 1820. On

this point, the Court disavowed Allegheny’s “nonsectarian”

interpretation of Marsh as dictum “that was disputed when

written and has been repudiated by later cases.” Id. at 1821;

see also id. (“Marsh nowhere suggested that the

constitutionality of legislative prayer turns on the neutrality

of its content.”).

The Court further observed that a content-based rule “would

force the legislatures that sponsor prayers and the courts that

are asked to decide these cases to act as supervisors and

15
censors of religious speech.” Id. at 1822. Enforcing such a

line would “involve government in religious matters to a far

greater degree than is the case under the town’s current

practice of neither editing or approving prayers in advance nor

criticizing their content after the fact.” Id. “Once it

invites prayer into the public sphere,” the Court stated,

“government must permit a prayer giver to address his or her own

God or gods as conscience dictates, unfettered by what an

administrator or judge considers to be nonsectarian.” Id. at

1822-23.

Noting that legislative prayer has historically served a

ceremonial function, “[t]he relevant constraint derives from its

place at the opening of legislative sessions, where it is meant

to lend gravity to the occasion and reflect values long part of

the Nation’s heritage.” Id. at 1823. Even so, the Court

cautioned there could be a circumstance where a legislative

prayer practice failed to “serve[] [its] legitimate function”:

“If the course and practice over time shows that the invocations

denigrate nonbelievers or religious minorities, threaten

damnation, or preach conversion[.]” Id. at 1823.

Synthesizing these factors, the Court held that the prayers

offered on behalf of the town, although almost exclusively

Christian, did not evidence any pattern of denigration or

proselytization. See id. (“Our tradition assumes that adult

16
citizens, firm in their own beliefs, can tolerate and perhaps

appreciate a ceremonial prayer delivered by a person of a

different faith.”). Though the plaintiffs pointed to at least

two prayers in the record that arguably contained disparaging

content, the Court concluded that the prayer practice as a whole

served only to solemnize the board meetings. A few deviating

prayers, the Court explained, were of no constitutional

consequence. Id. at 1824.

Relatedly, the Court also determined there was no

constitutional defect arising from the fact that the invited

prayer-givers were predominantly Christian: “[s]o long as the

town maintains a policy of nondiscrimination, the Constitution

does not require it to search beyond its borders for non-

Christian prayer givers in an effort to achieve religious

balancing.” Id. Continuing, the Court observed

[t]he quest to promote a diversity of religious views
would require the town to make wholly inappropriate
judgments about the number of religions [it] should
sponsor and the relative frequency with which it
should sponsor each, a form of government entanglement
with religion that is far more troublesome than the
current approach.

Id.

Lastly, the Court addressed the plaintiffs’ contention that

the prayers unconstitutionally “coerce participation by

nonadherents.” Id. (Kennedy, J., plurality opinion). In

jettisoning this argument, the Court acknowledged that

17
“coercion” could render legislative prayer beyond constitutional

protection in some outlier circumstances. But the justices

differed in their understandings of what constituted coercion.

Compare id. at 1824-28 (Sec. II.B of Justice Kennedy’s plurality

opinion), with id. at 1837-38 (Sec. II. of Justice Thomas’s

concurring opinion).

Justice Kennedy, joined by Chief Justice Roberts and

Justice Alito, framed the coercion 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). These Justices found no coercion in the

town’s prayer practice and relied heavily on the historical

approach of Marsh. They presumed that reasonable observers are

aware of the multiple traditions acknowledging God in this

country, including legislative prayer, the pledge of allegiance,

and presidential prayers. They concluded that, because of these

traditions, citizens could appreciate the town’s prayer practice

without being compelled to participate. Id. Furthermore, they

observed that the purpose of the prayers was to put legislators

in a contemplative state of mind rather than have an effect on

observers. Id. at 1826. Justice Kennedy further stated that

“[o]ffense . . . does not equate to coercion.” Id. “Adults

often encounter speech they find disagreeable; and an

Establishment Clause violation is not made out any time a person

18
experiences a sense of affront from the expression of contrary

religious views in a legislative forum.” Id. 3

With these principles from Town of Greece in mind, we now

apply them to the facts presented here.

III.

Legislative prayer thus has a unique status relative to the

First Amendment that places it in a different legal setting than

other types of government conduct touching the Establishment

Clause. See Marsh, 463 U.S. at 792. Town of Greece reflects

that the constitutionality of legislative prayer hinges on its

historical precedence, as it “has become part of the fabric of

our society.” 134 S. Ct. at 1819. If a prayer exercise has

long been “followed in Congress and the state legislatures,”

Town of Greece reflects that a court must view it “as a

tolerable acknowledgement of beliefs widely held among the

people of this country.” Id. at 1818-19. A court reviewing a

challenge to legislative prayer “must acknowledge a practice

3
Justices Thomas and Scalia, on the other hand, interpreted
the Establishment Clause as prohibiting only “actual legal
coercion,” which they defined as the exercise of “government
power in order to exact financial support of the church, compel
religious observance, or control religious doctrine.” Town of
Greece, 134 S. Ct. at 1837 (Thomas J., concurring in part and
concurring in the judgment). As no such evidence was present in
the record, they concurred in the holding that the town’s prayer
practice should be upheld. Id. at 1837-38.

19
that was accepted by the Framers and has withstood the critical

scrutiny of time and political change.” Id. at 1819. “A test

that would sweep away what has so long been settled would create

new controversy and begin anew the very divisions along

religious lines that the Establishment Clause seeks to prevent.”

Id.

A.

Following Town of Greece, both parties correctly

acknowledge that sectarian legislative prayer, as a general

matter, is compatible with the Establishment Clause. 4 What

remains in dispute is whether the Board’s practice of the

elected commissioners delivering such prayers makes a

substantive constitutional difference. The district court found

this feature largely dispositive. See Lund, 103 F. Supp. 3d at

722. In its view, the prayer-giver’s status as “a member of the

legislative body” is a “crucial” and “determinative difference.”

Id. at 722, 724. The district court’s decision has the

practical effect of imposing a bright-line prohibition on

lawmaker-led prayer.

In reaching its conclusion, the district court observed

that the Supreme Court has never before sanctioned legislator-

4At oral argument before this Court, the Plaintiffs
specifically agreed the sectarian aspect of the invocation
prayers at the Board meetings was not an issue they raise. Oral
Argument at 17:10-17:32 and 20:10-21:24.

20
led prayers: “[I]t is telling that throughout its Town of Greece

opinion and the opinion in Marsh, the Supreme Court consistently

discussed legislative prayer practices in terms of invited

ministers, clergy, or volunteers providing the prayer, and not

once described a situation in which the legislators themselves

gave the invocation.” Id. at 722. 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.

While Town of Greece involved a rotating group of local

clergy and Marsh concerned a paid chaplain, the Supreme Court

attached no significance to the speakers’ identities in its

analysis and simply confined its discussion to the facts

surrounding the prayer practices before it. See Town of Greece,

134 S. Ct. at 1816; Marsh, 463 U.S. at 784-85. Nowhere did the

Court say anything that could reasonably be construed as a

requirement that outside or retained clergy are the only

constitutionally permissible givers of legislative prayer.

Quite the opposite, Town of Greece specifically directs our

focus to what has been done in “Congress and the state

legislatures” without any limitation regarding the officiant.

Id. at 1819. We find the Supreme Court’s silence on the issue

of lawmaker-led prayer to be simply that: silence. See United

21
States v. Stewart, 650 F.2d 178, 180 (9th Cir. 1981) (remarking

it would be improper to draw any inference from the Supreme

Court’s silence on an issue not placed before it).

Nor has this Court previously assigned weight to the

identity of the prayer-giver. To the contrary, we have

suggested this feature is irrelevant. For example, in Wynne v.

Town of Great Falls, we remarked that “[p]ublic officials’ brief

invocations of the Almighty before engaging in public business

have always, as the Marsh Court so carefully explained, been

part of our Nation’s heritage.” 376 F.3d 292, 302 (4th Cir.

2004). Similarly, Joyner v. Forsyth County observed that “[i]t

[is] 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; see also id. at

351. And in Simpson v. Chesterfield County Board of

Supervisors, we noted that the Supreme Court, “neither in Marsh

nor in Allegheny, held that the identity of the prayer-giver,

rather than the content of the prayer, was what would affiliate

the government with any one specific faith or belief.” 404 F.3d

at 286. Although these cases ultimately turned on the now-

rejected position that sectarian prayer was constitutionally

invalid, none made the prayer-giver’s identity dispositive.

On a broader level, and more importantly, the very “history

and tradition” anchoring the Supreme Court’s holding in Town of

22
Greece underscores a long-standing practice not only of

legislative prayer generally but of lawmaker-led prayer

specifically. Opening invocations offered by elected

legislators have long been accepted as a permissible form of

religious observance. See S. Rep. No. 32-376, at 4 (1853)

(commenting that the authors of the Establishment Clause “did

not intend to prohibit a just expression of religious devotion

by the legislators of the nation, even in their public character

as legislators” (emphasis added)); see also Lynch, 465 U.S. at

674 (“There is an unbroken history of official acknowledgment by

all three branches of government of the role of religion in

American life from at least 1789.”). As just one example, the

South Carolina Provincial Congress -- South Carolina’s first

independent legislature -- welcomed an elected member to deliver

its opening invocations. See South Carolina Provincial

Congress, Thanks to the Continental Congress (Jan. 11, 1775),

http://amarch.lib.niu.edu/islandora/object/niu-amarch%3A94077

(last visited Aug. 31, 2016 and saved as ECF opinion

attachment). “The recognition of religion in these early public

pronouncements is important, unless we are to presume the

founders of the United States were unable to understand their

own handiwork.” Myers v. Loudoun Cty. Sch. Bd., 418 F.3d 395,

404 (4th Cir. 2005).

23
 This tradition of legislative prayer has continued to

modern day. A majority of state and territorial assemblies

honor requests from individual legislators to give an opening

invocation. See National Conference of State Legislatures,

Inside the Legislative Process 5-151 to -152 (2002), http://

www.ncsl.org/documents/legismgt/ILP/02Tab5Pt7.pdf (observing

legislators may offer an opening prayer in at least thirty-one

states). Lawmaker-led prayer is especially prevalent in the

states under our jurisdiction, where seven of the ten

legislative chambers utilize elected members for this purpose.

See id.; Br. for State of W. Va. et al. as Amici Curiae

Supporting Defendant-Appellant at 14 & Addend. 2; see also

Prayers Offered in the North Carolina House of Representatives:

2011-2014, http://nchousespeaker.com/docs/opening-prayers-

nchouse-2011-2014.pdf (last visited July 12, 2016). Several of

these states have enacted legislation recognizing the historical

practice of legislative prayer. For example, a Virginia statute

protects legislators who deliver a sectarian prayer during

deliberative sessions. See Va. Code § 15.2-1416.1. And South

Carolina expressly authorizes its elected officials to open

meetings with prayer. See S.C. Code § 6-1-160(B)(1); see also

Mich. H.R. Rule 16 (requiring the clerk of the Michigan House of

Representatives to arrange “for a Member to offer an invocation”

at the beginning of each session).

24
 Lawmaker-led prayer finds contemporary validation in the

federal government as well. Both houses of Congress allow

members to deliver an opening invocation. As recently as May

2015, Senator James Lankford commenced legislative business in

the Senate with a prayer invoking the name of Jesus. 161 Cong.

Rec. S3313 (daily ed. May 23, 2015). The congressional record

is replete with similar examples. See, e.g., 159 Cong. Rec.

S3915 (daily ed. June 4, 2013) (prayer by Sen. William M.

Cowan); 155 Cong. Rec. S13401-01 (daily ed. Dec. 18, 2009)

(prayer by Sen. John Barrasso); 119 Cong. Rec. 17,441 (1973)

(statement of Rep. William H. Hudnut III); see also 2 Robert C.

Byrd, The Senate 1789-1989: Addresses on the History of the

United States Senate 305 (Wendy Wolff ed., 1990) (“Senators

have, from time to time, delivered the prayer.”).

In view of this long and varied tradition of lawmaker-led

prayer, the district court’s judicial wall barring elected

legislators from religious invocations runs headlong into the

Supreme Court’s acknowledgement that “[a]ny test [we] adopt[]

must acknowledge a practice that was accepted by the Framers and

has withstood the critical scrutiny of time and political

change.” Town of Greece, 134 S. Ct. at 1819. As Justice Alito

aptly explained, “if there is any inconsistency between any

[Establishment Clause] test[] and the historic practice of

legislative prayer, the inconsistency calls into question the

25
validity of the test, not the historic practice.” Id. at 1834

(Alito, J., concurring). Heeding this advice, we decline to

accept the district court’s view that legislative prayer

forfeits its constitutionally protected status because a

legislator delivers the invocation. A legal framework that

would result in striking down legislative prayer practices that

have long been accepted as “part of the fabric of our society”

cannot be correct. Id. at 1819.

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).

Not only are the legislators themselves the intended

“congregation” for legislative prayer, but the practice carries

special meaning to the thousands of state and local legislators

who are citizen representatives. In this respect, the Supreme

Court has specifically singled out “members of town boards and

commissions, who often serve part-time and as volunteers,” as

lawmakers for whom “ceremonial prayer may . . . reflect the

values they hold as private citizens.” Id. at 1826. If

legislative prayer is intended to allow lawmakers to “show who

26
and what they are” in a public forum, then it stands to reason

that they should be able to lead such prayers for the intended

audience: themselves. Id. Indeed, legislators are perhaps

uniquely qualified to offer uplifting, heartfelt prayer on

matters that concern themselves and their fellow legislators.

The district court’s determination that the fact that a

legislator delivers a legislative prayer is a significant

constitutional distinction, at least in the context of this

case, was error.

B.

We turn now to the question of whether some other facet of

the Board’s practice, beyond the bare fact that lawmaker-led

prayer is offered, takes this case outside the protective

umbrella of legislative prayer. Although the Supreme Court has

not forged a comprehensive template for all acceptable

legislative prayer, its decisions set out guideposts for

analyzing whether a particular practice goes beyond

constitutional bounds. See Snyder, 159 F.3d at 1233 (“Marsh

implicitly acknowledges some constitutional limits on the scope

and selection of legislative prayers[.]”).

1.

An initial guidepost relates to the selection of the

content of legislative prayer. In rejecting the plaintiffs’

position that invocations must be nonsectarian, the Supreme

27
Court in Town of Greece explained that such a rule “would force

the legislatures that sponsor prayers and the courts that are

asked to decide these cases to act as supervisors and censors of

religious speech.” 134 S. Ct. at 1822. Such an outcome, the

Court continued, “would involve government in religious matters

to a far greater degree than is the case under the town’s

current practice of neither editing or approving prayers in

advance nor criticizing their content after the fact.” Id.

The district court determined the Board’s practice was

invalid under this standard because the individual commissioners

author their own invocations, and by doing so act as

“supervisors of the prayers.” Lund, 103 F. Supp. 3d at 723. It

reasoned that “the government is [thus improperly] delivering

prayers that were exclusively prepared and controlled by the

government[.]” Id. We disagree. The Board’s practice here,

where each commissioner gives their own prayer without

oversight, input, or direction by the Board simply does not

present the same concerns of the “government [attempting] to

define permissible categories of religious speech.” Town of

Greece, 134 S. Ct. at 1822 (emphasis added).

What the Supreme Court has cautioned against in this

context is “for[cing] the legislatures that sponsor prayers . .

. to act as . . . supervisors and censors of religious speech.”

Id. (emphasis added). To be sure, in offering the invocations

28
the individual commissioners sometimes convey their personal

alignment with a particular faith. But the Court has always

looked to the activities of the legislature as a whole in

considering legislative prayer. This makes perfect sense; for

it is only through act of the deliberative body writing or

editing religious speech that government would impermissibly

seek “to promote a preferred system of belief or code of moral

behavior” with selected content. Town of Greece, 134 S. Ct. at

1822. There is no evidence that the Board, as a Board, had any

role in any of the prayers by the individual commissioners. The

record is devoid of any suggestion that any prayer in this case

is anything but a personal creation of each commissioner acting

in accord with his or her own personal views.

In effect, each commissioner is a free agent like the

ministers in Town of Greece and the chaplain in Marsh who gave

invocations of their own choosing. In other Establishment

Clause contexts, the Supreme Court has stressed this element of

private choice, holding that when a neutral government policy or

program merely allows or enables private religious acts, those

acts do not necessarily bear the state’s imprimatur. See Zelman

v. Simmons–Harris, 536 U.S. 639, 652 (2002) (school voucher

programs); Mueller v. Allen, 463 U.S. 388, 399 (1983) (school-

related income tax deductions). As the Supreme Court stated in

Town of Greece, “[o]nce it invites prayer into the public

29
sphere, government must permit a prayer giver to address his or

her own God or gods as conscience dictates, unfettered by what

an administrator or judge considers to be nonsectarian.” 134 S.

Ct. at 1822-23.

The Board’s legislative prayer practice amounts to nothing

more than an individual commissioner leading a prayer of his or

her own choosing.

2.

A second guidepost to acceptable legislative prayer

discussed in Town of Greece concerns its content. After

reaffirming the holding in Marsh that lower courts should

refrain from becoming embroiled in the review of the substance

of legislative prayer, the Supreme Court noted that there could

be certain circumstances where sectarian references cause a

legislative prayer practice to fall outside constitutional

protection. Id. at 1823. “If the course and practice over time

shows that the invocations denigrate nonbelievers or religious

minorities, threaten damnation, or preach conversion,” a

constitutional line can be crossed. Id. In that circumstance,

the Court observed, “many present may consider the prayer to

fall short of the desire to elevate the purpose of the occasion

and to unite lawmakers in their common effort.” Id.

To this end, courts need only assure themselves that

sectarian legislative prayer, viewed from a cumulative

30
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. See Wynne, 376 F.3d at 300

(“To ‘proselytize’ on behalf of a particular religious belief

necessarily means to seek to ‘convert’ others to that

belief[.]”). The content of the commissioners’ prayers largely

encompassed universal themes, such as giving thanks and

requesting divine guidance in deliberations. References to

exclusively Christian concepts typically consisted of the

closing line, such as “In Jesus’ name. Amen.” See Supp. J.A.

29-31. There is no prayer in the record asking those who may

hear it to convert to the prayer-giver’s faith or belittling

those who believe differently. 5 And even if there were, it is

5 The four prayers that the dissent cites as
constitutionally offensive bear in common the fact that none
attempt to convert any hearer to change their faith; none
belittle those of another faith; and none portend that a person
of another faith would be treated any differently by the prayer-
giver in the business of the Board. In short, none of those
(Continued)
31
the practice as a whole -- not a few isolated incidents -- which

controls. Town of Greece, 134 S. Ct. at 1824 (“Absent a pattern

of prayers that over time denigrate, proselytize, or betray an

impermissible government purpose, a challenge based solely on

the content of a prayer will not likely establish a

constitutional violation.”).

The invocation delivered at the Board’s October 17, 2011,

meeting is illustrative of what the Board members and the public

in Rowan County would hear:

Let us pray. Father we do thank you for the
privilege of being here tonight. We thank
you for the beautiful day you’ve given us,
for health and strength, for all the things
we take for granted. Lord, as we read the
paper today, the economic times are not
good, and many people are suffering and
doing without. We pray for them; we pray
that you would help us to help. We pray for
the decisions that we will make tonight,
that God, they will honor and glorify you.
We pray that you would give us wisdom and
understanding. We’ll thank you for it. In
Jesus’ name. Amen.

Supp. J.A. 31. Such prayer comes nowhere near the realm of

prayer that is out of bounds under the standards announced in

Town of Greece. 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

cited prayers bears any of the hallmarks of constitutional
question set out in Town of Greece.

32
such prayers have been proffered in this case. See, e.g.,

Snyder, 159 F.3d at 1235 (finding the plaintiff’s proffered

prayers unconstitutional because they “strongly disparage[d]

other religious views” and “s[ought] to convert his audience”).

Plaintiffs call our attention to a few examples that

contain more forceful references to Christianity out of the

hundreds of legislative prayers delivered before Board meetings.

As an initial matter, the sectarian content cited in Plaintiffs’

opening brief (and referenced by the dissent) is austere and

innocuous when measured against invocations upheld in Marsh.

See 463 U.S. at 823 n.2 (Stevens, J., dissenting) (quoting an

exemplar challenged prayer). Regardless, Plaintiffs’

hypersensitive focus is misguided. Town of Greece “requires an

inquiry into the prayer opportunity as a whole, rather than into

the contents of a single prayer.” 134 S. Ct. at 1824. “Absent

a pattern of prayers that over time denigrate, proselytize, or

betray an impermissible government purpose, a challenge based

solely on the content of a prayer will not likely establish a

constitutional violation.” Id. Given the respectful tone of

nearly all the invocations delivered here, which largely mirror

those identified in Town of Greece, the Board’s practice crossed

no constitutional line. See id. at 1824 (holding that a few

stray remarks are insufficient to “despoil a practice that on

the whole reflects and embraces our tradition”).

33
 3.

Moving beyond the invocations themselves, a third guidepost

to legislative prayer relates to the selection of the prayer-

giver. In Town of Greece, the challenged practice resulted in

“a predominately Christian set of ministers . . . lead[ing] the

prayer.” Id. The Court found this fact unremarkable because

“[t]he town made reasonable efforts to identify all of the

congregations located within its borders and represented that it

would welcome a prayer by any minister or layman who wished to

give one.” Id. “So long as the town maintains a policy of

nondiscrimination,” then “the Constitution does not require it

to search beyond its borders for non-Christian prayer givers in

an effort to achieve religious balancing.” Id.

The district court found the Board’s legislative prayer

practice objectionable because the invocation opportunity was

rotated among only the elected commissioners; that is, all of

the Board members. According to the district court, “[w]hen all

faiths but those of the five elected Commissioners are excluded,

the policy inherently discriminates and disfavors religious

minorities.” Lund, 103 F. Supp. 3d at 723. Marsh and Town of

Greece reflect that the district court’s conclusion was

mistaken.

The Supreme Court’s prohibition on discrimination in this

context is aimed at barring government practices that result

34
from a deliberate choice to favor one religious view to the

exclusion of others. As explained in Town of Greece, concerns

arise only if there is evidence of “an aversion or bias on the

part of town leaders against minority faiths” in choosing the

prayer-giver. 134 S. Ct. at 1824. The Marsh Court likewise

alluded to this requirement when it cautioned that the selection

of a guest chaplain cannot stem from “an impermissible motive.”

463 U.S. at 793. Read in context, this condition appears

directed at the conscious selection of the prayer-giver on

account of religious affiliation. See id. at 793.

The district court’s opinion aims elsewhere, essentially

mandating prayer-giver diversity. See Lund, 103 F. Supp. 3d at

723 (“[T]he present case presents a closed-universe of prayer-

givers, . . . [leaving] minority faiths [with] no means of being

recognized.”). 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. Town of Greece specifically rejected the

notion that lawmaking bodies must “promote a diversity of

religious views.” 134 S. Ct. at 1824. Consequently, the town

35
was not obliged to “search beyond its borders for non-Christian

prayer givers in an effort to achieve religious balancing.” Id.

And in Marsh, the Nebraska legislature appointed the same

Presbyterian minister for sixteen years to the exclusion of all

other creeds. The Court was unpersuaded that this made a

constitutional difference. See Marsh, 463 U.S. at 793.

Thus, while the Board’s practice limits the represented

faiths to those of the individual commissioners, that is no

different from the limitations built into the constitutional

prayer practices in Town of Greece and Marsh. See Simpson, 404

F.3d at 285 (“A party challenging a legislative invocation

practice cannot . . . rely on the mere fact that the selecting

authority chose a representative of a particular faith, because

some adherent or representative of some faith will invariably

give the invocation.”). There is simply no requirement in our

case law that a legislative prayer practice reflect multiple

faiths or even more than one to be constitutionally valid.

Absent proof the Board restricted the prayer opportunity

among the commissioners as part of an effort to promote only

Christianity, we must view its decision to rely on lawmaker-led

prayer as constitutionally insignificant. See Pelphrey v. Cobb

Cty., 547 F.3d 1263, 1281 (11th Cir. 2008) (“[Marsh] does not

require that all faiths be allowed the opportunity to pray. The

standard instead prohibits purposeful discrimination.”).

36
Plaintiffs have not directed the Court to any evidence that

would suggest the Board harbored such a motive. It is

uncontested that the Board’s policy was facially neutral and

bereft of government discretion. A person of any creed can be

elected to the Board and is entitled to speak without

censorship. Furthermore, as far as we can tell, the Board never

altered its practice to limit a non-Christian commissioner or

attempted to silence prayers of any viewpoint. See Lund, 103 F.

Supp. 3d at 714-16.

The Supreme Court has determined that the selection of a

prayer-giver who represents a single religious sect, even over

many years, does not advance any one faith or belief over

another. See Marsh, 463 U.S. at 793 (“We cannot, any more than

Members of the Congresses of this century, perceive any

suggestion that choosing a clergyman of one denomination

advances the beliefs of a particular church.”); Ctr. for

Inquiry, Inc. v. Marion Circuit Court Clerk, 758 F.3d 869, 874

(7th Cir. 2014) (“Marsh and Greece show that a government may,

consistent with the First Amendment, open legislative sessions

with Christian prayers while not inviting leaders of other

religions[.]”). A party challenging a legislative prayer

practice cannot rely on the mere fact that the selecting

authority has confined the invocation speakers to a narrow

group. This is particularly true here as the Board has no voice

37
in the selection of commissioners, which is entirely up to the

citizens by election.

4.

A final guidepost to legislative prayer is found in the

statement from Town of Greece that the prayer practice “over

time” may not be “exploited to . . . advance any one . . . faith

or belief.” 134 S. Ct. at 1823. We must discern, then, whether

over time the Board’s practice conveys the view that Rowan

County “advance[d]” Christianity over other creeds. Id.

The Board has not picked any of the prayers under its

legislative prayer practice of ceremonial invocation by which

the commissioners’ prayers solemnize their meeting. Town of

Greece fully supports this approach, reaffirming the principle

first set out in Marsh that a governmental subdivision does not

endorse any one faith or belief by opening its forum to prayers,

even sectarian ones. See McCreary Cty. v. Am. Civil Liberties

Union of Ky., 545 U.S. 844, 859 n.10 (2005) (citing Marsh as an

example of a permissible governmental action whose “manifest

purpose was presumably religious”). And this remains true even

when sectarian religious content is communicated regularly. See

Galloway v. Town of Greece, 681 F.3d 20, 24-25 (2d Cir. 2012)

(observing that “[r]oughly two-thirds” of the prayers at issue

in that case “contained uniquely Christian language,” while

38
“[t]he remaining third of the prayers spoke in more generically

theistic terms”).

The prayers in this case, like those in Town of Greece,

were largely generic petitions to bless the commissioners before

turning to public business. References to Christian concepts

typically consisted of the closing statement “in Jesus’ name we

pray,” or a similar variation. Supp. J.A. 31. As Town of

Greece imparts, such prayers do not unconstitutionally convey

the appearance of an official preference for Christianity.

Rather, “[o]ur tradition assumes that adult citizens, firm in

their own beliefs, can tolerate and perhaps appreciate

[sectarian] ceremonial prayer[.]” Town of Greece, 134 S. Ct. at

1823.

Had a chaplain offered prayers identical to those in the

instant case, Town of Greece and Marsh would unquestionably

apply to uphold the Board’s practice. Unlike the district

court, we are unconvinced the feature of a legislator delivering

the prayer to fellow legislators signals an unconstitutional

endorsement of religion.

Practically speaking, the public seems unlikely to draw a

meaningful distinction between a state-paid chaplain and the

legislative body that appoints him. “Such chaplains speak for

the legislature.” Snyder, 159 F.3d at 1238 (Lucero, J.,

concurring in judgment). They are in essence “deputized” to

39
represent the governing body in this context. Cf. Town of

Greece, 134 S. Ct. at 1850 (Kagan, J, dissenting).

Consequently, when an elected representative underscores his

alignment with a particular faith during the invocation, as is

sometimes the case here, the risk of placing the government’s

weight behind this view is the same as those practices upheld in

Marsh and Town of Greece. In other words, the degree of

denominational preference projected onto the government with

lawmaker-led prayer is not significantly different from

selecting denominational clergy to do the same. Both prayers

arise in the same context and serve the same purpose.

If anything, allowing the legislative body to collectively

select a tenured chaplain as in Marsh would seem to pose a

greater problem. The presence of a single religious figure,

particularly a paid state employee, seems more likely to reflect

a perceived governmental endorsement of the faith that

individual represents. Yet, the Supreme Court has concluded

this more obvious preference is not constitutionally

significant. See Rubin v. Lancaster, 710 F.3d 1087, 1097 (9th

Cir. 2013) (“[W]hatever message Nebraska might have conveyed

through its practice of selecting, paying, and retaining for

sixteen years a Presbyterian chaplain who often delivered

explicitly Christian invocations, the Supreme Court concluded

that the legislature had not advanced Christianity.”).

40
 Legislative prayer is constitutionally acceptable when it

“fits within the tradition long followed in Congress and the

state legislatures.” Town of Greece, 134 S. Ct. at 1819. The

Supreme Court has observed that prayers offered within this

tradition have a common theme and “respectful” tone –- they are

given “at the opening of legislative sessions, where it is meant

to lend gravity to the occasion.” Id. at 1823. Acceptable

legislative prayer thus “solemnize[s] the occasion” and “invites

lawmakers to reflect upon shared ideals and common ends before

they embark on the fractious business of governing[.]” Id. The

record here reflects just such prayers.

C.

We now turn to Plaintiffs’ claims that the Board’s

legislative prayer practice is impermissibly coercive. The

“coercion test” under the Establishment Clause reflects that the

government violates the Constitution if it compels religious

participation. See Allegheny, 492 U.S. at 660 (Kennedy, J.,

concurring in judgment in part and dissenting in part).

Although spurned by the Supreme Court for some time, see Sch.

Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223 (1963)

(noting that Free Exercise cases were “predicated on coercion

while [an] Establishment Clause violation need not be”), the

coercion test gradually emerged as part of Establishment Clause

doctrine in several decisions regarding school-sponsored prayer.

41
See Lee v. Weisman, 505 U.S. 577, 593 (1992) (striking down

clergy-led prayers at graduation ceremonies because the school

district’s “supervision and control . . . places public

pressure, as well as peer pressure, on attending students . . .

as real as any overt compulsion.”); Santa Fe Indep. Sch. Dist.

v. Doe, 530 U.S. 290, 310-17 (2000) (finding prayers at high

school football games unconstitutionally coercive).

Although previously unclear whether the coercion test

applied beyond the schoolhouse, see G. Sidney Buchanan, Prayer

in Governmental Institutions: The Who, the What, and the At

Which Level, 74 Temp. L. Rev. 299, 339-42 (2001); see also

Mellen v. Bunting, 327 F.3d 355, 366-72 (4th Cir. 2003)

(recognizing a gap in Supreme Court precedent with regard to

secular expression not directed to children), Town of Greece

settled that ambiguity by observing that a coercion-based

analysis applies to adults encountering religious observances in

governmental settings. See 134 S. Ct. at 1825 (Kennedy, J.,

plurality opinion) (“It is an elemental First Amendment

principle that government may not coerce its citizens to support

or participate in any religion or its exercise.”).

The Town of Greece majority, however, was unable to settle

on what constitutes coercion in the legislative prayer context.

Although five Justices agreed that the town did not engage in an

unconstitutional coercion, they reached this conclusion by

42
separate paths. 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 history

and tradition of legislative prayer is relevant here, too, and

the “reasonable observer” is presumed to be aware of that

history and recognize the purpose of such practices. Id. at

1825.

The district court divided its coercion analysis into two

parts. First, it considered the issue under Town of Greece,

concluding “Justice Kennedy’s general rules for evaluating

potential coercion in the legislative prayer context . . . point

the [c]ourt in the direction of finding the practice of [the

Board] unconstitutionally coercive.” Lund, 130 F. Supp. 3d at

43
729. The district court then “turn[ed] to the principles of

[the] coercion doctrine developed prior to the Town of Greece

decision,” finding these cases likewise suggested the Board

violated the Establishment Clause. Id.

As noted above, the Supreme Court’s coercion doctrine prior

to Town of Greece developed in several cases involving public

school events with children. The potential for undue influence,

however, is less significant when dealing with prayer involving

adults, and this distinction warrants a difference in

constitutional analysis. The law recognizes a meaningful

distinction between children in a school setting and a

legislative session where adults are the participants. See

Stein v. Plainwell Cmty. Schs., 822 F.2d 1406, 1409 (6th Cir.

1987) (“The potential for coercion in the prayer opportunity was

one of the distinctions employed by the Court in Marsh to

separate legislative prayer from classroom prayer.”). The

Supreme Court assumes that adults are “not readily susceptible

to religious indoctrination or peer pressure.” Marsh, 463 U.S.

at 792; see also Town of Greece, 134 S. Ct. at 1823 (“[A]dult

citizens, firm in their own beliefs, can tolerate and perhaps

appreciate a ceremonial prayer delivered by a person of a

different faith.”).

Consistent with this distinction, we do not find the

Supreme Court’s prior coercion cases applicable in analyzing

44
legislative prayer like that at issue here. See Simpson, 404

F.3d at 281 (“Marsh, in short, has made legislative prayer a

field of Establishment Clause jurisprudence with its own set of

boundaries and guidelines.”). Thus, we look to the coercion

analysis in Town of Greece, recognizing first that the Board

clearly did not engage in coercion under the view expressed by

Justices Scalia and Thomas. But we analyze the issue under the

view more favorable to the Plaintiffs as expressed in Justice

Kennedy’s plurality opinion. Under that approach, the Court

must conduct a fact-sensitive inquiry “consider[ing] both the

setting in which the prayer arises and the audience to whom it

is directed.” Town of Greece, 134 S. Ct. at 1825 (Kennedy, J.,

plurality opinion).

In upholding the invocation practice in Town of Greece, the

Supreme Court plurality identified several “red flags” that

could signal when a prayer exercise is coercive and thus not

within the historical tradition of constitutionally protected

legislative prayer. See id. at 1825-27. Specifically, the

Court explained that coercion may exist “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. The Court also identified as

problematic “practice[s] that classified citizens based on their

45
religious views” or resulted in a pattern of prayers used to

“intimidate” or “chastise[] dissenters.” Id.

It is not difficult to understand why the Court placed the

coercion bar so high in this context. As noted, adults are not

presumed susceptible to religious indoctrination or pressure

simply from speech they would rather not hear. Thus, there is

limited risk that disenchanted listeners would be affected by

mere contact with lawmaker-led legislative prayer. “Adults

often encounter speech they find disagreeable; and an

Establishment Clause violation is not made out any time a person

experiences a sense of affront from the expression of contrary

religious views[.]” Id.; see also Elk Grove Unified Sch. Dist.

v. Newdow, 542 U.S. 1, 44 (2004) (O'Connor, J., concurring in

the judgment) (“[T]he Constitution does not guarantee citizens a

right entirely to avoid ideas with which they disagree.”).

The district court erred in concluding the Board’s prayer

practice was coercive under this framework. The commissioners’

prayers “neither chastised dissenters nor attempted lengthy

disquisition on religious dogma.” Town of Greece, 134 S. Ct. at

1826 (Kennedy, J., plurality opinion). Rather, as illustrated

previously, the content largely followed the spirit of solemn,

respectful prayer approved in Marsh and Town of Greece.

Moreover, the record shows that both attendance and

participation in the invocations were voluntary. The Board has

46
represented without contradiction that members of the public

were free to remain seated or otherwise “disregard the

Invocation in a manner that [was] not disruptive.” J.A. 277.

Thus, as a practical matter, citizens attending a Board meeting

who found the prayer unwanted had several options available --

they could arrive after the invocation, leave for the duration

of the prayer, or remain for the prayer without participating:

just like the audiences in Marsh and Town of Greece. And to the

extent individuals like Plaintiffs elected to stay, “their quiet

acquiescence [would] not, in light of our traditions, be

interpreted as an agreement with the words or ideas expressed.”

Town of Greece, 134 S. Ct. at 1827 (Kennedy, J., plurality

opinion).

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. Thus, it is implausible on this record to

suggest that Plaintiffs were “in a fair and real sense” coerced

47
to participate in the Board’s exercise of legislative prayer.

Lee, 505 U.S. at 586.

Plaintiffs’ allegations that the prayer practice made them

feel subjectively “excluded at meetings” and that the Board’s

“disagreement with [their] public opposition to sectarian prayer

could make [them] less effective advocate[s]” does nothing to

change the outcome. Lund, 130 F. Supp. 3d at 715-16. Town of

Greece explicitly rejected the claim that a citizen’s perceived

“subtle pressure to participate in prayers that violate their

beliefs in order to please the board members from whom they are

about to seek a favorable ruling” constitutes coercion. 134 S.

Ct. at 1825 (Kennedy, J., plurality opinion). This is true even

where the legislative body may “know many of their constituents

by name,” making anonymity less likely for those citizens who

decline to rise or otherwise participate in the invocation. Id.

Likewise, merely exposing constituents to prayer they find

offensive is not enough. “[I]n the general course[,]

legislative bodies do not engage in impermissible coercion

merely by exposing constituents to prayer they would rather not

hear and in which they need not participate.” Id. at 1827.

To be sure, legislative prayer may stray across the

constitutional line if “town leaders allocate[e] benefits and

burdens based on participation in the prayer, or that citizens

were received differently depending on whether they joined the

48
invocation or quietly declined.” Id. at 1826. But there must

be evidence in the record to support allegations of that sort.

There is no such evidence in this case.

Plaintiffs make several arguments in support of the

district court’s coercion ruling. They first claim that the

prayer practice here was “an external act focused on the broader

public,” which “has a type of coercive power that the internally

directed [prayers] in Town of Greece [did] not.” Response Br.

8, 11. Plaintiffs point to several invocations where the

commissioners offered prayers on behalf of others as well as

themselves. This evidence, in Plaintiffs’ view, shows that the

commissioners did “not consider the prayer practice an internal

act directed at one another, but rather, that it is also

directed toward citizens and for the benefit of all.” Id. at

11.

Town of Greece notes the internal or external nature of a

prayer practice in determining whether impermissible coercion

occurred. See 134 S. Ct. at 1825 (Kennedy, J., plurality

opinion) (“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.”). The Supreme

Court’s rationale here is obvious. The probability of coercion

can be heightened should the prayers be directed at those in

49
attendance. Plaintiffs’ argument, however, posits that any

prayer referencing a person or concern beyond the members of the

legislative body is externally directed and thus prohibited.

That cannot be. Legislative prayer does not lose its

constitutionally protected status because it includes a request

for divine protection for persons other than those serving in

office, such as our troops overseas or first responders. The

Supreme Court has never required such a single-minded purpose.

Indeed, the prayers in Town of Greece contained similar

expressions focused at persons other than fellow legislators.

See id. at 1824. The fact that individual commissioners here

sometimes prayed that God bless, protect, and heal wounded

soldiers in Iraq and injured police officers does not take the

prayers outside the realm of constitutionally protected

legislative prayer. 6

Plaintiffs next argue that the commissioners unacceptably

directed public participation in the prayers. To reiterate, the

Board’s opening ceremony usually began with the chairperson

asking everyone to stand “for the Invocation and Pledge of

6
Taking two of the exemplar prayers referenced by the
dissent, we do not understand the connection to coercion if the
gallery audience heard the Commissioner delivering the prayer
ask God to “continue to bless everyone in this room, our
families, our friends, and our homes” or to “forgive our pride
and arrogance, heal our souls, and renew our vision.” Cf. infra
70 (citing J.A. 16, 17).

50
Allegiance.” Lund, 103 F. Supp. 3d at 714. The designated

commissioner would then offer an invocation that typically

started with “let us pray” or “please pray with me.” Id.

Plaintiffs maintain that these statements amount to

unconstitutional coercion. The district court agreed,

concluding the commissioners’ statements “fall squarely within

the realm of soliciting, asking, requesting, or directing, and

thus within the territory of concern [in] Town of Greece.” Id.

at 728.

Again, we disagree. Similar invitations have been

routinely offered for over two centuries in the U.S. Congress,

the state legislatures, and countless local boards and councils.

No case has ever held such a routine courtesy opening a

legislative session amounts to coercion of the gallery audience.

It would come as quite a shock to the Founders if it had.

When the Supreme Court in Town of Greece expressed concern

about prayer-givers “direct[ing] the public to participate in

the prayers,” it did not have the foregoing in mind. 134 S. Ct.

at 1826 (Kennedy, J., plurality opinion). Coercion is measured

“against the backdrop of historical practice.” Id. at 1825.

“As a practice that has long endured, legislative prayer has

become part of our heritage and tradition . . . similar to the

Pledge of Allegiance [or] inaugural prayer[.]” Id. “It is

presumed that the reasonable observer is acquainted with this

51
tradition and understands that its purposes are to lend gravity

to public proceedings and to acknowledge the place religion

holds in the lives of many private citizens[.]” Id. Viewed

through this lens, no reasonable person would interpret the

commissioners’ commonplace invitations as government directives

commanding participation in the prayer. The phrase “let us

pray” is a familiar and “almost reflexive” call to open an

invocation that hardly compels in the rational mind thoughts of

submission. Id. at 1832 (Alito, J., concurring). The same goes

for the Board’s request for audience members to stand. We may

safely assume that mature adults, like Plaintiffs, can follow

such contextual cues without the risk of religious

indoctrination. See Marsh, 463 U.S. at 792. Telling here is

Plaintiffs’ own evidence, which indicates that some portion of

the audience often chose not to participate. See J.A. 12

(noting only “most” of the audience stood). In sum, opening a

legislative prayer with a short invitation to rise and join

hardly amounts to “orchestrat[ing] the performance of a formal

religious exercise in a fashion that practically obliges the

involvement of non-participants.” Myers, 418 F.3d at 406.

Lastly, Plaintiffs claim they were singled out for

opprobrium by “Board members signaling their disfavor of those

who did not fall in line.” Response Br. 20. Plaintiffs cite to

several public statements where acting commissioners were

52
critical of those in the religious minority. See, e.g., Lund,

103 F. Supp. 3d at 715. (then-chairman Jim Sides: “I am sick and

tired of being told by the minority what’s best for the

majority. My friends, we’ve come a long way -- the wrong way.

We call evil good and good evil.”). Even giving these comments

the weight Plaintiffs would like, which is itself doubtful

because most came post-litigation and in response to other

issues having nothing to do with legislative prayer, they are

insufficient to carry the day. Such isolated incidents do not

come close to showing, as Town of Greece requires, “a pattern of

prayers that over time denigrate, proselytize, or betray an

impermissible government purpose.” 134 S. Ct. at 1824.

Indeed, the comments cited here are not materially different

from those referenced in Town of Greece, where several

invocations referred to prayer opponents as the “minority” and

“ignorant.” Id. A few stray remarks are simply insufficient to

“despoil a practice that on the whole reflects and embraces our

tradition.” Id.

Participation in the Board’s opening ceremony, including

the invocation, is voluntary. Yet the district court concluded

that Plaintiffs are subject to unconstitutional coercion because

they claim to be compelled and coerced based on their subjective

speculation about how their abstention might be received. That

conclusion cannot be reconciled with Town of Greece and its

53
rejection of the notion of coercion of adults in similar

circumstances. Town of Greece identified a narrow range of

exceptional circumstances that could render a legislative prayer

practice coercive and outside the historical tradition of

invocations that comport with the Establishment Clause. The

Board’s legislative prayer practice is not close to crossing

that constitutional line.

IV.

None of the constitutional contentions raised by the

Plaintiffs have validity under the facts of this case for the

reasons set out above. Similarly, even taking all the

Plaintiffs’ claims as an amalgamated whole, they do not reflect

a meritorious claim for the same reasons such claims failed in

Marsh and Town of Greece.

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.

REVERSED AND REMANDED
WITH DIRECTIONS

54
WILKINSON, Circuit Judge, dissenting:

Welcome to the meeting of the Rowan County Board of
Commissioners. As many of you are aware, we customarily begin
these meetings with an invocation. Those who deliver the
invocation may make reference to their own religious faith as
you might refer to yours when offering a prayer. We wish to
emphasize, however, that members of all religious faiths are
welcome not only in these meetings, but in our community as
well. The participation of all our citizens in the process of
self-government will help our fine county best serve the good
people who live here.
--Message of Religious Welcome

The message actually delivered in this case was not one of

welcome but of exclusion. That is a pity, because even a brief

prefatory statement akin to that above might have helped to set

a different tone for the meetings here while not requiring the

judiciary to police the content of legislative prayer.

I.

Religious faith is not only a source of personal guidance,

strength, and comfort. Its observance is also a treasured

communal exercise which serves in times of need as the

foundation for mutual support and charitable sustenance. But

when 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. S.A. 1-10

(affidavits of Nancy Lund, Liesa Montag-Siegel, and Robert

Voelker). This, I respectfully suggest, is what is happening

here. It cannot be right. This case is more than a factual

55
wrinkle on Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).

It is a conceptual world apart.

Rowan County’s prayer practice featured invocations week

after week, month after month, year after year, with the same

sectarian references. To be sure, Town of Greece ruled that

sectarian prayer is not by itself unconstitutional. 134 S. Ct.

at 1820-23. But the issue before us turns on more than just

prayer content, the primary concern in Town of Greece. Whereas

guest ministers led prayers in that case, it was public

officials who exclusively delivered the invocations in Rowan

County. Those prayers served to open a meeting of our most basic

unit of government, a local board of commissioners that passes

laws affecting citizens in the most daily aspects of their

lives. The prayers, bordering at times on exhortation or

proselytization, were uniformly sectarian, referencing one and

only one faith though law by definition binds us all.

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

56
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.

Above all, the Supreme Court stressed that “[t]he inquiry

[into legislative prayer] remains 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 (emphasis added).

The parties have not cited any legislative prayer decision

combining the particular speakers, audience involvement, prayer

content, and local government setting presented here. Rowan

County’s counsel conceded during oral argument that this case is

without precedent. Oral Argument at 9:20-10:08, Lund v. Rowan

Cty. (No. 15-1591). I am left to wonder what limits, if any, to

sectarian invocations at meetings of local government appellants

would be prepared to recognize.

No one disputes that localities enjoy considerable latitude

in opening their meetings with invocations and prayers. But the

legislative prayer practice here pushes every envelope. I would

not welcome this exceptional set of circumstances into the

constitutional fold without considering its implications. A

ruling for the County bears unfortunate consequences for

American pluralism, for a nation whose very penny envisions one

57
out of many, a nation whose surpassing orthodoxy belongs in its

constitutional respect for all beliefs and faiths, a nation

which enshrined in the First and Fourteenth Amendments the

conviction that diversity in all of its dimensions is our

abiding strength.

II.

Though the majority treats this case as all but resolved by

Town of Greece, that decision did not touch upon the combination

of factors presented here, particularly the question of

legislator-led prayer. Indeed, prayers by public officials form

a distinct minority within Establishment Clause case law. The

great majority of legislative prayer cases have not involved

legislators at all, but invocations by guest ministers or local

religious leaders. E.g., Marsh v. Chambers, 463 U.S. 783, 784-85

(1983) (invocation by a chaplain paid by the state at the

opening of state legislative sessions); Joyner v. Forsyth Cty.,

653 F.3d 341, 343 (4th Cir. 2011) (prayers by leaders of local

congregations at county commission meetings). The invocations in

Town of Greece were likewise delivered solely by ministers from

local congregations. 134 S. Ct. at 1816-17. Nearly all the

congregations were Christian, and every minister selected during

an eight-year period came from that faith. Id. But crucially, no

public officials delivered prayers or influenced their content

in any way. Id. As the district court noted, Town of Greece

58
“consistently discussed legislative prayer practices in terms of

invited ministers, clergy, or volunteers providing the prayer,

and not once described a situation in which the legislators

themselves gave the invocation.” Lund, 103 F. Supp. 3d at 722.

By contrast, the only eligible prayer-givers at Rowan

County commission meetings were the five board commissioners,

each of whom took up the responsibility in turn. Not only did

they lead the prayers, but they also composed all the

invocations “according to their personal faiths,” which were

uniformly Christian denominations. Id. at 724; J.A. 275-94

(affidavits of the five Rowan County commissioners). Compared to

Town of Greece, the “much greater and more intimate government

involvement” by the Rowan County board led the district court to

find its prayer practice unconstitutional. Lund, 103 F. Supp. at

723.

Of course, the prayer practice was not infirm simply

because it was led by the commissioners. As the majority and the

states’ amicus brief rightly remind, there exists a robust

tradition of prayers delivered by legislators. According to a

national survey and amici’s own research, all but two state

legislative bodies engage in legislative prayer or a moment of

silence. Br. of Amici Curiae State of West Virginia and 12 Other

States at 13. Lawmakers lead at least some legislative prayers

in just over half of those states, including seven of the ten

59
state legislative chambers within our circuit. Id. at 13-14.

Many county and city governments also call upon elected

officials to give prayer. Id. at 15.

The tradition of prayer by legislators is but one indicator

of how unrealistic it would be to divorce democratic life from

religious practice. We see their intertwined nature whenever

candidates for all levels of political office proclaim their

faith on the campaign trail. Voters may understandably wish to

factor the religious devotion of those they elect into their

political assessments. It could not be otherwise. As Justice

William O. Douglas aptly observed, “We are a religious people

whose institutions presuppose a Supreme Being.” Zorach v.

Clauson, 343 U.S. 306, 313 (1952).

The Supreme Court thus recognized that “a 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. The solemnizing effect for lawmakers

is likely heightened when they personally utter the prayer. In

deference to that purpose, I would not for a moment cast all

legislator-led prayer as constitutionally suspect. As the

Supreme Court has emphasized, “[L]egislative 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.

60
 Prayers delivered by legislators, however, are themselves

quite diverse. We 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. 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. And in fact, the very survey on which the

majority and amici rely takes care to note that highly sectarian

prayers represent “not only a breach of etiquette,” but also an

“insensitivity to the faith of others.” National Conference of

State Legislatures, Inside the Legislative Process 5-145 (2002)

[hereinafter NCSL Survey]; see Maj. Op. at 24; Br. of Amici

Curiae State of West Virginia and 12 Other States at 13.

Further, the survey cautions, the prayer-giver “should be

especially sensitive to expressions that may be unsuitable to

members of some faiths.” NCSL Survey at 5-146.

We should focus then not on any general survey but on the

interaction among elements specific to this case -- legislative

prayer-givers exclusively of one faith, legislative invitation

to the citizens before them to participate, and exclusively

sectarian prayers referencing a single faith in every regular

61
meeting of a local governing body over a period of many years.

At a certain point, the interaction of these elements rises to

the level of coercion that Town of Greece condemned. Id. at

1823.

III.

A.

I shall discuss each of the aforementioned elements in

turn, beginning with the fact that the commissioners themselves

delivered the invocations. 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. Lund, 103 F. Supp. 3d at 714; see also Lee v.

Weisman, 505 U.S. 577, 588 (1992) (defining sectarian prayer as

“us[ing] ideas or images identified with a particular

religion”). The vast majority of those 139 prayers closed with

some variant of “in Jesus’ name.” S.A. 12-38 (transcript of all

Rowan County prayers on record). Only four invocations, given by

the same now-retired commissioner, were non-sectarian, J.A. 296

& n.2, and no prayer mentioned a religion other than

62
Christianity in five-and-a-half years, Lund, 103 F. Supp. 3d at

714.

The five commissioners, all Christian, “maintain[ed]

exclusive and complete control over the content of the prayers.”

Lund, 103 F. Supp. 3d at 733. At times, the prayers seemed to

blend into their legislative role. As one commissioner put it,

“Lord, we represent you and we represent the taxpayers of Rowan

County.” S.A. 16. 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. The board’s rules and regulations bind

residents of all faiths, Christian, Hindu, Jewish, Muslim, and

many other believers and non-believers as well. And yet those

laws that govern members of every faith are passed in meetings

where government overtly embraces only one. That singular

embrace runs up against “[t]he clearest command of the

Establishment Clause,” that “one religious denomination cannot

be officially preferred over another.” Larson v. Valente, 456

U.S. 228, 244 (1982).

An equally clear command is that “each separate government

in this country should stay out of the business of writing or

sanctioning official prayers.” Engel v. Vitale, 370 U.S. 421,

435 (1962). Town of Greece echoed that principle even as it

63
upheld legislative prayer: “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. These age-old warnings have

apparently fallen on deaf ears here. By instituting its elected

officials as the sole proclaimers of the sole faith, Rowan

County is elbow-deep in the activities banned by the

Establishment Clause -- selecting and prescribing sectarian

prayers. Although the county contends that the prayer practice

reflects only the desire of individual members of the board,

Appellant’s Reply Br. at 8-9, it is hard to believe that a

practice observed so uniformly over so many years was not by any

practical yardstick reflective of board policy.

Further, the prayer-giver’s identity affects the range of

religions represented in legislative prayer. Because only

commissioners could give the invocation, potential prayer-givers

in Rowan County came from a “closed-universe” dependent solely

on electoral outcomes. Lund, 103 F. Supp. 3d at 723. Appellant

frames this as a benefit. The election process, it says, which

welcomes candidates of all faiths or no faith, holds greater

promise of diversity than the selection of ministers by

government officials, which, the county points out, resulted in

the same chaplain for sixteen years in the case of Marsh v.

Chambers. Appellant’s Br. at 26.

64
 But the county is comparing apples and oranges. 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.

When delivering the same sectarian prayers becomes embedded

legislative custom, voters 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. It should not be so.

65
 None of this is to imply a need for “religious balancing”

among candidates, elected officials, or legislative prayers. Id.

at 1824. Without going so far, we still must contend with the

far-reaching implications of an unremitting record--

overwhelmingly sectarian prayers led solely by legislators

through many meetings over many years. No single aspect or

consequence of this case alone creates an Establishment Clause

problem. Rather, it is the combination of the role of the

commissioners, their instructions to the audience, their

invocation of a single faith, and the local governmental setting

that threatens to blur the line between church and state to a

degree unimaginable in Town of Greece.

B.

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. Town of Greece reminds us to look to the effect

of legislative prayer on the audience, not merely the actions of

the prayer-givers. See 134 S. Ct. at 1825-26. Here the effect is

apparent. 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. In the

eyes and ears of the attendees, that approval sets the tone for

66
the meetings to follow. As expressed by one plaintiff in this

case, “[T]he prayers sent a message that the County and Board

favors Christians and that non-Christians, like [her], are

outsiders.” S.A. 5 (affidavit of Liesa Montag-Siegel).

This message was amplified by frequent exhortations.

Commissioners spoke directly to the attendees during prayer,

asking them to stand and leading with phrases like “Let us pray”

or “Please pray with me.” Lund, 103 F. Supp. 3d at 714, 727. The

record reflects that the great majority of attendees did in fact

“join the Board in standing and bowing their heads,” id. at 714,

and that plaintiffs themselves “[a]s a result of the [Board]

Chair’s instructions” felt “compelled to stand” so that they

would not stand out, S.A. 1-10 (plaintiffs’ affidavits). When

reviewing phrases like “Let us pray” or “Please pray with me,”

Town of Greece underscored that the requests “came not from town

leaders but from the guest ministers.” 134 S. Ct. at 1826. The

Court noted that its “analysis would be different if town board

members directed the public to participate in the prayers.” Id.

(emphasis added). Here they did. “[T]he Board’s statements,” the

district court noted, “fall squarely within the realm of

soliciting, asking, requesting, or directing . . . of concern to

the Town of Greece plurality.” Lund, 103 F. Supp. 3d at 728.

A request to an audience to stand or pray carries special

weight when conveyed in an official capacity by an elected

67
commissioner facing his constituents, with his board arrayed

behind or beside him, directly before discharging his official

duties. Id. County board decisions affect both property and

livelihood, including zoning laws and variances, school funding,

police protection, fire prevention and sanitation budgets, and

the location of parks and other areas of recreation. Br. of

Amici Curiae Religious Liberty Orgs. at 25. I do not at all

suggest that commissioners would base their decisions on who

prays and who doesn’t. I do note, however, that the close

proximity of participatory sectarian exercises to citizen

petitions for the many benefits that local boards can withhold

or dispense presents, to say the least, the opportunity for

abuse.

C.

Nothing about the constitutional drawbacks of Rowan

County’s prayer practice should be construed as disparaging the

prayers themselves, which were moving and beautiful on many

levels. Each invocation was luminous in the language that many

millions of Americans have used over many generations to

proclaim the Christian faith. The constitutional challenge

directed at the invocations is in no sense a commentary on the

worth and value of prayer or on the devotion of the citizens of

Rowan County and their elected officials to their faith.

68
 The prayers here, which would be so welcome in many a

setting, cannot be divorced from the proceedings in which they

were spoken. It is not the prayers but the context that invites

constitutional scrutiny. Establishment Clause questions are by

their nature “matter[s] of degree,” which indicates some

acceptable practices and others that cross the line. Van Orden

v. Perry, 545 U.S. 677, 704 (2005) (Breyer, J., concurring in

judgment). For the average citizen of Rowan County, these

meetings might well have been the closest interaction he or she

would have with government at any level. To reserve that setting

for an embrace of one and only one faith over a period of years

goes too far.

This is especially so where prayers have on occasion veered

from invocation to proselytization. Even with the greater

latitude afforded in Town of Greece, legislative prayer still

cannot be “exploited to proselytize or advance any one . . .

faith or belief.” 134 S. Ct. at 1823 (quoting Marsh, 463 U.S. at

794-95). Plaintiffs, all non-Christians, cited examples that

they found overtly sectarian or proselytizing:

• “As we get ready to celebrate the Christmas season, we’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. Because we do believe that there is
only one way to salvation, and that is Jesus Christ.” J.A.
16 (prayer of December 3, 2007).

• “Our Heavenly Father, we will never, ever forget that we
are not alive unless your life is in us. We are the

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 recipients of your immeasurable grace. We can’t be
defeated, we can’t be destroyed, and we won’t be denied,
because of our salvation through the Lord Jesus Christ. I
ask you to be with us as we conduct the business of Rowan
County this evening, and continue to bless everyone in this
room, our families, our friends, and our homes. I ask all
these things in the name of Jesus, Amen.” Id. (prayer of
May 18, 2009).

• “Let us pray. Holy Spirit, open our hearts to Christ’s
teachings, and enable us to spread His message amongst the
people we know and love through the applying of the sacred
words in our everyday lives. In Jesus’ name I pray. Amen.”
Id. at 17 (prayer of March 7, 2011).

• “Let us pray. Merciful God, although you made all people in
your image, we confess that we live with deep division.
Although you sent Jesus to be Savior of the world, we
confess that we treat Him as our own personal God. Although
you are one, and the body of Christ is one, we fail to
display that unity in our worship, our mission, and our
fellowship. Forgive our pride and arrogance, heal our
souls, and renew our vision. For the sake of your Son, our
Savior, the Lord Jesus Christ, Amen.” Id. (prayer of
October 3, 2011).

The point here is not to pick apart these prayers or to

measure objectively their proselytizing content. It is to

consider how this language might fall on the ears of Hindu

attendees, Jewish attendees, Muslim attendees, or others who do

not share the commissioners’ particular view of salvation or

their religious beliefs. It is not right to think that adherents

of minority faiths are “hypersensitive.” Maj. Op. at 33. If we

Christians were a religious minority, we would surely be

sensitive to the invariable commencement of town hall meetings

through invocation of a faith to which we did not subscribe. And

if religious faith was not a matter of sensitivity, then why

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would two of our Constitution’s best known and most prominent

provisions have been devoted to it?

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. In board meetings, it fell to non-Christian

attendees, facing their elected representatives and surrounded

by bowed heads, to choose “between staying seated and

unobservant, or acquiescing to the prayer practice.” Lund, 103

F. Supp. 3d at 732. It is no trivial choice, involving, as it

does, the pressures of civic life and the intimate precincts of

the spirit.

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 The Rowan County board can solemnize its meetings without

creating such tensions. The desire of this fine county for

prayer at the opening of its public sessions can be realized in

many ways, such as non-denominational prayers or diverse prayer-

givers. Another possibility, open to legislators of any faith,

might be the Message of Religious Welcome described above. Such

an expression of religious freedom and inclusion would promote

the core idea behind legislative prayer, “that people of many

faiths may be united in a community of tolerance and devotion.”

Town of Greece, 134 S. Ct. at 1823. A Message of Religious

Welcome separate from the invocation itself also reduces the

risk that courts will “act as supervisors and censors” of prayer

language, a major concern voiced by the Supreme Court. Id. at

1822. Indeed, the availability of so many inclusive alternatives

throws into relief the unfortunate confluence of factors in the

county’s practice. For the county to insist on uniformly

sectarian prayer led by legislators of one faith in a closed and

purely governmental space carries us far from the central

premise of the Establishment Clause.

IV.

By pairing the Free Exercise Clause with the Establishment

Clause in the First Amendment, the Framers struck a careful

balance. Americans are encouraged to practice and celebrate

their faith but not to establish it through the state. See

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Engel, 370 U.S. at 429-34 (discussing the historic roots of the

Establishment Clause as it relates to the Free Exercise Clause).

This seems an inapt moment to upset that ancient balance. The

violent sectarian tensions in the Middle East are only the most

visible religious divisions now roiling the globe. Are such

levels of hostility likely here? Probably not, but it behooves

us not to take our relative religious peace for granted and to

recognize that the balance struck by our two great religion

clauses just may have played a part in it. 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.

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