[UPDATE: The decision summarized in this blog post was reversed on appeal in September, 2016 by a divided three-judge panel of the Fourth Circuit Court of Appeals. Two members concluded that the board-member led prayers in Rowan County were consistent with the standard in Town of Greece and did not violate the plaintiffs’ constitutional rights. The dissenting judge viewed the facts of the case as distinguishable from Town of Greece, concluding that, 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.” You can read the opinion here.
On October 31, 2016, the Fourth Circuit Court Appeals granted a request to rehear this case “en banc” (meaning, by all of the judges, rather than just a three-judge panel). According to the court’s rules, the granting of rehearing en banc vacates the previous panel judgment and opinion. (Loc. R. 35(c); IOP 40.2.). This means that the decision upholding board-member prayer is no longer in effect, and that the opinion summarized below is the law of this case, pending review by the full court.]
Last year the United States Supreme Court upheld a town’s practice of inviting representatives of local congregations to offer prayers at its council meetings, even though the prayers were almost exclusively Christian. The ruling in Town of Greece v. Galloway (summarized in my blog post here), makes clear that the mere fact that opening prayers are explicitly religious, or even predominately represent one particular religion, does not automatically mean that the practice is unconstitutional.
But what if prayers that are clearly Christian are offered not by members of the community, but by members of the governing board itself? A federal judge in a North Carolina case—dealing with prayers offered by members of the board of commissioners of Rowan County—has held that when board members offer the prayers it makes a difference. The judge has ruled that the practice is unconstitutional and has ordered the commissioners to stop doing it. The case is Lund v. Rowan County and you can read the decision here.
The judge’s opinion holds that when prayers are offered by board members who are all Christian, the effect is an endorsement of that religion. In addition, when prayers are offered by the board members the effect is more coercive on individuals attending meetings. The judge concluded that the practice of board members asking members of the audience to stand and join the board in prayer, as well as comments some members made to news media contributed to an unconstitutionally coercive environment.
In 2013, three Rowan County residents sued the county over the commissioners’ practice of opening meetings with a prayer given by the chair or other members of the board. According to the agreed upon facts in the case, between 2007 and 2013, 97% of the meetings were opened with sectarian, Christian prayers. No prayers from other faiths were offered during that time. The plaintiffs objected to the prayers because, they said, the board’s practice caused them to feel excluded from the community. They alleged that they felt compelled to stand and that their opposition to the prayer hindered their ability to be effective advocates for issues that came before the board. Individual commissioners were quoted in news media about their commitment to continuing the sectarian prayers in the face of the legal challenge. The board had no formal policy regarding the innovation practice, but affidavits filed by board members indicated that citizens were free to leave the room for the invocation or come in after it, and that such actions would not affect citizens’ rights to participate in meetings.
While the Rowan County lawsuit was progressing, the Supreme Court issued its opinion in Town of Greece. Both parties asked the court to rule on the Rowan County case, taking into consideration the new Supreme Court precedent. The Supreme Court has emphasized -including most recently in the Town of Greece decision – that Establishment Clause cases are very fact-intensive. The judge analyzed the case by comparing the specific practices in Rowan County with the practices that were upheld in Town of Greece.
Before the Town of Greece decision, the most significant case involving government prayer was Marsh v. Chambers (463 U.S. 783, 1983). It was widely interpreted as allowing only secular prayer, or prayers that did not predominately promote a particular religion. In Town of Greece, the Supreme Court rejected that interpretation of Marsh, holding that a practice of predominately Christian prayers did not violate the constitution under the specific conditions that were present in the Town of Greece. Neither Town of Greece nor Marsh involved situations where members of the legislative body delivered the prayers. In Marsh, a paid chaplain offered secular prayers to the state legislature. In Town of Greece, the board invited volunteers from a variety of different faiths within the community, but a majority of the prayers were explicitly Christian.
As described by the judge in the Rowan County case:
The crucial question in comparing the present case with Town of Greece is the significance of the identity of the prayer-giver, either as a member of the legislative body or a non-member of the legislative body. In the present matter, the Commissioners themselves—and only the Commissioners—delivered the prayers at the Board’s meetings. In contrast, the Town of Greece invited volunteers from a variety of religious faiths to provide the prayers. After careful consideration, this Court concludes that this distinction matters under the Establishment Clause. Slip op. at 17.
Endorsement of Religion
Prayers delivered by board members present distinct concerns in terms of government endorsement of religion. The judge in the Rowan county case noted that this practice places the government in the roles of “supervising” and “editing and approving prayers,” roles that were deemed in Town of Greece to be inappropriate for government. In addition, even though there is no requirement for prayers to be representative, the judge noted that they must be nondiscriminatory.
That some day a believer in a minority faith could be elected does not remedy that until then, minority faiths have no means of being recognized. When only the faiths of the five Commissioners are represented, the Board “reflect[s] an aversion or bias on the part of [county] leaders against minority faiths,” namely, any faith not held by one of the Commissioners. Slip op. at 20 (citing Town of Greece).
The judge concluded that the board’s practice “fails to be nondiscriminatory, entangles the government with religion, and over time, establishes a pattern of prayers that tends to advance the Christian faith of the elected Commissioners at the expense of any religious affiliation unrepresented by the majority.” Slip op. at 22.
The judge noted that in Town of Greece, the justices were divided, with no one standard on what constitutes coercion garnering a majority, and also, that it’s not clear how the coercion issue relates to the “Lemon test” (the test derived from Lemon v. Kurtzman, 403 U.S. 602 (1971)), which has been the standard for analyzing Establishment Clause cases. It’s fair to say that this test has not been consistently applied and at times criticized, most recently in by several justices in the Town of Greece case. The Rowan County case notes that although a plurality of the Court in Town of Greece found that the practices in that case were not coercive, the justices “expressed doubt as to the constitutionality of situations where town leaders were to solicit gestures of religious observance from the public audience, or direct them to join in the prayers. The plurality framed the inquiry as fact-dependent, including the setting and the audience to whom the prayers are directed.” Slip op. at 27. Because the Town of Greece opinion does not create binding precedent on the coercion issue, the judge analyzed the issue under prior cases as well.
As part of this analysis the judge considered the coercive effect of board members’ individual statements to the news media. These statements expressed the views of some members that they would fight for the right to continue the prayer practice, and that they did so on behalf of the citizens and the county. One board member expressed frustration about “being told by the minority what’s best for the majority…” Slip op. at 3. The court noted that “[t]he public statements attributed to the Commissioners indicate that at least some of the Commissioners have a preference for Christianity, and that they perceive the prayer practice as being for the benefit of the citizens of Rowan County, not just for themselves.” Slip op. at 30.
The opinion concludes that the board’s exclusive delivery of Christian prayers, exclusive and complete control over the content of prayers, and practice of asking the audience to stand and join in the prayers, violate the Establishment Clause and are unconstitutionally coercive. The court’s order permanently enjoins the board’s invocation practice, awards to the plaintiffs $1 in nominal damages (which is apparently all they asked for in the complaint), and authorizes them to pursue attorneys fees.
Impact of Rowan County Case
What does this ruling mean for North Carolina local governments? Many boards currently open meetings with prayers delivered by board members. This case, technically, is binding only on the parties to the litigation. Nonetheless other courts may look to it for guidance if presented with similar facts. In addition, several Fourth Circuit cases decided prior to Town of Greece struck down local government prayer practices. What bearing do they have on the practice of board members offering prayers?
In Joyner v. Forsyth County, 653 F.3d 341 (4th Cir. 2011), the federal court of appeals struck down the prayer practices of the Forsyth County board of commissioners. In that case, prayers were delivered by outside speakers and not by the board members themselves. The court relied heavily on the interpretation of Marsh in determining that the practices were unconstitutional because a majority of the prayers were Christian. In that regard, the case is more aligned with the facts in Town of Greece, and depending upon the specifics about how speakers were chosen and whether opportunities for other speakers were provided, it’s possible that Joyner is no longer good law.
Another case from the Fourth Circuit, Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004), held that a South Carolina town’s practice of having board members offer prayers was unconstitutional. The opinion, like Joyner, emphasizes that the prayers were sectarian and tended exclusively to promote the Christian religion. Unlike Joyner, however, the Wynne case involved board members offering the prayers. While the language in Wynne tracks similar cases relying on Marsh, it’s possible to imagine a court relying on it as binding precedent in a case involving board member prayers. It concludes with the following statement:
Public 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 history. The Town Council of Great Falls remains free to engage in such invocations prior to Council meetings. The opportunity to do so may provide a source of strength to believers, and a time of quiet reflection for all. This opportunity does not, however, provide the Town Council, or any other legislative body, license to advance its own religious views in preference to all others, as the Town Council did here. The First Amendment bars such official preference for one religion, and corresponding official discrimination against all others. Wynne, at 302 (emphasis added).
Local government officials should confer with their attorneys regarding what changes, if any, they might make in their prayer practices in light of the Rowan County decision, and this developing area of law.