Can County Commissioners Deliver Invocations? 4th US Circuit Court of Appeals Says NO! (7/14/2017)


 

Can County Commissioners Deliver Invocations? 4th US Circuit Court of Appeals Says NO! (7/14/2017)
 


19 July 2017 at 7:44:39 AM
salon

Rowan Co NC.  This case, you may recall, had gone to the full 4th US Circuit Court of Appeals to be heard en banc. The decision came back today (HT to Travis Smith)

This case requires that we decide whether Rowan County's practice of lawmaker-led sectarian prayer runs afoul of the Establishment Clause. For years on end, the elected members of the county’s Board of Commissioners composed and delivered pointedly sectarian invocations. They rotated the prayer opportunity amongst themselves; no one else was permitted to offer an invocation. The prayers referenced one and only one faith and veered from time to time into overt proselytization. Before each invocation, attendees were requested to rise and often asked to pray with the commissioners. The prayers served to open meetings of our most basic unit of government and directly preceded the business session of the meeting. The district court, applying the Supreme Court’s decision in Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), held the county’s prayer practice unconstitutional. A panel of this court reversed. See Lund v. Rowan Cty., 837 F.3d 407 (4th Cir. 2016). The full court then granted rehearing en banc

We conclude that the Constitution does not allow what happened in Rowan County. The prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion. And because the commissioners were the exclusive prayer-givers, Rowan County’s invocation practice falls well outside the more inclusive, minister-oriented practice of legislative prayer described in Town of Greece. Indeed, if elected representatives invite their constituents to participate in prayers invoking a single faith for meeting upon meeting, year after year, it is difficult to imagine constitutional limits to sectarian prayer practice

The great promise of the Establishment Clause is that religion will not operate as an instrument of division in our nation. Consistent with this principle, there is a timehonored tradition of legislative prayer that reflects the respect of each faith for other faiths and the aspiration, common to so many creeds, of finding higher meaning and deeper purpose in these fleeting moments each of us spends upon this earth. Instead of drawing on this tradition, Rowan County elevated one religion above all others and aligned itself with that faith. It need not be so. As the history of legislative invocations demonstrates, the desire of this good county for prayer at the opening of its public sessions can be realized in many ways that further both religious exercise and religious tolerance

 CBSNEWS (Emphasis mine) 

The Supreme Court already has ruled that it's appropriate for local clergy to deliver predominantly Christian prayers and town meetings in New York. The question in the Rowan County case was whether it makes a difference that the prayers were given by the commissioners themselves and whether their invitation for the audience to join them in prayer is coercive. 

The 4th Circuit, located in Richmond, Virginia, stressed that lawmaker-led prayer isn't "inherently unconstitutional." But the judges said that the fact that the commissioners were the exclusive prayer givers combined with the fact that they consistently invoked one faith and invited the audience members to participate sent the message that they preferred one religion over all others. 

"The prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion," Judge J. Harvie Wilkinson wrote in the majority opinion that was joined by nine other judges. 

Closer to home, this is exactly the same procedure that the Somervell County Commissioners Court, as led by Judge Danny Chambers, has been doing since Chambers has been in office.Most of the time Larry Hulsey offers up an invocation from the dais, thus acting as the state establishing religion.  Although Chambers swore to uphold the constitution when he was sworn in, he has thumbed his nose at it.  Here is what he actually did after I asked him about doing an invocation at the commissioners court meetings.   

You may recall that in the Supreme Court Town of Greece case in which prayer at government meetings was ruled upon....

the town made it clear that it would permit any interested residents, including nonbelievers, to provide an invocation, and the town has never refused a request to offer an invocation..... The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. 

Is Danny Chambers right to only have a commissioner do a partisan prayer from the dais while asking so many times for people to be led in prayer? Is he right to prevent me from doing an invocation? Nope. I like Danny Chambers and it's hard for me to think he's being a bigot, but he is in this case Beyond that, he is violating his oath of office. Perhaps he's just getting some ill-informed advice.

Record of unconstitutional prayer -2015-2017 (Judge Danny Chambers)  Includes audio and video of almost every meeting for the last two years)

Back to the Rowan County case. PDF .  Some parts I found interesting, below is not the whole ruling, emphasis is mine. 

Compare how the Rowan Co commissioners started their meetings as compared with Somervell County

We begin by describing the challenged prayer practice itself. Rowan County, North Carolina is governed by an elected body known as the Rowan County Board of Commissioners. The five-member Board convenes twice a month. The commissioners sit at the front of the room facing their constituents. Each Board meeting begins in the same way: with a prayer composed and delivered by one of the commissioners. After calling the meeting to order, the chairperson asks everyone in attendance—commissioners and constituents alike—to stand up. All five Board members rise and bow their heads, along with most of the attendees. A commissioner then asks the community to join him in worship, using phrases such as “Let us pray,” “Let’s pray together,” or “Please pray with me.” The Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 5 of 108 6 invocations end with a communal “Amen,” and the Pledge of Allegiance follows a moment later. Next, the Board typically approves the previous meeting’s minutes, schedules future items of business, and holds a public comment period before continuing on to the day’s work. Board members rotate the prayer opportunity amongst themselves as a matter of long-standing custom. The content of the prayer is “entirely at the discretion of the commissioner.” J.A. 284.1 No one outside the Board is permitted to offer an invocation. The prayers are invariably and unmistakably Christian in content. Over the fiveand-a-half years for which video recordings are available, 97% of the Board’s prayers mentioned “Jesus,” “Christ,” or the “Savior.” See Lund v. Rowan Cty., 103 F. Supp. 3d 712, 714 (M.D.N.C. 2015). No religion other than Christianity was represented.

In March 2013, Lund and her co-plaintiffs filed this action against Rowan County, asserting that the Board’s prayer practice violated the Establishment Clause. They argued that the Board, by delivering exclusively Christian prayers, affiliated the county with Christianity, advanced Christianity, and coerced the plaintiffs into participating in religious exercises. According to the plaintiffs, the prayers “sen[t] a message that the County and the Board favor Christians” and caused the plaintiffs to feel “excluded from the community and the local political process.” J.A. 11-12. The plaintiffs also averred that they felt compelled to stand for the invocations to avoid sticking out. Voelker added that he felt pressured to stand because “the invocation is immediately followed by the Pledge of Allegiance, for which [he] feels strongly that he needs to stand.” 

In light of Town of Greece, both the plaintiffs and Rowan County moved for summary judgment. The district court held that Rowan County’s prayer practice remained unconstitutional and issued a permanent injunction. Lund, 103 F. Supp. 3d at 733-34. The court found that the practice was unconstitutionally coercive and “deviate[d] from the long-standing history and tradition” of legislative prayer. Id. at 723. That tradition, as articulated by the Supreme Court, involved the delivery of prayers by “a chaplain, separate from the legislative body.” Id. Here, the court reasoned, the prayers were “exclusively prepared and controlled” and delivered by the government, “constituting a much greater and more intimate government involvement in the prayer practice than that at issue in Town of Greece.” Id. Further, restricting the prayer opportunity to the Board resulted in “a closed-universe of prayer-givers . . . who favored religious beliefs believed to be common to the majority of voters in Rowan County.” Id. The district court noted that although lawmaker-led prayer “is not per se Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 9 of 108 10 unconstitutional,” the prayer-giver’s identity is relevant to the constitutional inquiry “in relation to the surrounding circumstances.” Id. at 722 n.4.

 the general principles animating the Establishment Clause remain relevant even in the context of legislative prayer. First, the Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” Lynch v. Donnelly, 465 U.S. 668, 673 (1984). Second, the government “may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’” Lee v. Weisman, 505 U.S. 577, 587 (1992) (quoting Lynch, 465 U.S. at 678). By “ensuring governmental neutrality in matters of religion,” Gillette v. United States, 401 U.S. 437, 2 The term “legislative prayer” refers to offering an invocation to open government meetings, while “lawmaker-led prayer” or “legislator-led prayer” denotes a subset of invocations delivered by members of the legislative body. Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 11 of 108 12 449 (1971), the Establishment Clause safeguards religious liberty and wards off “political division along religious lines,” Lemon v. Kurtzman, 403 U.S. 602, 622 (1971). An instrument of social peace, the Establishment Clause does not become less so when social rancor runs exceptionally high. In addition, “[b]y pairing the Free Exercise Clause with the Establishment Clause,” the Framers sought to prevent government from choosing sides on matters of faith and to protect religious minorities from exclusion or punishment at the hands of the state. Lund, 837 F.3d at 438 (panel dissent). “Americans are encouraged to practice and celebrate their faith but not to establish it through the state.” Id.

 the general principles animating the Establishment Clause remain relevant even in the context of legislative prayer. First, the Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” Lynch v. Donnelly, 465 U.S. 668, 673 (1984). Second, the government “may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’” Lee v. Weisman, 505 U.S. 577, 587 (1992) (quoting Lynch, 465 U.S. at 678). By “ensuring governmental neutrality in matters of religion,” Gillette v. United States, 401 U.S. 437, 2 The term “legislative prayer” refers to offering an invocation to open government meetings, while “lawmaker-led prayer” or “legislator-led prayer” denotes a subset of invocations delivered by members of the legislative body. Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 11 of 108 12 449 (1971), the Establishment Clause safeguards religious liberty and wards off “political division along religious lines,” Lemon v. Kurtzman, 403 U.S. 602, 622 (1971). An instrument of social peace, the Establishment Clause does not become less so when social rancor runs exceptionally high. In addition, “[b]y pairing the Free Exercise Clause with the Establishment Clause,” the Framers sought to prevent government from choosing sides on matters of faith and to protect religious minorities from exclusion or punishment at the hands of the state. Lund, 837 F.3d at 438 (panel dissent). “Americans are encouraged to practice and celebrate their faith but not to establish it through the state.” Id.

This is especially true where legislators are the only eligible prayer-givers. Both Town of Greece and Marsh involved open, inclusive prayer opportunities. In the former case, the town “at no point excluded or denied an opportunity to a would-be prayer giver,” and town leaders affirmed that “a minister or layperson of any persuasion, including an atheist, could give the invocation.” Town of Greece, 134 S. Ct. at 1816. Marsh emphasized that the ordinary chaplain “was not the only clergyman heard by the Legislature; guest chaplains . . . officiated at the request of various legislators and as substitutes during [the regular chaplain’s] absences.” Marsh, 463 U.S. at 793. The openness evinced by these other elected bodies contrasts starkly with Rowan County’s policy of restricting the prayer opportunity to the commissioners alone.

...

In sum, the elected members of Rowan County’s Board of Commissioners composed and delivered their own sectarian prayers featuring but a single faith. They prevented anyone else from offering invocations. The Board’s prayer practice thus pushes this case well outside the confines of Town of Greece and indeed outside the realm of lawmaker-led prayer itself. To see just how far outside those boundaries the prayer Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 21 of 108 22 practice was, we must turn to the operation of the practice itself. Because Town of Greece does not resolve this challenge, we must decide whether the county’s prayer practice, taken as a whole, exceeded constitutional limits on legislative prayer.

“[W]hen a seat of government begins to resemble a house of worship, the values of religious observance are put at risk, and the danger of religious division rises accordingly.” Lund, 837 F.3d at 431 (panel dissent). That is why “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). Rowan County’s prayer practice violated this maxim by so clearly identifying the government with a particular faith. 

....

As the exclusive prayer-givers, Rowan County’s elected representatives—the very embodiment of the state—delivered sectarian invocations referencing one and only one religion. They asked their constituents to join them in worship. They did so at every meeting of a local governing body for many years. We examine each of these features in turn: commissioners as the sole prayer-givers; invocations that drew exclusively on Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 22 of 108 23 Christianity and sometimes served to advance that faith; invitations to attendees to participate; and the local government setting. To respect the Supreme Court’s insistence on a fact-sensitive inquiry, we must also pay close attention to the interplay between the various facets of the county’s prayer practice. As previously noted, the invocations here were written and given by elected representatives acting in their official capacity. This fact interacts with the other aspects of the county’s practice, altering their constitutional significance. Accordingly, we must evaluate these other elements through the lens of the prayer-giver’s identity. We conclude that it is the combination of these elements—not any particular feature alone—that “threatens to blur the line between church and state to a degree unimaginable in Town of Greece.” Lund, 837 F. 3d at 435 (panel dissent)

that is precisely what happened in Rowan County, where the five commissioners “maintain[ed] exclusive and complete control over the content of the prayers.” Lund, 103 F. Supp. 3d at 733. In Marsh, the prayer-giver was paid by the state. In Town of Greece, the prayer-giver was invited by the state. But in Rowan County, the prayer-giver was the state itself. The Board was thus “elbow-deep in the activities banned by the Establishment Clause—selecting and prescribing sectarian prayers.” Lund, 837 F.3d at 434 (panel dissent). By arrogating the prayer opportunity to itself, the Board also restricted the number of faiths that could be referenced at its meetings. When guests are allowed to deliver invocations, as in Marsh and Town of Greece, legislators can easily expand the religions represented (perhaps in response to requests or on their own initiative). In upholding sectarian prayer, Town of Greece emphasized that legislatures are typically able and willing to accommodate diverse faiths. The way to acknowledge “our growing diversity,” the Court suggested, is “not by proscribing sectarian content but by welcoming ministers of many creeds.” Town of Greece, 134 S. Ct. at 1820-21 (citing congressional prayers referencing Buddhism, Hinduism, Islam, and Judaism). Compare the county’s rigid, restrictive practice with the more flexible, inclusive approach upheld in Town of Greece. Greece welcomed adherents of all faiths, allowing “any member of the public [the chance] to offer an invocation reflecting his or her own convictions.” Id. at 1826 (plurality opinion). Most of the guest ministers were Christian, owing to the fact that “nearly all of the congregations in town turned out to be Christian.” Id. at 1824 (majority opinion). To address complaints, however, the town “invited a Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 24 of 108 25 Jewish layman and the chairman of the local Baha’i temple to deliver prayers” and granted a Wiccan priestess’s request to participate. Id. at 1817. By opening its prayer opportunity to all comers, the town cultivated an atmosphere of greater tolerance and inclusion. Rowan County regrettably sent the opposite message. Instead of embracing religious pluralism and the possibility of a correspondingly diverse invocation practice, Rowan County’s commissioners created a “closed-universe” of prayer-givers dependent solely on election outcomes. Lund, 103 F. Supp. 3d at 723. The commissioners effectively insulated themselves from requests to diversify prayer content. And we cannot overlook the fact that the decision to restrict the prayer opportunity to the commissioners was not made by the citizens of Rowan County or some disinterested group but perpetuated by the commissioners themselves—all of whom identify as Protestant Christian. See J.A. 275 (United Methodist); J.A. 287 (same); J.A. 279 (Independent Baptist); J.A. 291 (same); J.A. 283 (Southern Baptist). For any Buddhists, Hindus, Jews, Muslims, Sikhs, or others who sought some modest place for their own faith or at least some less insistent invocation of the majority faith, the only recourse available was to elect a commissioner with similar religious views. See Br. of Appellant at 26. We find this point troubling. “[V]oters may wonder what kind of prayer a candidate of a minority religious persuasion would select if elected. Failure to pray in the name of the prevailing faith risks becoming a campaign issue or a tacit political debit, which in turn deters those of minority faiths from seeking office.” Lund, 837 F.3d at 435 (panel dissent). Further, allowing the county to restrict to one the Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 25 of 108 26 number of faiths represented at Board meetings would warp our inclusive tradition of legislative prayer into a zero-sum game of competing religious factions. Our Constitution safeguards religious pluralism; it does not sanction activity which would take us “one step closer to a de facto religious litmus test for public office.” Id

Town of Greece instructs courts to consider a prayer practice from the perspective of the “reasonable observer,” who is presumed to be “acquainted with [the] tradition” of legislative prayer. 134 S. Ct. at 1825 (plurality opinion). Although “adult citizens, firm in Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 28 of 108 29 their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith,” id. at 1823 (majority opinion), the “reasonable observer”—or even the exceptionally well-informed citizen steeped in the Court’s legislative prayer jurisprudence—would be surprised to find exclusively sectarian invocations being delivered exclusively by the commissioners because, as noted, the Court has consistently spoken in terms of guest ministers and outside volunteers. In addition, as noted, no religion other than Christianity was ever represented at Board meetings. “When the state’s representatives so emphatically evoke a single religion in nearly every prayer over a period of many years, that faith comes to be perceived as the one true faith, not merely of individual prayer-givers, but of government itself.” Lund, 837 F.3d at 434 (panel dissent). Faced with this unchanging tableau, attendees must have come to the inescapable conclusion that the Board “favors one faith and one faith only.” Id. at 435. This was the inference drawn by the plaintiffs, who described their sense of separation from their own government and the political process itself. See S.A. 1-10 (affidavits of the plaintiffs). It is not necessary, of course, for governments to go out of their way “to achieve religious balancing” in prayer content or to represent some minimum number of faiths. Town of Greece, 134 S. Ct. at 1824. But in considering whether government has aligned itself with a particular religion, a tapestry of many faiths lessens that risk whereas invoking only one exacerbates it. Here, the Board’s practice created the perception that Rowan County had taken sides on questions of faith

Justice Kennedy’s plurality opinion in Town of Greece advises courts to assess whether the “principal audience” for the invocations is the lawmakers or the public. 134 S. Ct. at 1825. An internally-focused prayer practice “accommodate[s] the spiritual needs of lawmakers,” id. at 1826, while an externally-oriented one attempts “to promote religious observance among the public,” id. at 1825.

From the perspective of the reasonable observer, this distinction matters. Such an observer is aware that phrases like “Let us pray” may be “for many clergy . . . almost reflexive.” Id. at 1832 (Alito, J., concurring). But when these words are uttered by elected representatives acting in their official capacity, they become a request on behalf of the state. The invitations suggest that the lawmaker conceives of the political community as comprised of people who pray as he or she does.

The Town of Greece plurality expressly cautioned that “[t]he analysis would be different if town board members directed the public to participate in the prayers.” Id. at 1826 (emphasis added). Yet Rowan County would have us approve such requests regardless of their source. See Supp. Br. of Appellant at 7 (“The Supreme Court saw no conflict between these introductions and the Establishment Clause.”). Accepting this Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 35 of 108 36 argument would require us to blind ourselves to the very fact that the Town of Greece plurality regarded as relevant and perhaps even dispositive. In the end, the record speaks for itself: elected officials exhorted their constituents to participate in sectarian—and sometimes even proselytizing—religious exercises.

The “close proximity” between a board’s sectarian exercises and its consideration of specific individual petitions “presents, to say the least, the opportunity for abuse.” Lund, 837 F.3d at 436 (panel dissent). The plurality in Town of Greece recognized as much in advising courts to consider whether “town board members directed the public to participate in the prayers.” 134 S. Ct. at 1826. This is not to suggest that the commissioners made decisions based on whether an attendee participated in the prayers. But the fact remains that the Board considered individual petitions on the heels of the commissioners’ prayers. 

The problematic features of the present practice noted in our decision should provide substantial guidance for whatever future steps the county may wish to take. The ultimate criterion is simply one of conveying a message of respect and welcome for persons of all beliefs and adopting a prayer practice that Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 38 of 108 39 advances “the core idea behind legislative prayer, ‘that people of many faiths may be united in a community of tolerance and devotion.’” Id. at 438 (quoting Town of Greece, 134 S. Ct. at 1823).

the attempted distinction between the members of the Board and the Board itself rests on a formalism that cannot withstand scrutiny. When one of Rowan County’s commissioners leads his constituents in prayer, he is not just another private Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 40 of 108 41 citizen. He is the representative of the state, and he gives the invocation in his official capacity as a commissioner. His power to offer a prayer derives from this status; were he not a member of the Board, he would be barred from doing so

The principle at stake here may be a profound one, but it is also simple. The Establishment Clause does not permit a seat of government to wrap itself in a single faith. But here elected officials took up a ministerial function and led the political community in prayers that communicated exclusivity, leaving members of minority faiths unwilling participants or discomforted observers to the sectarian exercises of a religion to which they did not subscribe. The solemn invocation of a single faith in so many meetings over so many years distanced adherents of other faiths from that representative government which affects the lives of all citizens and which Americans of every spiritual persuasion have every right to call their own. 

The principle at stake here may be a profound one, but it is also simple. The Establishment Clause does not permit a seat of government to wrap itself in a single faith. But here elected officials took up a ministerial function and led the political community in prayers that communicated exclusivity, leaving members of minority faiths unwilling participants or discomforted observers to the sectarian exercises of a religion to which they did not subscribe. The solemn invocation of a single faith in so many meetings over so many years distanced adherents of other faiths from that representative government which affects the lives of all citizens and which Americans of every spiritual persuasion have every right to call their own. 

 It was in simple recognition of religious pluralism that the Founders adopted the Establishment Clause. See James Madison, Speech at the Virginia Ratifying Convention (June 12, 1788), in 11 The Papers of James Madison 130 (Robert Rutland et al. eds., 1977) (“[The] freedom [of religion] arises from that multiplicity of sects, which pervades America, and which is the best and only security for religious liberty in any society.”). Had America been a monolithic religious entity, there would have been no need for the protection of religious diversity at all. Any thought that ecumenism and respect for religious pluralism would become disfavored in judicial quarters would have left the Founders saddened at what their First Amendment had become. Our Constitution seeks to preserve religious liberty without courting religious animosity. In this quest, our two religion clauses have been a great success, helping to spare Americans the depth of religious strife that so many societies have had to suffer and endure. And yet free religious exercise can only remain free if not influenced and directed by the hand of the state. On this score, the county simply went too far. The First Amendment in the end is not either/or, but both/and. Believing that free religious exercise Appeal: 15-1591 Doc: 130 Filed: 07/14/2017 Pg: 44 of 108 45 in Rowan County may likewise further the values of religious welcome and inclusion, we affirm the judgment of the district court.

 

 

 

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