What Are the Constitutional Limitations on Prayers at Local Government Meetings?
In the wake of the U.S. Supreme Court’s momentous ruling in Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811 (2014), does the Establishment Clause of the First Amendment impose any meaningful restraints on the ability of local governments to open their meetings with religious prayers? The Court in Town of Greece itself suggested some such limits, and some recent lower court decisions suggest others, primarily with respect to the inclusiveness of the opportunity afforded to locally represented religions to participate in the prayer-giving process.
The Supreme Court had paved the way for its Town of Greece decision in Marsh v. Chambers, 463 U.S. 783 (1983), which upheld the practice of offering prayers — described as “nonsectarian” and Judeo-Christian — by a paid chaplain at the start of each day of a state legislative session. In so ruling, the Court bypassed the established Lemon test for assessing Establishment Clause challenges, relying instead on the original intent of the framers as revealed by historical practice, particularly the fact that the very first Congress in 1789 adopted the policy of selecting a chaplain to open each legislative session with a prayer. The majority was untroubled by the fact that the Nebraska Legislature had, for 16 years, paid a clergyman of one denomination (Presbyterian) to offer the prayers. For the majority, Chief Justice Burger indicated the point at which the constitutional line might be crossed:
The content of the prayer is not of concern to judges where, as here, 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.
In Town of Greece, the Court made it clear that a city commission would not run afoul of that admonition simply by opening its meetings with prayers that were overwhelmingly and, to a significant extent, overtly Christian in content. Following Marsh, Justice Kennedy, writing for a 5-4 majority, stated that, “[t]he Court’s inquiry…must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.”
Reversing the ruling of the court of appeals for the Second Circuit, the majority concluded that it did. In reaching that conclusion, the majority rejected the challengers’ suggested distinction between sectarian and nonsectarian prayers because 1) neither Marsh nor historical practice indicated the necessity for such a distinction; 2) to require that prayers be nonsectarian would force legislatures “to act as supervisors and censors of religious speech;” and 3) “[t]here is doubt…that consensus might be reached as to what qualifies as generic or non-sectarian.” Thus, Kennedy wrote: “Once it invites prayer into the public 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.”
But, as in Marsh, the majority deemed it appropriate to indicate the circumstances that would presumably cross the constitutional line:
In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content….If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion,…[t]hat circumstance would present a different case than the one presently before the Court.
The challengers argued that had happened at times in this very case, but Kennedy replied by asserting that only a “pattern” of such invocations would have constitutional significance.
Finding that “[t]he principal audience for these invocations is not…the public but lawmakers themselves,” Kennedy also rejected the argument that the town’s prayer practice had the impermissible effect of coercing participation by nonadherent citizens in attendance at the town meetings. He was unpersuaded to find otherwise simply because on “several occasions” audience members were asked to rise for the prayer, emphasizing that these requests “came not from town leaders but from the guest ministers.” Here, again, Kennedy provided guidance as to conduct that would presumably lead to a different result:
The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. No such thing occurred in the town of Greece.
The key remaining issue — and the one that prompted Justice Breyer’s dissenting opinion — pertained to the way in which the town selected its prayer givers. Kennedy described the process:
The town followed an informal method for selecting prayer givers….A town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town eventually compiled a list of willing “board chaplains” who had accepted invitations and agreed to return in the future. 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. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too.
The majority found no constitutional infirmity in these facts. Said Kennedy:
That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So 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.
In sum, the Supreme Court, as presently constituted, appears to have effectively foreclosed any constitutional challenges to religious prayers (even when pervasively sectarian in content) at legislative meetings, absent blatant displays of proselytizing or coercion, as long as the legislature employs a facially inclusive method of selecting, from within its geographic borders, those who offer invocations. How, then, have some subsequent judicial challenges to legislative prayer practices succeeded?
One basis for a successful challenge is showing impermissible discrimination in the selection process. Such was the case of Williamson v. Brevard County, 276 F. Supp. 3d 1260 (M.D. Fla. 2017), in which a board of county commissioners was found to have barred certain citizens from giving invocations at the beginning of board meetings, based on their religious beliefs. The individuals who requested an opportunity to deliver such invocations “identify themselves as atheists” and secular humanists, but “consider their beliefs to be a religion.” The reason for the board’s denial of these requests is best revealed by these statements made in a letter from the board to one of the plaintiffs:
The [i]nvocation portion of the agenda is an opening prayer presented by members of our faith community. The prayer…typically invokes guidance for the [c]ounty [c]ommission from the highest spiritual authority, a higher authority which a substantial body of Brevard constituents believe to exist….Your website leads us to understand your organization and its members do not share those beliefs or values….[T]his commission chooses to stand by the tradition of opening its meetings in a manner acknowledging the beliefs of a large segment of its constituents….
The district court had little difficulty reaching the conclusion that the county’s practice violated the Establishment Clause. The Supreme Court’s decision in Town of Greece, wrote Judge Antoon, “cannot be read to condone the deliberate exclusion of citizens who do not believe in a traditional monotheistic religion from eligibility to give opening invocations at [c]ounty [b]oard meetings.” In rejecting the county’s argument that an invocation must be “religious,” Judge Antoon noted that courts “have recognized atheism and Humanism as religions entitled to First Amendment protection.” Moreover, he observed:
The Supreme Court noted in Town of Greece that “[a]s practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.” These purposes and effects may have bases in monotheistic religions, but they are not necessarily dependent on religion.
Judge Antoon added, for good measure, that requiring “religious” content in invocations would come perilously close to a governmental entity’s “composing prayers…or censoring the content of prayers — in contravention of the principles set forth in Town of Greece.”
As an alternative basis for finding that the county was acting in violation of the Establishment Clause, the court ruled that the county “is clearly entangling itself in religion by vetting the beliefs of those groups with whom it is unfamiliar before deciding whether to grant permission to give invocations.”
Another issue that has emerged, post-Greece, is whether the constitutional analysis changes when legislators themselves, rather than community religious leaders, offer the prayers. The most notable decision answering that question in the affirmative is Lund v. Rowan County, North Carolina, 863 F.3d 268 (4th Cir. 2017) (en banc). The court in Lund observed that “Town of Greece…takes for granted the use of outside clergy.” Writing for the 10 judges in the majority, Judge Wilkinson succinctly described the prayer practice in Rowan County:
[T]he 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 proselytization. Before each invocation, attendees were requested to rise and often asked to pray with the commissioners….
The prayers are invariably and unmistakably Christian in content. Over the five-and-a-half years for which video recordings are available, 97 [percent] of the [b]oard’s prayers mentioned “Jesus,” “Christ,” or the “Savior.” No religion other than Christianity was represented.
“[T]he combination of these elements,” Judge Wilkinson concluded, “pushes this case well outside the confines of Town of Greece.” Cautioning that “we ‘would not for a moment cast all legislator-led prayer as constitutionally suspect,’” he asserted: “We simply conclude…that the identity of the prayer-giver is relevant.” He further explained:
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.” But when these words are uttered by elected representatives acting in their official capacity, they become a request on behalf of the state.
He added that all of this, in “the intimate setting of a municipal board meeting,” presented “a heightened potential for coercion.”
Judge Motz, concurring, restated the majority’s conclusion memorably and emphatically:
Given the [c]ommissioners’ role in the prayer practice, the exclusivity of those prayers, the uniformity of the Christian message found in nearly every prayer, the frequency of these sectarian prayers, the degree of sectarian content in the prayers, the long duration of the prayer practice, and the reactions to the objections of non-Christian residents, a reasonable observer would conclude that the [b]oard had placed its imprimatur on Christianity. In fact, a reasonable observer could not conclude otherwise.
Five members of the court disagreed. Judge Agee, writing for those judges, called “the distinction between state-selected clergy prayer…and lawmaker-led prayer…a distinction without a difference.” Importantly, he complained as well that “the majority turns a blind eye to the prevalence of lawmaker-led legislative prayer.”
A majority of the judges serving on the court of appeals for the Sixth Circuit shared that view in the nearly contemporaneous en banc decision in Bormuth v. County of Jackson, 870 F.3d 494 (6th Cir. 2017), involving a highly similar prayer practice. Judge Griffin, writing for nine judges, expressed their key conclusion in these words:
We…decline the invitation to find an appreciable difference between legislator-led and legislator-authorized prayer given its historical pedigree. Put simply, we find it insignificant that the prayer-givers in this case are publicly-elected officials. In our view and consistent with our [n]ation’s historical tradition, prayers by agents (like in Marsh and Town of Greece) are not constitutionally different from prayers offered by principals.
The majority was likewise untroubled by the fact that “the [b]oard’s [c]hairman typically requests [c]ommissioners and the public alike to please ‘rise and assume a reverent position,’” rejecting the argument that doing so amounted to coercion: “These ‘commonplace’ and ‘reflexive’ requests — whether from ministers or elected officials following their own faith’s normative cues — do not alone mandate participation, especially as most are preceded with a polite ‘please.’” (In the eyes of the dissenting judges, these words, coming as they do from the board’s chair, “are not mere suggestions, they are commands.”)
In dissent, Judge Moore, writing for five judges, took the same position taken by the majority in Lund:
A combination of factors distinguishes this case from the practice upheld in Marsh and Town of Greece, including one important factor: the identity of the prayer giver….When the Board of Commissioners opens its monthly meetings with prayers, there is no distinction between the government and the prayer giver: they are one and the same….And because in Jackson County the prayer content is exclusively Christian, by delivering the prayers, the [c]ommissioners are effectively endorsing a specific religion, Christianity. In Town of Greece, the Supreme Court upheld the town’s prayer practice in large part because it included prayers representing a variety of faiths….In Jackson County, by contrast, there is no opportunity for members of other faiths to offer invocations.
Responding to that argument, the majority declared that “the all-Christian makeup of the [c]ommissioners is ‘immaterial,’” explaining:
Marsh and Town of Greece do not require Jackson County to provide opportunities for persons of other faiths to offer invocations. Just like Greece, Jackson County maintains a facially neutral prayer policy….Jackson County’s prayer policy permits prayers of any — or no — faith, and the [c]ounty need not adopt a different policy as part of a “quest to promote a diversity of religious views.”
Moreover, added Judge Griffin, “Lemon’s endorsement test is inapplicable to legislative prayer cases.” That pronouncement is almost certainly correct, as evidenced by the fact that even the dissenters in Town of Greece refrained from speaking the language of “endorsement”; the force of the dissent in Bormuth is, to the extent that it did use that language, weakened. But a prohibition of government “endorsement” of a particular religion arguably bears some relation to a requirement of religious inclusiveness, and the debate among the judges in Bormuth raises the apparently dispositive question: Is the religiously monolithic character of the prayer-givers in that case (and in Lund) at odds with the seeming significance of the inclusiveness of the prayer opportunity in Town of Greece? Or is an all-Christian, all-the-time prayer program sufficiently inclusive because the prayers are led by legislators, who (in theory, at least) will not necessarily always be Christians?
It is even possible to argue that legislator-led prayer is less problematic than clergy-led prayer, and Judge Sutton, in a concurring opinion in Bormuth, did so:
But if there is a message-sending risk with invocation prayers, I would think it grows, rather than diminishes, when the governmental body hires a faith leader (necessarily of one faith) to say the prayers. A government-sponsored faith leader seems closer to an establishment than allowing each official to pray however they wish or to offer no prayer at all.
The “hired” chaplain, of course, was an element in Marsh, but not in Town of Greece, but Judge Sutton’s mention thereof raises a question: Would the Supreme Court have allowed a paid chaplain (necessarily of one faith) at the local level, as it did at the state legislative level in Marsh — or would that have been seen as intolerably non-inclusive?
Bormuth, and the Rowan County defendants (in the Lund case), both filed petitions for writs of certiorari with the Supreme Court, which were denied.
Are the two decisions in direct conflict? Note that some of the facts of the Bormuth case, which come to light only in Judge Moore’s dissenting opinion, differ from those in Lund and, accordingly, provide potential bases for finding fault with the result in Bormuth without necessarily embracing the result in Lund. First, the dissenters believed that the evidence (submitted on cross-motions for summary judgment) showed that the board “affirmatively excluded non-Christian prayer givers, and did so in an effort to control the content of prayers.” Second, in the words of Judge Moore:
Although the Court in Town of Greece concluded that there was no evidence of coercion in the record before it, it held that “[t]he analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.” All three elements are present here.
Judge White, dissenting separately, asserted that the district court, which had granted the county’s motion for summary judgment, “did not consider most of the evidence discussed by the dissent and misunderstood its relevance,” and that the majority “consider[ed] the prayer practice in a vacuum…drawing the most benign inferences from the facts it actually confronts.” But the majority did appear to consider (and dismiss the significance of) some of this evidence and approved of rulings by the district court on evidentiary and discovery issues that explained the absence of some of the disputed evidence from the majority’s legal analysis.
Thus, while Bormuth can be distinguished on its facts from Lund, as the Bormuth dissenters did, the facts that underlay the Bormuth majority opinion are essentially identical to those in Lund, and the key question raised by these two en banc decisions — namely, whether the constitutional calculus changes when legislators, rather than private clergy, are the prayer givers — will for now be left to be decided by other federal courts of appeals. So, too, will the issue raised by the Williamson case: whether a sufficiently inclusive selection of private “prayer” givers must include non-theistic speakers. What is clear, after Town of Greece, is that a predominance of sectarian invocations at governmental meetings does not, in itself, violate the Establishment Clause.
 Marsh, 463 U.S. at 783, 793, n. 14.
 Lemon v. Kurtzman, 403 U.S. 602 (1971), held that a governmental entity violates the Establishment Clause if its action lacks a secular purpose, has the primary effect of advancing religion, or results in excessive government entanglement with religion. Id. at 612-13.
 Marsh, 463 U.S. at 786-88.
 Id. at 794-95.
 While Justice Kennedy, for the majority, said merely that “[s]ome of the ministers spoke in a distinctly Christian idiom,” Town of Greece,134 S. Ct. at 1816, Justice Kagan, in dissent, asserted that “no one can fairly read the prayers from Greece’s town meetings as anything other than explicitly Christian — constantly and exclusively so.” Id. at 1848.
 Id. at 1819.
 Id. at 1820-21.
 Id. at 1822.
 Id. at 1822-23.
 Id. at 1823.
 Id. at 1824.
 Id. at 1825.
 Id. at 1825-27. In this part of his opinion, Justice Kennedy wrote for only three justices. Justice Thomas, joined by Justice Scalia, wrote separately on this point. Id. at 1837-38 (Thomas, J., concurring in the judgment). All judges agree that “the Constitution guarantees that government may not coerce anyone to…participate in religion or its exercise,” even if they disagree concerning what amounts to coercion. Lee v. Weisman, 505 U.S. 577, 587 (1992).
 Town of Greece,134 S. Ct. at 1826.
 Id. at 1838-41 (Breyer, J., dissenting). See also Justice Kagan’s dissenting opinion, speaking for all four dissenters. Id. at 1852 (Kagan, J., dissenting).
 Id. at 1816.
 Id. at 1824. Writing separately, Justice Alito, joined by Justice Scalia, bolstered the majority’s position on this point. Id. at 1828-29 (Alito, J., concurring).
 Williamson, 276 F. Supp. 3d at 1263.
 Id. at 1266.
 Accord Fields v. Speaker of the Pennsylvania House of Representatives, 251 F. Supp. 3d 772, 789 (M.D. Pa. 2017), denying, on the same basis, a motion to dismiss a claim that a state legislative entity discriminated against non-theistic speakers in the selection of guest chaplains.
 Williamson, 276 F. Supp. 3d at 1276.
 Id. at 1281. For this proposition, he cited Torcaso v. Watkins, 367 U.S. 488, 495 n. 11 (1961); and Glassroth v. Moore, 335 F.3d 1282, 1294 (11th Cir. 2003).
 Williamson, 276 F. Supp. 3d at 1281-82 (quoting Town of Greece, 134 S. Ct. at 1818). Note that courts have declined to extend the “legislative prayer” analysis to meetings of school boards. See, e.g., Freedom From Religion Foundation, Inc. v. Chino Valley Unified School Dist. Bd. of Ed., 896 F.3d 1132 (9th Cir. 2018).
 Williamson, 276 F. Supp. 3d at 1283.
 Id. at 1289, 1295-6. The court also found the county in violation of the Free Exercise Clause; the Free Speech Clause of the First Amendment; and the Equal Protection Clause.
 An earlier decision by a district court in the Fourth Circuit, Hudson v. Pittsylvania County, Va., 107 F. Supp. 3d 524 (W.D. Va. 2015), is to the same effect.
 Lund, 863 F.3d at 278. The court added: “The conspicuous absence of case law on lawmaker-led prayer is likely no accident.” Id.
 Id. at 272.
 Id. at 273.
 Id. at 281.
 Id. at 280.
 Id. at 279.
 Id. at 280.
 Id. at 287.
 Id. at 293-94 (Motz, J., concurring). Judge Motz wrote for three judges.
 Id. at 296, 298-99 (Niemeyer, J., dissenting); id. at 301, 306-07 (Agee, J., dissenting).
 Id. at 307.
 Id. at 309.
 Bormuth, 870 F.3d at 512.
 Id. at 498.
 Id. at 517.
 Id. at 541 (Moore, J., dissenting).
 Id. at 537.
 Id. at 514.
 Id. at 515. The “endorsement” test, which emerged, post-Marsh, in Justice O’Connor’s concurring opinion in Lynch v. Donnelly, 465 U.S. 668, 688 (O’Connor, J., concurring), quickly worked its way into the Lemon test, see note 2, that usually governs Establishment Clause analysis. See Wallace v. Jaffree, 472 U.S. 38, 56 (1985).
 Bormuth, 870 F.3d at 523 (Sutton, J., concurring).
 Rowan County v. Lund, No. No. 17–565, 2018 WL 3148570 (June 28, 2018); Bormuth v. County of Jackson, No. 17–7220, 2018 WL 3148306 (June 28, 2018). In Rowan County, Justices Thomas and Gorsuch dissented from the denial of certiorari, asserting that the Fourth Circuit majority “failed to appreciate the long history of legislator-led prayer in this country.”
 Bormuth, 870 F.3d at 544 (Moore, J., dissenting).
 Id. at 540.
 Id. at 545 (White, J., dissenting.) Judge White would have remanded the case to the district court for further consideration, whereas the other dissenters apparently would have granted Bormuth’s motion for summary judgment.
 Id. at 517-19. See also id. at 524 (Sutton, J., concurring) (pointing out that Bormuth represented himself pro se in this litigation). Compare id. at 529-32 (Moore, J., dissenting).
 Id. at 499-501. Compare id. at 534-36 (Sutton, J., dissenting).
 Id. at 501-02.
This column is submitted on behalf of the City, County and Local Government Law Section, Michele L. Lieberman, chair, and Ellie Neiberger, editor.