Hudson v. Pittsylvania Cnty.

BARBARA HUDSON, Plaintiff,

v. PITTSYLVANIA COUNTY, VIRGINIA and BOARD OF SUPERVISORSOF PITTSYLVANIA COUNTY, VIRGINIA, Defendants.

Civil Action No. 4:11cv00043

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA DANVILLE DIVISION

Entered: March 26, 2013

By: Michael F. Urbanski

United States District Judge

MEMORANDUM OPINION

This matter is before the court on cross motions for summary judgment filed by plaintiff Barbara Hudson (Dkt. # 57), and defendants Board of Supervisors of Pittsylvania County and Pittsylvania County, Virginia (Dkt. # 59).¹ Hudson argues that the Board's consistent practice of opening its meetings with sectarian prayers led by Board members violates the First Amendment of the United States Constitution, and she seeks a permanent injunction prohibiting the Board from continuing to engage in that practice. The Board's principal contention is that Hudson lacks standing to bring an Establishment Clause challenge to the Board's prayer practice. The court exhaustively addressed the Board's standing argument at the motion to dismiss stage, Doe v. Pittsylvania County, 842 F. Supp. 2d 906 (W.D. Va. 2012), and nothing revealed in discovery changes the conclusion reached there that Hudson has standing to assert this claim. In its summary judgment brief, the Board again asks the court to conclude that the Board's practice of regularly opening its meetings with sectarian prayers led by Board members does not violate theEstablishment Clause. As was explained in great detail in the court's memorandum opinion denying the Board's motion to dismiss, the Board advocates a view of the law inconsistent with controlling United States Supreme Court and Fourth Circuit Court of Appeals precedent. As such, the Board's motion for summary judgment must be DENIED, Hudson's motion for summary judgment GRANTED, and a Permanent Injunction Order entered. ²

I.

Although this case is now before the court on a motion for summary judgment³ as opposed to a motion to dismiss, nothing of substance has changed since the court determined that Hudson had standing to bring her Establishment Clause claim at the motion to dismiss stage. The facts are undisputed that prior to the entry of the preliminary injunction on February 3, 2012, the Board consistently opened each of its meetings with a prayer from a Board member making a specific reference to the Christian faith.⁴ It is likewise undisputed that Hudson regularly attended Board meetings. Hudson, a non-Christian, has averred and testified under oath that shewas offended and made to feel an outsider by the repeated invocation of the Christian faith by the Board members. The court has reviewed all of the exhibits filed with the summary judgment briefs, including the complete transcript of Hudson's deposition and her interrogatory answers, and believes, consistent with the memorandum opinion entered on February 3, 2012, that Hudson has standing to complain about sectarian prayers offered in her presence by members of the Board at public meetings.

The fact that Hudson has been an outspoken critic of the Board and has opposed positions taken by the Board both inside and outside of court does not change two facts critical to the standing inquiry in this circuit: (1) prior to the preliminary injunction, members of the Board regularly opened its public meetings with sectarian prayers; and (2) Hudson, witnessing these prayers, was offended by them and made to feel an outsider in her community. As addressed at length in the memorandum opinion on the motion to dismiss, Doe v. Pittsylvania County, 842 F. Supp. 2d at 911-915, the Fourth Circuit Court of Appeals in Suhre v. Haywood County, 131 F.3d 1083 (4th Cir. 1997), has held such facts to be sufficient to confer standing.

Suhre involved a display of the Ten Commandments in the main courtroom of the Haywood County, North Carolina courthouse. Plaintiff Richard Suhre, a "contentious character in Haywood County," 131 F.3d at 1085, was exposed to the courtroom display as a party to two court proceedings and four other public meetings held in the courtroom. Rejecting Haywood County's standing challenge, the Fourth Circuit recognized that "[t]he injury that gives standing to plaintiffs in these cases is that caused by unwelcome direct contact with a religious display that appears to be endorsed by the state. Such personal contact with state-sponsored religious symbolism is precisely the injury that was sufficient to confer standing in School District of Abington v. Schempp, 374 U.S. 203 (1963)." Suhre, 131 F.3d at 1086.

In Schempp, school children and their parents sued the school district, complaining of the school's practice of reading Bible verses and reciting The Lord's Prayer each morning before classes began. The Supreme Court had little difficulty finding that the students and their parents had standing to challenge the practice of school prayer:

The parties here are school children and their parents, who are directly affected by the laws and practices against which their complaints are directed. These interests surely suffice to give the parties standing to complain.

374 U.S. at 224 n.9. As the Fourth Circuit noted in Suhre, "Schempp thus recognized 'a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause and the Free Exercise Clause' to those persons directly affected by alleged violations of the First Amendment." 131 F.3d at 1086 (citing Ass'n of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 154 (1970)).

Just as the plaintiffs in Schempp and Suhre, Hudson has had direct personal contact with the sectarian prayer practices of the Board. Hearing with her own ears the Christian prayers offered by Board members as part of a formal governmental meeting, Hudson's contact is neither casual nor remote. It is direct injury, and, as such, Hudson has standing to pursue an Establishment Clause claim concerning the Christian prayers she repeatedly heard.

In her interrogatory answers, Hudson outlined her injury as follows:

Plaintiff's injury consists in unwelcome and direct contact with sectarian prayers delivered or endorsed by the Board of Supervisors. Such prayers convey to plaintiff and other non-Christian citizens the message that they are not welcome at Board meetings. These prayers create a perception that the Board is unlikely to treat non-Christians fairly because they do not follow the Board's preferred faith. Such prayers make plaintiff feel like an outsider in her own community.

Hudson's Answers to Interrogatories (Dkt. # 60-6), at 4. Likewise, in her deposition, Hudson testified that, as a non-Christian, she objected to the exclusively Christian prayer and was frightened by it. Hudson Deposition (Dkt. # 60-3), at 81-82. Hudson explained:

When sectarian prayer is being given in the name of Christianity, that has become - in the Board of Supervisor's Meeting, that has become the official religion of your governing body, and that scares me.

* * * *

It's saying to me, if I convert to Christianity I will be a part of this group - this government. I will have equal footing.

* * * *

I think it's frightening to have government advance their religion over everybody else.

Id. Hudson also testified that the sectarian prayers of the Board members made her feel "like an outsider" or "lesser citizen." Id. at 212, 220.

In her Declaration filed in this case, Hudson averred consistently:

4. Until February 3, 2012, when this Court issued its preliminary injunction in this case, the Board opened all of its meetings with a prayer delivered by a member of the Board of Supervisors.

5. The opening invocation at nearly every meeting was explicitly Christian in nature; that is, it invoked the name of "Jesus Christ" "Jesus" or "Christ."

6. The audience was asked to stand while the prayer was delivered. The supervisors and the audience bowed their heads during the prayer.

7. The Board's practice of opening meetings with a sectarian prayer distressed me because I do not subscribe to the particular faith promoted by the Board's opening prayers. The Christian prayers conveyed to me and other non-Christians the message that we are not welcome at Board meetings. The prayers made me feel like an outsider in my own community.

8. Although the sectarian prayers greatly upset me for years, I did not complain about them to the Board or the County until theFourth Circuit issued its opinion in Joyner v. Forsyth County, 653 F.3d 341 (4th Cir. 2011). Having had numerous relatives die in the Holocaust during my lifetime, and having myself been beaten up for being Jewish when I was a child, I was very wary of taking any action that would make me stand out for my religious beliefs, or that could be perceived as challenging the majority religion.

Hudson Decl. (Dkt. # 58-1), at ¶¶ 5-8.

After listening to the Board's consistently Christian prayers for some years, Hudson first objected to the practice by sending an email to the Pittsylvania County Attorney on August 11, 2011, after she learned of the Fourth Circuit's decision in Joyner v. Forsyth County, 653 F.3d 341 (4th Cir. 2011), cert. denied, 132 S. Ct. 1097 (2012). Hudson testified that the Board responded to her objection by ramping up its Christian prayer. Hudson testified: "At the board meeting on August 16th, instead of one sectarian prayer, every single member of the board got up and did Christian prayers, knowing that it was me. And I felt that I was being assaulted. They were using prayer to assault." Hudson Deposition (Dkt. # 60-3), at 214. She explained further:

The board, when they were praying one time, they were praying and establishing basically a religious board - a religious government. When they got up to pray seven times, they had already received my letter in which I informed them that as a non-Christian, making a sectarian prayer makes me uncomfortable.

* * * *

It was seven prayers that made me seven times more uncomfortable than

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