Lund v. Rowan Cnty.

837 F.3d 407

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.

No. 15-1591

United States Court of Appeals, Fourth Circuit.

Argued: January 27, 2016

Decided: September 19, 2016

Amended: September 21, 2016

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 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.

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.

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, ––– U.S. ––––, 134 S.Ct. 1811, 188 L.Ed.2d 835 (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 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 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 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 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...