Lund v. Rowan Cnty.

863 F.3d 268

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; United States Justice Foundation; Conservative Legal Defense and Education Fund; Citizens United; Citizens United Foundation, 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: March 22, 2017

Decided: July 14, 2017

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. Elbert Lin, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amici State of West Virginia and 12 Other States. ON BRIEF: David C. Gibbs, III, THE NATIONAL CENTER FOR LIFE AND LIBERTY, Flower Mound, Texas; John C. Sullivan, Dallas, Texas, Judd E. Stone, Michael E. Kenneally, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C.; David A. Cortman, Brett B. Harvey, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona; Hiram S. Sasser, III, Kenneth A. Klukowski, 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, Julie Marie Blake, Christopher W. Carlson, Assistant Attorneys 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, Douglas R. Cox, Alex Gesch, Lindsay S. See, Russell Balikian, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Amici Members of Congress. Joseph W. Miller, Ramona, California, for Amicus United States Justice Foundation; Michael Boos, Washington, D.C., for Amici Citizens United and Citizens United Foundation; William J. Olson, Herbert W. Titus, Jeremiah L. Morgan, Robert J. Olson, John S. Miles, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici United States Justice Foundation, Citizens United, Citizens United Foundation, and Conservative Legal Defense and Education Fund. 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 GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, TRAXLER, KING, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge Gregory and Judges Motz, King, Duncan, Keenan, Wynn, Floyd, Thacker, and Harris joined. Judge Motz wrote a concurring opinion in which Judges Keenan and Harris joined. Judge Niemeyer wrote a dissenting opinion in which Judge Shedd joined. Judge Agee wrote a dissenting opinion in which Judges Niemeyer, Traxler, Shedd, and Diaz joined.

ON REHEARING EN BANC

WILKINSON, Circuit Judge:

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

I.

A.

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 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 five-and-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. Sectarian references often appeared at the conclusion of the prayer. See, e.g. , S.A. 14 (prayer of April 21, 2008) ("I ask all these things in the name of Jesus, the King of Kings and the Lord of Lords. Amen."). Several prayers confessed sin and asked for forgiveness on the community's behalf. See, e.g. , S.A. 30 (prayer of August 1, 2011) ("Lord, we confess that we have not loved you with all our heart, and mind and strength, and that we have not loved one another as Christ loves us. We have also neglected to follow the guidance of your Holy Spirit, and have allowed sin to enter into our lives."). Other prayers implied that Christianity was superior to other...