Joyner v. Forsyth County, NC

Lynn JOYNER; Janet Constance

Blackmon, Plaintiffs-

Appellees, Osborne, Plaintiff,

Mauck

v. COUNTY, NORTH

FORSYTH

CAROLINA, Defendant-

Appellant. Institute;

The Rutherford Justice Fund;

Freedom The Foundation for Law; Independence Law Cen

Moral Policy

ter; Family North Carolina

Council; Family Council; Palmetto Family Virginia;

The Foundation Family Policy

The Council West

Virginia; The Part North Carolina Liberty;

nership Religious for Retired America;

Judges The Le National Foundation,

gal Supporting Ap Amici

pellant,

Baptist Religious Committee for Joint Liberty; Congress; American Jewish Johnson, James Michael Al- ARGUED: League; Blue

Anti-Defamation Fund, Shreveport, liance Defense Louisi- Society; Mountain Lotus Guru Go- ana, Appellant. for Katherine Lewis Par- Foundation; Singh Hindu Amer bind ker, American Civil Liberties Union of Foundation; ican Sikh Council on Foundation, Legal Raleigh, Carolina North Education, Religion Sup Amici Carolina, Appellees. North for ON porting Appellees. Cortman, A. Alliance David De- BRIEF: No. 10-1232. Fund, Lawrenceville, Georgia; fense Neier, D. Bryce Bryce The Law Office of Appeals,

United States Court Neier, Carolina; D. Fayetteville, Fourth North Circuit. Gibbs, Firm, David Law Gibbs Semi- Argued: May 2011. nole, Florida, Appellant. Ayesha N. July Decided: United, Khan, Washington, Americans D.C.; Mach, Daniel American Civil Liber- Foundation, D.C., Washington, ties Union Whitehead, Appellees. Doug- John W. McKusick, The Rutherford Insti- las R. tute, Charlottesville, Virginia; James J. III, Knicely Knicely, Robert Luther & As- sociates, P.C., Williamsburg, Virginia, for WILKINSON, NIEMEYER, Institute, Before Support- Amicus The Rutherford KEENAN, Judges. Circuit Dewart, and Deborah J. ing Appellant. Carolina, Swansboro, for Justice North by published opinion. Judge Affirmed Fund, Amicus Supporting Freedom majority opinion, wrote the WILKINSON Moore, Benjamin D. Roy S. Appellant. joined. Judge Judge in which KEENAN Eidsmoe, DuPre, for A. Foundation John dissenting opinion. NIEMEYER wrote Alabama, Law, Montgomery; for Moral Law, Amicus for Moral The Foundation OPINION Randall L. Appellant. Wen- Supporting WILKINSON, Judge: Circuit Center, Law Harris- ger, Independence 17, 2007, Joyner On December Janet Ph. Pennsylvania; Gaylord, W. burg, Scott Blackmon Lynn and Constance decided School, D., University Elon Law Greens- meeting Forsyth County of the attend Carolina, boro, Independence North for public Board of Like all Commissioners. Center, Supporting Appel- Amicus Law began with meetings, gathering Franklin, Sloan, D. North lant. Stuart аn invocation delivered local Columbia, Carolina; Gerrald, G. Matthew every previous like almost leader. And Carolina; Timothy Savidge, D. South invocation, closed with Carolina, for North Prosperity, South Car- we do make this phrase, “For Council, Family Policy olina Palmetto name, Your Jesus’ Amen.” The De- Son Council, Family Family The Foundation cember 17 also made a number of Policy Virginia, Family The Council specific tenets of references Christiani- Virginia, and The North Carolina West Calvary” ty, from “the Cross of to the Religious Liberty, for Amici Partnership “Virgin “Gospel Birth” to the of the Lord L. Supporting Appellant. Hodges, Robert Jesus Christ.” Fender, LLP, D. Matthew McGuirewoods response, Joyner In and Blackmon filed Richmond, Virginia, Judges for Retired against county, alleging suit America, Supporting Appellant. Amicus 17' one in- prayer represented December Fitschen, Beach, Virginia Virgi- Steven W. stance of the Board’s broader nia, Foundation, Legal for National sponsoring opening prayers at its K. Supporting Appellant. Amicus Steven thorough meetings. conducting After Kraft, Hoffman, Emilie S. James & Hoff- record, the factual the district review of ,. PC, D.C.; Washington, Hollyn man K. legisla- court concluded that the Board’s Hollman, Gibson, Baptist T. James Joint in fact prayer policy tive did violate Liberty, for Religious Committee Wash- by advancing Establishment Clause D.C., ington, Baptist Joint Committee endorsing Christianity to the exclusion of Liberty, Supporting Amicus Religious other faiths. Tager, M. Archis A. Par- Appellees. Evan ruling The district court’s accords with Kantor, asharami, Mayer F. Brown Elisa Supreme precedent both Court our D.C., LLP, for American Washington, own. Those cases establish that order Congress, Anti-Defamation Jewish scrutiny, to survive constitutional invoca- League, Society, Blue Mountain Lotus type of the of nonsecta- tions must consist Foundation, Singh Hindu Guru Gobind rian solemnize Foundation, American and Sikh Council seek to unite rather than divide. task and Education, Amici Religion Supporting as the Sectarian must not serve gateway participation to citizen the af- Appellees. different than that of the invoca- To have them belief government. of local fairs speaker. tional promise do so runs afoul at the faiths that resides neutrality among variety to ensure that a of reli- order Amendment’s of the First heart forth, gious leaders came the Board de- clauses. any cided not to schedule leader for con- meetings or for more than secutive two I. any meetings year. calendar Forsyth County Board Commis- The potential speaker a accepted, Once the short) (the Board, for is the elected sioners Board would add the invocation to the Forsyth County, North body governs meeting agenda, alongside often the name county approximately has Carolina. invocation, the giving individual the his 350,000 city the encompasses residents and congregation, place and the location of his The Board’s twice- of Winston-Salem. worship. Prior to opening gavel monthly meetings open public, are to the officially began meeting, years the Board has decided and speaker Board Chair would introduce the a meetings with a and start and invite those who wished to stand to do Pledge Allegiance. recital of the speaker podium, so. After the took the 2007, the Board did not have a Until (and the commissioners most audience regarding but written members) stand, would and the relatively practice. routine Us- followed commence. would rеsearch, Pages, the Yellow internet ap- While the Board took hands-off the local Chamber of and consultation with pray- to the actual content of the proach Commerce, Board com- the clerk to the ers, that content is relevant here. As the “Congregations maintained the piled and district court found and as audio record- religious congre- of all List”—a database confirm, ings prayers frequently con- presence an established gations with Christ; indeed, tained references to Jesus community. eligible congregation No half at least offered be- excluded, any congregation and could con- January February tween 2006 and by writing to the clerk. firm its inclusion concluding such as phrases contained “We November, update Each the clerk would all in the name whom is all pray this under and then mail an invitation the list Christ,” authority, Lord “[I]t’s Jesus congregation. “religious leader” of each Amen,” pray[,] name that we and Jesus’ those individuals that The letter informed You, You, praise thank we and we “We an invocation they eligible were to deliver glory, Your name and we ask all in give appointment an on a and could schedule name.” Your Son Jesus’ first-come, first-serve basis. The letter closed as follows: then Blackmon, Joyner, In March (who part of voluntary, you plaintiff longer is a third is no opportunity This case) seeking according to offer the invocation filed lawsuit declara- are free tory injunctive Claiming relief. your to the dictates of own conscience. ecu- have attended or watched several Board spirit respect To maintain a menism, plaintiffs alleged requests only meetings, the Board Board, and inac- “through both its actions opportunity exploited not be tions, opening sponsoring to the sectarian an effort to convert others meetings.” They request- [its] faith of invocational judgment declaring that the Board’s disparage nor to faith or ed speaker, particularly of sectarian violated One of those sa- sponsorship lient to this lawsuit. On December along the Establishment Clause 2007, Joyner at- and Blackmon decided to injunction preventing future meeting hoping tend the Board to observe prayers. case, Joyner’s proceedings —and filed, that lawsuit was the Board After Board’s of an agenda hear the discussion legislative prayer decided to formalize its and to during item comment past The text of the codified policy. participation period. always, As the meet- practice, with a few minor variations. Un- invocation, ing began with an this time n policy, the invocation der the written a pastor According from Winston-Salem. recognized longer would no be “listed or as Joyner, Blackmon and the Chair of the agenda meeting an item for the so that it Board asked the audience to stand for the may clear the is not considered prayer. point, At that the commissioners part public policy of the business.” The and most of the audience stood and bowed nobody required also stated that “shall be their heads. participate any prayer is of- beginning prayer, pastor Before the “[njeither fered,” and that the Board nor following offered the salutation to the engage any prior inqui- the Clerk shall board: of, in, ry, review involvement the con- pray, Before we I say my would like to any prayer by tent of to be offered appreciation the ones that serve here speaker.” Finally, invocational the Board on the Board. I’m a lifelong resident of prayers clarified were “not intend- Forsyth County, Lewisville, grew up ed, implemented and shall not be or con- Winston-Salem, lived in and for the last any way, strued in to affiliate the Board Kernersville, years, two I lived in I and

with, express preference nor the Board’s appreciate your service to me and also for, any faith or denomination.” the stand the took as whole Instead, goal the stated me, allowing Gospel a minister of the “acknowledge express the Board’s Christ, the Lord Jesus to be able to respect diversity for the de- pray as the New Testament instructs. represented nominations and faiths appreciate And I that. practiced among the citizens of The pastor then continued with County.” itself: Father, May pray. Heavenly we tonight Despite language, prayers re- grateful we are privilege so for the peatedly specific continued to reference pray by that made possible Your Son Christianity. tenets of These were not intercessory and his on the work Cross May isolated occurrences: between Lord, Calvary. And we think about 15, 2008, 2007 and December almost four- tomorrow, Lord, even a week from we’ll “Jesus,” fifths of the referred to Birth, Virgin remember that and how Christ,” “Christ,” “Jesus or “Savior.” In He was born to die. And we’re so particular, most of the closed grateful tonight that can we look Jesus, mentioning using phrases such as gov- Bible and see how You instituted pray, gracious “This we name of the ernment. Christ,” Lord Jesus name “[I]n Jesus’ we Christ, pray,” and “In name of Jesus pastor then discussed the influence of affairs, our Savior.” None of the men- sought divine world Board, guidance tioned non-Christian deitiеs. for closed with many things right,” such salutation, pray- this as “For we do make name, “striving] variety Amen.” to include a wide in Your Son Jesus’ er speakers from diverse faiths.” account, the Joyner and Blackmon’s On record, looking mag- But at the factual them feel dis- atmosphere overall .made judge concluded that istrate by [their] and “coerced tinctly unwelcome pushed themselves across the endorsing a Christian into magistrate’s constitutional line. that she felt Blackmon claimed prayer.” view, prayers occurring poli- after the her head be- to stand bow compelled “displayed] preference cy’s enactment instruction to stand cause of the Chair’s Christianity religions by over response. of the audience’s and because the Board government” and “affiliate[d] account, believing a similar Joyner offered belief,” specific meaning faith or comply, if had failed to would she could not “be considered consideration “negatively prejudice[d] have prayer.” or civil non-sectarian ap- as a citizen petition intended of [her] Both char- comment.” pearing order, In a brief the district court sectarian, with acterized adopted magistrate’s recommendation. including a referring to as Blackmon a de novo review of the factu- conducted “one-minute sermon.” agreed policy al record and “has Joyner and Blackmon response, In Government-sponsored prayers resulted Their new com- their lawsuit. specific amended a faith or that advance belief prede- relief to its requested similar plaint affiliating of the Govern- have the effect declaratory judgment that a cessor: that faith or belief.” ment with of sеc- sponsorship “allowance and Board’s court Accordingly, district issued meetings violates the prayers” tarian at its judgment that the “invocation declaratory Constitution, injunction preventing and an Policy, implemented, violates Estab- intentionally “knowingly, the Board from Clause of the Constitution” and lishment allowing negligently injunction against an the Board “continu- before, meetings. during ... or after” the ing Policy implemented.” as it is now contained new factual alle- complaint The appeal This followed. 17, that the December

gations, as well: sectarian,” “distinctly was II. prayer- had policy “ensure[d] the new core, about the At its this is not case give ... a sectari- givers permitted are general, but Clause Establishment actual- policy and that the had prayer,” legislative prayer particular. about percentage of sectarian ly increased the critical, legislative This distinction just prayers from half to under four-fifths intersecting prayer lies at the heart of two prayers. of all realities. motions for sum- parties After both filed magistrate judge con- mary judgment, A. plaintiffs prevail. should cluded hand, it fact the one historical began by noting court that both Su- On deeply “is embed- precedent legislative Fourth Circuit preme Court and of this history in the and tradition exploiting ded prevent Chambers, country.” Marsh v. 463 U.S. gov- to affiliate the prayer opportunities 783, 786, 3330, S.Ct. 77 L.Ed.2d 1019 faith. And it ac- specific ernment with a (1983). Indeed, colonial times “[f]rom that the “Defendant’s knowledged 602, Republic dating Founding.” back to the through founding Id. since, (quotation legislative pray- 109 S.Ct. 3086 and citation omit- ever ted). principles with the er has coexisted religious freedom.” disestablishment and Supreme We have followed the Court’s

Id.; ACLU, Cnty. Allegheny v. see also repeatedly guidance upholding prac- 3086, 109 S.Ct. U.S. legislative prayer. Wynne tice of In v. (1989) (recognizing unique L.Ed.2d 472 (4th Falls, Town Great 376 F.3d 292 prayer). Taking heed history legislative Cir.2004), legislative we considered the reality, Supreme of this basic Court prayer policy employed by the Town Coun- acknowledged legitimacy legisla- has Falls, cil of Great South Carolina. so prayer multiple occasions. tive doing, “[pjublic we observed that officials’ Marsh, example, ‍​‌​‌​​‌‌​​​​​‌​‌‌​‌‌‌​‌​​​‌​‌​‌​‌‌‌‌​‌‌‌​‌​​‌​‌​‍in the Court con- brief invocations of the Almighty For before constitutionality engaging always, fronted the Nebras- business have Legislature’s paid carefully explained, ka decision to have a as the Marsh Court so each chaplain part history.” offer brief before been of our Nation’s legislative Wynne, session. See 463 U.S. at 376 F.3d at 302. And while we 784-85, 103 S.Ct. 3330. The Court en- determined that the town council’s gaged lengthy analysis, in a historical not- implemented, was unconstitutional as that “the men who wrote the First decision no means based on a Religion Amendment Clauses did not wholesale view condemnation of paid legislative chaplains opening contrary, To prayer. quite we made Amendment, prayers as a violation of that clear that permissi- invocations were still (“The practice opening for the of sessions with ble. See id. Town Council of Great prayer interruption has continued without Falls engage remains free to in ... invoca- early Congress.” ever since that session of prior meetings.”) tions to Council 788, at practice Id. 103 S.Ct. 3330. The of point Simpson We drove this home in v. legislative prayer similarly was common- County Supervisors, Chesterfield of place 788-89, in the states. See id. at 103 (4th Cir.2005), taking 404 F.3d 276 to care history, S.Ct. 3330. Based on that explain salutary the numerous benefits of Court concluded that there was “no real In Simpson, invocations. chal- citizen threat to the arising Establishment Clause lenged the Chesterfield Board of practice prayer from a of similar to that Supervisors’ practice, invocation which af- 791, challenged.” now Id. at 103 S.Ct. forded throughout 3330. county an opportunity give to a “non-sec- only Supreme prayer While Marsh is the Court tarian” at the start of board meet- directly first-come, ings case address the constitutionali- on a first-serve basis. ty legislative prayer, of Simpson, reject- Court has since 404 F.3d at 278-79. We support practice challenge. reaffirmed its ed her Harkening back to Marsh, ruling propriety while on the alleg- “legislative two we observed that invo- edly holiday displays unconstitutional perform lo- cations the venerable function of public property Pittsburgh. cated on in seeking guidance legisla- divine for the 573, Allegheny, See 492 U.S. 109 S.Ct. ture” “constitute ‘a tolerable acknowl- Though edgment widely 3086. the Court ruled that one of of beliefs among held ” unconstitutional, displays those people country.’ (quot- was of this at Id. Marsh, careful to reaffirm of legislative ing the status U.S. S.Ct. 3330). “accepted as one of our City traditions See also Turner v. Council of defining values that are a tic and inclusive Fredericksburg, 534 F.3d City Cir.2008) (“The public life. (4th feature of American Council’s decision non- meetings with open its thus seek to minimize these The cases does not violate denominational legislative prayers to by requiring risks Clause.”). the Establishment That a non-sectarian ideal. ideal embrace simply those of different legis- this: sum, at the start In invocations unit- spirits, are in the end kindred those occa- creeds can solemnize sessions lative higher providence and by respect paid act on ed sions; encourage participants in instincts; importance a belief and foster their noblest much in in faith. Yet an ideal so evidence higher of a hand humility recognition Allegiance, coinage, Pledge our bring. can There is human affairs our own “God save the United States only upholding precedent line of clear long Honorable Court”—an ideal but ac- this legislative prayer, . unify- meaningful both thought it can ways which knowledging unaccept- the dissent as strikes backgrounds citizens of all bring together —now astonishingly ably in the bland. For dissent participate them to encourage ideal, dismissing disparages this non-sec- workings government. of their tarian invocations as mere “civil nicet[ies]” B. prayer “agnostically.” that treat Post mean- This view not diminishes time, Supreme both the At the same day ingful every observances offered careful to circuit have been and this Court country. this It denies to invoca- across on invocations. clear boundaries place aspect. tions their inclusive governmental That is because was, fact, aspect this inclusive proximity carries risks. settings empha- care to Supreme can the Court took to official business example, the Court gov- in which the size. an environment create of the reasons that prefer— noted appears prefers ernment —or to objection legislative had no expense at founders particular sects creeds that the invocations common- prayer was preferences “[t]he violate others. Such represented at the time “conduct place of the Establishment clearest command with the harmonize[d] ... effect ... whose that “one denomination Clause”: Marsh, religions.” all tenets of some or officially over anoth- preferred cannot be 792, Valente, 244, (quoting at 103 3330 228, 463 U.S. S.Ct. 456 U.S. er.” Larson v. 420, 442, (1982). Maryland, v. 366 U.S. 1673, Af- McGowan 72 L.Ed.2d 33 102 S.Ct. (1961)). 1101, Ne- 6 L.Ed.2d 393 all, the Establishment 81 S.Ct. else “[w]hatever ter fell within that tradi- at braska’s invocations certainly ... it means may mean Clause tion, “all refer- so far as to remove may going government very least complaint after a 1980 ences to Christ particu- for one preference demonstrate 14, id. at 793 n. legislator,” a Jewish 492 U.S. at Allegheny, or creed.” lar sect 3330, in to ensure that the order 605, broadly, while 103 S.Ct. 3086. More 109 S.Ct. acknowl- prayers represented “tolerable capacity to sol- prayer has legislative widely among of beliefs held edgement weighty governance task of emnize the 792, at country,” of this id. partici- people among its' encourage ecumenism at ecumenism These efforts S.Ct. 3330. generate potential it also has pants, it holding: were essential to Court’s conflict rends com- strife. Such con- prayer policy concluded that pluralis- to the munities and does violence faith specific prefer- there was “no indica- with one or belief stitutional because others,” policy. ence to we struck down the opportunity tion that [Nebraska’s] Id. at 298. The basis for our decision was or ad- exploited proselytize been ha[d] Marsh, straightforward: unlike where other, one, any any disparage vance or to chaplain affirmatively “the had ‘removed 794-95, at 103 S.Ct. faith or belief.” Id. ” Christ,’ all (quoting references to id. Indeed, while the Court noted that Marsh, 14, at n. 463 U.S. 103 S.Ct. not of prayer[s] content of the “[t]he “ 3330), prayers Wynne ‘frequently’ 794, judges,” concern to id. at 103 S.Ct. Christ,’ contained references ‘Jesus 3330, approach adopted such hands-off promoted others, religion thus one over all only once it was that Nebraska’s satisfied dividing along the Town’s citizens denomi- “proselytize or advance” a prayers did not lines,” national at id. 298-99. The creed, id. thus ran afoul of proscription Marsh’s Allegheny point, clarify- underscored the any that “advance one ... faith or ing legislative prayers involved “[t]he Marsh, (quoting belief.” Id. at 300 in Marsh did not violate Establish- [the 3330). 794-95, U.S. at 103 S.Ct. found We particular chap- ment because the Clause] unpersuasive the arguments council’s lain had ‘removed all references its references to Jesus Christ fell within ” 603, Allegheny, at Christ.’ 492 U.S. approval prayer ” “Marsh’s of a ‘in the Ju- Marsh, (quoting S.Ct. 3086 463 U.S. at 793 tradition,’ deo-Christian id. at 299 (quot- 3330) added). 14, (emphasis n. 103 S.Ct. Marsh, 463 U.S. at 103 S.Ct. observed, As “recognized the Court Marsh 3330), for the referenced Christ— ‘unique history’ legis- that not even the deity “a divinity only whose those of the justify contemporary leg- lative can believe,” Christian faith id. at 300. islative that have the effect of just We reaffirmed that principle basic affiliating any one year Simpson. one later in specific faith or (quoting belief.” Id. explicitly issue there required nonsectarian 3330) 463 U.S. 103 S.Ct. prayers. It mandated that each “invoca- (citation omitted). Moreover, the Court tion must be non-sectarian with elements pains distinguish took between the con- of the American civil and must not stitutionality specifically of “a Christian proselytize be used to or advance creche, symbol, general like a and more faith disparage any or belief or to religious references, like the faith or Simpson, belief.” 404 F.3d at 278. prayers in Marsh.” Id. upheld policy precisely We because the approach, Our cases have hewed tо this prayers were nondenominational. not-We approving legislative it prayer when is Wynne, ed that unlike in where the “sec- practice. nonsectarian in both tarian in references invocations were far Wynne, In adopted the town council had incidental,” more than occasional or id. at allegedly an prayer policy neutral but had 283, Simpson the board in “aspired had to every nevertheless commenced meeting requested non-sectarianism and that invo- with opening prayers expressly that using cations refrain from Christ’s name repeatedly referred to Jesus or, matter, Christ. See for that denominational 295, Wynne, at 376 F.3d 296 n. 2. Read- Indeed, appeal,” id. at 284. the board’s Allegheny Marsh and to “teach that a policy in action had resulted in “a wide cannot, legislative body consistent with the variety prayers” divinity that “described Clause, terms,” ‘exploit’ prayer Establishment this displaying wide and embracive opportunity to ‘affiliate’ the ... Government “ecumenism consonant with our char-

349 cannot withstand scruti- implemented, as of faith and as as a nation both acter 17, 2007 ny. prayer exercise and The December free country —the Id.; also plaintiffs’ see to the amended prayer tolerance.” that led broad (“The Turner, Council’s F.3d crossed the constitu- complaint clearly — legis- only nonsectarian provide that Wynne, decision line. we concluded tional it within places squarely prayers lative prayers “clearly ‘ad- the town council’s by Marsh and permitted of conduct range faith, Christianity, prefer- vance[d]’ prayers The restriction Simpson. others, decidedly in a in- manner ence designed to make in nature is nonsectarian Marsh,” Wynne, 376 F.3d with consistent who come people prayers accessible 301, solitary they ended with a because not to ex- variety backgrounds, from a reference to Jesus Christ. faith.”). disparage particular clude or specific went further. discussed here from religion, of the Christian out clear bound- tenets law thus sets The case Calvary” “Virgin Committee to the Birth” to Baptist amicus Joint “Cross of aries. As it, puts “this Liberty Religious “Gospel of the Lord Jesus Christ.” [cjourt’s have prayer decisions legislative 17 invocation thus “en- The December created exception recognized business and for gage[d], part as nonsectari- to the sort of is limited Marsh whole, in citizenry prayers as a that solemnizes legislative prayer deity references to a explicit contained] bodies without legislative proceedings faith divinity only whose those of one be- a particular advancing disparaging or at 301. Wynne, lieve.” 376 F.3d Comm, Baptist Br. Joint Amicus faith.” the December Nor was differently, Liberty 13. Put Religious rule, our rather than the exception, nonde- must strive to be suggests. Post at 361-62. friend dissent reasonably long as that is nominational so day Joyner 17 was of course December of wel- signal send a should possible—it chose to a Board and Blackmon attend It should not rather than exclusion. come opening and heard the sectarian meeting faiths in favor of tenets of other reject the day hardly unusual. But the specific prayer. references to just Infrequent one. found, un- alone, judge deities, magistrate “[t]he to As the standing do not suffice legis- prayers But disputed a constitutional case. record shows make out go meetings lative at the outset of Board delivered further — repeatedly suggest venue particular thrоugh December May weight behind put Christ, has its government Jesus, Jesus referred to transgress the bound- Christ, overwhelming fre- Savior faith — Faith Clause. of the Establishment aries four-fifths of the quency.” Almost per- deeply as it is deeply important is as references. The contained such sonal, ap- should Wynne closed—like —with have it that some faiths pear suggest “the name of the gracious invocations got right. others wrong and Christ,” with references to Lord Jesus Christ, Thy and Son “the merits Jesus

III. Savior,” reminders that the and with our name of the blessed prayers “[i]n were set forth together, principles Taken 376 F.3d at 294 Wynne, Jesus.” See and Alle- Supreme Court Marsh by the “In name we Christ’s (prayers closed and Wynne circuit ‍​‌​‌​​‌‌​​​​​‌​‌‌​‌‌‌​‌​​​‌​‌​‌​‌‌‌‌​‌‌‌​‌​​‌​‌​‍in by and this gheny policy prayers before pray”). policy, Board’s Simpson establish 350 Board,

likewise featured a .substantial number of to the factual this distinction is dispositive, prayers sectarian references. for while by delivered carry officials an “obvious and Moreover, case, not the is as the dis- affiliation, prayers inherent risk” of deliv- suggests, prayers sent “were volunteer, by ered “a wide pool self- largely generic petitions Being to a Divine selected citizens” will not show gov- “the legislative body request to bless the and allegiance a particular ernment’s sect or guided wisely justly that it be to act and Appellant’s creed.” 22 (quotations Br. at the interest of the citizens.” at Post omitted). Similarly, and citations true, If quite that were this case would be argues Board that Simpson factually many different. But here there were distinguishable county because the board prayers that not invoked Jesus’ name there decided artificially narrow the see, 25, throughout, e.g., February group eligible religious leaders to “rep- (beginning, you “Father ... we thank resentativеs of Judeo-Christian or mono- redeemer, your son Jesus our Christ we religions.” theistic Id. 23. While safe- you holy thank spirit for the who is our guards like nonsectarian messages and counselor”); guidance and our but also wide-ranging religious appeals were neces- that both before and after the in- sary in presence of such editorial con- specific voked tenets and of faith articles trol, the argues they are not see, 10, Christianity, e.g., November where, required here, the policy is (opening with thanks to God “for the “even more completely inclusive and un- Christ, Lord Jesus the one that loved us limited.” Id. at 23-24. gave himself for Calvary”); us at Feb- ruary Lord, (praying “oh our arguments These miss the forest for the Lord, thank you your we son Jesus trees. respect Wynne, With the Board who Calvary died on might we have a right to observe that were life abundantly”). and have it more Taken delivered members of the town council. whole, as a it is clear that Wynne, See 376 F.3d at 294. But that fact offered under the Board’s not did dispositive. was not govern- was the “evoke common and inclusive themes and mental setting for delivery of sectarian forswear ... forbidding character of prayers that courted constitutional difficul- Simpson, sectarian invocations.” 404 F.3d ty, not actually gave those who the invoca- Wynne at 287. Simpson set forth the Wynne tion. rested on two pillars: line, constitutional and these Supreme Marsh, opinion Court’s which crossed it. flatly legislative prayer declared that can- “proselytize not any advance ... rv. belief,” faith or (quoting id. The Board argu- makes number of 794-95, 3330), 463 U.S. at 103 S.Ct. ments in policy. defense its shall We subsequent Court’s clarification that address them turn. in Marsh were constitutional “because the chaplain had re- A. Christ,” moved all references to id. at 299 First, argues the Board that we should (quoting Allegheny, 492 U.S. at 3086). apply Wynne decline to Simpson. In S.Ct. Those principles apply with view, Wynne its control this case equal force here. And lest there be because the doubt, there were delivered applied we type analy- the same by members of the town council. Wynne Accord- sis in policy Simpson, see 283-84, in guest speakers invocation F.3d at which fea- Simpson, 404 County neutral by clergy local rendered the Board’s tured delivered invo- basis, first-come, id. at cations unconstitutional.” Id. a first-serve see at 30. Likewise, claims the dissent that our arguments regarding The Board’s holding requires “judicial to bodies evalu- Once Simpson equally unpersuasive. are parse particular religious prayers.” ate and factor the non- again, important Post at 356. This claim is ironic in view of prayer, not the nature of sectarian in engages the fact that the dissent what speaker. identity particular While only can as an be described extensive eval- Simpson’s contends that dis- uative to designed prove against exercise — cussion the non-sectarian nature of all in record —that the pray- evidence the county was due to board’s question generic ers in a were of non- den[y] “specifically the inten- decision to sectarian character. We do not fault the open private to forum for tion create review, undertaking dissent for its only but degree instead a speakers, ] and maintain! attempting decry to that which it is by over what was of ‘content-control’ said fully engaged. post at 360-61. See (citation Br. at guests,” Appellant’s It is true stated that that Marsh courts not omitted), fact was central not a “parse рarticu- should the content of Indeed, way. Simpson’s holding any Marsh, lar prayer.” 463 U.S. mentioned that fact in ana- we never once perfect S.Ct. 3330. This makes sense. As met constitu- lyzing whether matter, practical courts should not be in Simpson, F.3d at tional muster. See policing business of for the contrary, we applauded To the 282-84. occasional reference —that car- variety for its Chesterfield “wide things ries far. But the dissent gives too prayers” upheld those be- and impression virtually any by review “aspired to non-sectar- cause Chesterfield majority the invocations under chal- requested that re- ianism and invocations lenge impermissible would constitute name, or, using frain Christ’s for that “parsing.” Quite simply, ap- this stark matter, any appeal.” denominational Id. proach ability leaves the court without exactly at 284. no two cases are While case, by barring any to decide the substan- alike, us no given convincing the Board has very practice tive consideration of the un- holdings from the depart reason to challenge. say der It is to the least an odd Wynne Simpson. judicial view function denies courts the to review the right B. issue. For no review at to exercise all—to Next, argues that the Board the district eyes patterns shut our of sectarian court misinterpreted Wynne, forums—is surrender

Simpson deciding “parse! the con- ] the essence of the Establishment Clause prayers,” Br. at particular Reply tent of weight and allow to throw its upon “impose blanket censor behind faith. Marsh did content,” Br. at 27. In Appellant’s idea. countenance such view, its have all “various courts fact, interpreted precedents very Court endorsed this Circuit’s the Marsh below,” approach than the District Cоurt such hands-off situations differently that where “there is no indication that “finding district court erred prayer opportunity exploited has been of sectarian references inclusion 352 one, or advance

proselytize or to dis- featured “supplications to other, parage any faith or at they belief.” Id. Christ”: “given were ‘in Christ’s 794-95, words, [Yjour name,’ 103 S.Ct. 3330. In other ‘through Christ,’ Son Jesus leg- courts need to assure themselves that Strong ‘In the name of [and] Jesus our ” prayer opportunities being islative are not concluding stay Savior.’ Id. In that a exploited they before abdicate all constitu- improper, would be the Seventh Circuit scrutiny. magis- tional The district and squarely observed that the cases confront just judges by following trate did constitutionality of legis “sectarian precedent making the determination lative ... have concluded that that Marsh and this Circuit’s own deci- prohibits practice.” Marsh Id. at require. sions noted, do, 399.* It also as we Supreme opinion Court’s in Allegheny That precisely approach ap- we precluding “read Marsh as sectarian pray plied Wynne. Rather than “parsing” Id.; er.” see Snyder Murray City also v. particular the details of a prayer, we (10th Cir.1998) Corp., 159 F.3d 1234 at the looked district court’s factual find- (“Thus, legislative kind ings frequency about the with which the will run afoul of the Constitution is one ‘Jesus,’ Christ,’ council “invoked ‘Jesus ” proselytizes a particular religious ten ‘Christ,’ determining or ‘Savior’ in wheth- belief, et or aggressively or that advocates er prayers actually proselytize did specific creed, or that derogates particular advance a Wynne, sect. doctrine.”). another faith or F.3d at 298 n. 4. ap- We took the same well, proach Simpson taking note of Board, however, suggests that the variety the “wide of рrayers” and their Eleventh opinion Circuit’s in Pelphrey v. nature. Simpson, “nonsectarian[ ]” (11th Cobb County, 547 F.3d 1263 Cir. F.3d at 284. The district court here fol- 2008) compels a different result. Pel suit, relying lowed magistrate’s on the phrey, upheld legislative the court pray findings about the “overwhelming frequen- er adopted county two commis cy” “Jesus, Christ, of references to Jesus sions that allowed “volunteer leaders of Christ, or Savior” in determining that the different religions, basis, a rotating prayers did advance one faith. offer variety invocations with a expressions.” Pelphrey, 547 F.3d at 1266.

Other circuits have adopted a similar While the majority prayer-givers perspective. were example, For in Hinrichs v. Christian, Bosma, (7th leaders of all faiths Cir.2006), had come F.3d 393 forth. See id. 1277. The stay Seventh Circuit declined them the dis- selves, turn, trict had at times ruling court’s included “ordi Indiana House narily ... terms, brief’ sectarian Representatives’ legislative prayer such as poli- cy ‘Jesus,’ Hinrichs, ‘Allah,’ “references unconstitutional. See ‘God of Abraham, Isaac, Jacob,’ ‘Mohammed,’ F.3d 395. Like the County ” Board, ‘Heavenly the Indiana clergy House invited Father.’ Id. at 1266. facts, from all over the state to issue a Based on these the Eleventh Circuit before each session and encour- concluded that there was no need to “eval aged the clerics to “strive for an ecumeni- uate the prayers” content of the because cal prayer.” Nevertheless, Id. many of “the Commission * opinion, In a later the court concluded that 506 F.3d Assembly, the Ind. Gen. appellants standing. (7th lacked Cir.2007). See Hinrichs Speaker Representatives v. the House faith or did a leader exploited policy religious to advance one non-Christian not were argues to give prayer. Id. 1278. Board come forth a The record at belief.” analogy here, policy by its reflects the taken that we should affirm thus that whole, in drawing from a sentence faith” to Pelphrey, single one] as a “advance[d opinion stating “Allegheny Pelphrey, the exclusion all others. the prayer conform 1277. require F.3d at not Br. Appellant’s model in Marsh.” to the C. at 1271- (quoting Pelphrey, F.3d

at 29 72). Finally, argues its policy it a pass should muster because is neutral provide Pelphrey’s ruling But does not policy philoso- under which “all views and uphold- In support the Board claims. phies equally Appellant’s are welcomed.” Eleventh policy Pelphrey, in ing estimation, “difficult, In it Br. at 26. its is relied on the fact principally Circuit impossible, if to conceive a more not whole, as a did not prayers, “the taken fair, or policy.” neutral inclusive invocation any Pelphrey, particular faith.” advance view, In at 27. the Board’s sectari- Id. words, the at In other 547 F.3d 1278. nature of here simply an approach the same Pelphrey adopted court the “religious function of demographics Simpson: it Wynne in deter- we did in County. the communities” Re- as a matter mined threshold whether at 24. ply Br. Because Board “showed exploited opportunity invocations preference any no favoritism or at time Indeed, the Eleventh legislative prayer. faiths,” its must policy between itself, observing point made this Circuit Br. at upheld. Appellant’s be Marsh[] that the “Fourth Circuit read[s] It do.” at 1273. further noted as we Id. The Board is correct to that its observe fo- Wynne Simpson had likewise face, policy policy is neutral. On its inqui- their on the threshold analysis intended, cused it states that is “not and shall prayer opportuni- whether or not the ry of in imрlemented any not be or construed “been or ty exploited proselytize with, had way, to affiliate the Board nor ex- faith. Id. at 1273 for, advance” preference any the Board’s faith press 794-95, 463 U.S. at (quoting agree denomination.” And we 3330). S.Ct. magistrate judge policy that the many right,” things “does such as not place Such advancement did take “striv[ing] variety to include a wide the “diverse Pelphrey, where references speakers diverse faiths” not prayers, cumulatively, viewed did potential encouraging prayer leaders not Id. 1277. But single advance faith.” at disparage other faiths. place an just such advancement has taken not, implemented, an policy policy, This was as the dissent But the here. it, have matter. is not pluralistic altogether would “a celebration different contend, does, as the post enough but advancement dissent prayer,” policy Board’s “neutral religion. practice, proactive- of one was inclusive,” proliferation post when the policy greater ly resulted any way proactive discourag- of the not in prayer. sectarian Almost four-fifths public settings. of the adoption delivered after policy None of the Board’s did Simpson, referenced Jesus Christ. Unlike deity. require that invocations “non-sec- mentioned “advancing] any no tarian” and avoid adoption And at time after faith Simpson, or belief.” 404 F.3d at 278. in a civic function sanctified in his name is Moreover, while the Board’s itself a wrenching burden.” See Amicus Br. of states that is “not intended ... to affili- American Jewish Congress et al. 8. Such with, ate express the Board nor burdens run counter to prom the essential for, any preference Board’s faith or reli- ise of the Establishment Clause. See Lar denomination,” gious the letter it sends to son, 244, 102 456 U.S. at S.Ct. 1673. actually giving say This is not to that the Board must prayers sends a different message. The abandon the practice legislative prayer. of merely letter them that pray- instructs Nor do we wish to set forth some sort of opportunity er should “not be exploited as template for an legislative ideal an effort to convert others to the particu- all, policy. After recognized as we lar faith speaker, nor invocational Simpson, judicial “too much fine-tuning of disparage any faith or belief different than legislative prayer policies risks unwarrant- speaker.” that of the invocational In other ed interference in the operations internal words, the letter focuses on part of a coordinate Simpson, branch.” proselytizing—and Marsh test — F.3d 286-87. The bar virtually contains no language discourag- County hardly a high one. Public insti- ing leaders from advancing them faith. own throughout tutions country this manage to (“ Wynne, See 376 F.3d at ‘[P]rosely- regularly commence proceedings with in- tize’ and ‘advance’ meanings have different provide vocations that all salutary ben- activities.”). and denote different legislative prayer efits of without the divi- level, On a broader and more important- sive drawbacks of sectarianism. See id. ly, citizens attending meetings hear (describing how Chesterfield County’s the prayers, policy. not the What this sought “guidance invocations is not means is that eye we cannot turn a blind sect”). property any And religious practical effects of the invocations at leaders throughout this country have of- issue here. suggests The dissent moving fered prayers on multitudinous oc- “frequency prayer” of Christian was mere- casions that have managed not to hurt the ly the “product demographics,” post at ‍​‌​‌​​‌‌​​​​​‌​‌‌​‌‌‌​‌​​​‌​‌​‌​‌‌‌‌​‌‌‌​‌​​‌​‌​‍end, adherents of different faiths. In the and the “could not control the constitutional standard asks of the population whether the religious,” id. County no more than pub- what numerous What the dissent offers as a defense of the governmental lic and entities already meet. however, policy, is one of problems Indeed, some of the offered in this with it. policies Take-all-comers that do very case—albeit a minority plainly met — not discourage sectarian prayer will inevi- it. tably majoritarian favor the faith in the now, however, As it stands community at the Board’s expense mi- policy falls short. living norities resulted in sectarian therein. This effect creates meeting real invocations meeting burdens after particularly ad- citizens-— Christianity those who attend vanced and that meetings only sporadical- made at least ly they uncomfortable, two citizens will have to listen feel to someone unwel- —for come, professing religious unwilling they participate beliefs that do in the themselves hold as a affairs of Forsyth County. condition of at- To be sure, tendance and participation. “To ... citizens in a democracy Jew- robust should ish, Muslim, Bahá’i, Hindu, or expect Buddhist to hear all things manner of citizens[, request to recognize they ]a the su- do not like. But the First Amend- premacy of Jesus Christ and to participate ment that religious teaches faith stands on of faith plays no favorites matters but footing from other forms a different all. participation welcomes the Because speech and observance. to our intimate and so central belief is so V. advancement and effec- being, government of one faith carries once observed George Washington tive endorsement always hold de- sting “[rjeligious pro- for citizens who are controversies precisely the acrimony This is voutly to another. ductive more irreconcil- spring invocations opposite of what able hatreds than those which words, In other what- bring about. Letter from George should cause.” (June intentions, as policy, Washington Board’s its Newenham ever the to Edward 1792). exactly 22, of has led to the kind implemented, As our nation becomes more diverse, the Establishment Clause plant “divisiveness so also will our faiths. To to avoid.” Id. rightly at the heart of local gov- seeks prescription religious ernment is a for dis- place appreciate dissent At no churches, homes, private cord. upon of of its view adherents impact number, settings beyond citizens public meetings hear faiths who minority nurture diverse faiths that lift and both in name of given invocations open with in personal public life. But their and civic By they do not subscribe. a faith to which respect pursuits, Americans manifold majority “bowing of ... to accusing by abjuring of beliefs fellow citizens sec- inoffensiveness,” 367, the post at universal embracing tarianism more inclusive Joyner’s to dismiss appears dissent religious themes. That the Board and essentially Blackmon’s sensitivities hold steadfast right. is not it is no This While moment. certainly their no cause faith is coerced, they were not plaintiffs true that But where condemnation. to stand and their pressure claim bow concerned, deep beliefs of fora is or having with the rest risk along heads only more reason to speaker respect afford correspondingly participation their civic of the profound convictions listеner. plaintiffs are not so devalued. And these religious posits broad reli- Free exercise may from other citizens who feel different here, as gious tolerance. The imple- way marginalized account some mented, balance upsets the careful beliefs and who decline to religious their bring seeks to about. First Amendment ensue may risk the further ostracism judgment the district court is their case to court or who bringing hereby the resources do so. While simply lack AFFIRMED. Establish- “[t]he the dissent insists protect against does not feel- ment Clause NIEMEYER, Judge, dissenting: Circuit ings marginalization,” id. ostracism legislative prayers 361, surely offering harms When it solicitous of Being publicly asked by government’s citizens ad- which Divine upon visited blessing legisla- may guidance and a of a faith. We vancement tors, religious leaders will hereafter have subtle or not-so-subtle not know what the Divine referencing to refrain from Be- citizens of the pressures non-Christian name, or revealed inspired with the participate the sectarian County felt know, according religion. The however, that citi- to each leader’s do exercise. We that every commands majority’s confi- decree public meetings zens come to should only “God” or legislative prayer reference that government in the assurance dent ideal,” supposedly be- of its leaders' —have been offered some “nonsectarian by leaders of denominations. might offend. Christian appellations cause other Thus, sensitivity in a to references stated Joyner Janet and Constance Blackmon might identify practiced commenced action to declare this these leader, by majority has enjoin and to unconstitutional regulate step language dared to in and their continuation because the of- dialogue sacred between —the mostly fered have been Christian and have Such a humankind and God. decision often Joyner invoked the name Jesus. prayer agnostically; treats reduces their allege complaint Blackmon nicety; hardly civil accommodates the Su- they are “offended the sectarian preme jurisprudence in v. Court’s Marsh are an because the uncon- Chambers, 463 U.S. S.Ct. a particular stitutional endorsement reli- (1983); and L.Ed.2d 1019 creates a circuit gion improper attempt by and an the coun- Ga., split, v. Pelphrey County, see Cobb ty government prefer faith (11th Cir.2008) (finding 547 F.3d 1263 con- over others.” by stitutional legislative offered granted The district summary court religions, “volunteer different leaders of judgment Blackmon, and Joyner to con- basis,” though a rotating even the cluding that, of frequency because the of Allah; Jesus; referenced the of Abra- God prayers, Policy, Christian “the invocation ham, Isaac, Jacob; Mohammed; and and implemented, as resulted in has Govern- Father). Heavenly frightfully, Most it will ment-sponsored prayers that have ad- require judicial secular bod- a specific faith or belief and vance[d] have parse particular ies to evaluate and reli- affiliating government the effect of the gious prayers array an of under criteria belief,” ie., particular with that or faith by majority. identified the Christianity. policy judgment. is the of the Board of I Commis- would reverse this Because Forsyth County, Forsyth sioners of North County Car- has established a com- olina, pletely to religious policy invite leaders from the neutral of allowing all and County, any various in the congregations “on to deliver leaders invocation- first-come, basis,” а al prayers composition first-serve to offer a of their own before prayer beginning before of meetings sought the its twice- Board has proactively monthly inclusive, meetings, “for the benefit to be I would conclude that the blessing of the Board.” The Board allows do not the violate Establishment the to leaders determine the Clause. The Establishment Clause does except content of that it not prayer require the “re- the to forbid invoca- quests only prayer opportunity speakers that the tional making from sectarian ref- not be an exploited Rather, as effort to erences in prayers. convert their to faith County’s policy others of the invo- pluralistic inclusion com- cational speaker, disparage any plies nor to with the Establishment Clause and faith particularly Supreme or belief than that of more different Court’s Marsh, speaker.” opinion approved invocational Under this denom- legisla- which inationally proactively neutral and inclu- tive long as constitutional so policy, sive from array proselytize, a broad ad- religions another, religion and denominations have been of- vance one or faith over fered, although reflecting disparage any other or faith. most— 794-95, County’s demographics responses and the at 463 U.S. S.Ct. 3330. Religious responding

I invita- first-come, tion are scheduled “on first- County Board of Commis- Forsyth The prayer, serve basis” deliver and no religious invocations has allowed sioners compensation leader receives May since meetings its before Moreover, service. has Board policy that codi- a written adopted Board charged the Clerk of the with mak- fied, change, practice. its but did not every “to reasonable effort ensure variety eligible speakers invocational desire expresses Board’s The Board meetings.” are scheduled for the proceedings” but “to solemnize [Board] end, policy provides To this that “[i]n employee member or provides “[n]o event, no any speaker invocational shall be person in attend- any the Board or scheduled offer consecutive meeting required shall at the be ance Board, meetings or more than offered.” any prayer that is participate (2) meetings any two calendar shall “[t]he The states year.” eligible voluntarily by delivered policy states Board will elergy/religious leader member no control exercise editorial over invoca- and, County,” ensure “[t]o prayers and that “[n]either tional (the speaker”) “invocational person such engage any Board nor the Clerk shall among pool wide selected of, in, inquiry, review or prior involvement leaders,” the County’s elergy/religious to be the content offered sends an invitation of the Board Clerk speaker.” invocational every congregation leader of the asking if presence County, in the compiled The list the Clerk of reli- to deliver leader would like gious responding leaders the Clerk’s meeting. at a an invocational Board and lengthy invitation includes a broad part: reads in relevant The invitation array religions of and denominations. list majority on the are identifi- While The Board of Commis- Christian, large ably including Christian policy makes it a to invite mem- sioners denominations, Methodists, Bap- such as elergy/religious of bers tists, Orthodox, Presbyterians, Greek Forsyth County voluntarily offer a Catholics, Lutherans, and it Episсopalians, beginning of its meet- prayer before also includes other smaller Christian de- blessing of the ings, the benefit religions, nominations and non-Christian Board. “nondenominational,” Moravian, such as Universalist, Deliverance, Apostolic, Disci- Christ, Christ, of Ba’hai ples of Church opportunity voluntary, you This Holiness, Faith, Wesleyan, Interdenomina- according are free offer the invocation tional, Islamic, Jewish, Mormon, Seventh yoxxr conscience. to the dictates own Adventist, Assembly God, Day Nazar- and ecu- spirit respect To maintain a ene, Pentecostal, Friends/Quaker, and Je- menism, requests only Board hovah’s Witness. prayer opportunity exploited not be been as an to convert others to that have offered effort responding religious gen- invocational leaders have faith disparage any erally guidance for Divine and the speaker, nor to faith asked Board, blessing usually appealing than of the invoca- belief different A speaker. “God” or “Father.” number of tional by invoking prayers Christian also ended is to affiliate the Board with a the name of Jesus. specific faith or magistrate belief.” The judge Joyner recommended that

The American Civil Liberties Union of Blackmon’s summary judgment motion for Legal North Foundation Carolina granted and that Forsyth County’s mo- (“ACLU”) a letter to the wrote tion summary judgment be denied. “recommending] [the October to ensure adopt policy that For- Board] judge The district agreed signed an County Board of syth Commissioners order, 28, 2010, January dated declaring meetings being opened are not with sectar- policy, the invocation “as implement- Board, ian invocations.” When the in re- ed,” violated the Establishment Clause and admonition, sponse poli- to the affirmed its enjoining the Board from “continuing cy of opening meetings its with invocations Policy implemented.” as it is now by religious leaders under the neutral and The majority affirms this In judgment. inclusive that it had since followed so, doing prohibit it does not 1979, Joyner Janet and Constance Black- prayer, nor find the unconsti- mon commenced this against action Rather, tutional. it finds that because the Board. prayers actually predomi- offered were complaint, Joyner their and Black- Christian, nately invoking often the name complain mon of “at least 16 sectarian Jesus, violated the Estab- (Christian) prayers” meetings delivered at reasoned, lishment Clause. It prox- “The year during course from Janu- imity government to official ary through February as well business can create an environment prayer given as a on December which the prefers appears —or Most of the challenged prayers, which are to prefer particular sects or creeds at the — set forth in complaint, asked God to Ante, expense of others.” (empha- at 347 guide and bless the Commissioners and added). sis accordingly rules invoked Jesus’ name at the conclusion. Forsyth County Board of Commissioners Joyner alleged and Blackmon that these prayers cannot tolerate at its meetings sectarian prayers “offended” them because that frequently so invoke the name of Je- they constituted “an unconstitutional en- follow, sus. For the reasons that I con- dorsement of a particular religion an clude that the Establishment Clause does improper attempt by county govern- the require Forsyth not County censor ment to prefer one faith over legislative and restrict prayers аs ma- the others.” jority mandates. On summary cross-motions for judg- ment, magistrate judge the concluded that II prayers presented at the beginning of meetings of the Board of Commissioners In complaint, their Joyner and Black- not, whole,” could “as a be considered invocations, mon focus on actual legislative “nonsectarian or civil prayer.” magis- The policy not governing prayers. judge trate concluded that the They' dis- note that a majority vast of the played preference “a Christianity for over given have been Christian and other religions by government. Jesus, have often invoked they argue, frequent therefore, references to Jesus Christ cause that this pattern de facto uncon- to promote religion one stitutionally over Christianity advances over all others, all and thus the effect of these other faiths.

359 legislative prayer manner that that its forward County maintains Forsyth Being violate a Divine does not the Estab- prayer with sessions opening legislative Clause, provides that “no lishment which and that the and inclusive is neutral establishment of reli- religion respecting law an one faith or not advanced has Const, made. amend. I. gion” U.S. policy. stresses implementing the practice continuous historical has cautioned courts Based Supreme Court years original under- Joy- of over prayers, as parsing legislative against Clause, Supreme of the standing Be- Court would have us do. and Blackmon ner County in Marsh stated: evidence that the cause there no religion one its to advance has used legislative prayer We conclude that, another, under it maintains over no potential more for establish- presents Marsh, analyze judge the we must not of provisiоn ment than the school trans- prayer. of each content grants higher beneficial portation, education, exemptions or tax for reli- deny While organizations. gious were offered majority that a Marsh, of Christian denomina- by religious leaders U.S. S.Ct. omitted). (internal invoked many and that Explaining, tions citations Jesus, it contends that the name the Court stated: require does not Establishment Clause unambiguous light and unbro- name or body to censor Jesus’ history than years, ken of more to the by religion names given practice can be doubt there no Being invocations when Divine opening legislative pray- sessions with meeting, “before a invocations are offered our part er has become fabric of forum, designated public in a diverse society. guidance To invoke Divine on a volun- visiting religious leaders who pool body making with entrusted invita- response open, equal to an teer not, circumstances, in these laws under it can tion.” It asserts that religion step “establishment” of or a to- prayer long so as the open sessions with ward establishment. opportunity exploited has not been 792, 103 Id. S.Ct. proselytize, to advance support argument To his Marsh faith, any religion or or disparage opening legisla- Nebraska faith, and that the content of such inappropri- tive sessions judges.” “is not of concern to ate, pointed Chambers legislator Ernest only govern- of the Because the evidence (1) one clergyman only facts “that a the fact religion was the advancing ment Presbyterian—has se- been denomination — un- majority prayers of the offered (2) years”; chaplain “that lected for were the neutral and inclusive der (3) public expense”; at “that paid is Christian, I find the еvidence insuf- would in the are Judeo-Christian For- support ficient to the conclusion that Marsh, 793, at tradition.” 463 U.S. County advancing Christianity. syth Supreme Yet the found S.Ct. 3330. Court

Accordingly, affirm both the I would by leg- arguments of the three made each it. practice and the under Chambers insufficient to render islator decision, Re- as the unconstitutional. The Marsh which stands Nebraska’s point, Supreme law, Simpson jecting v. Chambers’ first applicable see Chesterfield cannot, 276, any that “[w]e Bd. 404 F.3d Court observed County Supervisors, (4th Cir.2005), Congresses straight- holds in a more than Members 280-82 ideal,” century, “non-sectarian the ma- perceive suggestion tian —a as this Ante, choosing clergyman jority support claims. at 347. To of one denomination reading, points Supreme it church. this to the particular the beliefs of a advances County in v. contrary, Allegheny the evidence indicates Court’s dicta To the Union, American Civil clergyman] was be- Liberties 492 U.S. reappointed that [the 573, 3086, performance quali- 109 S.Ct. 106 L.Ed.2d 472 personal cause his (1989), body referring religious acceptable appoint- general to the ties were dicta, 793, Allegheny’s references Marsh. ing him.” Id. 103 S.Ct. 3330. The however, govern do not point applicable legislative is not here because second noted, “Allegheny cases. As this court pay did not religious holiday refer- finally, addressing displays, leaders. And the com- concerned encing Marsh to confirm that did plaint were in Judeo- Marsh tradition, apply stated not in that context. in Alle- Nothing Christian the Court what gheny suggests supplants that it applicable is here: Marsh legislative prayer.” Simpson, the area of not The content of the of con- n. Using 404 F.3d at 281 in other where, here, cases judges cern there is jurispru- areas of Establishment Clausе prayer opportuni- no indication that the especially dence “if dangerous, because ty exploited has been or proselytize anything, Marsh means it is that Es- any one, disparage any advance or to tablishment Clause not other, leg- does scrutinize so, being faith or belief. That it rigor islative invocations with the same is not for us to embark on sensitive appraises that it activities.” parse evaluation the content of a Id. at 287. prayer. 794-95, 103 Id. at case, S.Ct. 3330. Joyner In this and Blackmon raise arguments similar rejected to those sum, following Marsh stands for the I reject and would likewise them principles jurisprudence: Establishment here. (1) legislative prayer guid- Divine invoking legislative body for a ance is not estab- I recognize Even as the content of religion,

lishment 463 U.S. 103 prayer mostly remains out of bounds for (2) 3330; choosing S.Ct. lead- courts, note, review civil I must view single religion er of a denomination or content, majority’s emphasis say advance this largely ge- case were of that beliefs leader’s over petitions neric to a Divine Being to bless others, (3) 3330; id. at 103 S.Ct. legislative body request fact that are from the Judeo- guided wisely justly to act in the inter- irrelevant, Christian tradition is as “it is Indeed, est of the citizens. it is remarka- not for [courts] to embark on sensitive regard ble how uniform this parse evaluation or to of a content Looking examples were. at some of the 794-95, particular prayer,” id. at 103 S.Ct. complaint, included in the the core re- (4) 3330; and legislative prayers may not quests of these state: proselytize, advance one over an- (cid:127) tonight, Father, askwe not [S]o ‍​‌​‌​​‌‌​​​​​‌​‌‌​‌‌‌​‌​​​‌​‌​‌​‌‌‌‌​‌‌‌​‌​​‌​‌​‍other, or disparage or be- religions in for You to be our midst for You but liefs, id. to make available to each commission- majority every

The reads resting they Marsh as on er resource will to be need that challenged prayers the fact the in that make right able to the decisions. 9, [January case were characterized as Judeo-Chris- 2006] God, Christ, his (cid:127) will but also references divine role. that You pray tonight, We commissioners; by majority and we on Decem- This focus the the guide these God, strengthen will because de- prayer, simply that You of its pray, ber God, community. Christianity, this of in scription the residents of Jesus’ role us and content-inquiry You would lead Marsh pray precisely we that that You will forever bless pray inqui- that such an we intended foreclose. With 13, County. [February 2006] Forsyth many ry, must we now determine how (cid:127) spoken the name or what these men and women times Jesus pray that [W]e description given? Surely of him is be- authority, recognizing positions

in of inquiry, there is for this, positions seriously; cause no standard this will take their fall majority their seems to back on not use them to they will “pressure of to stand and advantage evaluation advantage, own but serve; on felt they would ask bow” or some form “ostracism” they those Ante, prayer. by persons hearing mak- guidance and wisdom when Your so, in decisions; they doing majority would Yet relies and that inappropriate grounds finding a con- approval over the on approval seek Your 13, violation. The 2006] men stitutional Establishment [March and women. protect against feelings does not (cid:127) Clause to- pray I these commissioners or marginalization. See Lee v. ostracism for all that will tran- night. pray I Weisman, 577, 597, U.S. S.Ct. meeting Your au- spire this under (“We (1992) 2649, not 120 L.Ed.2d 467 do governing goes thority; the act as action every implicating hold that state forth, go equi- that it would forth with if or a religion is invalid few citizens justiсe and kindness ty and with with may People find it offensive. take offense 27, [March 2006] and with wisdom. all manner of as well as nonre- (cid:127) Father, things are said bless messages, ligious but offense alone does that are tonight and the decisions violation”). every show a case 10, [April 2006] made. Rather, pre- Clause Establishment (cid:127) give great I’d ask that You’d them governments preferring one re- vents make about they decisions wisdom as over, ligion majority’s The focus others. County. our here lives the December 17 misdirects on 8, [May. 2006] necessary analysis. (cid:127) our special blessing upon ask a We commissioners, Father. askWe sure, did, Joyner To be Blackmon them wisdom grant You would with also on the complaint, their amended focus understanding. [May 2006] they prayer. But so to December did (cid:127) give spirit You to Your would ask [W]e complain invocation of Jesus com- meeting; this and that these speaking missioners, may justice for they seek governmental preference -for evidences those in all and hear the voices of their prayer. complaint, Under Christian [June 2006] need. only question raised is whether did conclude Most multiplicity prayers said the Christian invocation, such “in Jesus’ Christian ad- constitutes a tradition pray.” name we violation of prayer, vancement majority goes The prayer giv- Establishment Clause. majority focuses 17, 2007, plaintiffs’ further com- step it not than noting that en on December noting only multiplicity many plaint, to Jesus only contained references 362 others, also the in a degree decidedly

references to Jesus but erence to manner in inconsistent with Marsh. particular pray- sectarianism contained inquiry, distinguishing ers. This “hard” 301; Id. at Simpson, see 404 also F.3d at sectarianism from more “soft” sectarian Wynne (charaсterizing 282 as holding that references embroils court a stan- practice “a Town explicitly Council’s ad- religious prayers. dardless review of vancing Christian exclusively themes to be unconstitutional”). In determining what means to “ad- In Simpson, prayer poli- we addressed a others, religion vance” one or faith over cy much one at like the issue here and analysis the touchstone of the should be constitutionality. affirmed its Chesterfield government whether the has placed its im- County first-come, had established first- primatur, byor deliberately implication, policy religious serve give leaders to Marsh, any one faith religion. See 463 County But invocations. did decline 792-94, U.S. at 103 S.Ct. 3330. More is allow a Wiccan offer an invocational necessary that religious than to find lead- prayer. though governmental Even ers prayers selected to offer were of one entity control, exercised this limited we Marsh, though denomination. In even approved County’s policy, based most- Nebraska legislature placed had its impri- ly on the general inelusiveness of policy its matur on the Presbyterian chaplain’s pray- neutrality generally its in selecting ers inasmuch chaplain as the had been prayers. leaders to deliver While the employed paid legislature holding Simpson did not explicitly hinge years, Supreme Court concluded on the fact that leaders honored legislature had not advanced one County’s request not to make sectarian religion, chaplain given because the had in prayers, references too was an broad, years. inclusive over those indicator that was not us- See n. U.S. 103 S.Ct. power its to select leaders to 3330. offer a particular to advanсe reli- however, gion. By contrast, See F.3d at 284. Wynne v. Town Falls, Carolina, Great South 376 F.3d Forsyth When examining County’s poli- (4th Cir.2004), the Town Council al- cy light cases, of these one only lowed Christian and refused indeed, can clearly more conclude— allow associated with other reli- than in Simpson Marsh and —that gions. circumstance, Id. at County exploit did not opportu- we held that the Council’s actions had nity to one any advance over oth- affiliated the specific Council faith ers. Most importantly, nothing demon- and demonstrated a preference for Chris- preference strates the County’s for any tianity religions. over other Id. at 298-99. particular religion. Indeed, faith or noted, As we evidence shows otherwise. Here, First, the Town insisted upon County Council established a neutral Christ,” invoking the name “Jesus and proactively inclusive of allowing exclusion of deities associated with all religious in the to deliv- faith, other particular religious at Town er invocations at Board meetings. It is Council meetings undisputed County’s that both the which the citizens participated. implementation Town’s and its treat lead- Thus, clearly Town Council religions “ad- ers from all identically, and no faith, Christianity, vance[d]” one in pref- congregation was excluded the Coun-

363 Indeed, Forsyth County, County the in no County way and proactively list. the ty (1) one faith over another. The inviting affirmed fre- policy by its inclusive protected was, rather, prayer quency Christian congregations from all religious leaders demographics the and (2) product the allowing prayers; to offer County the religious choices of the who re- leaders accidentally that was ex- any congregation sponded out of their own initiative to the the placed the to be on list cluded from list County provided The County’s invitation. to making request a written the simply by policy the possible, most inclusive but (3) Clerk; religious insisting that no and population could not control whether the offer in back-to-back leader could a religious was and which denominations’ re- event, and, in any no more than meetings ligious accept leaders chose to the Coun- year. two times Moreover, ty’s prayer. to offer invitation Second, invoca- the Clerk scheduled the suggest there is no evidence to the first-come, basis, tions first-serve attempted game to the demograph- Board County eliminating any opportunity for of- County by of Forsyth manipulating ics the preferences. ficials to assert religious list of to ensure that Third, editorial County the exercised no be Christian would offered. The beyond the invocations control over never even itself of informed the It did not even re- required by Marsh. religious demographics County. review before quest Thus, prod- references were them. leaders offered uct of and religious free choice leaders’ invocations, their composing own without County And stated affirma- fourth, by or control review content tively to each leader County. “exploited not prayer opportunity must record not support This conclu partic- as an to convert others to the effort Forsyth County sion that established reli speaker, ular of the invocational nor faith gion expressed preference or for or an any faith or different disparage belief particular religion any with any affiliation speaker.” than that of invocational more than record did in the school policies prior cases Nonе of cases. Zelman voucher See v. Simmons- legislative prayer as neutral approving Harris, 639, 2460, 536 U.S. S.Ct. as the inclusive (2002). Zelman, L.Ed.2d 604 Su County, no that For- and there is evidence preme upheld a school pro Court voucher syth County diverged from its gram against an Establishment Clause it. implementing govern challenge, stating “where Joyner argue and Blackmon that For- ment program respect aid is neutral with syth County effectively has advanced directly religion, provides assistance Christianity over religions, even who, turn, to a broad class of citizens though County’s policy was neutral direct aid to schools inclusive, because it out that turned their wholly genuine as a result of own choice, most offered were fact independent private program argument But this fails prayers. subject Christian readily challenge under the 652, recognize the nature of the Id. at Establishment Clause.” by 2460; or was not determined see Good News Club v. S.Ct. also Sch., 98, any policy County adopted imple- or Central U.S. Milford (2001) (“[A] frequency pray- S.Ct. 150 L.Ed.2d 151 mented. Christian significant upholding governmen- factor in preference ers was not wish ante, review, programs tal in the face of general Establishment 353. This content however, their towards is neutrality problematic Clause attack is also and can lead . religion”). way, -Forsyth religious -hostility. In the same to The court is left religion. County government does not advance one It with either directing to give legislative allows all to invo- sectarian religions prohibit prayer altogether, po- religious constitutionally cations and cautions those sition is not required exploit opportunity prosely- not to with Pelphrey for and is in’direct conflict v. (11th Ga., disparagement. County, tization or Cobb 547 F.3d 1263 Cir.2008), legislative requiring to bodies majority The somehow concludes that quotas. establishment sectarian religious because leaders offered sectarian Forsyth County’s policy majority’s and im- prayers, position also entangles plementation of its for that determining were bodies in what states, prayer reason not neutral. “Sectarian form of is sectarian or to offensive prayers must serve gateway given public. not as the members of the For exam- citizen participation ple, the affairs local adherents to the Hindu or Muslim government. so To have them do runs could religions they assert that are offend- afoul promise public neutrality of the ed in the Judeo-Christian tra- among dition, faiths that resides” which majority Constitu- has deemed Ante, tion. argument at 342-43. This be nonsectarian and nonoffensive. But backfires, actually though, requiring the Forsyth County appropriately has re- police prayers, concerns, than to rather mained neutral to these welcom- remain neutral. It also ing prayers overlooks the real from all congrega- Forsyth County life fact that when County. calls tions in the leaders under a Joyner proposed and Blackmon’s alter- inclusive, neutral policy proactively that is of requiring native that mandates will reflect religions of the prayer, nonsectarian which is now religious leaders, not preferences adopted by majority, problematic County. constitutionally and not required. Not The majority position holds the that “to only would it risk governmental intrusion eyes patterns shut our of sectarian into the exercising . beliefs, prayer public forums is to surrender the it prohibit would sectarian prayers n essence of the Establishment Clause.” there where is no clear definition of what Ante, added). at 351 (emphasis it prayer. Yet also constitutes a “sectarian” To be recognizes sure, that “courts should be in that references Jesus is policing the business of But in Simpson, sectarian. we labeled - occasional sectarian car- reference —that nonsectarian references to “Lord of added). things [Ijords,” ries (emphasis too far.” Id. “King [k]ings.” See holding, focusing Yet its Yet, on the Simpson, F.3d at 284. those 17, polices December all phrases to exclude refer to Jesus the New Testa- fair, Revelations, 19:15; sectarian references. To be the ma- ment. See see also jority probably more troubled with 463 U.S. at 103 S.Ct. 3330 frequency (Stevens, J., (“The of Christian references than dissenting) Court de- with the 17 prayer.- December It com- clines ‘embark on a sensitive evaluation plains the references to parse Jesus or to of a particular .were 'content ante, 351-52, overwhelming, represent- prayer.’ Perhaps it so it because ing “almost four-fifths of prayers,” explain away would unable to the clear- ends, aspire to these neither does which of some ly content (internal permit ci- to undertake chaplain” given by Nebraska’s omitted)). way that Because for that task itself. tation surely and to God refers individual Religion First Amendment’s Claus- large- are prays to God the individual way that beliefs and reli- religious es mean by the individu- ly and influenced informed precious too to be gious expression are beliefs, virtually it would religious be al’s prescribed by the proscribed either or of sepa- the effort to undertake impossible design of the is State. The Constitution that ecumenical beliefs are rating those and transmission of preservation that a task thаt are sectarian. Such from those a worship respon- is religious beliefs and courts of theologians, to not “best left is a choice committed to the sibility and 1267; at see also Pelphrey, 547 F.3d law.” sphere, promised which is private itself (“We to not where at 1272 would know id. pursue to that mission. freedom boundary between begin demarcate then, forgotten not that while must expressions, and nonsectarian given must be to define the concern opaque have been [plaintiffs] and the objector to an or protection granted a the [plain- Even explaining standard. nonbeliever, dissenting these same expressions on which agree cannot tiffs] protect Clauses exist ”). Moreover, a such deter- are ‘sectarian’ government interference. very evaluation” mination is “sensitive Supreme Weisman, Court “parsing” and 505 U.S. at S.Ct. prohibited in Marsh. 463 U.S. (striking graduation down children,” S.Ct. 3330. secondary school “primary and espe- risk compulsion for whom “the addition, should not constitutional- In we cially leaving open legitima- high,” but body governmental ly mandate prayers in cy of such similar circumstances given by supervise content adults”). for “mature private Supreme individuals. As high considering when a explained, Court surely The Establishment Clause graduation pray- school and middle school require legislative not bodies undertake er: monitoring pre- task impossible and recognize are asked to the existence We scribing legislative prayers for appropriate prayer, a of nonsectarian to offer as invocations. leaders of what is prayer within embrace require And it does not tradition, known as the Judeo-Christian bodies demand leaders than acceptable which is more Yet the ma- prayers. offer nonsectarian which, example, explicit makes one requirements, jority imposes these exact Israel, or to references to the God constitutionally suspicious all of its Christ, If patron or to a saint.... Jesus problems. ground common can be defined which sum, County’s policy legisla- conflicting ex- permits once faiths to neutral, totally proactively tive shared conviction that there is press the inclusive, carefully implemented so morality which transcend an ethic manner, County, no could be invention, human the sense of communi- expressing or selecting, as perceived all ty purpose sought by decent religious leader, particular for a preference But might be advanced. societies denomination, or a particular religion not though the First Amendment does structure, prayer. In this which allow the stifle ideal”; meticulously “patterns constructed follow Su- tarian that do create prayer”; “pressure our of sectarian precedent, intrusion is that do not preme Court position, compromise to stand and bow.” Such a nothing short of however, open maintain an fails to take as the County’s effort to sacred dialogue Being between the Divine and the policy. neutral

people, any given determined reli- Ill gion represented by Forsyth County. Prayer includes the articulation of words Being in accor- addressed the Divine Indeed, Joyner and Blackmon’s com- prayer-giver’s with the beliefs of the dance plaint being pressured about stand and religion. how should Because address during prayer bow complaint that the —a Being say the Divine and what one should majority apparently accepts not a сom- —is aby cannot be determined civil court of plaint against prayer or even law, inevitably place efforts to do so would a against government preference of a reli- regulating courts in the untenable role of gion or denomination. It is an attack on of religious expression. the content prayer itself. It is not the sectarian na- content, prayer, ture prayer-giver’s or even its And to interfere with a pressure creates the subtle during form of address an invocation is coercive no which the plaintiffs complain. less intrusive. In the Jewish and is the Chris- traditions, God, any prayer allowance of tian Moses asked when fo- law, respect by rum and receiving the how for it shown he was to refer to others pressure. that leads to this relating people. God the law to his How the ma- God jority, say adopting position, told the plaintiffs’ Moses he must to the Israel- ites, protects but, “I am am” nonsectarian prayer who I and therefore at ‍​‌​‌​​‌‌​​​​​‌​‌‌​‌‌‌​‌​​​‌​‌​‌​‌‌‌‌​‌‌‌​‌​​‌​‌​‍the he time, ,God “I same say, pressure must am has sent me to condemns the you.” caused say Israelites, prayer also such the people told Moses to to the because stand and bow their unspeakable [the “YHWH sacred and heads suffers from its own Lord], inconsistency. name of the inherent your the God of ances- tors, Abraham, the God of the God of Forsyth County picked any par- has not Isaac, Jacob, and the God of has sent me ticular or not—nor has —sectarian you.” concluded, my God “This is name it favored particular prayer. poli- Its forever, my and this for genera- is title all cy is to pluralistic have a celebration of tions.” Exodus 3:13-15. Christians call prayer through which all Being on the Divine with the names God may solemnize meetings the Board’s while Father, (Jesus), God the Son and God at the same time respecting religion each Holy Spirit. Muslims have 99 names or denomination’s form of prayer. And God, for supreme appella- but Allah is the supports approach. Marsh this It re- tion. the majority opinion Yet now directs quires an effort to preserve respect for —in all forsake these names exercising religions mutual gov- —that “civil,” to accommodate court-shaped some permit religious ernment not speech that religion. proselytizes, advances one over

Indeed, majority another, demands disparages religions. other that do not mention Jesus —at least not And purpose, limited it directs time; “four-fifths” of the not in are the content of legislative prayer be limited, “proximity” too close to official govern- reviewed. But the review business; ment that embrace a designed “non-sec- protection mutual plural- a religiously diverse America, UNITED STATES spoken in accordance society, istic Plaintiff-Appellee, religion. each logic Finally, majority’s note that the I v. an invocation of Jesus prohibiting McMURRAY, Tyrone Defendant- County, but during prayers Appellant. content, allowing otherwise includes the invoca- escapes Prayer me. No. 09-5806. Being according to the Divine tion of the understanding religion, Appeals, United States Court of thus majority preclude court. Would Sixth Circuit. Holy Spirit invoking Christian 18, 2011. Argued: Jan. King kings? or the or Pax Christi prayer invok- majority deny a Would Aug. Decided and Filed: Abraham, Isaac, and Jacob? ing the God it is spoken, spoken name is Whatever accord with the leader call the Divine Be- religion to

leader’s legislate, on the Yet we now based

ing. nonsectarianism, bow- notion of

imprecise political correctness universal

ing to censuring only what

inoffensiveness Decem- Joyner and Blackmon on

offended 17, 2007, to the dan- regard without

ber reli-

gers censorship governmental

gious expression. that we must main- respectfully

I submit respect religion, of each

tain sacred together, group of citizens comes

when Forsyth County Board of Com- does the

missioners, and manifests that sacred re- to be each

spect allowing the — religion’s own voice—we in the

spoken ruling today it be. The be let glad

must subjectively without a

intermeddles most constitutionally

religiously sensitive or surely cannot

compelled standard. This accommodation, and it a law for mutual by the Establish-

surely required is not

ment Clause.

Case Details

Case Name: Joyner v. Forsyth County, NC

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 29, 2011

Citation: 653 F.3d 341

Docket Number: 10-1232

Court Abbreviation: 4th Cir.