ORDER
The Board of County Commissioners of Brevard- County, Florida, holds regular meetings to conduct the business of the county, and it begins its meetings with invocations delivered by citizens. But the County has a policy and practice barring certain citizens from giving the invocation based on those citizens’ religious beliefs.
’ The Plaintiffs in this case primarily assert that' the County’s invocation practice violates the Establishment Clause of the First Amendment of the United States Constitution. They, also bring claims under the Free Exercise and Free Speech Clauses of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and Article I, Sections 2 and 3 of the Florida Constitution. Plaintiffs seek injunctive and declaratory relief as well as money damages. The case is before the Court on the parties’ cross-motions for summary judgment, and as set forth below, both motions are granted in part and denied in part.
A. The Parties
This case was brought by eight Plaintiffs—five individuals and three organizations. The individual Plaintiffs—David Williamson, Chase Hansel, Keith Becher, Ronald Gordon, and Jeffrey Koeberl— identify themselves as atheists, and all but Gordon also identify themselves as Secular Humanists, (ASOF ¶85). The American Humanism Association describes Humanism as “a progressive philosophy of life that, without theism and other supernatural beliefs, affirms our ability and responsibility to lead ethical lives of personal fulfillment that aspire to the greater good of humanity.” (Id. ¶ 86). Becher, Koeberl, and Williamson are ordained as Humanist clergy by the Humanist Society; all three are Humanist Celebrants, and Koeberl is also a Humanist Chaplain. (Id. ¶ 93).
Plaintiffs do not profess a belief in the existence of God. (Id. ¶ 209). Their beliefs are strongly held, having a place in their lives equal to the significance of theistic beliefs in the lives of monotheists. (Id. ¶ 91). They consider their beliefs to be a religion. (Id. ¶ 92). Four of the individual Plaintiffs are residents of Brevard County; Williamson lives in neighboring Seminole County. (Id. ¶ 83). Hansel and Gordon own homes in Brevard County and pay property taxes there. (Id. ¶ 84).
The three organizational Plaintiffs are the Humanist Community of the Space Coast (HCSC), the Space Coast Freeth-ought Association (SCFA),.and the Central Florida Freethought Community (CFFC), all of which “are. organizations for non-theists” whose members are principally atheists, agnostics, Humanists, and other nontheists. (Id. ¶¶ 94-95). HCSC and SCFA are headquartered in Brevard County, where most of their members live. (Id. ¶ 96).- CFFC is headquartered in Seminole County, but some of its members reside in Brevard County. (Id.). Plaintiff Gordon is a member of SCFA, (id. ¶ 101), and the other individual Plaintiffs are leaders of the organizational' Plaintiffs,
Defendant Brevard County is a political subdivision of the State of Florida that had a population of nearly 550,000 in 2010. (Id. ¶ 1; Doc. 53-8 at 50). The County is known as Florida’s Space Coast because of the prеsence of NASA and the Kennedy Space Center. (Doc. 53-8 at 37). The Brevard County Board of County Commissioners-(the Board) is the legislative and governing body of the County. (ASOF ¶ 2). The Board has five Commissioners, each of whom represents, and is elected by, voters residing in one of five numbered single-member districts that make up the County. (Id. ¶8). Pursuant to a state statute, “[t]he county commissioners shall sue and be sued in the name of the County.” (Id. ¶ 9; § 125.15, Fla. Stat.). «
The Board meets regularly—typically more than once per month—to discuss issues, hear from citizens, and carry out its responsibilities. (ASOF ¶ 10). The meetings are conducted in a boardroom that is approximately sixty feet wide and seventy feet deep and has 196 seats for audience members and a total capacity of 270.
Board meetings typically begin with a call to order that is then followed by: an invocation; the pledge of allegiance; “resolutions, awards, and presentations”; consent agenda items; and other scheduled matters, including at least one “Public Comment” period.
C. Invocations and Selection of Invocation Speakers in the County
Board meetings “are typically opened with a religious invocation” that is “generally, but not always, given by a cleric from the faith-based community.” (Id. ¶¶ 14, 56). Invocation speakers are unpaid volunteers invited by an individual Commissioner or his or her staff; the five Commissioners take turns inviting speakers according to an annual schedule assigning that task for еach meeting. (Id. ¶¶ 43, 45, & 49; Anderson Dep., Doc. 42, at 12-13; see also 2013-2014 Invocation and Pledge Schedule, Pis.’ Ex. 64
Not all invited speakers are clergy; non-clergy who have delivered opening invocations include police officers, staff members of a Congressman’s offíce, a state judge, aides to the Commissioners, and a lay leader of the Church of Jesus Christ of Latter-day Saints. (ASOF ¶ 57). Chaplains of hospitals, a baseball team, the Brevard County Sheriffs Office, and a city police department have also given invocations. (Id. ¶ 59).
The selected invocation speaker’s name, along with the name of the organization he or she represents, often appears • on the meeting agenda. (Id. ¶ 65; see also July 7, 2015 Agenda, Doc. 54-2 at 6). The Commissioner who invites the speaker typically introduces the speaker. (ASOF ¶ 66). Some Board Chairpersons ask the audience to stand up for the invocation “out of respect for the religion; of the person giving the invocation.” (Id. ¶¶ 67-68). Other Chairpersons merely stand up and'the other Commissioners and the audience generally follow suit and stand as well, though on occasion some audience members do not stand. (Id, ¶¶ 69-72).
The invocation speaker stands at a lectern at the front of the boardroom and usually, but not always, faces the Commissioners rather than the audience.
. Neither the- Commissionеrs nor their staffs review drafts of invocations before they are given. (Id. ¶ 52). From January 1, 2010, through March 15, 2016, 195 invocations were given at Board meetings, and all but seven of those were given by Christians or contained Christian content. (Id. ¶ 53). Six of the seven- “non-Christian” invocations were given by Jews, and the other Was “generally monotheistic.” (Id ¶54), All 195 invocations “had at least
D. Requests to Give an Invocation and the Board’s Reactions
Ón May 5, 2014, the United States Supreme Court issued its opinion in Town of Greece v. Galloway, — U.S. —,
Williamson’s second letter did prompt a response from the Board, but it was'not the response he had hoped for. Before responding, the Board considered a proposed letter to Williamson that was attached to the agenda for its August 19, 2014 meeting. During that meeting, after hearing comments from Williamson and others, the Board unanimously approved •the sending of the pre-drafted response letter.
The Invocation portion' of the agenda is an opening prayer presented by members of our faith community. The prayer is delivered during the ceremonial portion of the County’s meeting and typically invokes guidance for the County Commission from the highest spiritual authority, a higher authority which a substantial body of Brevard constituents believe to exist. The invocation is also meant to lend gravity to the occasion, to reflect values long part of the County’s heritage and to acknowledge the place religion holds in the lives of many private citizens in Brevard County.
Your website leads us to undеrstand your organization and its members do not share those beliefs or values which, of course, is your choice under the laws of the United States. However, this Commission chooses to stand by the'tradition of opening its meetings in a manner acknowledging the beliefs of a large segment of its constituents....
(ASOF ¶ 117; Aug. 19, 2014 Letter, Pis.’ Ex. 46).
. The Board’s August 19 letter went on to explain that although Williamson and CFFC members would not be permitted to deliver an invocation at the beginning of Board meetings, they could address the Board for three minutes during the Public
During discussion of the issue at the August 19, 2014 meeting, several of the Commissioners commented. Commissioner Anderson stated: “For you to say that Christianity isn’t under attack, I’d like you to look over at Iraq right now and let me know if Christianity is not under attack”; “1 need all the prayer in my life I can get to get through these meetings”; and “I just never understood the concept on—and this is no personal slight to anybody—how you could possibly be offended by something that you do not believe exists. I just never understood that.” (ASOF ¶¶ 177—-79; Pis.’ Ex. V3 (video excerpt of Aug. 19, 2014 Board meeting)). In addressing how speakers are chosen, Commissioner Infantini stated: “My staff and I, we search—I mean I don’t have any specific religion— we will go anywhere to find somebody. No, not anywhere. Okay, correct, not anywhere. Not anywhere. There are certain places.” (ASOF ¶ 182; Pis.’ Ex. V3 (video excerpt of Aug. 19, 2014 Board meeting)). And after seconding the motion to approve the response letter, Commissioner Fisher stated: “I think the Public Comment section ... will give them an opportunity to speak, we are opening the Commission up to that,... when I looked at their.website one of the things I noticed was it wasn’t so much about prayer as it was about trying to separate ... state and church, and if that’s the issue, state and church, then I think the Public Comment section of the agenda is probably the best place anyway.” (Pis.’ Ex. V3 (video excerpt of Aug. 19, 2014 Board meeting)).
In August and September 2014, Plaintiff Gordon emailed Commissioner Infantini, asking that a member of CFFC be allowed to deliver an invocation and stating that he was a Brevard County atheist who was willing to give an invocation. (ASOF ¶ 118; Pis.’ 'Ex. 47).’ Commissioner Infantini did not accept Gordon’s offer.. (ASOF ¶ 118).
On August 21, 20Í4, Brevard County resident Reverend Ann Fuller emailed all five Commissioners, stating that she was “ordained clergy” and a “known humanist in the community” and requesting “an opportunity to give an invocation at an upcoming board meeting.” (Id. H.119). Reverend Fuller explained that she had “served Brevard County humanists as a Community Minister since 2006 affiliated with the [Unitarian Universalist] Church of Bre-vard.” (Id.). That same day, Commissioner Infantini responded in an email that stated in part: “1 am willing to have most anyone offer an invocation. However, by definition, an invocation is seeking guidance from a higher power. Therefore, it would seem that anyone without a ‘higher power’ would lack the capacity to fill that spot..,, Further, 1 welcome ‘freethinkers[,j’' being the only ‘freethinker’ on the board. It just doesn’t seem like the invocation is the correct place for it is all.” (Id. ¶ 120).
On August 28, 2014, the Board received a letter from the Anti-Defamation League objecting to the Board’s decision on the issue of nontheistic invocations and suggesting that the Board’s “decision to
[Y]our suggestion to allow, atheists to provide the invocation would, in fact, show hostility toward the faith-based community—as evidenced by the content on social media webpages maintained by [CFFC] and the Freedom from Religion Foundation'.... Therefore, this Board has no desire to follow your suggested action since that action coúld be éasily construed, either overtly or by implication, as evidencing vicarious disdain, scorn or disrespect for the beliefs of our faith-based community.'
... It follows that the Board’s decision to' avoid hostility toward the faith-based community precludes any claim of discrimination. Indeed, if your characterization of secular humanism as a religion is valid, modifying the county’s time-honored pre-meeting tradition by affording a secular humanist the opportunity to recite a secular “prayer” during the faith-based invocation portion of the Board’s agenda could be perceived as [ ] endorsing a specific religion—secular humanism^—in violation of the Establishment Clause because all Board actions at the meeting held following such a secular “prayed” invariably involve an underlying secular purpose. Atheists or seculаr humanists are still afforded an opportunity to speak their thoughts or supplications during the secular business portion of the agenda under “public comment.”
(ASOF ¶ 124; Nov. 6, 2014 Letter, Pis.’ Ex. 49) (emphasis in original).' Thus, the Board maintained its stance that atheists and Secular Humánists could speak only during the Public Comment period ’ and could not give the opening invocation.
Prior to December 16, 2014, the Public Comment segment of a Board meeting occurred at the end of the meeting. (ASOF ¶¶ 141-42). But on that date, the Board adopted a resolution—Resolution No. 14-219—moving up the first thirty minutes of the Public Comment section so that it occurs after the “consent agenda” section and before the “public hearings” section of each regular Board meeting. (Id. ¶ 142; Mins, of Dec. 16, 2014 Board Meeting, Pis.’ Ex. 33; see also, e.g„ Agenda for July 7, 2015 Board Meeting, Ex. A to Whitten Aff., Doc, 54-2). Under that December 16 resolution, if the Public Comment section is not concluded within thirty minutes, the remainder occurs “at the conclusion of business specified on the regular commission agenda.” (ASOF ¶ 143).
The terms of Commissioners Lewis 'and Nelson ended in November 2014, and at that time new Commissioners Curt Smith and Jim Barfield began their terms. (Id. ¶ 150). On January 26, 2015, the then-legal Director for Americans United for Separation of Church and State sent a letter to all five Commissioners with the subject line “Nontheists’ Delivery of Opening Invocations.” (Id. ¶ 125; Jan. 26, 2015 Letter, Pis.’ Ex. 50). The letter noted that “requests from nontheists have been denied on the ground that belief in a higher power is a precondition to offering the invocation” and stated That “[i]n light of the recent change in the Board’s leadership, we write on behalf of several national legal organizations”—Americans United for Separation of Church and State, the Freedom
Neither the Board nor any individual Commissioner responded to the January 26 letter, (ASOF ¶ 128), and on May 26, 2015, the same four organizations sent another letter -to all five Commissioners, (id. ¶ 129; May 26, 2015 Letter, Pis.’ Ex. 51). In that letter, the organizations requested that one of the five individual Plaintiffs or another representative of .one of the three organizational Plaintiffs ■ be permitted to deliver nontheistic invocations at a Board meeting. (ASOF ¶ 129; May 26, 2015 Letter, Pis.’ Ex. 51). The County Attorney responded to the letter on May 28, 2015, advising that the Board’s next meeting was on July 7, 2015, and that the attorney would present the letter to the Board at that time and seek a response. (ASOF ¶ 130; May 28, 2015 Letter, Pis.’ Ex. 52).
At its July 7, 2015 meeting, the Bоard “responded to the May 26, 2015 letter by adopting Resolution 2015-101.” (ASOF ¶ 131; Resolution 2015-101, Doc. 53-8 at 34 through 93
The “findings” paragraphs in Resolution 2015-101 recount the.County’s tradition of pre-meeting invocations; provide demographic data regarding Brevard County, including that only 34.9% of the County’s total population “claimed to be adherents to any religious faith” in 2010; describe a webpage of . the Freedom From Religion Foundation, with whom CFFC is noted to be affiliated, . that includes “Godless quotes,” as well as a webpage of Americans United for Separation of Church and State that “makes clear -the organization’s calculated goal” to eliminate activity that it considers violative of its “views of what the
The resolution then states “conclusions” based on the findings, including that: “yielding ... by supplanting traditional ceremonial pre-meeting prayer . .... with an ‘invocation’, by atheists, agnostics or other persons represented or associated with [the Freedom From Religion Foundation] or [Americans United for Separation of Church and State] could be viewed as County hostility toward monotheistic religions whose theology and ..princiрles currently represent the minority view in Brevard County”; that allowing the requesting organizations to give an invocation and “displace] representatives of the minority faith-based monotheistic community ... could be viewed as ... Board endorsement of Secular Humanist' and Atheist principles” because of “the overwhelmingly secular nature of the Board’s business meeting following the invocation” and “evidence suggesting that the requesting organizations are engaged in nothing more than a carefully orchestrated plan to promote or advance principles of Secular Humanism through the displacement or elimination of ceremonial deism [sic]
The amendment portion of Resolution 2015-101 adds a new section to the Board’s Operating Procedures and provides:
In view of the requests by secular, humanist, atheist and Secular Humanist organizations to provide a secular, Secular Humanist or an atheist invocation, the Board hereby clarifies the intent of the Board’s existing policies allowing Public Comment to include individual or representative comments intended to instruct the' Board; to petition for redress of grievances; to comment upon matters*1271 within the control, authority and jurisdiction of the Board; and to comment on matters that are relevant to business of the County Commission, as well as matters upon which the Board has traditionally expressed a position for the betterment of the community interest. Secular invocations and supplications from any organization whose precepts, tenets or principles espouse or promote reason, science, environmental factors, nature or ethics as guiding forces, ideologies, and philosophies that should be observed in the secular business or sеcular decision making process involving Brevard County employees, elected officials, or decision makers including the Board of County Commissioners, fall within the current policies pertaining to Public Comment and must be placed on the Public Comment section of the secular business agenda. Pre-meeting invocations shall continue to be delivered by persons from the faith-based community in perpetuation of the Board’s tradition for over forty years.
(Resolution 2015-101' at 10-11, Doc. 53-8 at 44-45). Thus, as stipulated by the parties, the resolution “adopted a formal policy that allows the traditional faith-based invocation prior to the beginning of the Board’s secular business agenda and subsequent ‘secular invocations’ during the Public Comment section of that secular agenda.” (ASOF ¶ 133 (further internal quotation omitted)). None of the Plaintiffs has ever delivered a “secular invocation” during the Public Comment segment of a Board meeting. (Id. ¶ 149).
E. This Lawsuit
After the Board passed Resolution 2015-101, Plaintiffs filed this lawsuit. (Compl., Doc. 1). In their six-count Amended Complaint (Doc. 28),. Plaintiffs allege violations of: the Establishment Clause of the First Amendment to the U.S. Constitution (Count I); the Free Exercise Clause of the First Amendment (Count II); the Free Speech Clause of the First Amendment (Count III); the Equal Protection Clause of the Fourteenth Amendment (Count IV); Article I, Section 2 of the Florida Constitution (Count V); and Article I, Section 3 of the Florida Constitution (Count VI). (Doc. 28 at 66-71). The Amended Complaint seeks an injunction, a declaratory judgment, and damages. (Id. at 72-74). However, at mediation the parties resolved the issue of damages. (See Mediation Report, Doc. 39). Plaintiffs’ counsel explaihed during oral argument on thé parties’ cross-motions for summary judgment that at mediation the parties reached a settlement on what the amount of the damages should be if the Plaintiffs prevail on the merits and that’ the Court should allow the parties to file their settlement agreement with the Court if it finds in favor of Plaintiffs. (See Hr’g Tr., Doc. 93, at 32-33). The parties agree that no facts are in dispute, and that this case may be appropriately resolved on their cross-motions.
A. Establishment Clause (Count I)
Plaintiffs’ primary claim is under the Establishment Clause of the First Amendment; which provides that “Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I, cl. 1. This clause; like the other clauses of the First Amendment, applies to the states and their subdivisions via the Fourteenth Amendment. See Cantwell v. Connecticut,
Plaintiffs contend that the County’s invocation practice violates the Establishment Clause in three ways: by purposefully discriminating based on religious beliefs; by entangling public officials in religious judgments; and by coercing audience members-to take part in religious exercises. The Qounty, on the othеr hand, maintains that its invocation practice “conforms to Establishment Clause principles promulgated by the U.S. Supreme Court.” (Dqc. 54 at 1). Each, side asserts that Supreme Court jurisprudence—especially the Court’s 2014 decision in Town of Greece v. Galloway—supports its position.
Marsh v. Chambers and Town of Greece v. Galloway
Although Establishment Clause claims are typically analyzed using one of several formal “tests” established by the Supreme Court for such claims—such as the coercion test,
At issue in Marsh was the prayer px^ac-tice of the' Nebraska Legislature. That body opened each of its sessions with a prayer given by a chaplain who was paid with public funds and chosen every two years by the Executive Board of the Legislative Council. By the time the case made its way to the Supreme Court, the same Presbyterian minister had served as chaplain for nearly twenty years, Although some of the -minister’s earlier prayers “were often explicitly Christian,” the minister “removed all references to Christ after a 1980 complaint from a Jewish legisla
The Supreme Court reversed, finding— without applying Lemon or any other formal test—that neither the prayers themselves nor the use of public funds to pay the chaplain violated, the Establishment Clause. The Marsh Court noted that “(t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country” and that throughout this country’s history “the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”
The Marsh Court explained:
In light of the unambiguous and un: broken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the . fabric of our society. To invoke Divine guidance on a public body entrusted with making laws is not, in these circumstances, an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed [in Zorach v. Clauson,343 U.S. 306 , 313,72 S.Ct. 679 ,96 L.Ed. 964 (1952)], “[w]e are a religious people whose institutions presuppose a Supreme Being.”
Id. at 792 (citation omitted). The Court rejected the plaintiffs contention that the Establishment Clause was violated due a minister of only one denomination having been selected for sixteen years. Perceiving no “suggestion that choosing a clergyman of one denomination advances the beliefs of a particular church,” the Court concluded that “[ajbsent proof that the chaplain’s reappointment stemmed from an impermissible motive, ... his long tenure does not in itself conflict with the Establishment Clause.” Id. at 793-94,
Nor was the Marsh Court troubled by the fact that the prayers given in the Nebraska Legislature were in the Judeo-Christian tradition. The Court explained that “[t]he content of the prayer is not of concern to judges1 where, as here, there is no indication that the prayer opportunity has been exploited to advance any one, or to disparage any other, faith or belief’ and that under those circumstances “it is not for [the Court] to embark on a sensitive evaluation or to parse- the content of a
The Supreme Court took up the issue of legislative prayer again in 2014 in Town of Greece. In the town of Greece, New York, for some time prior to 1999 the town board began its monthly board meetings with a moment of silence. But in 1999, a newly elected town supervisor began inviting local clergymen to deliver invocations at the beginnings of meetings. “The prayer was intended to place'town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures.”
The two plaintiffs in Town of Greece— one Jewish, the other an Atheist
After the district court upheld the practice and the Second Circuit reversed, the Supreme Court reversed the appellate court, finding that the town’s invocation practice passed muster under the Establishment Clause. The Court began by discussing Marsh, noting that “Marsh is sometimes described as ‘carving out an exception’ to the Court’s Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to ‘any of the formal “tests” that have traditionally structured’ this inquiry.”
The Supreme Court then turned to “whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the statе legislatures.” Id The plaintiffs made two arguments: first, that Marsh does not countenance sectarian prayers, and second, that the town’s practice was coercive because the setting and nature of the town meetings “create social pressures that force nonadherents to remain in the room or even feign participation in order to avoid offending [those who] sponsor the prayer and will vote on matters citizens bring before the board.” Id. at 1820. The Supreme Court rejected both of these contentions.
First, the Court concluded that “insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases.” Id.
The Town of Greece Court emphasized that “[o]ur government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code.of moral behavior” and that “[g]overnment may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.” Id. And “[o]nce it invites prayer into the public sphere;' government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.” Id. at 1822-23.
Although the Town of Greece Court rejected the notion that legislative prayer must be nonseetarian, it did “not imply that no constraints remain on its content.”
The Town of Greece Court also rejected the Second Circuit’s conclusion that the town violated the Establishment Clause “by inviting a predominantly Christian set of ministers to lead the prayer.” Id. at 1824. Noting that “[t]he town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one,” the Court emphasized that “[s]o long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.” M.; see also, id. at 1831 (Alito, J., concurring) (“I would view this case very differently if the omission of ... synagogues [from the list of congregations] were intentional.”).
Second, the Town of Qreece Court addressed plaintiffs’ assertions that the prayer practice was unconstitutionally coercive. The plaintiffs asserted “that the public may feel subtle pressure to participate in prayers that violate their beliefs in order' to please the board members from whom they are about to seek a favorable ruling,” id.' at 1825, arguing that prayer in the setting of a town board meeting “differs in fundamental ways from the invocations delivered in Congress and state legislatures, where the public remains segregated from legislative activity and may not address the body except by occasional invitation,” id. at 1824-25. Though no rationale garnered a majority of votes, five justices rejected the plaintiffs’ coercion argument.
Application
In view of this precedent, this Court must- assess Plaintiffs’ Establishment Clause claim. Plaintiffs assert that1 the County’s invocation practice- is distinguishable from the practice approved in Town of Greece, while the County maintains that its practice is consistent with the facts of, and principles established in, that case. As set forth below, the facts of this case indeed distinguish it from Town of Greece, and the overwhelming evidence of purposeful discrimination and “impermissible purpose” here demonstrates the constitutional infirmity in the County’s invocation practice.
1, Purposeful Discrimination
Although the County contends that its invocation practice passes constitutional muster under Town of Greece, the Supreme Court’s opinion in that case cannot be read to condone the deliberate exclusion of citizens who do not believe in a traditionаl monotheistic religion from eligibility to give opening invocations at County Board meetings. Neither Town of Greece nor any other binding precedent supports the County’s arguments, and none of the County’s asserted justifications for its practice holds water.
The Town of Greece Court upheld an invited-speaker invocation practice that resulted in the prayers being given predominantly by Christians, but in doing so it repeatedly emphasized the inclusiveness of the town’s practice. There was no evidence in that case that the town leaders intended to exclude anyone from participation in the giving of invocations; in fact, there was evidence to the contrary. “The town at no point excluded or' denied an opportunity to a would-be prayer-giver.”
And-after Marsh but six years prior to Town of Greece, the Eleventh Circuit—in a decision entirely consistent with Town of Greece—found that an invocation practice violated the Establishment Clause where there was evidence of intentional discrimination in the selection of invocation speakers. In that case, Pelphrey v. Cobb County,
Marsh, Town of Greece, and Pel-phrey thus make clear that while législa-tive prayer—even sectarian legislative prayer—is, as a general matter, constitutional, intentional discrimination and improper motive can take a prayer practice beyond' what the Establishment Clause permits. Cf. Lund v. Rowan Cty., N.C.,
The facts here differ in significant ways from those in Town of Greece. In Greece, “a minister or layperson of any persuasion, including an atheist, could give the invocation.” Id. at 1816. “[A]ny member of the public [wa]s welcome ... to offer an invocation reflecting his or her own convictions.” Id. at 1826. And when the plaintiffs complained about the pervasive Christian themes in the prayers, the town responded by inviting non-Christians to give prayers and granted a Wiccan priestess’s request for an opportunity to give the invocation. Id. at 1817; accord id. at 1829 (Alito, J., concurring) (“[W]hen complaints were received, the town made it clear that it would permit any interested residents, including
What happens in Brevard County is a far cry from.what happens in the town of Greece. Brevard. County does not allow everyone to give an invocation. Instead, it limits the prayer opportunity to those it “deems capable” of doing so—based on the beliefs of the would-be prayer giver. And after Plaintiffs requested to give an invocation at a Board meeting, the County responded not with an attitude of inclusion but with an express statement and policy of exclusion. Cf. Lund,
With regard to the County’s “policy,” Resolution 2015-101—the resolution that the Board passed in July 2015 in response to Plaintiffs’ repeated requests to give an invocation—is neither a novel statement of the County’s position with regard to “nonbelievers” giving invocations nor a complete invocation policy. The resolution merely codifies the County’s previously existing practice of denying nontheists an opportunity to give an invocation and relegating them to the Public Comment portion of Board meetings—a practice described in the August 19, 2014 letter (Pis.’ Ex. 46) from the Board to Plaintiff Williamson. And although the resolution concludes with the statement that “Pre-meeting invocations shall continue to be delivered by persons from the faith-based community in perpetuation of the Board’s tradition' for over forty years,” (Resolution 2015-11 at 11), the resolution does not define “faith-based community” or explain how invocation givers are invited or selected. Thus, at issue here is not just Resolution 2015-101 but the County’s actual, overall invocation practice, which is evidenced by the events of this case, the text of the resolution itself, and statements made by the Commissioners in their depositions and elsewhere.
When Plaintiff Williamson wrote to the Board in 2014 requesting an opportunity to give an invocation, the Board eventually responded with a letter that the Commissioners approved at the August 19, 2014 meeting. As earlier noted, that letter stated in part: that the invocation was “an opening prayer presented by members of our faith community”; that the invocation “typically invokes guidance ... from the highest spiritual authority, a higher authority which a substantial body of Bre-vard constituents believe to exist”; that CFFC’s website “leads [the Board] to understand [that CFFC] and its members do not share those beliefs or values” and that
And when letters were sent to the Board in January and May 2015-asking that one of the five individual Plaintiffs or another representative of one of the three organizational Plaintiffs be permitted to give an invocation, the Board ultimately responded by passing Resolution 2015-101 at its July 7, 2015 meeting. That resolution states in one of its “whereas” clauses that “the Board wishes to formalize a policy on invocations that is not hostile to faith-based religions and that does not endorse secular humanism or non-belief over traditional faith-based religions comprised of constituents who believe in God.” (Resolution 2015-101 at 1). The resolution then nоtes that “[o]n a rotating basis, individual Board members have predominately selected clerics from monotheistic religions and denominations—including Christian, Jewish, and Muslim—to present the invocation,” (id. at 2), and that “[pjrior to the invocation, in recognition of the traditional positive role faith-based monotheistic religions have historically played in the community, the Board ... typically ... offers] the cleric the opportunity to tell the Board, meeting attendees and the viewing audience something about their religious organization,” (id.).
The resolution then purports to describe the “relevant demographics” of the County, stating that “[i]n Brevard County, the faith-based community is a minority component of the larger majority community [sic] represented by the Board” and that data from the Association of Religious Data Archives indicate that in 2010, only 34.9% of the County’s residents claimed to be adherents to any religious faith. (Id.). The “demographics” section of the resolution also notes that the County “is home to a large population of rocket scientists” and a technological university that offers programs in various scientific areas (Id. at 3).
Three pages of Resolution 2015-101 describe .Secular Humanism, noting that the website of. the Council on Secular Humanism describes Secular Humanism as “nonreligious” and “espousing no belief in a realm or [sic] beings imagined to transcend ordinary experience” and that Secular Humanism “is philosophically naturalistic.” (Id at 6). Further, the resolution refers to the requesting organizations as wanting to “conduct a pre-meeting invocation by displacing representatives of the minority, faith-based monotheistic community which has traditionally given the pre-meeting prayer” and expresses the concern that this “displacement]” “could' be viewed as ... Board endorsement of Secular Humanist and Atheist principles.” (Id. at 9-10).
In their depositions, the seven Commissioners who served on the Board during 2008 to 201,6 were asked about whom they would allow to give an invocation and what the purpose of the invocation is. Several testified that they would “say no” to invo-, cation givers of certain religions or belief systems or that they would “have to look into” or “do more research” about whether to allow those potential speakers to give an invocation. For example, several Commissioners would not allow a Wiecan to give an invocation, (see, e.g., Fisher Dep., Doc. 46, at 10; Smith Dep., Doc. 43, at 10), would “want to do more research to understand what that particular religion was
Several Commissioners expressed doubt about allowing a member of a polytheistic religion—including Hinduism—to give an invocation. (See, e.g., Doc. 46 at 11-12; Doc. 44 at 9). One Commissioner would not consider inviting a member of a polytheistic religion or anybody who does not believe in a monotheistic religion. (Doc. 43 at 12). Another testified that he would not invite an adherent of a polytheistic religion because he “just doesn’t think that’s representative of our community,” yet he inexplicably maintained that he would be willing to invite a Hindu. (Doc. 48 at ■ 10).
One Commissioner testified that she has never invited someone she knew not to be a Christian to give an invocation because “[t]he purpose of the prayer or the invocation was in respect to the Christian community.” (Doc. 44 at 10-11).' That Commissioner explained that she would be willing, to invite a believer in any “God-fearing religion” to give an invocation, (id. at 9), and that the -invocation is “a long-standing' tradition of honoring the Christian community in Brevard County,” (id. at 27).
Another Commissioner stated in his deposition that invocations “are reserved,, for faith-based organizations to introduce their church,” and “[i]t gives them an opportunity to promote their church, established church, recognized church.” (Doc. 42 at 38). Another said that, an invocation is “more for a faith-based monotheological type of situation” where people can speak about whatever they believe. (Doc. 48 at 19). Another explained, that he believes in Resolution 2015-101 because he believes “that the long'history in this country gives people of the faith-based community the ability to speak and speak freely” and that “the Constitution says we have freedom of religion, not from religion,” (Doe. 43 at 21), That same Commissioner explained, “[W]e don’t set time aside for non faith-based people to speak during the invocation,” (id. at 24), and the Board “endorses faith-based religions,” (id. at 27). Additionally, that Commissioner ■ acknowledged saying to a radio station that “[t]he invocation is for worshiping the God that created us,” by which he means “[t]he one , and only true God”—“[t]he God of the Bible.” (Id. at 37; see also Pis.’ Ex. V13 (audio recording of radio interview)). He also acknowledged being quoted as saying that “[i]f they were a religion and they honored the word of God” set forth in “[t]he Holy Bible” “they would have every opportunity to speak to us during that period that we set aside to honor God.” (Doc. 43 at 38).
This overwhelming, undisputed record evidence clearly demonstrates that the County’s invocation practice runs afoul of the principles set forth in Marsh, Town of Greece, and Pelphrey. It reveals “impermissible motive” in the selection of invocation givers, Marsh,
The County cannot and does not deny that it has imposed a categorical ban on Plaintiffs and other nontheiSts as givers of opening invocations at its Board meetings. Nevertheless, the County describes its invocation practice as “purposefully, inclusive” rather than exclusive, (see Doc. 59 at 7-8 & 20), and it attempts to'justify its practice on several bases. None of these asserted 'justifications, however, withstands analysis. .
“Invocations Must Invoke A Higher Power”
The County attempts to defend its exclusion of Plaintiffs as invocation-givers by imposing a “theism” requirement for invocations. As is apparent from evidence already discussed, the County maintains that an invocation must be “religious” and “invoke a higher power” and that because the Plaintiffs are not “religious” and do not believe in a higher power they are “not qualified” to give, an opening invocation at Board meetings. The Court rejects this asserted justification or the County’s policy and practice of exclusion.
As Plaintiffs note, the Supreme Court and other courts have recognized atheism and Humanism as religions entitled to First Amendment protection. See, e.g., Torcaso v. Watkins,
The County’s assertion that a pre-meet-ing, solemnizing invocation necessarily requires that a “higher power” be invoked is ah overly narrow view of an invocation. The County relies largely oh the Supreme Court’s description in Santa Fe Independent School District v. Doe,
And Town of Greece, though addressing whether “sectarian” religious prayer' is permissible in- the legislative setting rather than whether a legislative invocation necessarily is religious, suggests that there is no such requirement. There, the Court-noted that the invocation in that town was—apparently as described by the parties—“intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a. tradition practiced by Congress and dozens of state legislatures,”
Other aims of legislative prayer identified in Town of Greece include “to elevate the purpose of the occasion and to unite lawmakers in then’ common effort.” Id. And while the Court did note that “[t]he tradition reflected in Marsh permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths,” id., it then stated that “[t]hese religious themes provide particular means to universal ends,” id., suggesting that religiously thеmed invocations are but one method of achieving the overarching goal of solemnizing governmental proceedings. The Court further noted that prayers offered to Congress “vary in their degree of religiosity” but “often seek peace for the Nation, wisdom for its lawmakers, and justice of its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws.” Id. And, of course, the Town of Greece Court emphasized that the town would allow anyone, “including an atheist,” to “give the invocation.” Id. at 1816; accord id. at 1829 (Alito, J., concurring) (noting that the town “would permit any interested residents, including nonbelievers, to provide an invocation”). This suggests that an atheist or other “nonbeliever” is capable of giving an invocation and that an “invocation” need not “invoke a higher power.” A recent decision of the en banc Sixth Circuit buttresses this conclusion. See Bormuth v. Cty of Jackson,
Moreover, as earlier noted, on those occasions when a speaker is not scheduled in Brevard County or does not show up, either a moment of silence is observed or an audience member is solicited to give an invocation. Obviously, a moment of silence does not invoke “a higher power” or anything else. And when audience members fill in for an absent speaker, they apparently do not have their beliefs vetted before being permitted to speak. These facts only further emphasize the differential treatment to which Plaintiffs have been subjected in Brevard County. The record also reflects that Plaintiffs and other non-theists have given invocations before other governmental bodies and have even.been invited back. Those invocations do not “invoke a higher power,” yet they fit within the purposes described in Town of Greece—to solemnize the meeting, “lend gravity to the occasion and reflect values long part of the Nation’s heritage.”
For a governmental entity to require, or attempt to require, “religious” content in invocations is, in effect (or, at best, but a step removed 'from) -that entity composing prayers' for public consumption or censoring the content' of-prayers—in contravention of the principles set forth in the Town of Greece. Here, the County is attempting to require that God be mentioned in invocations’by limiting the sphere of invocation givers to those who believe—or who the County thinks believe—in one God. This practice cannot be squared with controlling
The Minority and the Majority
The County also argues that it is not discriminating against a minority because atheists and'secularists are a “clear majority” and “religious adherents ... are the statistical minority in Brevard County.” (Doc. 59 at 13). This contention, touches o.n a confusing and- sometimes, conflicting theme, in the record. evidence and the County’s filings—the notion of a “majority” versus a “minority,” At. times, the County casts the facts as if the “faith-based community” is an endangered and oppressed minority in the County, while at others it relies on the “substantial” number of monotheists in the County.as part of its justification for rejecting Plaintiffs’ requests to * give an invocation. (See, e.g., Aug. 19, 2014 Letter from Board to Plaintiffs Williamson and CFFC, Pis.’ Ex. 46 (referring to “a higher authority which a substantial body of Brevard constituents believe to exist” and stating - that “this Commission chooses to stand by the tradition of opening its meetings in. a manner acknowledging the beliefs of a. large segment of its constituents” (emphasis added)); Resolution 2015-101 at 2 (“In Bre-vard. County the faith-based community is a minority component of the -<., community represented by the Board ¡... ”); id., at 9 (stating that allowing, atheist invocations “could be viewed as County hostility toward monotheistic religions whose theology and principles currently represent the minority view in Brevard County”); id. (referring to “displacing representatives of the minority faith-based monotheistic community”); Cty.’s Resp. Mem., Doc. 59, at 7 (referring to the County as one “where 94% of persons with, a religious affiliation belong to Christiаn congregations”); id. at 13 (“[T]his case does not involve discrimination against a minority faith because atheists, as a subset of secularists!!,] are members of a clear majority when compared to the number of people who regularly attend religious services. It is religious adherents ... who are the statistical minority in Brevard County.”); id. at 16 (referring to “faith-based” invocators as “representing a substantial body—though a - minority—of constituents” and noting that “the County ■ Commission currently governs . an overwhelmingly secular community”); id. at 18 (referring to the Board as “placed in the tenuous position of governing a -se'cular county”); id. at 19 (referring to the County’s “minority faith-based community”)).
Although the County attempts to ascribe relevance to the statistical breakdown of “religious adherents” versus “those who attend religious services” versus “nonbelievers,” it is not' germane to Establishment Clause analysis whether a particular segment of the County’s population is the majority or minority. “The First Amendment is not’a majority rule ..." Town of Greece,
The Public Comment Period
The County next insists that it has not denied Plaintiffs the opportunity to give an invocation because,-it allows nontheists to give a “secular invocation” during the Public Comment portion of Board meetings— which the County describes as “an alternative and comparable opportunity.” (Doc. 62
First of all, the County’s argument that an “invocation”—“secular” or otherwise— given during the Public Comment period is comparable to an opening, pre-meeting invocation is unpersuasive. A pre-meeting invocation is given before the meeting starts and serves to solemnize the entire meeting. That is its purpose. The Town of Greece Court noted the invocation’s “place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage.”
The County cites Town of Greece in support of its Public Comment justification, but in doing so it distorts the Supreme Court’s opinion. The County relies on the statement that in the town of Greece, “any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.”
But the County’s ■ argument that; “in turn”; supports the validity of its practice of allowing “separate invocations”'’during different parts of a meeting fails. First of all, this “in turn” language is from the discussion of coercion in Justice Kennedy’s plurality opinion in Town of Greece—not from the.part of the opinion that addresses the requirement of a policy of nondiscrimination with regard to inviting invocation-givers. In context, the sentence reads: “Adults often éncounter speech they find disagreeable; and an ■ Establishment Clause” violation is not made out any time a person experiences a sense of affront from the'expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions."
In attempting to justify its “bifurcated invocation periods,” the County also seizes on language from Town of Greece referring to the need for a court to make “inquiry into the prayer opportunity as a whole.” Id at 1824 (citing Marsh,
Although these, two - remarks strayed from- the rationale set out in UMarsh, they do not despoil a practice that on the whole reflects and embraces our tradition. Absеnt a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a- .¡single prayer.
Furthermore, as a factual matter the County’s description of two “separate but comparable” invocation periods—one for “religious invocations” at the outset of the meeting and one for “secular invocations” during Public Comment is belied by the record in this casé. It is undisputed that the Public Comment period is indeed not reserved for secular invocations but is open to discussion of any subject involving County-business, and a “Christian prayer” would be permitted both at the beginning of the meeting and during Public Comment. (ASOF ¶ 148). Thus, “religious” in-vocators have multiple opportunities to speak, whereas “secular invocations” can Only be given during Public Comment.
Limited Public Forums and “Avoiding an Establishment Clause Violation”
The County also attempts to justify' its invocation practice by asserting that the invocation period is a “limited public forum” as to which the County has defined the permissible content
The County asserts that it has created two limited public forums—one for “religious invocations” and one for “secular invocations.” As stated by the County, “under [its] policy, only members of the faith-based community are permitted to give the invocation during the limited public 'forum set aside by the Commission solely for the purpose of .recognizing the faith-based community prior to the commencement of the secular business- meeting.” (Doc. 54 at 16). And, says the County, it has created not one but “two limited public forums for
Plaintiffs urge that the invocation portion of a meeting is not a limited public forum and that even if it is, the County has engaged in impermissible viewpoint discrimination by excluding nontheists from it. The Court agrees with Plaintiffs on the latter point and thus need not resolve the first.
“[Wjhen the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech.” Good News Club v. Milford Cent. Sch.,
The County insists that its restrictions are viewpoint neutral, but this Court disagrees. The County discriminates among invocation speakers on the basis of viewpoint, and its restriction on invocation givers is not reasonable in light of the purpose of the invocation. Thus, even if the pre-meeting invocation period is a limited public forum, this viewpoint discrimination renders the County’s practice unconstitutional.
The County tries to define its proposed forum - as available “to members of the faith-based community capable and desirous of delivering faith-based religious invocations,” (Doc. 54 at 23), and asserts that Plaintiffs’ “secular invocations” “do not fit within the limitations:of the limited public forum established for [these] religious invocations.” (Id.). Again, however, the purpose of an invocation is to solemnize - a meeting, “lend gravity to the occasion,” and “reflect values long part of-the . Nation’s heritage.” Town of Greece,
The County argues that its creation of different forums was attempt to avoid an Establishment Clause violation rather than to commit one. The County asserts that allowing nontheistic invocations would send a message of hostility toward “believers” and that because nontheistic invocations are secular and the Board’s meeting agendas deal with secular business, allowing secular invocations would violate the Establishment Clause by “establishing” secularism. This argument is baseless. The Court simply cannot fathom how the County would be committing an Establishment Clause violation or' showing hostility toward anyone by allowing Plaintiffs to give an invocation at the beginning of a Board meeting. “While the Supreme Court has recognized that ‘the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion,, thus ‘preferring those who believe in no religion over those who
:The County’s argument regarding “avoiding a pattern of proselytization” is also misguided. This argument is based on the County’s assertion that because Plaintiffs or affiliates of Plaintiffs have posted on websites invocations that are hostile to theistic religions, it must refuse to allow them to give an invocation in order to avoid running afoul of Town of Greece. Here, however, the County is mixing apples and oranges. The portion of Town of Greece that the County , relies upon here pertained to. the plaintiffs’ reliance, in support of their, “nonsectarian” argument—on “invocations that disparaged those who did not accept the town’s prayer practice.”
The relevant pattern is the pattern that might appear over time in the governmental venue, not a pattern of. statements by would-be invocation givers outside the invocation forum. That UTown of, Greece instructs that assessment of the pattern of invocations given at a government meeting may sometimes be called for to determine whether a prayer practice has crossed the line to disparaging or proselytizing does not mean that the County is justified in denying Plaintiffs the opportunity to give an invocation based on website contents or past invocations—most of which occurred prior to Town of Greece
Conclusion as to Intentional Discrimination
In sum, the County’s attempted justifications for its policy' and practice ring hollow. The County’s reliance to support its position is misplaced. Both Marsh and Town of Greece establish that theistic invocations are permissible in legislative prayer, but they did not establish thát a governmental entity may require theistic content in invocations. Indeed, Town of Greece made clear that an invocation giver must be permitted to give an invocation as his conscience dictates, limited only by a prohibition on proselytizing and disparaging. And although the cases speak of permissible effects of theistic invocations, permissible effects are not the same as permissible purposes for an invocation in the first instance. By straying from the historical purpose of an invocation and intentionally discriminating against potential invocation-givers based on their beliefs, the County runs afoul of the Establishment Clause. Plaintiffs are thus entitled to summary judgment on this claim.
& Entanglement
Plaintiffs also argue that the County’s invocation policy violates the Establishment Clause because it excessively entangles the County with religion. Plaintiffs note that Resolution 2015-101 includes “a five-page dissection of the beliefs of Secular Humanists and organizations affiliated with” Plaintiffs, (Doe. 55 at 19), and that the Commissioners testified in their depositions that they .would “have to- examine” the beliefs of various other groups before deciding whether to allow a representative of that group to give an invocation, (id.).
In support of their entanglement argument, Plaintiffs cite Lemоn v. Kurtzman,
Nevertheless, entanglement remains relevant to Establishment -Clause analysis even when.legislative prayer is involved. In rejecting the argument that the town of Greece violated the Establishment Clause “by inviting a predominantly Christian- set of ministers to lead the prayer,” the Town of Greece Court noted that a “quest to promote a diversity of religious views would require the town to make wholly inappropriate judgments about the number of religions [it] should sponsor and the relative frequency with which it should sponsor .each, a. form of government entanglement with religion that is far more troublesome than the current approach.”
3, Coercion
Next, Plaintiffs assert that the County’s invocation practice violates the Establishment Clause by coercing participation- in religious exercises. Plaintiffs base this argument on the fact that “Commissioners regularly direct audience members to rise for invocations ,.. in the coercive environment of meetings in a small boardroom
In arguing coercion in Town of Greece, the plaintiffs contended “that prayer conducted in the intimate setting of a town board meeting differs in fundamental ways from the invocations delivered in Congress and state legislatures, where the public remains segregated from legislative activity and may not address the body except by occasional invitation.” 134'S.Ct. at 1824-25. In the town board meeting setting, on the other hand, “[c]itizens attend ... to accept awards; speak on matters of local importancе; and petition the board for action that may affect their economic interests, such as the granting of permits, business licenses, and zoning variances.” Id. at 1825. In-light of these differences, the plaintiffs argued “that the public may feel subtle pressure to participate in the prayers that violate their beliefs in order to please the board members from whom they are about to seek a favorable ruling.” Id. in Greece, “board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, [but] they at no point solicited similar gestures by the public”; although audience members were sometimes “asked to rise for the prayer,” the plurality noted that those requests to rise “came not from town leaders but from the guest ministers.” Id. at 1826.
As earlier noted, the Town of Greece plaintiffs’ coercion argument was rejected by a divided Court,- with no majority rationale. The plurality—Justices Kennedy and Alito and Chief Justice Roberts—was “not persuaded that the town of Greece, through the act of offering a brief, solemn, and respectful prayer to .open its monthly meetings, compelled its citizens to engage in a religious observance,” but it emphasized that “[t]he inquiry remains 'a fact-sensitive one that considers both the setting in which the prayer arises and the audience to whom it is directed.” Id. at 1825 (plurality opinion). Although it found, no coercion on the facts of Town of Greece, the plurality noted that “[t]he analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.”
Concurring with the plurality’s conclusion that the town’s invocation practice was not coercive, Justice Thomas, joined by Justice Scalia, noted that historically, coercion meant “ ‘coercion of religious orthodoxy and of financial support by force of law and threat of ‘penalty.’” Id. at 1837 (Thomas, J., concurring) (emphasis in original) (quoting Lee v. Weisman,
Here, Plaintiffs focus their coercion argument on the fact that from 2010-2016, sometimes—indeed, more often than not— a Commissioner in Brevard County asked the audience to stand before the invocation was given, followed by the Pledge of Allegiance.
Regardless of whether Justice Kennedy’s plurality opinion or Justice Thomas’s Town of Greece concurrence governs the coercion issue,
B. Other Federal Constitution Claims
In addition to their Establishment Clause claim, Plаintiffs also bring claims under the Free Exercise and Free Speech Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Some courts have held that challenges to legislative prayer practices are appropriately analyzed only under the Establishment Clause and that claims under other clauses are not viable in this context. Although the County does not rely on that proposition in defending against these “other clause” claims,
Before Town of Greece, the Fourth Circuit twice:found legislative prayer claims subject to analysis only under the Establishment Clause. In Simpson v. Chesterfield Cty. Bd. of Supervisors,
Three years after Simpson, the Fourth Circuit again addressed the issue in Turner v. City Council of the City of Fredericksburg, Va.,
In addition to the Fourth Circuit’s Simpson and Turner.opinions, several district court decisions have addressed the viability of legislative prayer claims grounded in сlauses other than the Establishment Clause. In Atheists of Fla., Inc., v. City of Lakeland,
And in Coleman v. Hamilton Cty., Tenn.,
In its April 28, 2017 order, the Fields district court granted in part and denied in part the defendants’ motion to dismiss, finding that the Establishment Clause claim was plausibly pleaded but dismissing the claims under the other clauses. The Fields court noted that because “courts generally regard legislative'prayer as ‘government speech,” they “have thus declined to entertain legislative prayer challenges cast under the Free Speech, Free Exercise,-and Equal Protection Clauses.”
Having considered these cases, Town of Greece, the facts of this case, and the manner in which Plaintiffs couch their claims, this Court is not persuaded that legislative prayer claims are necessarily subject to analysis under only the Establishment' Clause. Instead, the viability of the various potential causes of action depends on the circumstances of each case and the nature of the claim being asserted. In some cases, an Establishment Clause claim may indeed be the only available type of challenge—under facts like those in Town of Greece, for example. There, the plaintiffs did not seek to give an invocation themselves; they only attempted to have the court limit the content of the “sectarian” prayers to which they were subjected at town meetings. They only brought an Establishment Clause claim, and it is hard to imagine how they could have framed a free exercise, free speech, or equal protection claim on those facts. And if there had been an Establishment Clause violation, that violation would seemingly have run to all upon whom an unconstitutional prayer practice was imposed.
Where, however, a claimant both objects to the prayer practice as establishing and imposing religion on citizens and, as here, is denied the opportunity to give an invocation while others are invited or allowed to do so; other types of constitutional claims may indeed be independently viable. In other words, when a governmental entity opens up the invocation opportunity to volunteers and then discriminates among those volunteers on an impermissible basis, an additional type of violation is not necessarily foreclosed even where an Establishment Clause claim is presented.
Thus, although the County does not raise this argument, to the extent that these other cases are not distinguishable on their facts or as not surviving Town of Greece—which prohibits discrimination in selection of speakers, and does not bar sectarian references, and prohibits prose
1. Free Exercise Clause (Count II)
The Free Exercise Clause provides that “Congress shall make no law.., prohibiting the free exercise [of religion].” U.S. Const, amend. I, cl. 2. Plaintiffs claim in Count II that the County violates this provision by making adoption or profession of a religious belief a precondition for taking part in governmental affairs.
Plaintiffs primarily rely on Torcaso v. Watkins,
Although, as earlier discussed, legislative prayer occupies a unique place in Supreme Court -jurisprudence, under Torcaso and the circumstances of this case the Court finds that the County’s invocation practice violates not only the Establishment Clause but the Free Exercise,Clause as well. By opening up its invocation practice to volunteer citizens but requiring that those citizens believe in “a higher power” before they will be permitted to solemnize a Board meeting, the County is violating the freedom of religious belief and conscience guaranteed by the Free Exercise Clause. Plaintiffs thus prevail on this claim.
2. Free Speech Clause (Count III)
Plaintiffs allege in Count III that the County’s invocation practice violates the Free Speech Clause of the First Amendment, which provides that “Congress shall make no law ... abridging the' freedom of speech.” U.S. Const, amend. I, сl. 3. Plaintiffs assert that the Free Speech Clause “prohibits government from denying citizens opportunities to take part in
Cases cited by Plaintiffs support their “belief and affiliation” argument. See, e.g., Branti v. Finkel,
3. Equal Protection Clause (Count TV)
In their fourth and final federal claim, Plaintiffs assert that the County’s invocation practice violates the Equal Protection Clause of the Fourteenth Amendment, which provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. Plaintiffs contend that the County’s practice violates this clause because the County is treating citizens differently based on their religious beliefs. The Court agrees.
It is clear from the undisputed evidence that in selecting invocation speakers, the County is categorizing its citizens along religious lines—both by dividing, in Resolution 2015-101, “religious” citizens from “secular” citizens, and by dividing, in practice, “monotheistic, faith-based” citizens from ail other citizens. Plaintiffs correctly note that religion is a suspect classification under the Equal' Protection Clause. See, e.g., Burlington N. R.R. Co. v. Ford,
Plaintiffs note that in Resolution 2015-101, the County attempts to justify its policy of excluding them from the invocation practice by citing a desire to recognize ■ “faith-based monotheistic religions,” to avoid “displacing ... the minority faith-based monotheistic community” or appearing i£hostil[ ]e toward monotheistic religions,” and to avoid aii appearance of approving atheism or Secular Humanism. (See Resolution 2015-101 ¶¶ 5, 36, & 37). These interests are not by any' means “compelling.” And a neutral policy that allowed citizens of all belief systems to provide an opening invocation would not, as argued by the County, convey a message of endorsement or hostility.. Accordingly, Plaintiffs prevail on their federal equal protection claim.
1. Art. I, Section 2 (Count V)
In their fifth claim, Plaintiffs allege a violation of Article I, Section 2 of the Florida Constitution, which provides in part that “[a]ll natural persons ... are equal before the law” and that “[n]o person shall be deprived of any right because of ... religion.” This clause is construed like-the Equal Protection .Clause of the U.S. Constitution. See, e.g., Palm Harbor Special Fire Control Dist. v. Kelly,
2. Art. I, Section 3 (Count VI)
Finally, Plaintiffs allege violations of Article I, Section 3 of the Florida Constitution. This section, titled “Religious freedom,” provides, among other things,
a. Florida Establishment Clause
The Florida Establishment Clause and the federal Establishment Clause have nearly identical wording and are interpreted in the same manner by courts. See, e.g., Todd v. State,
b. Florida “No-Aid” Clause
The “no-aid” clause of section 3— which provides that “[n]o revenue of the state or any political subdivision thereof shall ever be taken from the public treasury directly -or indirectly in aid .of any church, sect, or religious denomination or in aid of any. sectarian institution”—“imposes ‘further restrictions on the state’s involvement with religious institutions than [imposed by] the Establishment Clause.’ ” Council for Secular Humanism, Inc. v. McNeil,
Plaintiffs contend that the County violates the no-aid clause by “using tax dollars to fund an invocation practice that prefers monotheism over atheism, Humanism, and other religions.” (Doc. 55 at 25). Plaintiffs rely on the fact that “[t]he Commissioners use County resources funded with taxpayer dollars—such as email, mail, and phones—to invite and communicate with invocators.” (Id. at 3). Additionally, Plаintiffs note that invocation-givers sometimes “orally give the audience promotional information about their houses of 'worship before delivering their invocations.” (⅛)
In Atheists of Florida, Inc., v. City of Lakeland,
Plaintiffs have cited no case—and the Court has found none—where an incidental cost incurred by a public entity sufficed to give rise to a violation of the no-aid clause. This issue is, of course, & matter of Florida law, and if the Supreme Court of Florida has not spoken on the topic at issue, this Court “must predict how [that] court would decide” the question presented. Molinos Valle Del Cibao, C. por A. v. Lama,
This Court’s research uncovered a Supreme Court of Florida case that lends some guidance here. In Southside Estates Baptist Church v. Board of Trustees. School Tax District No. 1, in and for Duval County,
The Supreme Court of Florida took note “of [the plaintiffs’] insistence that the use of the building is something of value and that the wear and tear is an indirect contribution from the public treasury,” id., but concluded that it “might here properly apply the maxim De minimis non curat lex,” id., which translates to “The law does not concern itself with trifles,” Black’s Law Dictionary (10th ed. 2014). The Court continued: “Nothing of substantial consequence is shown and we see no reason to burden this opinion with a discussion of trivia.” Id at 699-700. See also Holmes,
In light of the Southside court’s refusal to find a use of public funds from incidental expense due tq use of buildings, and in the absence of any case finding a no-aid clause violation in similar circumstances, this Court concludes that the Supreme Court of Florida would not find a violation of the no-aid clause on the facts of this case. Thus, to the extent that Count VI of the First Amended Complaint is grounded in the no-aid clause of the Florida Constitution, Plaintiffs’ motion for summary judgment is denied and the County’s motion for summary judgment is granted.
III. Conclusion
As the Fourth Circuit recently noted in Lund, “[t]he great promise of the Establishment Clause is that religion will not operate as an instrument of division in our nation.”
It is ORDERED as follows:
1. Defendant’s Motion for Summary Judgment (Doc. 54) is GRANTED in part and DENIED in part as set forth in this Order.
2. Plaintiffs’ Motion for Summary Judgment (Doc. 55) is GRANTED in part and DENIED in part as set forth in this Order.
3. No judgment shall be entered at this time. Instead, in accordance with the parties’ prior agreement,
APPENDIX
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Notes
. The facts are not in dispute. After the Court heard oral argument on the parties’ cross-motions for summary judgment (Docs. 54-& 55), the parties submitted a 67-рage, 301-paragraph Amended Stipulation of Facts Regarding Cross-Motions for Summary Judgment (Doc. 83). The factual background is taken largely from that Amended Stipulation of Facts, though other record evidence is also cited herein. References to the Amended Stipulation of Facts are indicated by “ASOF” followed by the paragraph number(s). '
. Specifically, Becher is President and Organizer of HCSC and a member of the boards of directors of all three organizational Plaintiffs. (ASOF ¶ 98). Hansel is President of SCFA and a member of its board of directors. (Id.). Koeberl'is Vice-President and Co-Organizer of HCSC and a member of its board and SCFA’s board. (Id.). Williamson is the founder and Chair of CFFC and a member of its board. (Id.).
. The parties note in their stipulated facts that the Board also holds "workshop” meetings and other special meetings outside the boardroom described in the text. (ASOF ¶ 15). Those meetings are not opened with an invocation and are not at issue in this lawsuit. (IcL ¶¶ 16-17).
. As explained later in this Order, the Board changed the timing and number of Public Comment periods during the timeframe of the events at issue imthis case.
. References to Plaintiffs; Exhibits 1 through 163 are to the exhibits filed with Plaintiffs’ summary judgment motion and their response to the County’s motion. Exhibits 1-133 are attachments, to their motion (Doc. 55), and Exhibits 134-163 are attachments to their response (Doc, 60).
. In addition to Exhibits 1 through 163, Plaintiffs have submitted two USB flash drives containing video and audio evidence, and those exhibits are numbered VI through V18,
. During one invocation, the invited clergyman, after remarking, “Not quite sure where I need to face; my congregation [gesturing to the audience] or my choir [gesturing to the Board members],” faced the audience while giving his invocation. (See Pis, Ex, V2 (Mar. 3, 2016)), Another speaker, a chaplain, asked which way he should face, and the Chairwoman instructed him to face the Board, (See Pis.' Exs. 30 & V2 (Sept. 16, 2014)).
. Incidentally, the pastor who was scheduled to give the invocation at the August 19, 2014 Board meeting was late, and in lieu of an invocation a moment of silence was observed. (See Pis.’ Exs. 30 & V2 (Aug. 19, 2014 invocation)).
. Plaintiff CFFC is a Freedom From Religion Foundation chapter. (ASOF ¶ 207).
. Resolution 2015-101 appears in several places in the record, including as . an exhibit (Docs. 24-3 through 24-11) to the County's original Answer (Doc. 24) and as Exhibit 77 to the deрosition of Plaintiff Williamson (Doc. 53-8 at 34 through 93). The parties represent in their Amended Stipulation of Facts that the version that is Exhibit 77 to Williamson’s deposition is a true and correct copy with all exhibits attached, to, it, and the Court ac.cord--ingly refers to.that version.- (See ASOF ¶ 131).
. The word “deism” appears to be a clerical error in the resolution. “Deism” is "a movement or system of thought advocating natural religion, emphasizing morality, and in the 18th century denying the interference of the Creator with the laws of the universe.” Merriam Webster's Collegiate Dictionary (10th ed. 1993). Scholars have noted that“[m]any of our founding fathers, including Thomas Paine, Thomas Jefferson, [and] Benjamin Franklin, ... were flat-out deists, and many others, such as John Adams, James Madison, Alexander Hamilton, James Monroe, and George Washington, were at least partial deists.” Geoffrey V. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1, 7 (Oct. 2008). In light of the deposition testimony of several Commissioners that they would not allow a deist to give an invocation, (see, e.g., Doc. 43 at 12; Doc. 44 at 9; Doc. 46 at 11; & Doc. 48 at 10), it is likely that "theism”—"belief in the existence of a god or gods,” Merriam Webster's Collegiate Dictionary (10th ed. 1993)—was the word that was intended in this sentence of Resolution 2015-101.
. In addition .to the declarations, depositions, voluminous exhibits, several notices of supplemental authority, and the Amended Stipulation of Facts (Doc. 83), the pertinent filings are: the County’s Motion for Summary Judgment (Doc. 54); Plaintiffs’ Motion for Summary Judgment (Doc. 55); the County's Notice of Filing Supplemental Inadvertently Omitted Footnote References (Doc. 58); the County’s Response to Plaintiffs' Motion for Summary Judgment (Doc. 59); Plaintiffs’ Opposition to the County’s Motion for Summary Judgment (Doc. 60); the County’s Reply regarding its motion (Doc. 62); Plaintiffs’ Reply regarding its motion (Doc. 63); the County’s Supplemental Memorandum of Law (Doc. 84); Plaintiffs’ Supplemental Brief (Doc. 85); Plaintiffs’ Supplemental Summary-Judgment Brief on Their Free-Speech Claim (Doc. 95); the County's Corrected Supplemental Summary Judgment Brief on Plaintiffs’ Free Speech Claim (Doc. 97-1); and Plaintiffs’ Supplemental Summary-Judgment Reply Brief on Their Free-Speech Claim (Doc. 98).
,In some of its filings the County asserts, albeit cursorily, that Plaintiffs lack standing to bring one or more of their claims. (See, e,g„ Doc. 54 -át 19 (asserting that “none of the Plaintiffs has standing to sue for coercion because none has alleged a concrete and particular injury in fact"); id. at 21 (arguing lack of standing -because "Plaintiffs cannot show an injury that can be.redressed by a favorable decision from this Court”); -Doc, 62 at 7 (averring that Plaintiffs lack standing because, their .injuries are "self-created” and because of "their inability to give a religious prayer”). These .contentions are without merit. The Court is sаtisfied that Plaintiffs have standing to pursue their claims, and the County's arguments go to the merits of Plaintiffs’, claims rather than to the issue of standing.
. See, e g., Lee v. Weisman,
. See, e.g., Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter,
. See Lemon v. Kurtzman,
. It is not clear from the court opinions whether the plaintiff in Marsh was the legislator who complained about, references to Christ in the prayers. The district court opinion describes him as "a non-Christian member of the legislature.” Chambers v. Marsh,
. See Galloway v. Town of Greece,
. Prior to Town of Greece, some courts had held that only "nopsectarian'' legislative prayers were permissible under the Establishment Clause. See, e.g., Wynne v. Town of Great Falls, S.C.,
. In holding that legislative prayer need not be nonsectarian in order to remain within the confines of the Establishment Clause, the-Town of Greece Court receded from dictum in County of Allegheny v. ACLU Greater Pittsburgh Chapter,
. That practice was evidenced by a "long and continuous line through certain -categories of faiths” in the phone book that the employee used to compile the list of potential speakers. Pelphrey,
. The Court asked the parties whether it was appropriate to consider the deposition testimony and other statements of the Commissioners, and the parties briefed that issue. (See Docs. 84 & 85). The County (despite citing Commissioner deposition testimony in its own summary judgment filings, (see, e.g., Doc. 59 at 10)), took the position that the Court could properly consider only statements made prior to or contemporaneous with Resolution 2015-101, but the Court disagrees. The Supreme Court and the Eleventh Circuit have relied .on statements of legislators in gauging motive and intent. See, e.g., Wallace v. Jaffree,
. See n.-l 1 supra.
. Examples of these invocations include the following:
*1283 Martin County is a diverse community representing a wide spectrum of religious, secular, political, ethnic, and racial perspectives. Despite our diversity we are united by the democratic principles of equal treatment for all as contained in our Constitution and Bill of Rights. We are also united in our desire to develop policies and legislation for the benefit of Martin County and its residents.
We come to this meeting with divergent points of view that need to be discussed and carefully evaluated to ensure that wise decisions are made. While we may believe that our perspectives,, on issues like All .Aboard Florida or the Indian River Lagoon are preferable, it is important that we express ourselves in ways that demonstrate respect for others as we plant the seeds of cooperation that are necessary for us to work together for the common good.
Let us be guided by reason and compassion in our quest to solutions for life's problems. Should we find ourselves becoming displeased over what someone has said it can be helpful to remember that harsh words don’t educate others about our points of view. They only create tension and interfere with decision making.
Let us be guided by the advice that Aristotle offered the world twenty-four hundred years ago when he said, “We should conduct ourselves towards others as we would have them act towards us.
(Invocation given by Joe Beck at the June 17, 2014 Meeting of the Martin County, Florida Board of County Comm’rs, Pis.’ Ex. 14 at 23). And:
Through the millennia we as a society have learned the best way to govern the people is for the people to govern themselves. Today, in this tradition, we travel from our homes and businesses across the county; citizens, staff, and those elected converge on this chamber to work as one community united and indivisible by nearly every measure. Each of us arrives as individuals with unique ideas and experiences but all with a need or, in a spirit of goodwill, to fulfill the needs of others.
Citizens request assistance and offer their concerns and we are ever grateful for their interest and for their trust in the process. Staff provides invaluable expertise in their particular field and we truly appreciate their continued service. Elected officials listen, debate, and choose the path forward for us all out of a sincere desire to serve and honor the people of Osceola County while shaping its future. We all offer our thanks in that often thankless task.
■ When we leave this chamber this evening let us carry with us this same spirit of service and goodwill tomorrow and every day that follows.
This is how we assemble to serve and to govern, ourselves.
(Invocation given by David Williamson at the June 16, 2014 Meeting of the Osceola County, Florida Board of County Comm’rs, Pis.’ Ex. 14 at 24).
. The County also argues that it created separate "limited public forums” in its invocation period and Public Comment periods. That contention is addressed in the next subsection of this Order.
. The County argues that "[I]ike Greece, the Brevard policy allows atheist's to present invocations in a separate limited public forum during the Public Comment section of the agenda.” (Doc. 54 at 18-19). The County’s likening of its policy to the invocation practice in Greece is puzzling. Greece’s practice did not involve separate invocation "forums,” and there, anyone—including an atheist— could give an invocation at the beginning of a meeting.
. Plaintiff Williamson explains in his Second Declaration that before Town of Greece, he “sometimes advocated against the inclusion-of invocations” at local government meetings but that he recognizes that the Supreme Court has ruled that invocations are permissible. (Second Williamson Deck, Pis.' Ex. 138, ¶ 2). Abiding by Town of Greece, he and CFFC no longer seek to end invocations but “to receive treatment equal to that of the theists and theistic organizations who are welcome to present opening invocations.” (Id, ¶ 3).
. Plaintiffs do not allege that they were “singled out ... for opprobrium” or that the Board members "indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.” Their coercion argument is based only on the requests from Commissioners to stand for the invocation.
. The parties phrased their stipulated facts regarding the audience being asked to stand in terms of Chairpersons—suggesting that some Chairpersons ask the audience to stand and some do not, as a matter of individual practice or habit. (See ASOF ¶ 67 (‘‘[S]ome Board chairpersons ask the audience to stand for a prayer and the Pledge'of Allegiance.")). However, the Court's review of the transcripts and videos of the invocations given from 2010 through May 2016 reveals that: during a clear majority of those invocations, a Commissioner asked the audience to stand; individual Commissioners were inconsistent in whether they asked the audience to stand; and every Commissioner asked the audience •to stand on at least two occasions, with several doing so much more frequently. (See Pis.’ Exs. 30, 144, V2, & V14). There is, however, a noticeable change in the regular practice beginning in 2016: only once (on March 29, 2016) did a Commissioner ask the audience to stand from January 2016 through May 26, 2016—the date of the last transcript and video in the record. (See Pis.’ Exs. 30, 144, V2, & V14). This lawsuit was filed in July 2015.
. Even though Justice Kennedy’s opinion on coercion garnered three votes and Justice Thomas’s only two, Justice Kennedy’s plurality opinion is not necessarily controlling on the coercion issue. "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest-grounds Marks v. United States,
. The County does not defend these claims on any basis other than the "avoidance of an Establishment Clause violation” argument discussed and rejected elsewhere in this Order.
. The Coleman court noted at the summary judgment stage of thé case that the plaintiffs also attempted to argue a free speech claim, but the court did not allow that challenge because plaintiffs had not pleáded a free speech claim. See
. Plaintiffs do not argue in this claim that they have the right to say whatever they want if given an opportunity to give an invocation, and they do not seek to run afoul of the constraints imposed in Town of Greece on what can be said during an invocation. They instead limit this claim to the "religious test” theory described in Torcaso. It is on this basis—and this ' basis only—that this Court finds that they prevail.
. As with their free exercise claim, Plaintiffs do not argue in their free speech claim that they have the right to say whatever they want during an invocation, instead couching this claim in terms of being denied an opportunity to participate based on their beliefs or affiliations. In this sense, their freedom of speech claim has merit.
. This section provides in full:
Religious freedom;—There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or -religious denomination or in. aid of any sectarian institution,
Fla. Const, art. I, § 3, Although this section contains a free exercise clause ("There shall be no law ... prohibiting or penalizing the free exercise [of religion].”), Plaintiffs do not include a free exercise claim among their Florida constitutional challenges. Instead, they rely only on the , establishment, equal protection, and "no-aid” clauses. (See Doc. 55 at 25-26; Hr’g Tr., Doc. 93, at 4-5).
. The provision at issue in Southside was Section 6 of the Declaration of Rights of the 1885 Florida Constitution, which provided that "No preference shall be given by law to any church, sect or mode of worship and no money shall ever be taken from the public treasury directly or indirectly in aid of any church, sect or religious denomination or in aid of any sectarian institution.” The constitution was revised in 1966-68. See generally Bush v. Holmes,
. During oral argument on parties' cross-motions for summary judgment, Plaintiffs’ counsel reminded the Court that at mediation the parties reached a settlement agreement as to the amount of damages and that that agreement allows the parties to file it with the Court if Plaintiffs prevail on the merits. (See Hr’g Tr., Doc. 93, at 32-33; see also Mediation Report, Doc. 39, at 2).