In 2014, Town of Greece v. Galloway confirmed that the First Amendment permitted sectarian prayers, overwhelmingly Christian in nature, to be delivered at publicly-attended city council meetings. Three decades earlier, Marsh had upheld a state legislature's appointment of Christian chaplains to deliver invocations at their sessions. Did that mean that municipal commissions consisting only of Christians could now appoint themselves to deliver each and every prayer, virtually all sectarian, before opening their public meetings? Last Friday, in Lund v. Rowan County, no. 15-1591 (4th Cir. July 14, 2017), Judge Wilkinson of the Fourth Circuit, joined by nine others-and overriding the vote of five dissenters-emphatically answered that question in the negative: For years on end, the elected members of the county's Board of Commissioners composed and delivered pointedly sectarian invocations. They rotated the prayer opportunity amongst themselves; no one else was permitted to offer an invocation. The prayers referenced one and only one faith and veered from time to time into overt proselytization. Before each invocation, attendees were requested to rise and often asked to pray with the commissioners. The prayers served to open meetings of our most basic unit of government and directly preceded the business session of the meeting. * * * We conclude that the Constitution does not allow what happened in Rowan County. The prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion. And because the commissioners were the exclusive prayer-givers, Rowan County's invocation practice falls well outside the more inclusive, minister-oriented practice of legislative prayer described in Town of Greece. Indeed, if elected representatives invite their constituents to participate in prayers invoking a single faith for meeting upon meeting, year after year, it is difficult to imagine constitutional limits to sectarian prayer practice. Marsh and Town of Greece did not fully settle whether Rowan County's prayer practice would be constitutional, because neither of those decisions concerned lawmaker-led prayer; further analysis of that nuance was required. The County and its amici volunteered that there was "a long tradition of opening legislative sessions-at all levels of government-with prayer by legislators themselves," and that Members of Congress <https://advance.lexis.com/document/?pdmfid=1000516&crid=996f7b96-7258-4594-8d3c-85d91947691d&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pddocid=urn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pdcontentcomponentid=6388&pdteaserkey=sr0&ecomp=m4ntk&earg=sr0&prid=086dbffc-43c5-4e72-9711-4d0c1b1336f1> occasionally delivered invocations in the Senate and House. State amici asserted that a majority of state legislatures (including seven of the ten states comprising the Fourth Circuit)--as well as many municipalities--permit elected officials to deliver invocations. They also pointed to the practice adopted in a majority of states of designating an official chaplain. As Judge Wilkinson pointed out, the fact that officeholders might occasionally deliver prayers did not sanctify their doing so exclusively: "Rowan County and amici elide the distinction between extending the prayer opportunity to lawmakers (as many legislatures do) and restricting it to those lawmakers (as Rowan County did here)." This was a distinction that made all the difference. In a posture inimical to the dissent, the majority concluded that "the identity of the prayer-giver is relevant to the constitutional inquiry." At issue here were Rowan County's elected representatives-"the very embodiment of the state," meaning that "the prayer-giver was the state itself." As Judge Wilkinson had argued in his dissent in the Fourth Circuit's initial assessment of Rowan County in November 2016, the only apparent avenue "for any Buddhists, Hindus, Jews, Muslims, Sikhs, or others who sought some modest place for their own faith" was to elect one of the five commissioners, which was a statistical impossibility. In fact, he posited, any candidate expressing fealty to a non-Christian philosophy risked loss in a Rowan county election: at one Board meeting, an individual who "expressed opposition to the Board's prayer practice" had been booed by the audience, and two challengers who favored modifying the Board's policy were defeated by two incumbents who ran to preserve it. The majority acknowledged Rowan County's "entirely fair point" that courts must not become censors of public prayer. They did not wish to become a censor, but had no choice other than to review the pattern of prayers before the court-which the lead dissent decried as "judicial review run amok." Their scrutiny revealed that over a period of more than five years, only four of 143 prayers were non-sectarian; the remaining 97% used ideas or images identified with Christianity. Some of these proclaimed the moral and spiritual supremacy of Christianity and even implied that adherents of other faiths were in some ways condemned and could not achieve salvation. The lead dissent argued that the prayers should not have been viewed as intended for the public attendees and were instead directed solely at the legislators themselves. But the majority concluded that the record was clear that commissioners asked the audience to join them in the invocations and were seeking audience involvement, not merely addressing fellow legislators. Having invalidated the County's existing practice, Judge Wilkinson avoided dictating an acceptable alternative: We decline, however, to select one from among the various options available to defendant. Any future course of action is, and certainly would be in the first instance, for Rowan County to decide. The problematic features of the present practice noted in our decision should provide substantial guidance for whatever future steps the county may wish to take. Before closing, the majority took the dissents to task for refusing to consider the suspect prayer practice as a whole. The dissents "do not even begin to consider the prayer practice here holistically. They address it piece by piece by piece. Unsurprisingly, they find each piece 'standing alone [is] undoubtedly constitutional.' " The majority challenged this approach as intellectually dishonest: "It would seem elementary that a thing may be innocuous in isolation and impermissible in combination. In fact, the lead dissent's tired 'divide and conquer' strategy has been frowned upon by the <https://advance.lexis.com/document/?pdmfid=1000516&crid=996f7b96-7258-4594-8d3c-85d91947691d&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pddocid=urn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pdcontentcomponentid=6388&pdteaserkey=sr0&ecomp=m4ntk&earg=sr0&prid=086dbffc-43c5-4e72-9711-4d0c1b1336f1> Supreme Court itself." In "a final word as to our two friends and valued colleagues in dissent" Wilkinson rebutted the characterization of the majority opinion as anti-religious ("To reject the establishment of a single religious faith by the state is not to reject religion itself") and its disparagement of the majority as believing in an "ecumenical utopia" ("If that be our sin, we shall gladly confess it.") DISSENT: Various dissenters clearly staged the constitutional analysis differently than did Judge Wilkinson. They saw the majority as committing a basic error in its "underlying assumption that the Establishment Clause<https://advance.lexis.com/document/?pdmfid=1000516&crid=996f7b96-7258-4594-8d3c-85d91947691d&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pddocid=urn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pdcontentcomponentid=6388&pdteaserkey=sr0&ecomp=m4ntk&earg=sr0&prid=086dbffc-43c5-4e72-9711-4d0c1b1336f1> is an anti-religion clause that exists in tension with the Free Exercise Clause<https://advance.lexis.com/document/?pdmfid=1000516&crid=996f7b96-7258-4594-8d3c-85d91947691d&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pddocid=urn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pdcontentcomponentid=6388&pdteaserkey=sr0&ecomp=m4ntk&earg=sr0&prid=086dbffc-43c5-4e72-9711-4d0c1b1336f1>." They cited references detailing "how the Establishment Clause<https://advance.lexis.com/document/?pdmfid=1000516&crid=996f7b96-7258-4594-8d3c-85d91947691d&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pddocid=urn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pdcontentcomponentid=6388&pdteaserkey=sr0&ecomp=m4ntk&earg=sr0&prid=086dbffc-43c5-4e72-9711-4d0c1b1336f1> was actually included in the Constitution to enhance the free exercise of religion by prohibiting establishments that favored one religion to the detriment of others." Obviously, Wilkinson and the majority would not have agreed with this characterization of their position. The majority, by its decision to "pay close attention to the interplay between the various facets of the <https://advance.lexis.com/document/?pdmfid=1000516&crid=996f7b96-7258-4594-8d3c-85d91947691d&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pddocid=urn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pdcontentcomponentid=6388&pdteaserkey=sr0&ecomp=m4ntk&earg=sr0&prid=086dbffc-43c5-4e72-9711-4d0c1b1336f1> County's prayer practice" was "unwisely insert[ing] government into the role of regulating faith expression in precisely the way the Establishment Clause<https://advance.lexis.com/document/?pdmfid=1000516&crid=996f7b96-7258-4594-8d3c-85d91947691d&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pddocid=urn%3AcontentItem%3A5P16-C1F1-F04K-M23N-00000-00&pdcontentcomponentid=6388&pdteaserkey=sr0&ecomp=m4ntk&earg=sr0&prid=086dbffc-43c5-4e72-9711-4d0c1b1336f1> was intended to forbid." It was conceivable that prayer could be misused by denigrating or interfering with the religious practices of others. "But short of those abuses, it ought not to be subject to the scrutiny and skepticism with which it is met by the majority." For the dissenters, unless the invocations in question served to proselytize or disparage, less egregious conduct warranted no further review. Here, there was no evidence of any such content, and the record made no showing that anyone who chose not to participate during the prayer suffered any adverse consequence or were otherwise coerced. The result of the majority's overreach was to eviscerate any meaningful role for invocations by lawmakers: "Indeed, the only safe practice for lawmakers who want to offer a legislative prayer is to ignore what Marsh and Town of Greece permit and offer only a generic prayer to a generic god." In reality, it would seem that Rowan County could easily have preserved its practice nearly intact had it only been willing to offer an occasional non-lawmaking cleric or member of the public an opportunity to open its Board of Commissioners meetings with a prayer. In analyzing this decision, we believe a couple of considerations ought to come into play. First, a board of county commissioners, unlike a state legislature mixes responsibilities across the functional powers of government. Most boards of county commissioners combine legislative, quasi-judicial and legislative powers often in one setting. Do these combined functions play a role in the analysis and should they? Second, as we know, the Bill of Rights was a restraint on the federal government not state and local governments until the adoption of the 14th Amendment and the later judicial incorporation doctrine. Indeed, despite their reliance on the Founders' intent when drafting the Establishment Clause significant research supports the view that the Founders were not intent on preventing state and local adoption of or support of religions, but only a prohibition against the federal government from doing so. Waldman, Founding Faith: How Our Founding Fathers Forged a Radical New Approach to Religious Liberty (Random House 2009). Perhaps, as this case winds its way through the system, an argument will be made that the Establishment Clause ought not to be incorporated into the 14th Amendment's protections under the Constitution, but left as a simple check on the federal government. (The case juxtaposed a wide array of participants. Seeking to uphold Lund County's prayer practices were the Attorneys General of 13 states, several members of Congress, and various conservative groups including Citizens United. The County's case was argued by well-known appellate litigator Allyson Ho of the Dallas office of Morgan Lewis & Bockius. The state amici's position was argued by Elbert Lin of the West Virginia Attorney General's Office. Plaintiffs-Appellees' position was argued by Christopher Brook of the North Carolina ACLU, and was supported by groups favoring separation of church and state, and by Sikh and Reform Judaism groups). Charles W. Thompson, Jr. Executive Director and General Counsel International Municipal Lawyers Association, Inc. 51 Monroe Street Suite 404 Rockville, Maryland 20850 202-466-5424 x7110 Direct: 202-742-1016 Cell: 240-876-6790 Plan ahead: IMLA's Annual Conference October 14- October 18, 2017 - Niagara, Ontario, Canada (Passport required) To register, go to: http://imla.org/events/conferences#registration IMLA's Annual Seminar and Section 1983 Defense Conference - April 20- April 23, 2018 Washington, DC