In its 2014 decision in Town of Greece v. Galloway, the Supreme Court upheld a town council’s practice of inviting local clergy to deliver prayers at the beginning of its sessions. At the time, many commentators — including myself — warned that the Court’s decision was a body blow to the wall of separation between church and state.
Two years later, our initial fears appear to be overblown, largely due to a line in Town of Greece which has since proved quite significant. A legislature has broad discretion to host opening prayers “so long as [it] maintains a policy of nondiscrimination.” Christian lawmakers who wish to begin their session with a prayer may do so, but they must give a turn to Jews or Muslims or Wiccans or even Satanists who want an opportunity to deliver that prayer.
On Monday, however, a federal appeals court effectively wrote this key line out of Town of Greece. The upshot of the U.S. Court of Appeals for the Fourth Circuit’s 2–1 decision in Lund v. Rowan County is that government officials may themselves open a legislative session with explicitly Christian prayers — and may exclude all others from the opportunity to deliver a prayer, despite the Supreme Court’s explicit command to the contrary.
Though the Fourth Circuit is left-leaning court, this unusual decision in Lund almost certainly results from the fact that the case was assigned to an especially conservative panel. Judges Dennis Shedd and Steven Agee, both George W. Bush appointees, formed the majority. Judge J. Harvie Wilkinson, a Reagan appointee who was one of Bush’s finalists for the Supreme Court vacancy eventually filled by Chief Justice John Roberts, dissented.
As Judge Agee explains in his majority opinion, Town of Greece does give legislatures broad authority to open sessions with a prayer. The town council in that case “solicited guest chaplains by placing calls to local congregations listed in a directory.” Yet, because “nearly all of the local churches were Christian,” so were nearly all of the prayer givers. And “most invocations referenced some aspect of the Christian faith.” Nevertheless, the Supreme Court said that this scheme was permissible.
But Rowan County’s practices differ from the Town of Greece’s in two important respects. Rowan County does not simply invite outside clergy to deliver prayers. Rather, it delegates to its five commissioners — and only those five commissioners — the unchecked discretion to deliver a prayer of their choice on a rotating basis. As Agee admits, “the overwhelming majority of the prayers offered by the commissioners invoked the Christian faith in some form. For example, prayers frequently included references to ‘Jesus,’ ‘Christ,’ and ‘Lord.’”
Thus, the county placed sole power to decide the content of a particular sessions’ prayer in the hands of a government official. And it does not maintain “a policy of nondiscrimination” as required by Town of Greece. The only way one can have the opportunity to deliver a prayer before a Rowan County Board of Commissioners meeting is to be elected as a commissioner yourself.
Judges Agee and Shedd attempt to get around Town of Greece’s nondiscrimination rule by claiming that it is much narrower than the Supreme Court said that it is. “The Supreme Court’s prohibition on discrimination in this context,” Agee writes, “is aimed at barring government practices that result from a deliberate choice to favor one religious view to the exclusion of others.” He adds that “concerns arise only if there is evidence of ‘an aversion or bias on the part of town leaders against minority faiths’ in choosing the prayer-giver.”
But that’s simply not a fair reading of Town of Greece. Here is the relevant passage from the Supreme Court’s opinion:
Finally, the Court disagrees with the view taken by the Court of Appeals that the town of Greece contravened the Establishment Clause by inviting a predominantly Christian set of ministers to lead the prayer. The 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. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So 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.
Here, the Court identifies several precautions Greece took to avoid running afoul of the Constitution, including making “reasonable efforts to identify all of the congregations located within its borders,” and representing “that it would welcome a prayer by any minister or layman who wished to give one.” Under these specific circumstances, the Court agreed that the town’s failure to actively seek out minority faiths that were not well-represented in Greece does not constitute impermissible bias.
But the Court never says that, absent evidence of aversion or bias, the rule against discrimination does not exist. To the contrary, the entire reason why the Supreme Court endorsed the prayer scheme at issue in Town of Greece is because this scheme complied with the nondiscrimination rule.
As a practical matter, this nondiscrimination rule has proven to be a potent weapon for groups seeking to preserve the wall of separation of church and state. It forces lawmakers who want to use legislative prayers to promote a Christian worldview to also accept invocations from other faiths. It also potentially forces them to decide whether their need to promote their own faith is so great that they are also willing to allow voices they disdain to participate.
Indeed, as a sign of just how potent the rule against discrimination can be, the Satanic Temple — a group that is part-religion, part-trolling operation and that does not actually worship the Devil — launched several campaigns to erect monuments to Satanic figures in government buildings that also display Christian iconography. They’ve also protested Bibles in public schools with literature of their own. (In fairness, Lund does acknowledge that legislative prayer is a special case, so it is unclear that the Fourth Circuit’s decision would impact the monuments and public schools cases.)
The Fourth Circuit’s decision in Lund, if it is allowed to stand, will also do far more than take away an important tool that can be used to maintain separation between church and state. It could also work profound harm to democracy. As Judge Wilkinson notes in dissent, a system that gives elected lawmakers sole power to set a prayer agenda “takes us one step closer to a de facto religious litmus test for public office.” In such a system “voters may wonder what kind of prayer a candidate of a minority religious persuasion would select if elected.” Meanwhile, a lawmaker’s “failure to pray in the name of the prevailing faith risks becoming a campaign issue or a tacit political debit, which in turn deters those of minority faiths from seeking office.”
It is far from clear, however, whether Agee’s opinion will be the final word in this case. Among other things, the plaintiffs can ask the full appeals court, which is dominated by Democratic appointees, to rehear the case.