PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1591

NANCY LUND; LIESA MONTAG-SIEGEL; ROBERT VOELKER,

Plaintiffs - Appellees,

v.

ROWAN COUNTY, NORTH CAROLINA,

Defendant - Appellant.

----------------------------

STATE OF WEST VIRGINIA; STATE OF ALABAMA; STATE OF ARIZONA; 

STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF INDIANA; STATE 

OF MICHIGAN; STATE OF NEBRASKA; STATE OF NEVADA; STATE OF 

OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF 

TEXAS; MEMBERS OF CONGRESS,

Amici Supporting Appellant,

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; 

AMERICAN HUMANIST ASSOCIATION; ANTI-DEFAMATION LEAGUE; 

CENTER FOR INQUIRY; FREEDOM FROM RELIGION FOUNDATION; 

INTERFAITH ALLIANCE FOUNDATION; SIKH COALITION; UNION FOR 

REFORM JUDAISM; WOMEN OF REFORM JUDAISM,

Amici Supporting Appellees.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. James A. Beaty, Jr., 

Senior District Judge. (1:13-cv-00207-JAB-JLW)

Argued: January 27, 2016 Decided: September 19, 2016 
2

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Reversed and remanded with directions by published opinion. 

Judge Agee wrote the majority opinion, in which Judge Shedd

concurs. Judge Wilkinson wrote a dissenting opinion.

ARGUED: Allyson Newton Ho, MORGAN, LEWIS & BOCKIUS LLP, Dallas, 

Texas, for Appellant. Christopher Anderson Brook, AMERICAN 

CIVIL LIBERTIES UNION OF NORTH CAROLINA, Raleigh, North 

Carolina, for Appellees. ON BRIEF: David C. Gibbs, III, THE 

NATIONAL CENTER FOR LIFE AND LIBERTY, Flower Mound, Texas; John 

C. Sullivan, MORGAN, LEWIS & BOCKIUS LLP, Dallas, Texas; David 

A. Cortman, Brett B. Harvey, ALLIANCE DEFENDING FREEDOM, 

Scottsdale, Arizona; Hiram S. Sasser, III, LIBERTY INSTITUTE, 

Plano, Texas, for Appellant. Daniel Mach, Heather L. Weaver, 

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C., for 

Appellees. Patrick Morrisey, Attorney General, Elbert Lin, 

Solicitor General, Julie Marie Blake, Assistant Attorney 

General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, 

Charleston, West Virginia, for Amicus State of West Virginia; 

Luther Strange, Attorney General, OFFICE OF THE ATTORNEY GENERAL 

OF ALABAMA, Montgomery, Alabama, for Amicus State of Alabama;

Mark Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL 

OF ARIZONA, Phoenix, Arizona, for Amicus State of Arizona; 

Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY 

GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of 

Arkansas; Pamela Jo Bondi, Attorney General, OFFICE OF THE 

ATTORNEY GENERAL OF FLORIDA, Tallahassee, Florida, for Amicus 

State of Florida; Gregory F. Zoeller, Attorney General, OFFICE 

OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, for 

Amicus State of Indiana; Bill Schuette, Attorney General, OFFICE 

OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for 

Amicus State of Michigan; Douglas J. Peterson, Attorney General, 

OFFICE OF THE ATTORNEY GENERAL OF NEBRASKA, Lincoln, Nebraska, 

for Amicus State of Nebraska; Adam Paul Laxalt, Attorney 

General, OFFICE OF THE ATTORNEY GENERAL OF NEVADA, Carson City, 

Nevada, for Amicus State of Nevada; Michael DeWine, Attorney 

General, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, 

for Amicus State of Ohio; E. Scott Pruitt, Attorney General, 

OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City, 

Oklahoma, for Amicus State of Oklahoma; Alan Wilson, Attorney 

General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, 

Columbia, South Carolina, for Amicus State of South Carolina; 

Ken Paxton, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF 

TEXAS, Austin, Texas, for Amicus State of Texas. Sean 
3

Sandoloski, Dallas, Texas, Thomas G. Hungar, Alex Gesch, Lindsay 

S. See, Russell Balikian, GIBSON, DUNN & CRUTCHER LLP, 

Washington, D.C., for Amici Members of Congress. Richard B. 

Katskee, Gregory M. Lipper, AMERICANS UNITED FOR SEPARATION OF 

CHURCH AND STATE, Washington, D.C., for Amici Americans United 

for Separation of Church and State, American Humanist 

Association, Anti-Defamation League, Center for Inquiry, Freedom 

From Religion Foundation, Interfaith Alliance Foundation, Sikh 

Coalition, Union for Reform Judaism, and Women of Reform 

Judaism.
4

AGEE, Circuit Judge:

The Board of Commissioners of Rowan County, North Carolina,

(“the Board”) opens its public meetings with an invocation 

delivered by a member of the Board. The district court 

determined that practice violates the Establishment Clause of 

the First Amendment. Under the Supreme Court’s most recent 

decision explaining legislative prayer, Town of Greece v. 

Galloway, 134 S. Ct. 1811 (2014), we find the Board’s 

legislative prayer practice constitutional and reverse the 

judgment of the district court. 

I.

The relevant facts are undisputed. Rowan County, North 

Carolina, exercises its municipal power through an elected Board

of Commissioners, which typically holds public meetings twice a 

month. For many years prior to this proceeding, the Board has 

permitted each commissioner, on a rotating basis, to offer an 

invocation before the start of the Board’s legislative agenda.1 

At most Board meetings, the chairperson would call the 

meeting to order and invite the Board and audience to stand for 

the ceremonial opening. A designated commissioner would then 

 1 The record does not reflect that the Board adopted a 

written policy regarding the invocations but it followed a 

relatively routine practice.
5

deliver an invocation of his or her choosing followed by the 

pledge of allegiance. The content of each invocation was 

entirely in the discretion of the respective commissioner; the 

Board, as a Board, had no role in prayer selection or content. 

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.” E.g., Supp. J.A. 36-37.2 It was also 

typical for the invocation to begin with some variant of “let us 

pray” or “please pray with me.” Id. Although not required to 

do so, the audience largely joined the commissioners in standing 

and bowing their heads during the prayer and remained standing 

for the pledge of allegiance. 

In February 2012, the American Civil Liberties Union of 

North Carolina sent the Board a letter objecting to the 

invocations and asserting a violation of the Establishment 

Clause. The Board did not formally respond, but several 

commissioners expressed their intent to continue delivering 

prayers consistent with their Christian faith. For example, a 

then-commissioner stated, “I will continue to pray in Jesus’

name. I am not perfect so I need all the help I can get, and 

 2 This opinion omits internal marks, alterations, citations, 

emphasis, and footnotes from quotations unless otherwise noted.
6

asking for guidance for my decisions from Jesus is the best I, 

and Rowan County, can ever hope for.” J.A. 325. 

Subsequently, Rowan County residents Nancy Lund, Liesa 

Montag–Siegel, and Robert Voelker (collectively, “Plaintiffs”) 

filed a complaint in the U.S. District Court for the Middle 

District of North Carolina “to challenge the constitutionality 

of [the Board’s] practice of delivering sectarian prayer at 

meetings[.]” J.A. 10. Specifically, Plaintiffs alleged that 

the prayer practice unconstitutionally affiliated the Board with 

one particular faith and caused them to feel excluded as 

“outsiders.” J.A. 12. 

Apart from their objections to the prayers’ contents, 

Plaintiffs further alleged that the overall atmosphere of the 

meetings coerced them to participate as a condition of 

attendance. Lund stated she felt “compelled to stand [during 

the invocation] so that [she] would not stand out.” Supp. J.A. 

2. Voelker offered a similar account, claiming he was “coerced” 

into participating because the commissioners and most audience 

members stood and bowed their heads. Supp. J.A. 9. Voelker 

also posited that any public opposition to the prayers could 

negatively affect his business before the Board. 

Based on these allegations, Plaintiffs sought a declaratory

judgment that the Board’s prayer practice violated the 

Establishment Clause, along with an injunction preventing any 
7

similar future prayers. Plaintiffs also moved for a preliminary 

injunction based on then-controlling precedent that sectarian 

legislative prayer was a constitutional violation. See Joyner 

v. Forsyth Cty., 653 F.3d 341, 347 (4th Cir. 2011) (explaining 

that our decisions “hewed to [the] approach [of] approving 

legislative prayer only when it is nonsectarian in both policy 

and practice”). Observing that “97% of the [Board’s recorded] 

meetings[] have opened with a [commissioner] delivering a 

sectarian prayer that invokes the Christian faith,” the district 

court entered a preliminary injunction barring the County from 

permitting such invocations. J.A. 296. 

The Supreme Court then issued its decision in Town of 

Greece, holding that the legislative prayer in that case, 

although clearly sectarian, was constitutionally valid and did 

not transgress the Establishment Clause. Id. at 1820 (“An 

insistence on nonsectarian or ecumenical prayer as a single, 

fixed standard is not consistent with the tradition of 

legislative prayer outlined in [our] cases.”); see also id. at 

1815, 1824. The parties filed cross-motions for summary 

judgment in light of Town of Greece. 

In reviewing the summary judgment motions, the district 

court acknowledged that in Town of Greece the Supreme Court had

“repudiated” and “dismantled” “the Fourth Circuit’s legislative 

prayer doctrine [that had] developed around the core 
8

understanding that the sectarian nature of legislative prayers 

was largely dispositive” of its constitutionality. Lund v. 

Rowan Cty., N.C., 103 F. Supp. 3d 712, 719, 721 (M.D.N.C. 2015). 

Moreover, the Plaintiffs did not raise the sectarian nature of 

the prayers as part of their summary judgment motion. 

Nonetheless, the district court struck down the Board’s 

legislative invocation practice, concluding that “[s]everal 

significant differences” between Town of Greece and this case 

rendered that practice unconstitutional. Lund, 103 F. Supp. 3d 

at 724. The district court thought the fact that the 

commissioners delivered the prayers, instead of invited clergy, 

“deviates from the long-standing history and tradition of a 

chaplain, separate from the legislative body, delivering the 

prayer.” Id. at 723. The district court further emphasized 

that the Board’s practice created a “closed-universe of prayergivers” that “inherently discriminates and disfavors religious 

minorities.” Id. at 723. 

After finding the Board’s practice outside the 

constitutionally protected historical practice of legislative 

prayer, the district court went on to consider whether the 

Board’s prayer practice otherwise “violate[d] the Establishment 

Clause as a coercive religious exercise.” Id. at 724-25. 

Although the unrefuted record disclosed that individuals could 

leave the room or remain seated during the opening prayer, the 
9

district court held the Board’s conduct was nonetheless coercive 

because, among other things, the commissioners often invited the 

public to stand before the invocation. In the court’s words, 

the Board’s legislative prayer practice 

leads to prayers adhering to the faiths of 

five elected Commissioners. The Board 

maintains exclusive and complete control 

over the content of the prayers, and only 

the Commissioners deliver the prayers. In 

turn, the Commissioners ask everyone --

including the audience -- to stand and join 

in what almost always is a Christian prayer. 

On the whole, these details and context 

establish that [the Board’s] prayer practice 

is an unconstitutionally coercive practice 

in violation of the Establishment Clause.

Id. at 733. 

Based on this analysis, the district court granted 

Plaintiffs’ motion for summary judgment and entered a permanent 

injunction barring the Board’s legislative prayer practice. The 

Board timely appealed, and we review the district court’s 

decision de novo. Simpson v. Chesterfield Cty. Bd. of 

Supervisors, 404 F.3d 276, 280 (4th Cir. 2005); see also

Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir. 

2008) (“We review de novo a district court’s findings of 

constitutional fact and its ultimate conclusions regarding a 

First Amendment challenge.”). 
10

II.

A.

Recognizing “this Nation’s history has not been one of 

entirely sanitized separation between Church and State,” the 

Supreme Court has acknowledged that government, in some 

instances, may properly commemorate religion in public life. 

Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 

756, 760 (1973). Pertinent here, the Court has expressly 

approved the practice of opening legislative sessions with 

prayer. See Joyner, 653 F.3d at 347 (“There is a clear line of 

precedent not only upholding the practice of legislative prayer, 

but acknowledging the ways in which it can bring together 

citizens of all backgrounds and encourage them to participate in 

the workings of their government.”). In contrast to other 

Establishment Clause jurisprudence, legislative prayer stands on 

its own distinct ground owing to its historically based practice 

and acceptance. 

While legislative prayer is generally a type of government 

speech, Turner v. City Council of Fredricksburg, 534 F.3d 352, 

354 (4th Cir. 2008), the Supreme Court has always stressed its

unique status. That status was evident in Marsh v. Chambers, 

463 U.S. 783 (1983), which involved a challenge to the 

constitutionality of the Nebraska legislature’s practice of 

having a paid chaplain offer a prayer to open each legislative 
11

session. Applying the three-part test from Lemon v. Kurtzman, 

403 U.S. 602 (1971), the Eighth Circuit had concluded such 

invocations violated the Establishment Clause. The Supreme 

Court disagreed. 

Recounting the long-standing American tradition of opening 

legislative sessions with prayer, the Supreme Court traced its 

history “[f]rom colonial times through the founding of the 

Republic and ever since.” Marsh, 463 U.S. at 786. The Court 

noted that “the First Congress, as one of its early items of 

business, adopted the policy of selecting a chaplain to open 

each session with prayer.” Id. at 787–88. The Senate and 

House, in turn, appointed official chaplains in 1789. Id. 

Ascribing great significance to these events, the Court 

explained they shed light on how the Founders viewed the 

Establishment Clause in relation to legislative prayer. “It can 

hardly be thought that . . . they intended the Establishment 

Clause . . . to forbid what they had just declared acceptable.” 

Id. at 790. “This unique history [led the Court] to accept the 

interpretation of the First Amendment draftsmen who saw no real 

threat to the Establishment Clause arising from [the] practice 

of [legislative] prayer.” Id. at 791.

Having upheld legislative prayer in general, the Marsh

Court next considered whether specific features of Nebraska's 

practice fell outside constitutional protection. In that 
12

regard, the plaintiff raised three challenges: (i) Nebraska had 

selected a representative of “only one denomination” for sixteen

years; (ii) the chaplain was a paid state employee; and (iii) 

his prayers were offered “in the Judeo–Christian tradition.” 

Id. at 792–93. The Supreme Court rejected all three claims, 

noting that the First Congress “did not consider opening prayers 

as a proselytizing activity or as symbolically placing the 

government’s official seal of approval on one religious view.” 

Id. at 792. Moreover, there was no evidence that the chaplain’s 

long tenure “stemmed from an impermissible motive,” and thus his 

continuous appointment did “not in itself conflict with the 

Establishment Clause.” Id. at 793–94. That the chaplain was 

paid from public funds was similarly “grounded in historic 

practice” and thus not prohibited. Id. at 794. As for the 

content of the prayers, the Court explained it was “not of 

concern” because “there is no indication that the prayer

opportunity has been exploited to proselytize or advance any 

one, or to disparage any other, faith or belief.” Id. at 794-

95. “That being so,” the Supreme Court concluded it would not

“embark on a sensitive evaluation or to parse the content of a 

particular prayer.” Id. at 795. 

The Supreme Court later referenced its holding in Marsh

during the course of ruling on the propriety of two religious 

holiday displays located on public property in County of 
13

Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 578-

79, 602 (1989). In dicta commenting about legislative prayer

practice permitted in Marsh, the Court noted that “[t]he 

legislative prayers involved in Marsh did not violate [the 

Establishment Clause] because the particular chaplain had 

removed all references to Christ.” Id. at 603. The Court also 

observed that “not even the unique history of legislative prayer 

can justify contemporary legislative prayers that have the 

effect of affiliating the government with any one specific faith 

or belief.” Id. 

Whatever fleeting validity those observations may have had, 

the Supreme Court flatly rejected this approach in Town of 

Greece. Clarifying its earlier holdings, the Court disavowed a

requirement that legislative prayers must be neutral and 

reference only a generic God to comply with the Establishment 

Clause: “An insistence on nonsectarian or ecumenical prayer as a 

single, fixed standard is not consistent with the tradition of 

legislative prayer outlined in [our] cases.” Town of Greece, 

134 S. Ct. at 1820.

The Supreme Court’s decision in Town of Greece guides 

review of this case, which, like other legislative prayer cases,

requires a case-specific evaluation of all the facts and 

circumstances. See Lynch v. Donnelly, 465 U.S. 668, 678-79

(1984) (observing that the Establishment Clause cannot 
14

mechanistically be applied to draw unwavering, universal lines 

for the varying contexts of public life). To guide that review 

we turn to a fuller examination of the Supreme Court’s 

discussion in Town of Greece. 

B.

The town of Greece opened its monthly legislative meetings 

with an invocation delivered by volunteer clergy. It solicited 

guest chaplains by placing calls to local congregations listed 

in a directory. Town of Greece, 134 S. Ct. at 1816. Nearly all 

of the local churches were Christian, as were the guest clergy, 

and thus most invocations referenced some aspect of the 

Christian faith. The town made no attempt to guide the prayergivers in the content of the prayer. Id. Although the district 

court found the town’s practice constitutional the Second 

Circuit disagreed and concluded that the “steady drumbeat of 

Christian prayer . . . tended to affiliate the town with

Christianity,” in violation of the Establishment Clause. Id. at 

1818. The Supreme Court reversed.

Beginning with a summary of Marsh, the Court explained 

“that the Establishment Clause must be interpreted by reference 

to historical practices and understandings.” Id. at 1819; see 

also id. at 1818-19. “Marsh stands for the proposition that it 

is not necessary to define the precise boundary of the 

Establishment Clause where history shows that the specific 
15

practice is permitted.” Id. at 1819. The pertinent inquiry in 

legislative prayer cases, therefore, is whether the practice at 

issue “fits within the tradition long followed in Congress and 

the state legislatures.” Id. The Court added, “[a]ny test [we] 

adopt[] [for analyzing invocations] must acknowledge a practice 

that was accepted by the Framers and has withstood the critical 

scrutiny of time and political change.” Id.

Rooted thus, the Court rejected the plaintiffs’ argument 

that legislative prayer must be generic or nonsectarian under 

the Establishment Clause. Observing that legislative 

invocations containing explicitly religious themes were accepted 

at the time of the first Congress and remain vibrant today, the 

Court concluded, “[a]n insistence on nonsectarian or ecumenical 

prayer as a single, fixed standard is not consistent with [our 

accepted] tradition of legislative prayer.” Id. at 1820. On 

this point, the Court disavowed Allegheny’s “nonsectarian” 

interpretation of Marsh as dictum “that was disputed when 

written and has been repudiated by later cases.” Id. at 1821; 

see also id. (“Marsh nowhere suggested that the 

constitutionality of legislative prayer turns on the neutrality 

of its content.”). 

The Court further observed that a content-based rule “would 

force the legislatures that sponsor prayers and the courts that 

are asked to decide these cases to act as supervisors and 
16

censors of religious speech.” Id. at 1822. Enforcing such a 

line would “involve government in religious matters to a far 

greater degree than is the case under the town’s current 

practice of neither editing or approving prayers in advance nor 

criticizing their content after the fact.” Id. “Once it 

invites prayer into the public sphere,” the Court stated,

“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. 

Noting that legislative prayer has historically served a 

ceremonial function, “[t]he relevant constraint derives from its 

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.” Id. at 1823. Even so, the Court 

cautioned there could be a circumstance where a legislative 

prayer practice failed to “serve[] [its] legitimate function”: 

“If the course and practice over time shows that the invocations 

denigrate nonbelievers or religious minorities, threaten 

damnation, or preach conversion[.]” Id. at 1823.

Synthesizing these factors, the Court held that the prayers 

offered on behalf of the town, although almost exclusively

Christian, did not evidence any pattern of denigration or 

proselytization. See id. (“Our tradition assumes that adult 
17

citizens, firm in their own beliefs, can tolerate and perhaps 

appreciate a ceremonial prayer delivered by a person of a 

different faith.”). Though the plaintiffs pointed to at least 

two prayers in the record that arguably contained disparaging 

content, the Court concluded that the prayer practice as a whole 

served only to solemnize the board meetings. A few deviating 

prayers, the Court explained, were of no constitutional 

consequence. Id. at 1824.

Relatedly, the Court also determined there was no 

constitutional defect arising from the fact that the invited 

prayer-givers were predominantly Christian: “[s]o long as the 

town maintains a policy of nondiscrimination, the Constitution 

does not require it to search beyond its borders for nonChristian prayer givers in an effort to achieve religious 

balancing.” Id. Continuing, the Court observed

[t]he 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. 

Id.

Lastly, the Court addressed the plaintiffs’ contention that 

the prayers unconstitutionally “coerce participation by 

nonadherents.” Id. (Kennedy, J., plurality opinion). In 

jettisoning this argument, the Court acknowledged that 
18

“coercion” could render legislative prayer beyond constitutional 

protection in some outlier circumstances. But the justices 

differed in their understandings of what constituted coercion. 

Compare id. at 1824-28 (Sec. II.B of Justice Kennedy’s plurality 

opinion), with id. at 1837-38 (Sec. II. of Justice Thomas’s 

concurring opinion). 

Justice Kennedy, joined by Chief Justice Roberts and 

Justice Alito, framed the coercion inquiry as “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 (Kennedy, 

J., plurality opinion). These Justices found no coercion in the 

town’s prayer practice and relied heavily on the historical 

approach of Marsh. They presumed that reasonable observers are 

aware of the multiple traditions acknowledging God in this 

country, including legislative prayer, the pledge of allegiance, 

and presidential prayers. They concluded that, because of these 

traditions, citizens could appreciate the town’s prayer practice 

without being compelled to participate. Id. Furthermore, they 

observed that the purpose of the prayers was to put legislators 

in a contemplative state of mind rather than have an effect on 

observers. Id. at 1826. Justice Kennedy further stated that 

“[o]ffense . . . does not equate to coercion.” Id. “Adults 

often encounter speech they find disagreeable; and an 

Establishment Clause violation is not made out any time a person 
19

experiences a sense of affront from the expression of contrary 

religious views in a legislative forum.” Id.3 

With these principles from Town of Greece in mind, we now 

apply them to the facts presented here.

III.

Legislative prayer thus has a unique status relative to the 

First Amendment that places it in a different legal setting than 

other types of government conduct touching the Establishment 

Clause. See Marsh, 463 U.S. at 792. Town of Greece reflects

that the constitutionality of legislative prayer hinges on its 

historical precedence, as it “has become part of the fabric of 

our society.” 134 S. Ct. at 1819. If a prayer exercise has 

long been “followed in Congress and the state legislatures,” 

Town of Greece reflects that a court must view it “as a 

tolerable acknowledgement of beliefs widely held among the 

people of this country.” Id. at 1818-19. A court reviewing a 

challenge to legislative prayer “must acknowledge a practice 

 3 Justices Thomas and Scalia, on the other hand, interpreted 

the Establishment Clause as prohibiting only “actual legal 

coercion,” which they defined as the exercise of “government 

power in order to exact financial support of the church, compel 

religious observance, or control religious doctrine.” Town of 

Greece, 134 S. Ct. at 1837 (Thomas J., concurring in part and

concurring in the judgment). As no such evidence was present in 

the record, they concurred in the holding that the town’s prayer 

practice should be upheld. Id. at 1837-38.
20

that was accepted by the Framers and has withstood the critical 

scrutiny of time and political change.” Id. at 1819. “A test 

that would sweep away what has so long been settled would create 

new controversy and begin anew the very divisions along 

religious lines that the Establishment Clause seeks to prevent.” 

Id.

A.

Following Town of Greece, both parties correctly

acknowledge that sectarian legislative prayer, as a general 

matter, is compatible with the Establishment Clause.4 What 

remains in dispute is whether the Board’s practice of the

elected commissioners delivering such prayers makes a 

substantive constitutional difference. The district court found 

this feature largely dispositive. See Lund, 103 F. Supp. 3d at 

722. In its view, the prayer-giver’s status as “a member of the 

legislative body” is a “crucial” and “determinative difference.” 

Id. at 722, 724. The district court’s decision has the 

practical effect of imposing a bright-line prohibition on 

lawmaker-led prayer. 

In reaching its conclusion, the district court observed

that the Supreme Court has never before sanctioned legislator-

 4 At oral argument before this Court, the Plaintiffs 

specifically agreed the sectarian aspect of the invocation 

prayers at the Board meetings was not an issue they raise. Oral 

Argument at 17:10-17:32 and 20:10-21:24.
21

led prayers: “[I]t is telling that throughout its Town of Greece

opinion and the opinion in Marsh, the Supreme Court consistently 

discussed legislative prayer practices in terms of invited 

ministers, clergy, or volunteers providing the prayer, and not 

once described a situation in which the legislators themselves 

gave the invocation.” Id. at 722. In essence, the district 

court treated the Supreme Court’s jurisprudential silence on 

lawmaker-led prayer as conclusively excluding legislators from 

being permissible prayer-givers to their own legislative bodies. 

That conclusion is not supportable.

While Town of Greece involved a rotating group of local

clergy and Marsh concerned a paid chaplain, the Supreme Court 

attached no significance to the speakers’ identities in its 

analysis and simply confined its discussion to the facts

surrounding the prayer practices before it. See Town of Greece, 

134 S. Ct. at 1816; Marsh, 463 U.S. at 784-85. Nowhere did the 

Court say anything that could reasonably be construed as a 

requirement that outside or retained clergy are the only 

constitutionally permissible givers of legislative prayer. 

Quite the opposite, Town of Greece specifically directs our 

focus to what has been done in “Congress and the state 

legislatures” without any limitation regarding the officiant. 

Id. at 1819. We find the Supreme Court’s silence on the issue 

of lawmaker-led prayer to be simply that: silence. See United
22

States v. Stewart, 650 F.2d 178, 180 (9th Cir. 1981) (remarking 

it would be improper to draw any inference from the Supreme 

Court’s silence on an issue not placed before it). 

Nor has this Court previously assigned weight to the 

identity of the prayer-giver. To the contrary, we have 

suggested this feature is irrelevant. For example, in Wynne v. 

Town of Great Falls, we remarked that “[p]ublic officials’ brief 

invocations of the Almighty before engaging in public business 

have always, as the Marsh Court so carefully explained, been 

part of our Nation’s heritage.” 376 F.3d 292, 302 (4th Cir. 

2004). Similarly, Joyner v. Forsyth County observed that “[i]t 

[is] the governmental setting for the delivery of sectarian 

prayers that courted constitutional difficulty, not those who 

actually gave the invocation.” 653 F.3d at 350; see also id. at 

351. And in Simpson v. Chesterfield County Board of 

Supervisors, we noted that the Supreme Court, “neither in Marsh

nor in Allegheny, held that the identity of the prayer-giver, 

rather than the content of the prayer, was what would affiliate 

the government with any one specific faith or belief.” 404 F.3d 

at 286. Although these cases ultimately turned on the nowrejected position that sectarian prayer was constitutionally 

invalid, none made the prayer-giver’s identity dispositive. 

On a broader level, and more importantly, the very “history 

and tradition” anchoring the Supreme Court’s holding in Town of 
23

Greece underscores a long-standing practice not only of 

legislative prayer generally but of lawmaker-led prayer 

specifically. Opening invocations offered by elected 

legislators have long been accepted as a permissible form of 

religious observance. See S. Rep. No. 32-376, at 4 (1853) 

(commenting that the authors of the Establishment Clause “did 

not intend to prohibit a just expression of religious devotion 

by the legislators of the nation, even in their public character 

as legislators” (emphasis added)); see also Lynch, 465 U.S. at 

674 (“There is an unbroken history of official acknowledgment by 

all three branches of government of the role of religion in 

American life from at least 1789.”). As just one example, the 

South Carolina Provincial Congress -- South Carolina’s first

independent legislature -- welcomed an elected member to deliver 

its opening invocations. See South Carolina Provincial 

Congress, Thanks to the Continental Congress (Jan. 11, 1775), 

http://amarch.lib.niu.edu/islandora/object/niu-amarch%3A94077 

(last visited Aug. 31, 2016 and saved as ECF opinion 

attachment). “The recognition of religion in these early public 

pronouncements is important, unless we are to presume the 

founders of the United States were unable to understand their 

own handiwork.” Myers v. Loudoun Cty. Sch. Bd., 418 F.3d 395, 

404 (4th Cir. 2005). 
24

This tradition of legislative prayer has continued to 

modern day. A majority of state and territorial assemblies 

honor requests from individual legislators to give an opening 

invocation. See National Conference of State Legislatures, 

Inside the Legislative Process 5-151 to -152 (2002), http://

www.ncsl.org/documents/legismgt/ILP/02Tab5Pt7.pdf (observing 

legislators may offer an opening prayer in at least thirty-one 

states). Lawmaker-led prayer is especially prevalent in the 

states under our jurisdiction, where seven of the ten 

legislative chambers utilize elected members for this purpose. 

See id.; Br. for State of W. Va. et al. as Amici Curiae 

Supporting Defendant-Appellant at 14 & Addend. 2; see also

Prayers Offered in the North Carolina House of Representatives: 

2011-2014, http://nchousespeaker.com/docs/opening-prayersnchouse-2011-2014.pdf (last visited July 12, 2016). Several of 

these states have enacted legislation recognizing the historical 

practice of legislative prayer. For example, a Virginia statute 

protects legislators who deliver a sectarian prayer during 

deliberative sessions. See Va. Code § 15.2-1416.1. And South 

Carolina expressly authorizes its elected officials to open 

meetings with prayer. See S.C. Code § 6-1-160(B)(1); see also

Mich. H.R. Rule 16 (requiring the clerk of the Michigan House of 

Representatives to arrange “for a Member to offer an invocation” 

at the beginning of each session).
25

Lawmaker-led prayer finds contemporary validation in the 

federal government as well. Both houses of Congress allow 

members to deliver an opening invocation. As recently as May

2015, Senator James Lankford commenced legislative business in 

the Senate with a prayer invoking the name of Jesus. 161 Cong. 

Rec. S3313 (daily ed. May 23, 2015). The congressional record 

is replete with similar examples. See, e.g., 159 Cong. Rec. 

S3915 (daily ed. June 4, 2013) (prayer by Sen. William M. 

Cowan); 155 Cong. Rec. S13401-01 (daily ed. Dec. 18, 2009) 

(prayer by Sen. John Barrasso); 119 Cong. Rec. 17,441 (1973) 

(statement of Rep. William H. Hudnut III); see also 2 Robert C. 

Byrd, The Senate 1789-1989: Addresses on the History of the 

United States Senate 305 (Wendy Wolff ed., 1990) (“Senators 

have, from time to time, delivered the prayer.”).

In view of this long and varied tradition of lawmaker-led 

prayer, the district court’s judicial wall barring elected 

legislators from religious invocations runs headlong into the 

Supreme Court’s acknowledgement that “[a]ny test [we] adopt[] 

must acknowledge a practice that was accepted by the Framers and 

has withstood the critical scrutiny of time and political 

change.” Town of Greece, 134 S. Ct. at 1819. As Justice Alito 

aptly explained, “if there is any inconsistency between any 

[Establishment Clause] test[] and the historic practice of 

legislative prayer, the inconsistency calls into question the 
26

validity of the test, not the historic practice.” Id. at 1834

(Alito, J., concurring). Heeding this advice, we decline to 

accept the district court’s view that legislative prayer 

forfeits its constitutionally protected status because a 

legislator delivers the invocation. A legal framework that 

would result in striking down legislative prayer practices that 

have long been accepted as “part of the fabric of our society” 

cannot be correct. Id. at 1819. 

In reaching its decision, the district court seems to have 

wholly ignored a foundational principle in Town of Greece. “The 

principal audience for these invocations is not, indeed, the 

public but lawmakers themselves, who may find that a moment of 

prayer or quiet reflection sets the mind to a higher purpose and 

thereby eases the task of governing.” Id. at 1825 (Kennedy, J., 

plurality opinion). 

Not only are the legislators themselves the intended

“congregation” for legislative prayer, but the practice carries 

special meaning to the thousands of state and local legislators 

who are citizen representatives. In this respect, the Supreme 

Court has specifically singled out “members of town boards and 

commissions, who often serve part-time and as volunteers,” as 

lawmakers for whom “ceremonial prayer may . . . reflect the 

values they hold as private citizens.” Id. at 1826. If 

legislative prayer is intended to allow lawmakers to “show who 
27

and what they are” in a public forum, then it stands to reason 

that they should be able to lead such prayers for the intended 

audience: themselves. Id. Indeed, legislators are perhaps 

uniquely qualified to offer uplifting, heartfelt prayer on 

matters that concern themselves and their fellow legislators. 

The district court’s determination that the fact that a 

legislator delivers a legislative prayer is a significant 

constitutional distinction, at least in the context of this 

case, was error. 

B.

We turn now to the question of whether some other facet of 

the Board’s practice, beyond the bare fact that lawmaker-led 

prayer is offered, takes this case outside the protective 

umbrella of legislative prayer. Although the Supreme Court has 

not forged a comprehensive template for all acceptable 

legislative prayer, its decisions set out guideposts for 

analyzing whether a particular practice goes beyond 

constitutional bounds. See Snyder, 159 F.3d at 1233 (“Marsh

implicitly acknowledges some constitutional limits on the scope 

and selection of legislative prayers[.]”). 

1.

An initial guidepost relates to the selection of the 

content of legislative prayer. In rejecting the plaintiffs’ 

position that invocations must be nonsectarian, the Supreme 
28

Court in Town of Greece explained that such a rule “would force 

the legislatures that sponsor prayers and the courts that are 

asked to decide these cases to act as supervisors and censors of 

religious speech.” 134 S. Ct. at 1822. Such an outcome, the 

Court continued, “would involve government in religious matters 

to a far greater degree than is the case under the town’s 

current practice of neither editing or approving prayers in 

advance nor criticizing their content after the fact.” Id.

The district court determined the Board’s practice was 

invalid under this standard because the individual commissioners 

author their own invocations, and by doing so act as 

“supervisors of the prayers.” Lund, 103 F. Supp. 3d at 723. It 

reasoned that “the government is [thus improperly] delivering 

prayers that were exclusively prepared and controlled by the 

government[.]” Id. We disagree. The Board’s practice here, 

where each commissioner gives their own prayer without 

oversight, input, or direction by the Board simply does not 

present the same concerns of the “government [attempting] to 

define permissible categories of religious speech.” Town of 

Greece, 134 S. Ct. at 1822 (emphasis added). 

What the Supreme Court has cautioned against in this 

context is “for[cing] the legislatures that sponsor prayers . . 

. to act as . . . supervisors and censors of religious speech.” 

Id. (emphasis added). To be sure, in offering the invocations 
29

the individual commissioners sometimes convey their personal 

alignment with a particular faith. But the Court has always 

looked to the activities of the legislature as a whole in 

considering legislative prayer. This makes perfect sense; for 

it is only through act of the deliberative body writing or 

editing religious speech that government would impermissibly 

seek “to promote a preferred system of belief or code of moral 

behavior” with selected content. Town of Greece, 134 S. Ct. at 

1822. There is no evidence that the Board, as a Board, had any 

role in any of the prayers by the individual commissioners. The 

record is devoid of any suggestion that any prayer in this case 

is anything but a personal creation of each commissioner acting 

in accord with his or her own personal views. 

In effect, each commissioner is a free agent like the 

ministers in Town of Greece and the chaplain in Marsh who gave 

invocations of their own choosing. In other Establishment 

Clause contexts, the Supreme Court has stressed this element of 

private choice, holding that when a neutral government policy or 

program merely allows or enables private religious acts, those 

acts do not necessarily bear the state’s imprimatur. See Zelman 

v. Simmons–Harris, 536 U.S. 639, 652 (2002) (school voucher 

programs); Mueller v. Allen, 463 U.S. 388, 399 (1983) (schoolrelated income tax deductions). As the Supreme Court stated in 

Town of Greece, “[o]nce it invites prayer into the public 
30

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.” 134 S. 

Ct. at 1822-23.

The Board’s legislative prayer practice amounts to nothing 

more than an individual commissioner leading a prayer of his or 

her own choosing.

2.

A second guidepost to acceptable legislative prayer 

discussed in Town of Greece concerns its content. After 

reaffirming the holding in Marsh that lower courts should

refrain from becoming embroiled in the review of the substance

of legislative prayer, the Supreme Court noted that there could 

be certain circumstances where sectarian references cause a 

legislative prayer practice to fall outside constitutional 

protection. Id. at 1823. “If the course and practice over time 

shows that the invocations denigrate nonbelievers or religious 

minorities, threaten damnation, or preach conversion,” a 

constitutional line can be crossed. Id. In that circumstance,

the Court observed, “many present may consider the prayer to 

fall short of the desire to elevate the purpose of the occasion 

and to unite lawmakers in their common effort.” Id. 

To this end, courts need only assure themselves that

sectarian legislative prayer, viewed from a cumulative 
31

perspective, is not being exploited to proselytize or disparage. 

Below this threshold, the Supreme Court has disclaimed any 

interest in the content of legislative invocations, announcing a 

strong disinclination “to embark on a sensitive evaluation or to 

parse the content of a particular prayer.” Marsh, 463 U.S. at 

795. 

The record in this case reflects that the Board’s prayer 

practice did not stray across this constitutional line of 

proselytization or disparagement. See Wynne, 376 F.3d at 300 

(“To ‘proselytize’ on behalf of a particular religious belief 

necessarily means to seek to ‘convert’ others to that 

belief[.]”). The content of the commissioners’ prayers largely 

encompassed universal themes, such as giving thanks and 

requesting divine guidance in deliberations. References to 

exclusively Christian concepts typically consisted of the 

closing line, such as “In Jesus’ name. Amen.” See Supp. J.A. 

29-31. There is no prayer in the record asking those who may 

hear it to convert to the prayer-giver’s faith or belittling 

those who believe differently.5 And even if there were, it is 

 5 The four prayers that the dissent cites as 

constitutionally offensive bear in common the fact that none 

attempt to convert any hearer to change their faith; none 

belittle those of another faith; and none portend that a person 

of another faith would be treated any differently by the prayergiver in the business of the Board. In short, none of those 

(Continued)
32

the practice as a whole -- not a few isolated incidents -- which 

controls. Town of Greece, 134 S. Ct. at 1824 (“Absent 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.”). 

The invocation delivered at the Board’s October 17, 2011, 

meeting is illustrative of what the Board members and the public 

in Rowan County would hear:

Let us pray. Father we do thank you for the 

privilege of being here tonight. We thank 

you for the beautiful day you’ve given us, 

for health and strength, for all the things 

we take for granted. Lord, as we read the 

paper today, the economic times are not 

good, and many people are suffering and 

doing without. We pray for them; we pray 

that you would help us to help. We pray for 

the decisions that we will make tonight,

that God, they will honor and glorify you. 

We pray that you would give us wisdom and 

understanding. We’ll thank you for it. In 

Jesus’ name. Amen. 

Supp. J.A. 31. Such prayer comes nowhere near the realm of 

prayer that is out of bounds under the standards announced in 

Town of Greece. Prayers that chastise dissenters or attempt to 

sway nonbelievers press the limits of the Supreme Court’s 

instruction and may not merit constitutional protection, but no 

 

cited prayers bears any of the hallmarks of constitutional 

question set out in Town of Greece.
33

such prayers have been proffered in this case. See, e.g., 

Snyder, 159 F.3d at 1235 (finding the plaintiff’s proffered 

prayers unconstitutional because they “strongly disparage[d] 

other religious views” and “s[ought] to convert his audience”). 

Plaintiffs call our attention to a few examples that 

contain more forceful references to Christianity out of the 

hundreds of legislative prayers delivered before Board meetings. 

As an initial matter, the sectarian content cited in Plaintiffs’ 

opening brief (and referenced by the dissent) is austere and 

innocuous when measured against invocations upheld in Marsh. 

See 463 U.S. at 823 n.2 (Stevens, J., dissenting) (quoting an 

exemplar challenged prayer). Regardless, Plaintiffs’

hypersensitive focus is misguided. Town of Greece “requires an 

inquiry into the prayer opportunity as a whole, rather than into 

the contents of a single prayer.” 134 S. Ct. at 1824. “Absent 

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.” Id. Given the respectful tone of 

nearly all the invocations delivered here, which largely mirror 

those identified in Town of Greece, the Board’s practice crossed 

no constitutional line. See id. at 1824 (holding that a few 

stray remarks are insufficient to “despoil a practice that on 

the whole reflects and embraces our tradition”).
34

3.

Moving beyond the invocations themselves, a third guidepost 

to legislative prayer relates to the selection of the prayergiver. In Town of Greece, the challenged practice resulted in 

“a predominately Christian set of ministers . . . lead[ing] the 

prayer.” Id. The Court found this fact unremarkable because 

“[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.” Id. “So long as the town maintains a policy of 

nondiscrimination,” then “the Constitution does not require it 

to search beyond its borders for non-Christian prayer givers in 

an effort to achieve religious balancing.” Id. 

The district court found the Board’s legislative prayer 

practice objectionable because the invocation opportunity was 

rotated among only the elected commissioners; that is, all of 

the Board members. According to the district court, “[w]hen all 

faiths but those of the five elected Commissioners are excluded, 

the policy inherently discriminates and disfavors religious 

minorities.” Lund, 103 F. Supp. 3d at 723. Marsh and Town of 

Greece reflect that the district court’s conclusion was 

mistaken. 

The Supreme Court’s prohibition on discrimination in this 

context is aimed at barring government practices that result 
35

from a deliberate choice to favor one religious view to the 

exclusion of others. As explained in Town of Greece, 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. 134 S. Ct. at 1824. The Marsh Court likewise 

alluded to this requirement when it cautioned that the selection 

of a guest chaplain cannot stem from “an impermissible motive.” 

463 U.S. at 793. Read in context, this condition appears 

directed at the conscious selection of the prayer-giver on 

account of religious affiliation. See id. at 793. 

The district court’s opinion aims elsewhere, essentially 

mandating prayer-giver diversity. See Lund, 103 F. Supp. 3d at 

723 (“[T]he present case presents a closed-universe of prayergivers, . . . [leaving] minority faiths [with] no means of being 

recognized.”). For example, under the district court’s 

framework, a legislature, including Congress, would be 

prohibited from permitting individual members to deliver the 

opening invocation to solemnize its proceedings unless an 

unlimited number of faiths were actually represented by the 

elected representatives. But diversity among the beliefs

represented in a legislature has never been the measure of 

legislative prayer. Town of Greece specifically rejected the 

notion that lawmaking bodies must “promote a diversity of 

religious views.” 134 S. Ct. at 1824. Consequently, the town 
36

was not obliged to “search beyond its borders for non-Christian 

prayer givers in an effort to achieve religious balancing.” Id. 

And in Marsh, the Nebraska legislature appointed the same 

Presbyterian minister for sixteen years to the exclusion of all 

other creeds. The Court was unpersuaded that this made a 

constitutional difference. See Marsh, 463 U.S. at 793. 

Thus, while the Board’s practice limits the represented 

faiths to those of the individual commissioners, that is no 

different from the limitations built into the constitutional 

prayer practices in Town of Greece and Marsh. See Simpson, 404 

F.3d at 285 (“A party challenging a legislative invocation 

practice cannot . . . rely on the mere fact that the selecting 

authority chose a representative of a particular faith, because 

some adherent or representative of some faith will invariably 

give the invocation.”). There is simply no requirement in our 

case law that a legislative prayer practice reflect multiple 

faiths or even more than one to be constitutionally valid.

Absent proof the Board restricted the prayer opportunity

among the commissioners as part of an effort to promote only 

Christianity, we must view its decision to rely on lawmaker-led 

prayer as constitutionally insignificant. See Pelphrey v. Cobb 

Cty., 547 F.3d 1263, 1281 (11th Cir. 2008) (“[Marsh] does not 

require that all faiths be allowed the opportunity to pray. The 

standard instead prohibits purposeful discrimination.”). 
37

Plaintiffs have not directed the Court to any evidence that 

would suggest the Board harbored such a motive. It is 

uncontested that the Board’s policy was facially neutral and 

bereft of government discretion. A person of any creed can be 

elected to the Board and is entitled to speak without 

censorship. Furthermore, as far as we can tell, the Board never 

altered its practice to limit a non-Christian commissioner or 

attempted to silence prayers of any viewpoint. See Lund, 103 F. 

Supp. 3d at 714-16.

The Supreme Court has determined that the selection of a 

prayer-giver who represents a single religious sect, even over 

many years, does not advance any one faith or belief over 

another. See Marsh, 463 U.S. at 793 (“We cannot, any more than 

Members of the Congresses of this century, perceive any 

suggestion that choosing a clergyman of one denomination 

advances the beliefs of a particular church.”); Ctr. for 

Inquiry, Inc. v. Marion Circuit Court Clerk, 758 F.3d 869, 874 

(7th Cir. 2014) (“Marsh and Greece show that a government may, 

consistent with the First Amendment, open legislative sessions 

with Christian prayers while not inviting leaders of other 

religions[.]”). A party challenging a legislative prayer

practice cannot rely on the mere fact that the selecting 

authority has confined the invocation speakers to a narrow

group. This is particularly true here as the Board has no voice 
38

in the selection of commissioners, which is entirely up to the 

citizens by election. 

4.

A final guidepost to legislative prayer is found in the 

statement from Town of Greece that the prayer practice “over 

time” may not be “exploited to . . . advance any one . . . faith 

or belief.” 134 S. Ct. at 1823. We must discern, then, whether 

over time the Board’s practice conveys the view that Rowan 

County “advance[d]” Christianity over other creeds. Id. 

The Board has not picked any of the prayers under its 

legislative prayer practice of ceremonial invocation by which 

the commissioners’ prayers solemnize their meeting. Town of 

Greece fully supports this approach, reaffirming the principle

first set out in Marsh that a governmental subdivision does not 

endorse any one faith or belief by opening its forum to prayers, 

even sectarian ones. See McCreary Cty. v. Am. Civil Liberties 

Union of Ky., 545 U.S. 844, 859 n.10 (2005) (citing Marsh as an 

example of a permissible governmental action whose “manifest 

purpose was presumably religious”). And this remains true even 

when sectarian religious content is communicated regularly. See

Galloway v. Town of Greece, 681 F.3d 20, 24-25 (2d Cir. 2012) 

(observing that “[r]oughly two-thirds” of the prayers at issue 

in that case “contained uniquely Christian language,” while 
39

“[t]he remaining third of the prayers spoke in more generically 

theistic terms”).

The prayers in this case, like those in Town of Greece, 

were largely generic petitions to bless the commissioners before 

turning to public business. References to Christian concepts 

typically consisted of the closing statement “in Jesus’ name we 

pray,” or a similar variation. Supp. J.A. 31. As Town of 

Greece imparts, such prayers do not unconstitutionally convey 

the appearance of an official preference for Christianity. 

Rather, “[o]ur tradition assumes that adult citizens, firm in 

their own beliefs, can tolerate and perhaps appreciate 

[sectarian] ceremonial prayer[.]” Town of Greece, 134 S. Ct. at 

1823. 

Had a chaplain offered prayers identical to those in the 

instant case, Town of Greece and Marsh would unquestionably 

apply to uphold the Board’s practice. Unlike the district 

court, we are unconvinced the feature of a legislator delivering 

the prayer to fellow legislators signals an unconstitutional 

endorsement of religion. 

Practically speaking, the public seems unlikely to draw a 

meaningful distinction between a state-paid chaplain and the 

legislative body that appoints him. “Such chaplains speak for 

the legislature.” Snyder, 159 F.3d at 1238 (Lucero, J., 

concurring in judgment). They are in essence “deputized” to
40

represent the governing body in this context. Cf. Town of 

Greece, 134 S. Ct. at 1850 (Kagan, J, dissenting). 

Consequently, when an elected representative underscores his 

alignment with a particular faith during the invocation, as is 

sometimes the case here, the risk of placing the government’s 

weight behind this view is the same as those practices upheld in 

Marsh and Town of Greece. In other words, the degree of 

denominational preference projected onto the government with

lawmaker-led prayer is not significantly different from

selecting denominational clergy to do the same. Both prayers 

arise in the same context and serve the same purpose.

If anything, allowing the legislative body to collectively 

select a tenured chaplain as in Marsh would seem to pose a

greater problem. The presence of a single religious figure, 

particularly a paid state employee, seems more likely to reflect 

a perceived governmental endorsement of the faith that 

individual represents. Yet, the Supreme Court has concluded 

this more obvious preference is not constitutionally 

significant. See Rubin v. Lancaster, 710 F.3d 1087, 1097 (9th 

Cir. 2013) (“[W]hatever message Nebraska might have conveyed 

through its practice of selecting, paying, and retaining for 

sixteen years a Presbyterian chaplain who often delivered 

explicitly Christian invocations, the Supreme Court concluded 

that the legislature had not advanced Christianity.”). 
41

Legislative prayer is constitutionally acceptable when it 

“fits within the tradition long followed in Congress and the 

state legislatures.” Town of Greece, 134 S. Ct. at 1819. The 

Supreme Court has observed that prayers offered within this 

tradition have a common theme and “respectful” tone –- they are 

given “at the opening of legislative sessions, where it is meant 

to lend gravity to the occasion.” Id. at 1823. Acceptable 

legislative prayer thus “solemnize[s] the occasion” and “invites 

lawmakers to reflect upon shared ideals and common ends before 

they embark on the fractious business of governing[.]” Id. The 

record here reflects just such prayers. 

C.

We now turn to Plaintiffs’ claims that the Board’s 

legislative prayer practice is impermissibly coercive. The 

“coercion test” under the Establishment Clause reflects that the 

government violates the Constitution if it compels religious 

participation. See Allegheny, 492 U.S. at 660 (Kennedy, J., 

concurring in judgment in part and dissenting in part). 

Although spurned by the Supreme Court for some time, see Sch. 

Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223 (1963)

(noting that Free Exercise cases were “predicated on coercion 

while [an] Establishment Clause violation need not be”), the 

coercion test gradually emerged as part of Establishment Clause 

doctrine in several decisions regarding school-sponsored prayer. 
42

See Lee v. Weisman, 505 U.S. 577, 593 (1992) (striking down 

clergy-led prayers at graduation ceremonies because the school 

district’s “supervision and control . . . places public 

pressure, as well as peer pressure, on attending students . . . 

as real as any overt compulsion.”); Santa Fe Indep. Sch. Dist. 

v. Doe, 530 U.S. 290, 310-17 (2000) (finding prayers at high 

school football games unconstitutionally coercive). 

Although previously unclear whether the coercion test

applied beyond the schoolhouse, see G. Sidney Buchanan, Prayer 

in Governmental Institutions: The Who, the What, and the At 

Which Level, 74 Temp. L. Rev. 299, 339-42 (2001); see also

Mellen v. Bunting, 327 F.3d 355, 366-72 (4th Cir. 2003)

(recognizing a gap in Supreme Court precedent with regard to 

secular expression not directed to children), Town of Greece

settled that ambiguity by observing that a coercion-based 

analysis applies to adults encountering religious observances in 

governmental settings. See 134 S. Ct. at 1825 (Kennedy, J., 

plurality opinion) (“It is an elemental First Amendment 

principle that government may not coerce its citizens to support 

or participate in any religion or its exercise.”).

The Town of Greece majority, however, was unable to settle

on what constitutes coercion in the legislative prayer context. 

Although five Justices agreed that the town did not engage in an 

unconstitutional coercion, they reached this conclusion by 
43

separate paths. Justices Thomas and Scalia would require 

coercion to consist of “the coercive state establishments that 

existed at the founding,” which essentially equates to religious 

observance “by force of law and threat of penalty.” Town of 

Greece, 134 S. Ct. at 1837 (Thomas J., concurring in part and 

concurring in the judgment). Justice Kennedy, joined by Chief 

Justice Roberts and Justice Alito, framed the inquiry as “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 (Kennedy, J., plurality opinion). Under this view, 

“[c]ourts remain free to review the pattern of prayers over time 

to determine whether they comport with the tradition of solemn, 

respectful prayer approved in Marsh, or whether coercion is a 

real and substantial likelihood.” Id. at 1826-27. The history 

and tradition of legislative prayer is relevant here, too, and 

the “reasonable observer” is presumed to be aware of that 

history and recognize the purpose of such practices. Id. at 

1825.

The district court divided its coercion analysis into two 

parts. First, it considered the issue under Town of Greece, 

concluding “Justice Kennedy’s general rules for evaluating 

potential coercion in the legislative prayer context . . . point 

the [c]ourt in the direction of finding the practice of [the 

Board] unconstitutionally coercive.” Lund, 130 F. Supp. 3d at 
44

729. The district court then “turn[ed] to the principles of 

[the] coercion doctrine developed prior to the Town of Greece

decision,” finding these cases likewise suggested the Board

violated the Establishment Clause. Id. 

As noted above, the Supreme Court’s coercion doctrine prior 

to Town of Greece developed in several cases involving public 

school events with children. The potential for undue influence, 

however, is less significant when dealing with prayer involving 

adults, and this distinction warrants a difference in 

constitutional analysis. The law recognizes a meaningful 

distinction between children in a school setting and a 

legislative session where adults are the participants. See

Stein v. Plainwell Cmty. Schs., 822 F.2d 1406, 1409 (6th Cir. 

1987) (“The potential for coercion in the prayer opportunity was 

one of the distinctions employed by the Court in Marsh to 

separate legislative prayer from classroom prayer.”). The 

Supreme Court assumes that adults are “not readily susceptible 

to religious indoctrination or peer pressure.” Marsh, 463 U.S.

at 792; see also Town of Greece, 134 S. Ct. at 1823 (“[A]dult 

citizens, firm in their own beliefs, can tolerate and perhaps 

appreciate a ceremonial prayer delivered by a person of a 

different faith.”). 

Consistent with this distinction, we do not find the 

Supreme Court’s prior coercion cases applicable in analyzing 
45

legislative prayer like that at issue here. See Simpson, 404 

F.3d at 281 (“Marsh, in short, has made legislative prayer a 

field of Establishment Clause jurisprudence with its own set of 

boundaries and guidelines.”). Thus, we look to the coercion 

analysis in Town of Greece, recognizing first that the Board 

clearly did not engage in coercion under the view expressed by 

Justices Scalia and Thomas. But we analyze the issue under the 

view more favorable to the Plaintiffs as expressed in Justice 

Kennedy’s plurality opinion. Under that approach, the Court 

must conduct a fact-sensitive inquiry “consider[ing] both the 

setting in which the prayer arises and the audience to whom it 

is directed.” Town of Greece, 134 S. Ct. at 1825 (Kennedy, J., 

plurality opinion). 

In upholding the invocation practice in Town of Greece, the 

Supreme Court plurality identified several “red flags” that 

could signal when a prayer exercise is coercive and thus not 

within the historical tradition of constitutionally protected 

legislative prayer. See id. at 1825-27. Specifically, the 

Court explained that coercion may exist “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.” Id. at 1826. The Court also identified as 

problematic “practice[s] that classified citizens based on their 
46

religious views” or resulted in a pattern of prayers used to 

“intimidate” or “chastise[] dissenters.” Id. 

It is not difficult to understand why the Court placed the 

coercion bar so high in this context. As noted, adults are not 

presumed susceptible to religious indoctrination or pressure

simply from speech they would rather not hear. Thus, there is

limited risk that disenchanted listeners would be affected by 

mere contact with lawmaker-led legislative prayer. “Adults 

often encounter 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[.]” Id.; see also Elk Grove Unified Sch. Dist. 

v. Newdow, 542 U.S. 1, 44 (2004) (O'Connor, J., concurring in 

the judgment) (“[T]he Constitution does not guarantee citizens a 

right entirely to avoid ideas with which they disagree.”). 

The district court erred in concluding the Board’s prayer 

practice was coercive under this framework. The commissioners’ 

prayers “neither chastised dissenters nor attempted lengthy 

disquisition on religious dogma.” Town of Greece, 134 S. Ct. at 

1826 (Kennedy, J., plurality opinion). Rather, as illustrated

previously, the content largely followed the spirit of solemn, 

respectful prayer approved in Marsh and Town of Greece. 

Moreover, the record shows that both attendance and 

participation in the invocations were voluntary. The Board has 
47

represented without contradiction that members of the public 

were free to remain seated or otherwise “disregard the 

Invocation in a manner that [was] not disruptive.” J.A. 277. 

Thus, as a practical matter, citizens attending a Board meeting 

who found the prayer unwanted had several options available --

they could arrive after the invocation, leave for the duration 

of the prayer, or remain for the prayer without participating: 

just like the audiences in Marsh and Town of Greece. And to the 

extent individuals like Plaintiffs elected to stay, “their quiet 

acquiescence [would] not, in light of our traditions, be 

interpreted as an agreement with the words or ideas expressed.” 

Town of Greece, 134 S. Ct. at 1827 (Kennedy, J., plurality 

opinion). 

The record is similarly devoid of evidence that anyone who 

chose not to participate during the prayer suffered adverse 

consequences, that their absence was perceived as disrespectful, 

or was recognized by the Board in any way. To the contrary, the

Board has attested that such conduct would have “no impact on 

[the constituent’s] right to fully participate in the public 

meeting, including addressing the commission and participating 

in the agenda items in the same matter as permitted any citizen

of Rowan County.” J.A. 277. Plaintiffs point us to no evidence 

to the contrary. Thus, it is implausible on this record to 

suggest that Plaintiffs were “in a fair and real sense” coerced 
48

to participate in the Board’s exercise of legislative prayer. 

Lee, 505 U.S. at 586.

Plaintiffs’ allegations that the prayer practice made them 

feel subjectively “excluded at meetings” and that the Board’s 

“disagreement with [their] public opposition to sectarian prayer 

could make [them] less effective advocate[s]” does nothing to 

change the outcome. Lund, 130 F. Supp. 3d at 715-16. Town of 

Greece explicitly rejected the claim that a citizen’s perceived 

“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” constitutes coercion. 134 S. 

Ct. at 1825 (Kennedy, J., plurality opinion). This is true even 

where the legislative body may “know many of their constituents 

by name,” making anonymity less likely for those citizens who 

decline to rise or otherwise participate in the invocation. Id. 

Likewise, merely exposing constituents to prayer they find

offensive is not enough. “[I]n the general course[,]

legislative bodies do not engage in impermissible coercion 

merely by exposing constituents to prayer they would rather not 

hear and in which they need not participate.” Id. at 1827.

To be sure, legislative prayer may stray across the 

constitutional line if “town leaders allocate[e] benefits and 

burdens based on participation in the prayer, or that citizens 

were received differently depending on whether they joined the 
49

invocation or quietly declined.” Id. at 1826. But there must 

be evidence in the record to support allegations of that sort. 

There is no such evidence in this case. 

Plaintiffs make several arguments in support of the 

district court’s coercion ruling. They first claim that the 

prayer practice here was “an external act focused on the broader 

public,” which “has a type of coercive power that the internally 

directed [prayers] in Town of Greece [did] not.” Response Br. 

8, 11. Plaintiffs point to several invocations where the 

commissioners offered prayers on behalf of others as well as 

themselves. This evidence, in Plaintiffs’ view, shows that the 

commissioners did “not consider the prayer practice an internal 

act directed at one another, but rather, that it is also 

directed toward citizens and for the benefit of all.” Id. at 

11. 

Town of Greece notes the internal or external nature of a 

prayer practice in determining whether impermissible coercion 

occurred. See 134 S. Ct. at 1825 (Kennedy, J., plurality 

opinion) (“The principal audience for these invocations is not, 

indeed, the public but lawmakers themselves, who may find that a 

moment of prayer or quiet reflection sets the mind to a higher 

purpose and thereby eases the task of governing.”). The Supreme 

Court’s rationale here is obvious. The probability of coercion 

can be heightened should the prayers be directed at those in 
50

attendance. Plaintiffs’ argument, however, posits that any 

prayer referencing a person or concern beyond the members of the 

legislative body is externally directed and thus prohibited. 

That cannot be. Legislative prayer does not lose its 

constitutionally protected status because it includes a request 

for divine protection for persons other than those serving in 

office, such as our troops overseas or first responders. The 

Supreme Court has never required such a single-minded purpose. 

Indeed, the prayers in Town of Greece contained similar 

expressions focused at persons other than fellow legislators. 

See id. at 1824. The fact that individual commissioners here 

sometimes prayed that God bless, protect, and heal wounded 

soldiers in Iraq and injured police officers does not take the 

prayers outside the realm of constitutionally protected 

legislative prayer.6 

Plaintiffs next argue that the commissioners unacceptably

directed public participation in the prayers. To reiterate, the 

Board’s opening ceremony usually began with the chairperson

asking everyone to stand “for the Invocation and Pledge of 

 6 Taking two of the exemplar prayers referenced by the 

dissent, we do not understand the connection to coercion if the 

gallery audience heard the Commissioner delivering the prayer 

ask God to “continue to bless everyone in this room, our 

families, our friends, and our homes” or to “forgive our pride 

and arrogance, heal our souls, and renew our vision.” Cf. infra

70 (citing J.A. 16, 17).
51

Allegiance.” Lund, 103 F. Supp. 3d at 714. The designated 

commissioner would then offer an invocation that typically 

started with “let us pray” or “please pray with me.” Id. 

Plaintiffs maintain that these statements amount to 

unconstitutional coercion. The district court agreed, 

concluding the commissioners’ statements “fall squarely within 

the realm of soliciting, asking, requesting, or directing, and 

thus within the territory of concern [in] Town of Greece.” Id.

at 728. 

Again, we disagree. Similar invitations have been 

routinely offered for over two centuries in the U.S. Congress, 

the state legislatures, and countless local boards and councils. 

No case has ever held such a routine courtesy opening a 

legislative session amounts to coercion of the gallery audience. 

It would come as quite a shock to the Founders if it had.

When the Supreme Court in Town of Greece expressed concern

about prayer-givers “direct[ing] the public to participate in 

the prayers,” it did not have the foregoing in mind. 134 S. Ct. 

at 1826 (Kennedy, J., plurality opinion). Coercion is measured 

“against the backdrop of historical practice.” Id. at 1825. 

“As a practice that has long endured, legislative prayer has 

become part of our heritage and tradition . . . similar to the 

Pledge of Allegiance [or] inaugural prayer[.]” Id. “It is 

presumed that the reasonable observer is acquainted with this 
52

tradition and understands that its purposes are to lend gravity 

to public proceedings and to acknowledge the place religion 

holds in the lives of many private citizens[.]” Id. Viewed 

through this lens, no reasonable person would interpret the 

commissioners’ commonplace invitations as government directives

commanding participation in the prayer. The phrase “let us 

pray” is a familiar and “almost reflexive” call to open an 

invocation that hardly compels in the rational mind thoughts of 

submission. Id. at 1832 (Alito, J., concurring). The same goes

for the Board’s request for audience members to stand. We may 

safely assume that mature adults, like Plaintiffs, can follow 

such contextual cues without the risk of religious 

indoctrination. See Marsh, 463 U.S. at 792. Telling here is 

Plaintiffs’ own evidence, which indicates that some portion of 

the audience often chose not to participate. See J.A. 12

(noting only “most” of the audience stood). In sum, opening a 

legislative prayer with a short invitation to rise and join 

hardly amounts to “orchestrat[ing] the performance of a formal 

religious exercise in a fashion that practically obliges the 

involvement of non-participants.” Myers, 418 F.3d at 406. 

Lastly, Plaintiffs claim they were singled out for 

opprobrium by “Board members signaling their disfavor of those 

who did not fall in line.” Response Br. 20. Plaintiffs cite to 

several public statements where acting commissioners were 
53

critical of those in the religious minority. See, e.g., Lund, 

103 F. Supp. 3d at 715. (then-chairman Jim Sides: “I am sick and 

tired of being told by the minority what’s best for the 

majority. My friends, we’ve come a long way -- the wrong way. 

We call evil good and good evil.”). Even giving these comments 

the weight Plaintiffs would like, which is itself doubtful 

because most came post-litigation and in response to other 

issues having nothing to do with legislative prayer, they are 

insufficient to carry the day. Such isolated incidents do not 

come close to showing, as Town of Greece requires, “a pattern of 

prayers that over time denigrate, proselytize, or betray an 

impermissible government purpose.” 134 S. Ct. at 1824. 

Indeed, the comments cited here are not materially different 

from those referenced in Town of Greece, where several 

invocations referred to prayer opponents as the “minority” and 

“ignorant.” Id. A few stray remarks are simply insufficient to 

“despoil a practice that on the whole reflects and embraces our 

tradition.” Id.

Participation in the Board’s opening ceremony, including 

the invocation, is voluntary. Yet the district court concluded 

that Plaintiffs are subject to unconstitutional coercion because 

they claim to be compelled and coerced based on their subjective 

speculation about how their abstention might be received. That 

conclusion cannot be reconciled with Town of Greece and its 
54

rejection of the notion of coercion of adults in similar

circumstances. Town of Greece identified a narrow range of 

exceptional circumstances that could render a legislative prayer 

practice coercive and outside the historical tradition of 

invocations that comport with the Establishment Clause. The

Board’s legislative prayer practice is not close to crossing

that constitutional line.

IV.

None of the constitutional contentions raised by the 

Plaintiffs have validity under the facts of this case for the 

reasons set out above. Similarly, even taking all the 

Plaintiffs’ claims as an amalgamated whole, they do not reflect 

a meritorious claim for the same reasons such claims failed in 

Marsh and Town of Greece.

The Board’s legislative prayer practice falls within our 

recognized tradition and does not coerce participation by 

nonadherents. It is therefore constitutional. The district 

court erred in concluding to the contrary. Accordingly, the 

judgment of the district court is reversed and remanded with 

directions to dismiss the complaint.

REVERSED AND REMANDED 

WITH DIRECTIONS
55

WILKINSON, Circuit Judge, dissenting:

Welcome to the meeting of the Rowan County Board of 

Commissioners. As many of you are aware, we customarily begin 

these meetings with an invocation. Those who deliver the 

invocation may make reference to their own religious faith as 

you might refer to yours when offering a prayer. We wish to 

emphasize, however, that members of all religious faiths are 

welcome not only in these meetings, but in our community as 

well. The participation of all our citizens in the process of 

self-government will help our fine county best serve the good 

people who live here.

--Message of Religious Welcome

The message actually delivered in this case was not one of 

welcome but of exclusion. That is a pity, because even a brief 

prefatory statement akin to that above might have helped to set 

a different tone for the meetings here while not requiring the 

judiciary to police the content of legislative prayer.

I.

Religious faith is not only a source of personal guidance, 

strength, and comfort. Its observance is also a treasured 

communal exercise which serves in times of need as the 

foundation for mutual support and charitable sustenance. But 

when a seat of government begins to resemble a house of worship, 

the values of religious observance are put at risk, and the 

danger of religious division rises accordingly. S.A. 1-10 

(affidavits of Nancy Lund, Liesa Montag-Siegel, and Robert 

Voelker). This, I respectfully suggest, is what is happening 

here. It cannot be right. This case is more than a factual 
56

wrinkle on Town of Greece v. Galloway, 134 S. Ct. 1811 (2014). 

It is a conceptual world apart.

Rowan County’s prayer practice featured invocations week 

after week, month after month, year after year, with the same 

sectarian references. To be sure, Town of Greece ruled that 

sectarian prayer is not by itself unconstitutional. 134 S. Ct. 

at 1820-23. But the issue before us turns on more than just 

prayer content, the primary concern in Town of Greece. Whereas 

guest ministers led prayers in that case, it was public 

officials who exclusively delivered the invocations in Rowan 

County. Those prayers served to open a meeting of our most basic 

unit of government, a local board of commissioners that passes 

laws affecting citizens in the most daily aspects of their 

lives. The prayers, bordering at times on exhortation or 

proselytization, were uniformly sectarian, referencing one and 

only one faith though law by definition binds us all.

I have seen nothing like it. This combination of 

legislators as the sole prayer-givers, official invitation for 

audience participation, consistently sectarian prayers 

referencing but a single faith, and the intimacy of a local 

governmental setting exceeds even a broad reading of Town of 

Greece. That case in no way sought to dictate the outcome of

every legislative prayer case. Nor did it suggest that “no 

constraints remain on [prayer] content.” Id. at 1823. The 
57

Establishment Clause still cannot play host to prayers that 

“over time . . . denigrate nonbelievers or religious minorities, 

threaten damnation, or preach conversion.” Id. To assess those 

risks, “[c]ourts remain free to review the pattern of prayers 

over time.” Id. at 1826-27.

Above all, the Supreme Court stressed that “[t]he inquiry 

[into legislative prayer] 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 (emphasis added). 

The parties have not cited any legislative prayer decision 

combining the particular speakers, audience involvement, prayer 

content, and local government setting presented here. Rowan 

County’s counsel conceded during oral argument that this case is 

without precedent. Oral Argument at 9:20-10:08, Lund v. Rowan 

Cty. (No. 15-1591). I am left to wonder what limits, if any, to 

sectarian invocations at meetings of local government appellants 

would be prepared to recognize.

No one disputes that localities enjoy considerable latitude 

in opening their meetings with invocations and prayers. But the 

legislative prayer practice here pushes every envelope. I would 

not welcome this exceptional set of circumstances into the 

constitutional fold without considering its implications. A 

ruling for the County bears unfortunate consequences for 

American pluralism, for a nation whose very penny envisions one 
58

out of many, a nation whose surpassing orthodoxy belongs in its 

constitutional respect for all beliefs and faiths, a nation 

which enshrined in the First and Fourteenth Amendments the 

conviction that diversity in all of its dimensions is our 

abiding strength.

II.

Though the majority treats this case as all but resolved by 

Town of Greece, that decision did not touch upon the combination 

of factors presented here, particularly the question of 

legislator-led prayer. Indeed, prayers by public officials form 

a distinct minority within Establishment Clause case law. The 

great majority of legislative prayer cases have not involved 

legislators at all, but invocations by guest ministers or local 

religious leaders. E.g., Marsh v. Chambers, 463 U.S. 783, 784-85 

(1983) (invocation by a chaplain paid by the state at the 

opening of state legislative sessions); Joyner v. Forsyth Cty., 

653 F.3d 341, 343 (4th Cir. 2011) (prayers by leaders of local 

congregations at county commission meetings). The invocations in 

Town of Greece were likewise delivered solely by ministers from 

local congregations. 134 S. Ct. at 1816-17. Nearly all the 

congregations were Christian, and every minister selected during 

an eight-year period came from that faith. Id. But crucially, no 

public officials delivered prayers or influenced their content 

in any way. Id. As the district court noted, Town of Greece
59

“consistently discussed legislative prayer practices in terms of 

invited ministers, clergy, or volunteers providing the prayer, 

and not once described a situation in which the legislators 

themselves gave the invocation.” Lund, 103 F. Supp. 3d at 722.

By contrast, the only eligible prayer-givers at Rowan 

County commission meetings were the five board commissioners, 

each of whom took up the responsibility in turn. Not only did 

they lead the prayers, but they also composed all the 

invocations “according to their personal faiths,” which were 

uniformly Christian denominations. Id. at 724; J.A. 275-94 

(affidavits of the five Rowan County commissioners). Compared to 

Town of Greece, the “much greater and more intimate government 

involvement” by the Rowan County board led the district court to 

find its prayer practice unconstitutional. Lund, 103 F. Supp. at 

723.

Of course, the prayer practice was not infirm simply 

because it was led by the commissioners. As the majority and the 

states’ amicus brief rightly remind, there exists a robust 

tradition of prayers delivered by legislators. According to a 

national survey and amici’s own research, all but two state 

legislative bodies engage in legislative prayer or a moment of 

silence. Br. of Amici Curiae State of West Virginia and 12 Other 

States at 13. Lawmakers lead at least some legislative prayers 

in just over half of those states, including seven of the ten 
60

state legislative chambers within our circuit. Id. at 13-14. 

Many county and city governments also call upon elected 

officials to give prayer. Id. at 15.

The tradition of prayer by legislators is but one indicator 

of how unrealistic it would be to divorce democratic life from 

religious practice. We see their intertwined nature whenever 

candidates for all levels of political office proclaim their 

faith on the campaign trail. Voters may understandably wish to 

factor the religious devotion of those they elect into their 

political assessments. It could not be otherwise. As Justice 

William O. Douglas aptly observed, “We are a religious people 

whose institutions presuppose a Supreme Being.” Zorach v. 

Clauson, 343 U.S. 306, 313 (1952).

The Supreme Court thus recognized that “a moment of prayer 

or quiet reflection sets the mind[s] [of legislators] to a 

higher purpose and thereby eases the task of governing.” Town of 

Greece, 134 S. Ct. at 1825. The solemnizing effect for lawmakers 

is likely heightened when they personally utter the prayer. In 

deference to that purpose, I would not for a moment cast all 

legislator-led prayer as constitutionally suspect. As the 

Supreme Court has emphasized, “[L]egislative prayer lends 

gravity to public business, reminds lawmakers to transcend petty 

differences in pursuit of a higher purpose, and expresses a 

common aspiration to a just and peaceful society.” Id. at 1818.
61

Prayers delivered by legislators, however, are themselves 

quite diverse. We cannot discern from the general survey 

proffered by amici which prayers were primarily for the benefit 

of legislators or commissioners as in Town of Greece and which 

focused, as the prayers did here, on requesting the citizens at 

the meeting to pray. Nor do we know from the survey what 

percentage of prayers given by elected officials generally 

contain sectarian references or proselytizing exhortations, or 

which are non-denominational or delivered by legislators of 

diverse faiths. And in fact, the very survey on which the 

majority and amici rely takes care to note that highly sectarian 

prayers represent “not only a breach of etiquette,” but also an 

“insensitivity to the faith of others.” National Conference of 

State Legislatures, Inside the Legislative Process 5-145 (2002) 

[hereinafter NCSL Survey]; see Maj. Op. at 24; Br. of Amici 

Curiae State of West Virginia and 12 Other States at 13. 

Further, the survey cautions, the prayer-giver “should be 

especially sensitive to expressions that may be unsuitable to 

members of some faiths.” NCSL Survey at 5-146.

We should focus then not on any general survey but on the 

interaction among elements specific to this case -- legislative 

prayer-givers exclusively of one faith, legislative invitation 

to the citizens before them to participate, and exclusively 

sectarian prayers referencing a single faith in every regular 
62

meeting of a local governing body over a period of many years. 

At a certain point, the interaction of these elements rises to 

the level of coercion that Town of Greece condemned. Id. at 

1823. 

III.

A.

I shall discuss each of the aforementioned elements in 

turn, beginning with the fact that the commissioners themselves 

delivered the invocations. Legislator-led prayer, when combined 

with the other elements, poses a danger not present when 

ministers lead prayers. The Rowan County commissioners, when 

assembled in their regular public meetings, are the very 

embodiment of the state. From November 2007, when the county 

began recording its board meetings, to the start of this lawsuit 

in March 2013, 139 out of 143 meetings, or 97%, began with 

legislators delivering prayers explicitly referencing 

Christianity. Lund, 103 F. Supp. 3d at 714; see also Lee v. 

Weisman, 505 U.S. 577, 588 (1992) (defining sectarian prayer as 

“us[ing] ideas or images identified with a particular

religion”). The vast majority of those 139 prayers closed with 

some variant of “in Jesus’ name.” S.A. 12-38 (transcript of all 

Rowan County prayers on record). Only four invocations, given by 

the same now-retired commissioner, were non-sectarian, J.A. 296

& n.2, and no prayer mentioned a religion other than 
63

Christianity in five-and-a-half years, Lund, 103 F. Supp. 3d at 

714.

The five commissioners, all Christian, “maintain[ed] 

exclusive and complete control over the content of the prayers.” 

Lund, 103 F. Supp. 3d at 733. At times, the prayers seemed to 

blend into their legislative role. As one commissioner put it, 

“Lord, we represent you and we represent the taxpayers of Rowan 

County.” S.A. 16. When the state’s representatives so 

emphatically evoke a single religion in nearly every prayer over 

a period of many years, that faith comes to be perceived as the 

one true faith, not merely of individual prayer-givers, but of 

government itself. The board’s rules and regulations bind 

residents of all faiths, Christian, Hindu, Jewish, Muslim, and 

many other believers and non-believers as well. And yet those 

laws that govern members of every faith are passed in meetings 

where government overtly embraces only one. That singular 

embrace runs up against “[t]he clearest command of the 

Establishment Clause,” that “one religious denomination cannot 

be officially preferred over another.” Larson v. Valente, 456 

U.S. 228, 244 (1982).

An equally clear command is that “each separate government 

in this country should stay out of the business of writing or 

sanctioning official prayers.” Engel v. Vitale, 370 U.S. 421, 

435 (1962). Town of Greece echoed that principle even as it 
64

upheld legislative prayer: “Our 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.” 134 S. Ct. at 1822. These age-old warnings have 

apparently fallen on deaf ears here. By instituting its elected 

officials as the sole proclaimers of the sole faith, Rowan 

County is elbow-deep in the activities banned by the 

Establishment Clause -- selecting and prescribing sectarian 

prayers. Although the county contends that the prayer practice 

reflects only the desire of individual members of the board, 

Appellant’s Reply Br. at 8-9, it is hard to believe that a 

practice observed so uniformly over so many years was not by any 

practical yardstick reflective of board policy.

Further, the prayer-giver’s identity affects the range of 

religions represented in legislative prayer. Because only 

commissioners could give the invocation, potential prayer-givers 

in Rowan County came from a “closed-universe” dependent solely 

on electoral outcomes. Lund, 103 F. Supp. 3d at 723. Appellant 

frames this as a benefit. The election process, it says, which 

welcomes candidates of all faiths or no faith, holds greater 

promise of diversity than the selection of ministers by 

government officials, which, the county points out, resulted in 

the same chaplain for sixteen years in the case of Marsh v. 

Chambers. Appellant’s Br. at 26.
65

But the county is comparing apples and oranges. While a 

small group of legislators can diversify their appointment of 

prayer-givers at will, it may be more difficult to expect voters 

to elect representatives of minority religious faiths. For 

instance, after residents in the town of Greece complained about 

the pervasive Christian prayers, local officials granted a 

Jewish layman, a Baha’i practitioner, and a Wiccan priestess the 

opportunity to lead prayers. Town of Greece, 134 S. Ct. at 1817. 

The Court took comfort in the fact that “any member of the 

public is welcome in turn to offer an invocation reflecting his 

or her own convictions.” Id. at 1826. But no guest ministers or 

clergy and no member of the public delivered an invocation here, 

that being reserved for the commissioners belonging to the faith 

that dominates the electorate.

Entrenching this single faith reality takes us one step 

closer to a de facto religious litmus test for public office. 

When delivering the same sectarian prayers becomes embedded 

legislative custom, voters may wonder what kind of prayer a 

candidate of a minority religious persuasion would select if 

elected. 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 should not be so.
66

None of this is to imply a need for “religious balancing” 

among candidates, elected officials, or legislative prayers. Id.

at 1824. Without going so far, we still must contend with the 

far-reaching implications of an unremitting record--

overwhelmingly sectarian prayers led solely by legislators 

through many meetings over many years. No single aspect or 

consequence of this case alone creates an Establishment Clause 

problem. Rather, it is the combination of the role of the 

commissioners, their instructions to the audience, their 

invocation of a single faith, and the local governmental setting 

that threatens to blur the line between church and state to a 

degree unimaginable in Town of Greece.

B.

That brings us to the second problematic element in this 

case: the fact that the prayers of the commissioners were 

preceded by a request or encouragement for audience 

participation. Town of Greece reminds us to look to the effect 

of legislative prayer on the audience, not merely the actions of 

the prayer-givers. See 134 S. Ct. at 1825-26. Here the effect is 

apparent. The attendees at Rowan County board meetings, upon 

hearing the invocations uttered by the state’s representatives 

day in and day out, must have grasped the obvious: the Rowan 

County commission favors one faith and one faith only. In the 

eyes and ears of the attendees, that approval sets the tone for 
67

the meetings to follow. As expressed by one plaintiff in this 

case, “[T]he prayers sent a message that the County and Board 

favors Christians and that non-Christians, like [her], are 

outsiders.” S.A. 5 (affidavit of Liesa Montag-Siegel).

This message was amplified by frequent exhortations. 

Commissioners spoke directly to the attendees during prayer, 

asking them to stand and leading with phrases like “Let us pray” 

or “Please pray with me.” Lund, 103 F. Supp. 3d at 714, 727. The 

record reflects that the great majority of attendees did in fact 

“join the Board in standing and bowing their heads,” id. at 714, 

and that plaintiffs themselves “[a]s a result of the [Board] 

Chair’s instructions” felt “compelled to stand” so that they 

would not stand out, S.A. 1-10 (plaintiffs’ affidavits). When 

reviewing phrases like “Let us pray” or “Please pray with me,” 

Town of Greece underscored that the requests “came not from town 

leaders but from the guest ministers.” 134 S. Ct. at 1826. The 

Court noted that its “analysis would be different if town board 

members directed the public to participate in the prayers.” Id.

(emphasis added). Here they did. “[T]he Board’s statements,” the 

district court noted, “fall squarely within the realm of 

soliciting, asking, requesting, or directing . . . of concern to 

the Town of Greece plurality.” Lund, 103 F. Supp. 3d at 728.

A request to an audience to stand or pray carries special 

weight when conveyed in an official capacity by an elected 
68

commissioner facing his constituents, with his board arrayed 

behind or beside him, directly before discharging his official 

duties. Id. County board decisions affect both property and 

livelihood, including zoning laws and variances, school funding, 

police protection, fire prevention and sanitation budgets, and 

the location of parks and other areas of recreation. Br. of 

Amici Curiae Religious Liberty Orgs. at 25. I do not at all 

suggest that commissioners would base their decisions on who 

prays and who doesn’t. I do note, however, that the close 

proximity of participatory sectarian exercises to citizen 

petitions for the many benefits that local boards can withhold 

or dispense presents, to say the least, the opportunity for 

abuse.

C.

Nothing about the constitutional drawbacks of Rowan 

County’s prayer practice should be construed as disparaging the 

prayers themselves, which were moving and beautiful on many 

levels. Each invocation was luminous in the language that many 

millions of Americans have used over many generations to 

proclaim the Christian faith. The constitutional challenge 

directed at the invocations is in no sense a commentary on the 

worth and value of prayer or on the devotion of the citizens of 

Rowan County and their elected officials to their faith.
69

The prayers here, which would be so welcome in many a 

setting, cannot be divorced from the proceedings in which they 

were spoken. It is not the prayers but the context that invites 

constitutional scrutiny. Establishment Clause questions are by 

their nature “matter[s] of degree,” which indicates some 

acceptable practices and others that cross the line. Van Orden 

v. Perry, 545 U.S. 677, 704 (2005) (Breyer, J., concurring in 

judgment). For the average citizen of Rowan County, these 

meetings might well have been the closest interaction he or she 

would have with government at any level. To reserve that setting 

for an embrace of one and only one faith over a period of years 

goes too far.

This is especially so where prayers have on occasion veered 

from invocation to proselytization. Even with the greater 

latitude afforded in Town of Greece, legislative prayer still 

cannot be “exploited to proselytize or advance any one . . . 

faith or belief.” 134 S. Ct. at 1823 (quoting Marsh, 463 U.S. at 

794-95). Plaintiffs, all non-Christians, cited examples that 

they found overtly sectarian or proselytizing:

• “As we get ready to celebrate the Christmas season, we’d 

like to thank you for the Virgin Birth, we’d like to thank 

you for the Cross at Calvary, and we’d like to thank you 

for the resurrection. Because we do believe that there is 

only one way to salvation, and that is Jesus Christ.” J.A. 

16 (prayer of December 3, 2007).

• “Our Heavenly Father, we will never, ever forget that we 

are not alive unless your life is in us. We are the 
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recipients of your immeasurable grace. We can’t be 

defeated, we can’t be destroyed, and we won’t be denied,

because of our salvation through the Lord Jesus Christ. I 

ask you to be with us as we conduct the business of Rowan 

County this evening, and continue to bless everyone in this 

room, our families, our friends, and our homes. I ask all 

these things in the name of Jesus, Amen.” Id. (prayer of 

May 18, 2009).

• “Let us pray. Holy Spirit, open our hearts to Christ’s 

teachings, and enable us to spread His message amongst the 

people we know and love through the applying of the sacred 

words in our everyday lives. In Jesus’ name I pray. Amen.” 

Id. at 17 (prayer of March 7, 2011).

• “Let us pray. Merciful God, although you made all people in 

your image, we confess that we live with deep division. 

Although you sent Jesus to be Savior of the world, we 

confess that we treat Him as our own personal God. Although 

you are one, and the body of Christ is one, we fail to 

display that unity in our worship, our mission, and our 

fellowship. Forgive our pride and arrogance, heal our 

souls, and renew our vision. For the sake of your Son, our 

Savior, the Lord Jesus Christ, Amen.” Id. (prayer of 

October 3, 2011).

The point here is not to pick apart these prayers or to 

measure objectively their proselytizing content. It is to 

consider how this language might fall on the ears of Hindu 

attendees, Jewish attendees, Muslim attendees, or others who do 

not share the commissioners’ particular view of salvation or 

their religious beliefs. It is not right to think that adherents 

of minority faiths are “hypersensitive.” Maj. Op. at 33. If we 

Christians were a religious minority, we would surely be 

sensitive to the invariable commencement of town hall meetings 

through invocation of a faith to which we did not subscribe. And 

if religious faith was not a matter of sensitivity, then why 
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would two of our Constitution’s best known and most prominent 

provisions have been devoted to it?

The invocations here can sound like an invitation to take 

up the tenets of Christian doctrine. And an invitation can take 

on tones of exhortation when issued from the lips of county 

leaders. Although those attending the board meeting may have 

“had several options available -- they could arrive after the 

invocation, leave for the duration of the prayer, or remain for 

the prayer without participating,” maj. op. at 47, such options 

served only to marginalize. 

Indeed, to speak of options masks important differences. 

People often go to church or join groups and organizations out 

of a sense of choice. It is the faith they have chosen or it is 

a group to which they wish to belong. But people often go to 

local government meetings in their capacity as citizens in order 

to assert their views or defend their rights vis-à-vis an entity 

with legal and coercive powers. These are two very different 

forms of attendance. In board meetings, it fell to non-Christian 

attendees, facing their elected representatives and surrounded 

by bowed heads, to choose “between staying seated and 

unobservant, or acquiescing to the prayer practice.” Lund, 103 

F. Supp. 3d at 732. It is no trivial choice, involving, as it 

does, the pressures of civic life and the intimate precincts of 

the spirit.
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The Rowan County board can solemnize its meetings without 

creating such tensions. The desire of this fine county for 

prayer at the opening of its public sessions can be realized in 

many ways, such as non-denominational prayers or diverse prayergivers. Another possibility, open to legislators of any faith, 

might be the Message of Religious Welcome described above. Such 

an expression of religious freedom and inclusion would promote 

the core idea behind legislative prayer, “that people of many 

faiths may be united in a community of tolerance and devotion.” 

Town of Greece, 134 S. Ct. at 1823. A Message of Religious 

Welcome separate from the invocation itself also reduces the 

risk that courts will “act as supervisors and censors” of prayer 

language, a major concern voiced by the Supreme Court. Id. at 

1822. Indeed, the availability of so many inclusive alternatives 

throws into relief the unfortunate confluence of factors in the 

county’s practice. For the county to insist on uniformly 

sectarian prayer led by legislators of one faith in a closed and 

purely governmental space carries us far from the central 

premise of the Establishment Clause.

IV.

By pairing the Free Exercise Clause with the Establishment 

Clause in the First Amendment, the Framers struck a careful 

balance. Americans are encouraged to practice and celebrate 

their faith but not to establish it through the state. See
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Engel, 370 U.S. at 429-34 (discussing the historic roots of the 

Establishment Clause as it relates to the Free Exercise Clause). 

This seems an inapt moment to upset that ancient balance. The 

violent sectarian tensions in the Middle East are only the most 

visible religious divisions now roiling the globe. Are such 

levels of hostility likely here? Probably not, but it behooves 

us not to take our relative religious peace for granted and to 

recognize that the balance struck by our two great religion 

clauses just may have played a part in it. In venues large and 

small, a message of religious welcome becomes our nation’s great 

weapon, never to be sheathed in this or any other global 

struggle. Believing that legislative prayer in Rowan County can 

further both religious exercise and religious tolerance, I 

respectfully dissent.