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U N I T E D S T A T E S C O U R T O F A P P E A L S F O R T H E S I X T H C I R C U I T

BRAND ON RAYMOND J ONES and THOMAS J OSEPH COL EMAN, I I I , Plaintiffs-Appellants,

v. H A M I L T O N C O U N T Y G O V E R N M E N T , TENNESSEE, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TEN

NESSEE

BEFORE: G IBBO NS and WHITE , Circuit Judges; and COHN, S enior Distric t Judge. * * *
AVERN COHN, Senior District Judge. This is a First Amendment leg islative pray er case
. At issue is whether the Hamilton County Commi ssion’s (the “Commissi on”) formal written policy of commencing meeting s with a pray er invocation led by a private citizen v i o l at es the First Amendment’s Establishment Clause. The Commi ssion, the elec ted leg islature of Hamilton County , Tenne ssee, has a longsta nding unwritten tradition of beg inning its meeting s with a pray er invocation. On J une 15, 2012, PlaintiffsAp p el lants Br andon J ones and Thomas Coleman (the “Appe llants”), both members of t h e

The Hon o ra b l e Aver

n Cohn, Senior United States District J udg e for the Easter n District of * Michig an, sitting by

desig nation. We amend the c aption as re flec ted in this opini on. **Ch a

tt a n o o g a F ree thought Association, sued the Hamilton County Gover nmen t ( th e “ Co u

n ty ” ) u n d e r 1
4 2 U. S .C. § 1983 seeking a decla ratory judgme nt that the Commi ssion’s prac tice of opening meeting s with a pray er invocation is unconstitutional. Appellants specific ally objected to the Commi ssion’s use of pray ers inv oking “the name of J esus.” Subsequently , on J uly 3, 2012, the Commi ssion form al l y ad opted a resolution to commence Commi ssion meeting s with a pray er. Appellants soug ht from the d i strict court a preliminary injunction enjoining the Commi ssion’s
pray er prac tice; it was denied. This interlocutory appea l followed. For the rea sons that follow, we aff irm the district court’s denial of a preliminary injunction

. The Commi ssion’s pray er policy is constitutional on its fac e and an as-a pplied challeng e require s further fac t-deve lopment on rema nd. 2
I. BACKG ROUND
A. The Com m ission ’s P rayer P ract ice
T h e C o unty is a political subdivision of the state of Tenne ssee. The Commi ssion is t h e County ’s elec ted leg islature and final policy maker

. The Commi ssion holds two ty pes of meeting s
at which it conducts its officia l business: (1) ag enda sessions; and (2) Commi ssion meeting s. These meeting s beg in with a pray er invoc ation, which is followed by the Pledg e of A lleg iance

. The parties s t i p u l ated that prior to J uly 3, 2012, “invoca tion speake rs came from a variety of faith traditions,

. . . an d s o m e speake rs were invi ted by the C ounty without knowing their faith

The Chattanoog a Fr eethoug ht Association is a self-de scribed “socia l, educational , an d s ervice 1 org anization for all atheists, ag nostics, skeptics, and rational thi nkers in the C hattanoog a, TN and Nort h G e o r g ia a

r e a
. ” Ch a tt anoog a Fr eethoug ht Association, http:// www.c hattfre ethoug ht.com/ (last visited May 17 , 2 0 1 3 ). I ts mission includes, among other things, to “def end and support the separ ation of chur ch and sta te.” Id. We use the term “as- applied challeng e” to be consistent with the terminolog y used by the district 2 court and the parties. Howeve r, by as applied, we are ref err ing to the Commission’s pr ay er policy as implemented, not mere ly as it is (or might be ) applied a g ainst Appellants.

2tradition.

. . .” Pray er invocations wer e offe red by private citizens, local cler g y , an d the

commissioners themselves. The pray ers we re o ftentimes Christian based. Amira L aham, a Muslim resident of the County who attended the Commi ssion’s meeting s beg inning in November of 2011, testified that she attended te n meeting s, all of which be g an with Christian pray er invoc ations.
I n May of 2012, the Fr eedom Fr om Religion Founda tion (the “F oundation”) sent a letter to 3
the Commi ssion reque sting that the Commi ssion discontinue all pray er befor e meeting s. The letter stated, in pertinent pa

rt:
I t is our understanding that [t he Commi ssion’s] meeting s open with Christian pray ers. We understand that the pray ers are exclusively Christian a nd ever y 2012 pray er so far has been g iven in “Jesus’ name.” First and fore most, pray er at g overnme nt meetings i s u nnece ssary , inappropria te, and divisive. Commi ssion members are free to pray privately or t o worship on their own time in their own way
. They do not need to worship on taxpay ers’ time. The Commi ssion oug ht not to lend its power and prestig e to relig ion, amounting to a g overnme ntal endorse ment that excl u d es t h e 15% of the Americ an population that is nonrelig ious ( American Religious Identification Survey , 2008). The Founda

tion rec ommended that the Commi ssion “discontinue officia l, g overnme nt pray ers befor e g overnme nt meeting s” and instea d incorporate a moment of silenc e. The Commi ssion continued its pray er prac tice despite the Founda tion’s reque st to substitut e
pray ers with a moment of silence. For example, on J une 6, 2012, County attorney Rheubin Tay lor invoked the “He avenly Fa ther” and stated that the pray er was offe red in “Jesus[ ’] name.” Ag ain,

on J une 14, 2012, a Christian pastor rec ited the “L ord’s Pray er,” and s o m e audienc e members—County empl o y e e s a n d c o mm is s io n e r s

— s to o d a n d bowed their heads, while others chose

Acc ording to its website, the Fr eedom Fr om Religion Founda tion “wor ks as an umbrella for those 3 wh o are fre e from relig ion and are committed to cher ished principle of separ ation o f s t at e an d churc h.” About F FRF , http:// ffr f.org /about (last visited May 17, 2013). 3to rec ite the pray er aloud. Be cause of t he continued pray er practice , Appellants filed suit on J une

15, 2012. The Commi ssion c ontinued its pra y er prac tice afte r Appellants filed suit. On J une 20 and
J une 28, 2012, pray er invocations wer e offe red “in the name of J esus.” At the Commi ssion’s July 3, 201 2 m eeting, the invocation s peake r recited the “L ord’s P ray er,” and all commissioners stood for the invocation. Some commissioners joined in rec iting the pr ay er. O n the s ame day , afte r t he invocation, the Commi ssion adopted Reso l u t i o n 7 12-13: “A Resolution Adopting a Policy Reg arding Openi n g I n vocations Be fore Meeting s of the Hamilton County Commi ssion” (the
“P olicy ”). The P olicy expressly repla ced and repeale d “any prior practice of t he .

. . Commi ssi o n

conce rning opening invocations. . . .” The P olicy allows “for an invocation, which may include a pray er, a ref lect i v e m o ment of silence, or a short solemniz ing messag e, to be offe red befor e [t he Commi ssion’s] meeting s for the benef it of the Commi ssion.” Participation is voluntary , b o t h b y members and employ ees of the Commi ssion, and persons in attendanc e. The Policy provides that “[t] he pray er shall be voluntarily delivere d by

an elig ible member of

the cler g y

in Hamilton Count y , Tenne ssee.”
To ensure that the elig ible member of the cler g y

–the “invoca

tion speaker ”–will be chosen
“fr om a wide pool of the County ’s cler g y ,” the Policy sets forth a proce dure for the Commi ssion to selec t potential invocation speakers. Eac h y ear , the Commi ssion is to “compile and maintain a databa se (the ‘Cong reg ations L ist’) of t he r eli g ious cong reg ations with an established prese nce in Hamilton County .” This will be done by “re fer encing the listi ng for ‘chur ches,’ ‘cong reg ations,’

or other relig ious assemblies in Ham i l ton County .” The Policy provides that “[a]ll relig ious
cong reg ations with an established prese nce in Hamilton County are elig ible t o be included in the Congr eg ations L ist, and any such cong reg ation can confirm its inclusion by specific written reque st
4to the staff.” Fur ther, if a resident of the County attends a cong reg ation in a differ ent county , he or

s h e can reque st the i nclusion of t hat congr eg ation. I f a question arises “as to the authenticit y o f a relig ious cong reg ation,” the Policy states that the Commi ssion “shall re fe r t o cr i t eria used by the
I nterna l Revenue Service i n i t s d eter mination of those relig ious org anizations that would leg itimately

qualify for I .R.C. § 501(c)(3) tax-ex empt status.” 4
After th e C ong reg ations L ist is compiled, the Policy provides that, once a y ear , the Commi ssion will mail to eac h cong reg ation’s relig ious leade r an invitation to parti ci p ate as the invocation speake r at the beg inning of the meeting

. The speake r does not rec eive compensa tion for his o r h er s er v i ce
. The letter informs the relig ious leade rs that they will be schedule d to g ive the invocations on a fir st-come, f irst-serve basis. The letter further provides g uidanc e to relig ious leade rs of the scope of their potential invocation by

stating: This opportunity is voluntary, and you are free to offer the invocati o n a cc o r d ing to the dictates of

your own conscie nce. Howeve r, please try not to exc eed no [sic] more than five ( 5) minutes for your presentation. To maintain a spirit of respect f o r all, the C ommission requests o n l

y that the opportunity not be exploited as an effort to conve rt others to the particular faith of the invocation speake r, nor to disparage any faith or belief different than that of the invocation speake r. (empha sis in original).
Howeve r, the Policy does not control the content o f invocations. I ndeed, the Policy

rec og nizes that “[n] o g uidel i n es o r limit ations shall be issued reg arding an invocation’s content,

To qualify for tax-ex empt status under I .R.C. § 501(c) (3), an org anization (1) must be “org anized 4 and opera ted exclusively for relig ious

. . . purposes” ; (2) must ensure that “no part of the net ear nings

. . . inure[] to the benef it of any private share holder or individual”; (3) must ensure that “no substantial part of the activities” can be car ried on as propag anda or otherwise influence leg islation; and (4) ca n not “par

ticipate in, or intervene in (including the publishing or distributing of statements), any p o l i t i ca l campa ign on behalf of (or in opposition to) any candida te for public office .” 5except that the C ommissi on shall request by the l ang uag e of this policy that no invocation s hould

prosely tiz e or advanc e an y fa i t h , or disparag e the relig ious faith or non-re ligious views of others,

or exceed five (5) minutes in leng th.” Fur ther, “[n] either the Commi ssion nor the staff shall eng ag e in any prior inquiry , revie w of, or involvement in, the content of any invocation to be offe red by an invocation spea ker.” The Commi ssion’s published schedule of events issued prior to its meeting s is to contain the following disclaimer: Any invocation that may be offered before the official start of the Commission mee ting shall be the voluntary offering of a private citizen, to and for the benefit of the Commission. The views or beliefs expre

ssed by the inv ocation speake r have not be en previously revie wed or approved by the Commission and do not nece ssarily represe nt the religious beliefs or views of the Commission in part or as a whole. No membe r of the community is required to attend or participate in the invocation and such decision will have no impact on their right to actively participate in the business of the Commission. (empha sis in original). After the P olicy went int o eff ect, the Commi ssion cre ated the f irst Congr eg ations L ist and mailed invitations to the relig ious leade rs of 549 relig ious assemblies meeting within the County to
g ive the invocation at future meeting s. The list was compiled by ref ere ncing the Yellow Pag es. The parties ha ve stipulated that [t ]he invitation was sent to many assemblies whose faith tradition is not discernible as well as many diverse identifiable faith traditions, inclu d i ng but not limit ed to J ewish, Muslim, J ehovah’ s Wit ness, Mormon, Christian Scientist, Catholic, Ba ptist, Presby

ter ia n , Methodist, L uthera n, Church of Christ, C h u rch of God, Pentecostal, Congr eg ationalist, Episcopal, Naz are ne, Seventh Day Adventist, Gre ek Orthodox, Assemblies of God, and Unit ar i an Universa list. The majority of relig ious g roups invited wer e J udeo-Christian, which corr esponds with the majority of the County ’s re sidents.

6B. Post -P olicy P rayer s

At an evidentiar

y hear ing in the district court, Appellants introduced evidenc e of the 5
Commi ssion’s pray er invocat i o n s at two meeting s afte r the Policy went into eff ect. At the first meeting on J uly 12, 2013, Commi ssion Chairman Henr y “instructed the entire room to please stand” for the invocation, and the pray er a sked for divine g uidance and blessings on the C ommissi on “in
J esus’ name.” L ike the J uly 12 pray er, the J u l y 1 8 , 2013 pray er soug ht g uidance “in the name of
J esus Christ, our savior, y our son, and our only hope, i n J esus’ name.” Acc ording to Appellants, the pray ers never chang ed from the time they beg an attending Commi ssion meeting s in J u n e of 2012, i.e. they

wer e Christian-base d pray ers invoking the name of J esus. I n addition, sinc e the Policy was a dopted and a

pplied, relig ious le ader s from the following faith traditions have volunteere d, and wer e schedule d to g ive the invocations on a first-come , firstserve basis: J ewish, Unitarian Universa list, Ba ptist, L uthera

n, Church of God, P re s b y t erian, and others. At t h e t i m e the district court issued its opinion on Aug ust 29, 2012, these schedule d invocation speake rs had not y et participa ted at Commi ssion meeting s. The rec ord does not ref lect 6
whether the speake rs actua lly participa ted by g iving the invocation on the day s they wer e schedule d to attend.
C. The DistrictCourt’s D ecision Appellants moved in the district court for a preliminary injunction to enjoin the Commi ssion’s pray er prac tice under the Policy

. The district court , apply ing the four- prong preliminary injunction test discussed infra , denied Appellants’ motion. Be cause Appellants soug ht

The e videntiary

hear ing w as held on July 26, 2012. 5 Pray er invoc ation speake rs wer e sche duled throug h November 29, 2012. 6
7prospec tive relief throug h a preliminary injunction, the district court limit ed its inquiry to w hether

the J u l y 3 , 2 0 1 2 Policy “is likely to result in a constitutional violation.” Pre-Policy pray er invocations, there fore , wer e not consider ed. The district court focuse d its analy sis on Appellants’ likelihood of succe eding on the merits. Appellants urg ed the district court, as they urg e us , t o apply Lemon v. Kurtzman , 403 U.S. 602 (1971). The district court deter mined that Lemon did not apply to Establishment Clause challeng es 7
in the context of leg islative pray er case s. I n rea ching this conclusion, the district court relied on the Supreme Court’s decision i n Ma r s h v. Chambers , 463 U.S. 783 (1983), and the decisions of our sister circ uits that have inter prete d Marsh , citing Joyne r v. Forsyth Cnty. , 653 F.3d 341, 345 (4th Cir. 2011); Snyder v. Murray City Corp. , 159 F.3d 1227, 1232 (10th Cir. 1 9 9 9 ) (e n b an c). Recog nizi ng that Marsh has limit s, howeve r, the district court rea soned that leg islative pray ers cannot be used to prosely tiz e listeners, or

to advanc e one r elig ion over a nother. Turning to the fac ts at hand, the district court construed Appellants’ challeng e to the Policy

as a fac ial challeng e. The district court rea soned that the Policy strives for neutra lity , and, there fore , it is not intended to “prose ly tiz e or advanc e any particula r faith, or show any purposef ul pref ere nce of one relig ious vie w to the exclusion of others.” As such, the district c ourt held that the Policy is constitutional on it s fac e. Next, the district court rea soned that Appellants’ as-a pplied challeng e to the Policy was not ripe for judicial revie w. Be cause the rec ord contained only two Commi ssion meeting s that occur red

Lemon established a three -prong test for deter mining whether the Establishment Clause is violated: 7 “F irst, the statute must have a secula r leg islative purpose; second, its p r i n c i p a l o r p r i m a r y e f f e c t m u s t b e o n e t h a t n e i t h e r a d v a n c e s n o r i n h i b i t s r e l i g i o n ; f i n a l l y , t h e s t a t u t e m u s t n o t f o s t e r ‘ a n e x c e s s i v e g o v e r n m e n t e n t a n g l e m e n t w i t h r e l i g i o n
. ’ ” 4 0 3 U

. S

. a t 6 1 2

– 1 3 ( i n t e r n a l c i t a t i o n s o m i t t e d )

. 8afte r the Policy was adopted, the district court rea soned that an as-a pplied challeng e was prema ture. As the district court stated, “[A]t this point, the fac tual rec ord befor e the [c] ourt is far too attenuate d to permit any rea soned conclusion conce rning the consti tutionality of t he [ P] olicy ’s application.” The district court conclude d that, “[w]hi le there may be a possi b i lity for future constitutional violations under the [P ]ol icy , P l aintiffs have not demonstrated that they are ‘ likely to suffe r irrepa rable harm before a dec ision on the merits can be reache d.’” (emphasis i n orig inal) (citation omitted). Appellants timely

filed an inter locutory

appea l.
II. LEGAL STANDARDS
A. P relim inary Injun ction “A plaintiff se eking a pre liminary injunction must establish that he is likely to succe ed on the m erits, t h at h e i s likely to suffe r i rre para ble harm in the absence of preliminary relief , that the balanc e of the equiti es t ips in his favor , and that an inj unction is in the publ ic i ntere st.” W inter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008) (citing Munaf v. Gere n , 553 U.S. 674, 689–90 (2008); Amoco Prod. Co. v. Gambell , 480 U.S. 531 , 5 4 2 (1 9 8 7); W einberge r v. Romero-Barce lo , 456 U.S. 305, 311–12 (1982))

. “The se fac tors ar e n o t prer equisites to issuing an injunction but fac tors to be balanc ed.” United Food & Commercial W orkers Union, Local 1099 v. Southwest Ohio Reg’l Tr ansit Auth. , 163 F.3d 341, 347 (6th Cir. 1998) (c i t at i o n o mitted). The dist rict court need

no t co n s i d er eac h fac tor if few er fac tors are dispositi ve of the issue. Loril lard Tobacco Co. v. Amouri’s Grand Foods, Inc. , 453 F.3d 377, 380 ( 6th Cir. 2006) (citing Six Clini cs Holding Corp.,
II v. Cafcomp Sys., Inc. , 119 F.3d 393, 399 (6th Cir. 1997)). “When a part y s ee k s a preliminary injunction on the basis of the potential violation of the First Amendment, the likelihood of succe ss

9on the merits often will be the deter minative fac tor.” Connection Distrib. Co. v. Reno , 154 F.3d 281, 288 (6th Cir. 1998). B. App ellate Jurisdiction and Stand ard of Review “Althoug h a district court’s decision whether to g rant a preliminary injunction is g ener ally revie we d fo r an abuse of discretion, in case s with First Amendment implications, the standard of revie w is de novo.” Am. F r eedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp. ( SMART) , 698 F.3d 885, 889–90 (6th Cir. 2012) (italics and internal citations omitted); see id. at 890 (e x p laining that, “in the First Amendment context, the other [preliminary -injunction] fac to rs ar e essentially encompa ssed by the analy sis of the movant’s likelihood of succe ss on the merits, which is a question of law that must be revie wed de novo” (italics omitted)). Her e, Appellants’ likelihood of succe ss on the merits is a pure leg al question and does not require us to rev i ew an y fac tual finding s. Thus, we a

pply de novo re view.

III. DISCUSS ION
A. Marsh and i ts P rogeny Our d i s cu s s i o n beg ins with the Supreme Court’s first and only pronounce ment on the constitutionalit y of leg islative pray er: Marsh v. Chambers , 463 U.S. 783 (1983). I n Marsh , a state leg islator challeng ed the Nebr aska leg islature’s prac tice of opening sessi o n s wi t h a pray er led by

a Presby terian chapla in, Robert Palmer, who was paid by the State. 463 U.S. at 784–85. For six teen
y ear s, Palmer was the only cler g y man selec ted to conduct the pray ers, which we re of the J udeoChristian tradition. Id. at 793. The Eig hth Circuit applied the three -par t Lemon test to strike down Nebr aska’ s pray er prac tice. Id. at 786. Howeve r, in r ever sing and upholding Nebr aska’ s prac tice, the Supreme Court did not f ollow the Eig hth Circ uit’s le ad and abandone d the Lemon test in favor of a history -base d analy sis. Id. at 786.
10The majority beg an its opinion by explaining the historical tra dition of opening legislative sessions with a pray er. Id. Trac ing leg islative pray er to “colonial times throug h the founding of the Republic and ever since,” id. , the Supreme Court r ecog nized that the First Congr ess, “as one of its

ear ly items of business, adopted the policy of selec ting a chapla in to open eac h session with pray er.” Id. at 787–88. The Senate and House elec ted their first chapla ins in 1789. Id. at 788. As the Supreme Court explained, “[i] t can hardly be thought that in the s ame week Members of the First Congr ess voted to appoint and to pay a Chaplain for eac h House and also voted to approve the draf t of the First Amendment” that “they intended the Establishment Clause of the Amendment to forbid what they had just decla

red acc eptable.” Id. at 790. The Supreme Court conclude d that, “[i] n light of the unambig uous and unbroken history of more than 200 y ear s, there can b e n o d o u b t that the
prac tice of opening leg islative sessions with pray er has become part of the fabric of our society .” Id. at 792. Thus, the Supreme Court r easone d that, “[t] o invoke Divine g uidance on a public body entrusted with making the laws is not, in these circ umstances, an ‘establishment’ of relig ion or a step toward e stablishment.” Id. Apply ing these historical principles, the Supreme Court held that Nebr aska’ s policy passed constitutional must er. First, the Supr em e C ourt rea soned t hat t he P resby terian clerg y

man’s long t enure —six teen
y ear s—stan d i n g al o n e, did not “adva nce[] the beliefs of a particula r churc h. To the contra

ry , the evidenc e indicat[ed] that [t he cler g y man] was rea

ppointed beca

use his perf

orm an ce and persona l qualities wer e acc eptable to the body appointing him.” Id. at 793. Second, beca use of its historical roots, the Supreme Court stated that the public funds used to compensate the cler g y man did not violate the Establishment Clause. Id. at 794. Finally , the Supreme Court stated that “[t] he content of the pray er is not of conce rn to judge s wher e
. . . there is no indication that the pray er opportunity
11has been exploi ted to prosely tiz e or advanc e any one, or to disparag e any other, faith or belief.” Id.

at 794–95. The Supreme Court rea soned that it is not for courts to “emba rk on a sensitive evalua tion or to parse the content of

a par ticular pra

y er.” Id. at 795. Although the Supreme Court cau t i o n ed co urts not to evalua te the content of particula r
pray ers, it expressly noted in a footnote that Palmer remove d all ref ere nces to Christ afte r rec eiving a complaint fr om a leg islator: Palmer cha

rac terizes his pray ers as “nonsec tarian,” “Judeo Christian,” and with “e lements of the Americ an civil r elig ion.” Although some of his earlier pray ers we re often expli citly Christian , P alm er remove d all ref ere nces to Christ afte r a 1980 complaint from a J ewish leg islator. Id. at 793 n.14 (interna l citations to recor d omitted).
J ustice Br ennan dissented, in which J ustice Marsha ll joined , reasoning that the majority ’s decision “is contra

ry to the doctrine as well the underly ing purposes of the Est abli s h m ent Clause, and it is not saved either by its history or by any of the other considerations sug g ested in the Court’s opinion.” Id. at 796 (B renna n, J ., dissenting)

. J ustice Br ennan objected to the majority ’s failure to apply Lemon . J ustice Brenna n opined t hat Nebraska’ s policy violated all three prong s of Lemon

. Id. at 796–801. I n concluding , J ustice Br ennan stated that he was “unconvinc ed by the Court’s
arg uments, and cannot shake my conviction that leg islativ e p ray er violates both the letter and the spirit of the Establishment Clause.” Id. at 813.
J ustice Stevens also dissented, stating that “it seems plain to me that the d esi g nation of a member of one relig ious faith to serve as the sole officia l chapla in of a state leg islature for a period

o f 1 6 y ea rs constitutes the pref ere nce of one faith over another in violation of the Establishm en t Clause of the First Amendment.” Id. at 823 (Stevens, J ., dissenting)

. J ustice Stevens took issue with

t h e m aj o ri ty ’s failure to evalua te the particula r pray ers offe red, rea soning that the majority ’s

12unwillingness to do so was “bec ause it would be unable to explain awa y the clea rly secta rian content of some of the pray ers g iven by ” Palmer. Id. The y ear afte r Marsh was decide d, the Supreme Court decide d Lynch v. Donnelly , 465 U.S.
668 (1984), in which the Court upheld a publ i c cr èc h e d i s play that serve d as just one aspec t of a larg er holiday display to cele brate the s eason. I n Lynch , J u s t i ce O’Connor in concur ring with the majority compar ed the c rèc he at issue to leg islative pray er: These fea t u re s combine to make the g overnme nt’s display of the crè che in this particula r phy sical setting no more an endorse ment of relig ion t h an s u ch g overnme ntal “ac knowledg ments” of relig ion as leg islative pray ers of the ty p e ap p ro ved in Marsh

. . . Those g overnme nt acknow ledg ments of relig ion serve , in the only way s rea sonably possible in our culture, the leg itimate secular purposes of solemniz ing public occa sions, e x pressing confide nce in the future, and encour ag ing the rec og nition of what is worthy of appre ciation in society

. For that rea son, and beca use of their history and ubiquity , those prac tices are not understood as c onvey ing g overnme nt approva l of particula r re ligious belief

s. 465 U.S. at 692–93 (O’Connor, J., concurr ing)

. Six y ear s afte r Marsh , the Supreme Court revisited footnote 14, in whi ch the Court had expressly noted that Palmer had re m o v ed al l ref ere nces to Christ in his pray ers. I n County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter , 492 U.S. 573, 603 (1989),

a case finding unconstitutional a crè che display that had been place d o n t h e g rand stairca se of a county courthouse while holding that the display of a menora h next to a Christmas tree was not a n unconstitutional endorsement of the Christian and J ewish fa iths, the Supreme Court stated: [I ]n Mar s h i t self, the Court rec og nized that not even the “unique history ” of leg islative pray er can justify contempora ry l egis lative pray ers that have the eff ect of aff iliating the g overnme nt with any one specific faith or belief. The leg islative pray ers involved in Marsh did not violate this principle beca use the particula

r chapla in had “re moved all ref ere nces to Christ.” Thus, Marsh plainly does not stand for the swee ping proposition

. . . that all acc epted pr actice s 200 y ear s old and their equiva lents are constitutional today

. (interna l citations omit ted).

13The Supreme Court ag ain briefly discussed Marsh in two more rec ent case s decide d on the

same day , both of which chall enged the place ment of monuments of the Ten Commandments on
g overnme nt proper

ty

. See Van Orden v. Perry , 545 U.S. 677 (2005); McCreary Cnty., Ky. v. ACLU of Ky. , 545 U.S. 84 4 (2 0 0 5 )

. I n Van Orden , Chief J ustice Rehnquist rec og nized in a plurality opinion that “the role of God in our Na t i o n ’s h eritage ” and historical principles led the Court “to hold that the Establishment Clause permits a state leg islature to open its daily sessions with a pray er by a chapla in paid by the State.” 545 U.S. at 687–88 (citing Marsh , 463 U.S. at 792). I n a footnote, the Chief J ustice rec og nized that, in Marsh , the Court had “re jected the claim that an Establishment
C l ause violation was prese nted beca use the pray ers had once been offe red in the J udeo-Christian tradition.” Id. at 688 n.8.
I n McCreary County , the Supreme Court noted that the “Establishment Clause doctrine lacks the comfort of cate g orica l absolutes. I n specia l instances [t he Supreme Court] h a[ s ] fo u nd g ood

rea son t o hold g overnme ntal action leg itimate even wher e its manifest purpose was presumably relig ious,” citing to Marsh. 545 U.S. at 859 n.10. I n dissent, J ustice Scalia also re co gn i z ed t h at Marsh approve d “g overnme nt-led pray er to God,” as long as “ther e is no indication that the pray er opportunity has been exploi ted to prosely t i z e o r advanc e any one, or to disparag e any other, faith or belief .” Id. at 892, 894. Ag ainst this backd ro p we first consider whether the district court err ed in concluding that the Commi ssion’s Policy is constitutional on its fac e. Next, we consider whether the district c ourt

corr ectly deter mined that an as- applied cha lleng e to the Policy was not ripe f

or judicial re view.
B. Fac ial Chall enge to P olicy Where, as here , the relief reque st ed re ac h es bey ond the particula r circ umstances of the Appellants, “the claims that are raised are properly revie wed as fac ial challeng es.
. . .” Disc.
14Tobacco City & Lottery, Inc. v . United States , 674 F.3d 509, 522 ( 6th Cir. 2012) (citing John Doe

No. 1 v. Ree d , ___ U.S. ____, 130 S.Ct

. 2811, 2817 (2010))

. “F acia l challeng es, the Supreme Court has noted, are disfavore d for sever al

. . . rea sons: [1] they ‘often rest on specula tion’ and thus ‘ra ise the risk of prema ture interpre tation,’ [2] they ‘run contra ry to the fundame ntal principle of judicial
restra int,’ and [3] they ‘threaten to short circ uit the democr atic proce ss.’ ” Gree n Party of Tenn. v. Hargett , 700 F.3d 816, 826 (6th Cir. 2012) (quoting W ash. State Grange v. W

ash. State Republican Party , 552 U.S. 442, 450–51 (2008))

. As we have previously explai n ed , “[ f]acial invalidation is strong medicine that is not to be casua lly employ ed.” Ohio Citi zen Action v. City of

Englewood , 671 F.3d 564 ( 6th Cir. 2012) (interna l quotation marks omitted). 8 1. Appli cability of Lemon v. Kurtzm an Appellants first invite us to determine that the Commi ssion’s Policy is unconstituti onal on its fa ce by apply ing Lemon v. Kurtzman , 403 U.S. 602 (1971). Given the Supreme Court’s choice
not to ap p l y Lemon in Marsh , we decline Appellants’ invitation. See ACLU of Ohio v. Capital
S q u a r e R ev i ew and Advisory Bd. , 243 F.3d 289, 305–06 (6th Cir. 2001) (en banc) (“I t is worth mentioning, perha

ps, that even the author of the Lemon decision, the late Chief J ustice Bur g er, did

I n assessing Appellants’ fac ial challeng e, the district court articula ted that: “A fac ial challeng e to 8 a leg islative [a] ct is, of course , the most difficult challeng e to m o u n t s u ccessfully , since the challeng er must establish that no set of circ umstances exis ts under which the [a] ct would be valid,” quoting United States v. Salerno , 481 U.S. 739, 745 (1987). I t is not appar ent that the Salerno “no set of circ umstances” test g overns fac ial challeng es under the Establishment Clause. See Santa Fe Indep. Sch. Dist

. v. Doe , 530 U.S. 290, 313–14 (2000) (ana ly zing a fac ial challeng e in an Establishment Clause case without ref ere nce to Salerno ); Bowen v. Kendrick , 487 U.S. 589, 600–02 (1988) (same) ; id. at 627 n.1 (B lackmun, J ., dissenting) (ag ree ing with majority ’s implicit decision not to apply Salerno ); Commack Self-Serv

. Kosher Meats, Inc. v. W eiss , 294 F.3d 415, 425 n.7 (2d Cir. 2002) (dec lining to decide whether the Salerno test appli ed t o fa cial challeng e under the Establishment Clause). We need not decide whether the Sa l erno test applies beca use Marsh supplies the controlling standard f or leg islative pray er c ases.

15not see fit to apply the Lemon test when he wrote the Court’s opinion in the leg islative chapla in case ,

Marsh . . . .”). 2. Applyi ng Marsh to the F acial Challenge Having deter

mined that the Lemon test does not apply to leg islative pray er case s, we turn
next t o the contours of Marsh and conclude , as did the district c ourt, that Appellants are not likely
to succe ed on the merits of their fac ial chal l en ge t o t he Policy

. Acc ording ly , the district court’s decision deny

ing A ppellants’ pre liminary

injunction will not be disturbed on this basis. The Supreme Court in Marsh permitted leg islative pray er as long as “ther e is no indication that the pray er opportunity has been exploi ted to prosely tiz e or advanc e any one, or to disparag e any other, faith or belief.” 463 U.S. at 794–95. Unless there is an indication that the pray er opportunity has been exploi ted to advanc e one faith or belief over another , the Supreme Court cautioned that
courts should not “emba

rk on a sensitive evalua tion or
. . . parse the content of a particula r pray er.” Id. at 795. When apply ing the Marsh standard to the f acts he re, it is evident that the Commission’s Policy is fac ially constitutional. The Policy allows for three differen t t y p es o f invocations: (1) a reflective moment of silence; (2) a short solemniz ing messag e; or (3) a pray er. The County ’s
proce dures for selec ting potential invocation speake rs are not discriminatory and allow any bonafide relig ious org anization to participa te. The Policy calls for a list of relig ious assemblies in the County
to be compiled on a y ear ly basis, and, if a specific relig ious assembly in the County is not on the list,
i t ca n wr ite to the County to be included. Fur ther, the Policy allows relig ious assemblies from outsid e t h e C o u nty to g ive the opening invocation if a resident of the County reque sts their inclusion. The Policy expr essly states that it is “intended to acknow ledg e and express the

16Commi s s ion’s respe ct for the diversity of relig ious denominations and faiths repr esente d and

prac ticed among the citizens of Hamilton County .”
I n addition, the Policy states that invocation speake rs will be notified: “To maintain a spirit of re spect for all, the Commi ssion reque sts only that the opportunity not be exploi ted as an eff ort
to conver t others to the particula

r faith of the invocation speake r, nor to disparag e any faith or belief differ ent than that of the invocation speake r.” On its fac e, the Po licy is tailored to comply with Marsh and it does not adva nce a ny one fa ith or belief ove r anothe r. To the extent that the proce dures fo r s electing “elig ible cler g y ” members as invocation speake rs might have the eff ect of advanc ing one faith or belief over another , that has y et to be seen, and is not proper ly befor e us as a fac ial challeng e to the Policy

. The Policy , on its fac e, ensure s that
any org anization that calls itself “re ligious” may participa t e, reg ardle ss of the specific beliefs it
espouses. Even if an established relig ious org anization does not have a Yellow Pag es listi ng , it can write the Commi ssion and reque st to participa te in invocations. Wit hout the ab i l ity to establish basic criter ia for selec ting relig ious g roups to participa te in the pray er invocations, the Commi ssion would be unable to ensure that speake rs are members of b o n af i d e re ligious org anizations, as opposed to commerc ial entities or other g roups with missions completely unrela ted t o the Commi ssion’s prac tice of solemnizing its meeting s with an invocation. Appellants m i s p l ace their relianc e on the Four th Circuit’s decision in Joyne r v. Forsyth County, N.C. , 653 F.3d 341 (4th Cir. 2011), and the Seventh Circuit’s decision in Hinrichs v. Bosma , 440 F.3d 393 (7th Cir. 2006), to arg ue that the Policy is unconstitutional on its fac e. Joyn er an d Hinrichs did not involve successful f acia l challeng es to leg islative pray er policie s. I n Joyne r , plaintiffs J anet Joy ner a nd Constance B lackmon cha lleng ed the F orsy th County
Boa rd of Commi ssioners’ (“F orsy th County ”) prac tice of beg inning its meeting s with an invocation

17delivere d by a local re l i gi ous leade r. 653 F.3d at 342. I n 2007, For sy th County adopted a formal written policy

. Id. at 343. “Using the Yellow Pag es, [I ]nt erne t rese arc h, and consultation with the local C hamber of C ommerce , the clerk to the B oard c ompiled and maintained the ‘Cong reg ations
L ist’—a database of all relig ious cong reg ations with an establis h ed p re s en ce in the communi ty .” Id. The list was updated once a y ear , and “any cong reg ation could confirm its inclusion by writing
to the cler

k.” Id. The cler

k mailed a l et t er to all relig ious leade rs on the Congr eg ations L ist and “informe d those individuals that they wer e elig ible to deliver a n invocation and c ould schedule an appointment on a first-come , first-ser ve basis.” Id. The let t er i nformed the relig ious leade rs that the opportunity was voluntary , and that “the Boa rd reque sts only that the pray er opportunity not be exploi ted as an eff

ort to conver

t others to the particula

r faith o f t h e invocational speake r, nor to disparag e any faith or belief differ ent than that of the invocational speake r.” Id. Speaker s wer e not schedule d fo r co n secutive meeting s, nor wer e they schedule d for more than two meeting s in any cale ndar y ear
. Id. Essentially , the For sy th County ’s fac ial policy in Joyne r was ident ical to the Commi ssion’s Poli cy

here

. Howeve r, the Four

th Circuit in Joyne r held that For sy th County ’s policy , “as implemented,
cannot withstand scrutiny ” beca use “[t] he undisputed rec ord shows that the pray ers delivere d at the
outset of Board meeting s from May 29, 2007 th roug h Dec ember 15, 2008 ref err ed to J esus, J esus Christ, Christ, or Savior with overw helming fre quency .” Id. at 349 (interna l quotation marks omitted). Be cause almost four- fifths of pray ers contained such expli cit secta rian ref ere nces, the
court of appea ls held that the application of the policy ran afoul of the Supreme Court’s decision in Marsh

. Id. at 349–50. Howeve r, the court of appea ls observe d that the For sy th County ’s policy was
neutra l on its fac e. Id. at 353. I t was the implementation of the policy that the court of appea ls held unconstitutional.
18Appellants’ relianc e on Hinrichs i s al s o inapposite. I n Hinrichs , four taxpay ers sued the

Speaker of the I ndiana House of Repre s en t at i ves, challeng ing the I ndiana House’s 188 y ear -old
prac tice of opening officia l meeting s with a brief pray er or invocation. 440 F.3d at 394–95. The
I ndiana House did not have a formal policy

. The rec ord ref lected that a majority of the pray ers for the 2005 cale ndar y ear wer e Christian pr ay ers, which wer e identifiable by supplications to Christ. Id. at 395. After a bench trial, the district court held that “the consistent and perva sive use of Christian invocations in I ndiana is the sort of prac tice that Marsh found unacc eptable” beca use “[i] t is a ‘pray er opportunity [t hat] has been exploi ted t o
. . . advanc e .
. . one .
. . faith or belief.’ ” Id.
at 398–99 (sec ond set of brackets in orig inal). L ike Joyne r , the Hi n r i ch s court of appeals di d not deter mine that a pray er policy was unconstitutional on its fac e. Rather, the I ndiana House’s pray er
prac tice, as implement ed , wa s deter mined to be unconstitutional by the district court, and the Seventh Circuit denied the Spea ker a stay of that ruling

. 9
Her e, the Policy is fac ially constitutional. The Policy aims to respe ct the diversity of all relig ious g roups, and it does not seek to advanc e one faith or belief o v er an o t her. The Policy is simil ar to other policies that have been rec og nized as fac ially neutra l by our sister circ uits. See, e.g. , Rubin v. City of

Lancaster , 710 F.3d 1087, 1097–98 (9th Cir. 2013); Atheists of Fla., Inc. v. City of Lakeland, Fl a. , 713 F.3d 577, 592–93 (11th Cir. 2013); Joyne r , 653 F.3d at 353

. I ndeed, not one of our sister circ uits that have addre ssed this same issue have struck down a leg islature’s policy as fac ially unconstitutional.

I n a later opinion, the Seventh Circuit c oncluded that the taxpay ers lac ked standing and re verse d 9 the district court’s judgme nt on that basis. See Hinrichs v. Speake r of the House of Represe ntatives of the Ind. Ge n. Assembly , 506 F.3d 584 ( 7th Cir. 2007). 19Acc ording ly , the dis t ri ct court’s decision that Appellants are not likely to succe ed on the

merits of their fac ial challeng e to the Policy is corr ect. On its fac e, the Policy complies with Marsh and does not advanc e one faith or belief over another

. Thus, the distr i ct co u rt p roperly denied to issue a pre liminary

injunction on this basis. C. As-Applied Chall enge to P olicy Although the Policy is constitutiona l o n i t s fac e, it can still be unconstitutional as implemented by the Commi ssio n
. Ordinarily , “‘[t] he usual judicial prac tice is to addre ss an asapplied challeng e befor e a fac ial challeng e
. . . beca use this sequenc ing decr ease s the odds that fac ial attacks will be addre ssed unnece ssarily .’” B er r y v. Schmitt , 688 F.3d 290, 302 (6th Cir. 2012) (quoting Connection Distrib. Co. v. Holder , 557 F.3d 321, 32 7

– 2 8 (6th Cir. 2009) (en banc) ).
Howeve r, beca

use there wer e only two post-policy pray er invocations, the district court deter mined that an as-a

pplied challeng e was not ripe for judicial revie w due to the lack of a develope d rec ord. We ag ree
. As descr ibed above, the rec ord befor e the district court display ed that two meeting s occur red afte r the implementation of the Policy

. Both meeting s beg an with pray ers which ref ere nced “Jesus.” Under Marsh , pray er invocations are appropr iate as long as they do not “prose ly tiz e or advanc e any
one, or
. . . disparag e any other, faith or belief.” 463 U.S. at 794–95. The district court was corr ect in co ncluding that a record of two pray ers after the implementation of t he P olicy is insufficient to deter mine whether the C ommissi on’s P olicy , as i mplemented, is unconstitutional and violative of Marsh

. Ba sed on two instances in a re l at i v el y short period of time, the C ourt cannot say whether the Commi ssion’s application of its Policy prosely tiz es or advanc es Christianity or disparag es other beliefs. As the district court put it:
20This dear th of evidenc e–nec essar ily broug ht about by the brevity of the period betwee n the adoption of the [P ]ol icy and the hear ing on Plaintiffs’ Motion–is draw n into sharp relief when compar ed with the fac ts befor e other courts prese nted with simil ar questions. For example, in Hinrichs , the Seventh Circuit considere d a pray er prac tice that dated back 188 y ear s, and it revie wed over 50 individual invocations. See Hinrichs , 440 F.3d at 395. The plaintiffs in Pelphrey prese nted seven y ear s’ worth of leg islative pray er. See Pelphrey , 547 F.3d at 1267. And i n Joyne r , even though a writ t en p o l i cy was adopted mid-liti g ation, the Four

th Circuit was prese nted with a rec ord comprising more than one y ear

of post-policy

pray ers. See J

oyner , 653 F.3d a t 344. Wit h almost a y ear of time that has pass ed s i n ce t h e Policy ’s implementation, the district court is now in a position to addre ss this aspec t of Appellants’ constitutional c halleng e. This ca se should continue throug h its reg ular c ourse. 1 0
IV. CONCLUSION
For the rea sons stated above, we aff irm the district court’s denial of Appellants’ motion for
a pre liminary

injunction.

The S upreme Court rec ently g rante d cer tiorari in a legislative pr ay er c ase. See Tow n of Gree ce 10
v. Galloway , ___ S. Ct. ___, No. 12-696, 2013 WL 2149803 (May 20, 2013). I n Galloway v. Town of Gree ce , 681 F.3d 20, 22 (2d Cir. 2012), the Second Circuit deter mined that the Town of Gre ece ’s “pray er prac tice [, as implemented,] impermissibly aff iliated the town with a single cre ed , Christianity .” I n rea ching this deter mination, the Second Circuit held that the appropr iate question was “whe ther the town’s prac tice, viewed in its totality by an ordinary , rea sonable observe r, convey ed the view that the town favor ed or disfavore d cer tain relig ious beliefs.” Id. at 29. On the rec ord b efore it , the S econd Circuit conclude d “that the town’s pray er practice must be viewed as an endorse ment of a particula r relig ious viewpoint.” Id

. at 3 0

. The question prese nted in the petition for cer

ti o ra ri i n light of Marsh is: “Whether the court of appea ls err ed in holding that a leg islat i v e p ra y er prac tice violates the Establishment Clause notwithstanding the absenc e of discrimination in the selec tion of pray er- g ivers or forbidden exploi tation of the pray er opportunity .”

21