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THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

ROWAN COUNTY, NORTH CAROLINA 

v. 

NANCY LUND, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
 

No. 17–565. Decided June 28, 2018
 

The petition for a writ of certiorari is denied. 

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,

dissenting from the denial of certiorari. 

This Court’s Establishment Clause jurisprudence is in 

disarray. Sometimes our precedents focus on whether a

“reasonable observer” would think that a government

practice endorses religion; other times our precedents 

focus on whether a government practice is supported by

this country’s history and tradition. See Utah Highway 

Patrol Assn. v. American Atheists, Inc., 565 U. S. 994, 997– 

1001 (2011) (THOMAS, J., dissenting from denial of certiorari); Van Orden v. Perry, 545 U. S. 677, 694–697 (2005) 

(THOMAS, J., concurring). Happily, our precedents on

legislative prayer tend to fall in the latter camp. See, e.g., 

Town of Greece v. Galloway, 572 U. S. ___ (2014); Marsh v. 

Chambers, 463 U. S. 783 (1983). 

Yet the decision below did not adhere to this historical 

approach. In ruling that Rowan County must change the

prayers it uses to open its board meetings, the Court of 

Appeals for the Fourth Circuit emphasized that the county’s prayers are led by the legislators themselves, not by

paid chaplains or guest ministers. This analysis failed to

appreciate the long history of legislator-led prayer in this 

country, and it squarely contradicted a recent decision of 

the Sixth Circuit. I would have granted Rowan County’s

petition for certiorari. 
 

2 ROWAN COUNTY v. LUND 

THOMAS, J., dissenting
 

I 

Rowan County, North Carolina, is governed by a fivemember Board of Commissioners (Board). The Board 

convenes twice a month, in meetings that are open to the

public. Each meeting begins with a prayer, which the

commissioners take turns leading. Prayers usually begin

with an invitation (“Let us pray,” “Let’s pray together,”

“Please pray with me”) and end with a communal “Amen.” 

Because the current commissioners are all Christians, 

their prayers tend to reference “Jesus,” “Christ,” or the 

“Savior.” But the Board does not require the commissioners to profess any particular religion, or require the prayers to have any particular content. The content of the 

prayer is entirely up to the commissioner giving it.

Three residents of Rowan County, who were offended by 

the Board’s prayers, sued the county, alleging violations of 

the Establishment Clause. The District Court entered 

summary judgment in the residents’ favor, 103 

F. Supp. 3d 712, 713 (MDNC 2015), but a divided panel of 

the Fourth Circuit reversed, 837 F. 3d 407, 411 (2016). On 

rehearing en banc, the full Fourth Circuit affirmed the 

District Court’s initial decision. 863 F. 3d 268, 275 (2017). 

Disagreeing with the earlier panel, the en banc court 

began by distinguishing this Court’s decision in Town of 

Greece, which upheld the prayer policy of the town of 

Greece in New York. The prayers in Greece were given by 

“guest ministers,” the Fourth Circuit explained, while the 

prayers in Rowan County are given by the commissioners. 

See 863 F. 3d, at 277–278. The Fourth Circuit deemed 

legislator-led prayer more suspect under the Establishment Clause because it “identifies the government with

religion more strongly” and “heightens the constitutional 

risks posed by requests to participate and by sectarian

prayers.” Id., at 278. Since the prayers in Rowan County

are legislator led, the Fourth Circuit concluded that Town 

of Greece does not apply and, thus, it “must decide whether 
 

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THOMAS, J., dissenting 

[Rowan] [C]ounty’s prayer practice, taken as a whole,” 

is constitutional. 863 F. 3d, at 280. 

The Fourth Circuit held that it was not, for a “combination” of four reasons. Id., at 281. First, the prayers in

Rowan County are given exclusively by the commissioners. 

Id., at 281–282. Second, of the 143 prayers that the

Fourth Circuit analyzed, 139 “invoked” Christianity, only 

four were nonsectarian, and at least 11 “‘promote[d]’” 

Christianity. Id., at 283–286. Third, the commissioners 

“told attendees to rise and often invited them to pray.” 

Id., at 286. Fourth, and finally, the prayers took place in

“the intimate setting of a municipal board meeting,” where 

the Board often exercises “quasi-adjudicatory power over 

such granular issues as zoning petitions, permit applications, and contract awards.” Id., at 287–288. 

For these four reasons, the Fourth Circuit held that 

Rowan County’s prayer practice violated the Establishment Clause. Five judges dissented, contending that the

Fourth Circuit’s decision was inconsistent with this 

Court’s precedents and this country’s “long and varied 

tradition of lawmaker-led prayer.” See id., at 301–323 

(opinion of Agee, J.). 

II 

I would have granted certiorari in this case. The Fourth 

Circuit’s decision is both unfaithful to our precedents and

ahistorical. It also conflicts with a recent en banc decision 

of the Sixth Circuit. 

While the Fourth Circuit stated that a “combination” of 

factors made the Board’s prayers unconstitutional, id., at 

281, virtually all of the factors it identified were present in 

Town of Greece. The Fourth Circuit noted that the Board’s 

prayers were typically Christian and occasionally promoted 

Christianity at the expense of other religions. But so 

did the prayers in Town of Greece. See 572 U. S., at ___– 

___ (slip op., at 10–18). The Fourth Circuit stressed that 
 

 

4 ROWAN COUNTY v. LUND 

THOMAS, J., dissenting 

the commissioners often asked attendees to rise and invited 

them to pray. But the prayergivers in Town of Greece 

made the same invitations. See id., at ___–___ (plurality 

opinion) (slip op., at 20–21). The Fourth Circuit thought 

that audience members would be pressured to participate 

in the prayers, given the intimate setting of Board meetings and its adjudicatory authority. But these same pressures were present in Town of Greece. See id., at ___ (slip 

op., at 18); id., at ___–___ (THOMAS, J., concurring in part 

and concurring in judgment) (slip op., at 7–8).

The only real difference between this case and Town of 

Greece is the person leading the prayer. Prayers in Rowan

County are led by the commissioners, while prayers in 

Greece are led by guest ministers. The Fourth Circuit 

leaned heavily on this distinction to justify conducting its

own free-floating evaluation of Rowan County’s prayers.

See 863 F. 3d, at 280. But what it should have done, 

under our precedents, is examine whether “history shows 

that the specific practice [of legislator-led prayer] is permitted.” Town of Greece, supra, at ___ (slip op., at 8). If 

the Fourth Circuit had conducted that inquiry, it would 

have found a rich historical tradition of legislator-led 

prayer.

For as long as this country has had legislative prayer,

legislators have led it. Prior to Independence, the South

Carolina Provincial Congress appointed one of its members to lead the body in prayer. See Brief for State of West 

Virginia et al. as Amici Curiae 9 (States Brief). Several 

States, including West Virginia and Illinois, opened their 

constitutional conventions with prayers led by convention

members instead of chaplains. See Brief for Members of 

Congress as Amici Curiae 10 (Congress Brief). The historical evidence shows that Congress and state legislatures 

have opened legislative sessions with legislator-led prayer 

for more than a century. See States Brief 8–19; Congress 

Brief 8–9. In short, the Founders simply “did not intend to 
 

 

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THOMAS, J., dissenting 

prohibit a just expression of religious devotion by the

legislators of the nation, even in their public character as

legislators.” S. Rep. No. 376, 32d Cong., 2d Sess., 4 

(1853).*

The Sixth Circuit, also sitting en banc, recently surveyed this history and upheld a municipal prayer policy 

virtually identical to Rowan County’s. See Bormuth v. 

County of Jackson, 870 F. 3d 494 (2017). The Sixth Circuit acknowledged that its decision was “in conflict with

the Fourth Circuit’s” but found the latter “unpersuasive,” 

id., at 509, n. 5—not least because the Fourth Circuit 

“apparently did not consider the numerous examples of

[legislator-led] prayers” in our Nation’s history, id., at 510. 

Thus, the Sixth and Fourth Circuits are now split on the

legality of legislator-led prayer. State and local lawmakers can lead prayers in Tennessee, Kentucky, Ohio, and 

Michigan, but not in South Carolina, North Carolina, 

Virginia, Maryland, or West Virginia. This Court should 

have stepped in to resolve this conflict.

I respectfully dissent. 

—————— 

* In addition to having little basis in history, the Fourth Circuit’s

decision has little basis in logic. It is hard to see how prayers led by

sectarian chaplains whose salaries are paid by taxpayers—a practice

this Court has upheld, see Marsh v. Chambers, 463 U. S. 783 (1983)— 

could be less of a government establishment than prayers voluntarily

given by legislators. See Bormuth v. County of Jackson, 870 F. 3d 494, 

523 (CA6 2017) (en banc) (Sutton, J., concurring).