MICHAEL F. URBANSKI, District Judge.
This matter is before the court on a motion to dismiss filed by defendants Board of Supervisors of Pittsylvania County and Pittsylvania County, Virginia (Dkt. # 14).
The verified complaint alleges that the Board meets twice a month and regularly opens its meetings with Christian prayer. Verified Compl., Dkt. # 1, at ¶¶ 6, 8. A member of the Board delivers an opening prayer at each Board meeting, which prayer is "explicitly Christian in nature; that is, it invokes the name of `Jesus Christ' `Jesus' or `Christ.'" Id. at ¶ 8. The verified complaint alleges that, for example, on August 17, 2010, the opening prayer was as follows:
Id. Plaintiff alleges that the audience is asked to stand while the prayer is delivered and the supervisors and audience bow their heads. Id. at ¶ 9. Plaintiff alleges that, except in the case of illness or infrequent scheduling conflicts, she has attended each Board meeting since October 2008
The verified complaint alleges that after reading about the Fourth Circuit's decision in Joyner v. Forsyth County, 653 F.3d 341 (4th Cir.2011),
Id. at Ex. A ¶ 6. The final paragraph of the written policy states:
Id. at Ex. A ¶ 11.
The verified complaint alleges that on the date the resolution was passed, September 6, 2011, "[p]rior to roll call, Supervisor Coy E. Harville delivered a Christian prayer." Id. at ¶ 14. The verified complaint further alleges that despite the passage of the resolution, "supervisors at the September 6, 2011, Board meeting stated their intention to continue praying in the name of Jesus Christ, and have, indeed, continued that practice." Id. at ¶ 16.
The Board has moved to dismiss the verified complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This plausibility standard requires a plaintiff to demonstrate more than "a sheer possibility that a defendant has acted unlawfully." Id. at 1949. When ruling on a motion to dismiss, the court must "accept the well-pled allegations of the complaint as true" and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997). While the court must accept as true all well-pleaded factual allegations, the same is not true for legal conclusions. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. The Supreme Court outlined its two-pronged approach as follows:
Id. at 1950. Determining whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
The verified complaint alleges that the "sectarian prayers at meetings" of the Board violate the Establishment Clause of the First Amendment to the United States Constitution. Verified Compl., Dkt. # 1, at ¶ 17. The Establishment Clause of the First Amendment, made applicable to the states and their political subdivisions through the Fourteenth Amendment, see Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947), commands that the government "shall make no law respecting an establishment of religion." U.S. Const, amend. I. Specifically, the verified complaint alleges:
Verified Compl., Dkt. # 1, at ¶¶ 18-20.
The Board raises three arguments as to why plaintiff's Establishment Clause suit should be dismissed, none of which has any merit. The Board first argues that plaintiff's verified complaint fails to sufficiently plead that she has standing to bring this action despite binding Fourth Circuit precedent to the contrary. Second, the Board erroneously asserts that the doctrine of legislative immunity applies to a suit brought against the County and its Board of Supervisors, as opposed to a suit against members of the Board in their individual capacities. Likewise, the Board asserts that legislative immunity and a legislative testimonial privilege shield its sectarian prayer practice from a constitutional challenge when, in fact, those doctrines are applicable only to activities integral to lawmaking, which an opening invocation is not. Finally, the Board argues that the alleged practice of regularly opening its meetings with Christian prayer is lawful, but controlling Supreme Court and Fourth Circuit decisions compel the opposite conclusion. The court addresses each of these arguments in turn.
Plaintiff alleges that she has regularly attended Board meetings since October 2008 and intends to continue to do so. Id. at ¶ 10. Plaintiff objects to the Board's practice of opening its meetings with Christian prayer because she does not subscribe to the particular faith promoted by the Board's opening prayer; the prayers convey that she is not welcome at the meetings; the prayers create a perception that the Board is unlikely to treat non-Christians fairly; and the prayers make her feel like an outsider in her own community. Id. at ¶ 11. The Board asserts that these allegations do not sufficiently allege injury in fact.
The standing issue in this case is controlled by the Fourth Circuit's decision in Suhre v. Haywood County, 131 F.3d 1083 (4th Cir.1997). Suhre involved a display of the Ten Commandments in the main courtroom of the Haywood County, North Carolina courthouse. Plaintiff viewed the display as a party to two court proceedings and four other meetings held in the courtroom. Rejecting Haywood County's standing challenge, the Fourth Circuit recognized that "[t]he injury that gives standing to plaintiffs in these cases is that caused by unwelcome direct contact with a religious display that appears to be endorsed by the state. Such personal contact with state-sponsored religious symbolism is precisely the injury that was sufficient to confer standing in School District of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)." Suhre, 131 F.3d at 1086.
In Schempp, school children and their parents sued the school district, complaining of the school's practice of reading Bible verses and reciting of the Lord's Prayer each morning before classes began. The Court had little difficulty finding that the students and their parents had standing to challenge the practice of school prayer:
374 U.S. at 224 n. 9, 83 S.Ct. 1560. As the Fourth Circuit noted in Suhre, "Schempp
Just as in Schempp and Suhre, plaintiff in this case has alleged direct contact with the sectarian prayer practices of the Board. As such, plaintiff has alleged standing to pursue her Establishment Clause claim.
Contrary to the Board's argument, the Supreme Court's opinion in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), supports plaintiffs standing in this case. In Valley Forge, plaintiffs, residents of Maryland and Virginia, learned from a news release that certain surplus government property northwest of Philadelphia had been conveyed to the Valley Forge Christian College without any financial payment. Plaintiffs sued, objecting to the property transfer on Establishment Clause grounds. Concluding that plaintiffs lacked standing to challenge the conveyance, the Court reasoned:
454 U.S. at 486-87, 102 S.Ct. 752 (footnotes omitted). In contrast to the plaintiff in this case, the Valley Forge plaintiffs simply had no direct contact with the claimed Establishment Clause violation sufficient to confer standing. See Suhre, 131 F.3d at 1086.
In Suhre, the Fourth Circuit reached the same conclusion, stating, "[i]n Valley Forge the Supreme Court confirmed that a proper Establishment Clause plaintiff must allege direct injury, like that experienced by the Schempp plaintiffs, who `were subjected to unwelcome religious exercises or were forced to assume special burdens to avoid them.' Valley Forge, 454 U.S. at 487 n. 22, 102 S.Ct. 752 (discussing Schempp )." 131 F.3d at 1086. This is not a case, as in Valley Forge, where the plaintiffs' stake was a "mere abstract objection to unconstitutional conduct." Id. Rather, it is plain that plaintiff, by alleging that she has personally heard the consistently Christian prayers of the Board at its meetings, has alleged direct injury sufficient to confer standing to bring this Establishment Clause challenge.
Finally, the Board asserts that there is no causal connection between any official Board action and the sectarian content of the invocations delivered by the individual Board members. There is no merit to this argument. The Fourth Circuit has repeatedly considered opening prayers at local government meetings to be government speech. For example, in Turner v. City Council of Fredericksburg, 534 F.3d 352 (4th Cir.2008), cert. denied, 555 U.S. 1099, 129 S.Ct. 909, 173 L.Ed.2d 109 (2009), Retired Justice Sandra Day
Id. at 355. In Turner, as here, the opening prayers were delivered by a member of the governing board, 534 F.3d at 353, and the Fourth Circuit's conclusion that the opening prayer was government speech applies with equal force here. Likewise, in Wynne, Christian prayer by the members of the Town Council of Great Falls, South Carolina was found to be "simply not constitutionally acceptable legislative prayer." 376 F.3d at 301-02.
This conclusion makes sense. The Board controls the format and forum for the opening prayers. The prayers are delivered exclusively by Board members. No member of the public is afforded an opportunity to offer a prayer. By offering only Christian prayers, the Board has not attempted to create a public forum in which all are welcome to express their faiths. Rather, by praying to only one deity, the Board impermissibly wraps the power and prestige of the Pittsylvania County government around the personal religious beliefs of individual Board members. Plainly, the practice is government endorsement of religion.
Further, there is no constitutional significance to the fact that the opening prayer occurs before the gavel falls and the Board begins its official business. The Fourth Circuit's conclusion in Wynne makes this point abundantly clear:
376 F.3d at 302.
Indeed, in this regard, the written policy adopted by the Board mirrors that adopted by the Forsyth County Board of
Accordingly, there is no merit to the Board's argument that plaintiff has failed to allege injury in fact sufficient to confer upon her standing to bring this action.
At oral argument, and in supplemental briefing, the Board argued that the Speech or Debate Clause of the United States Constitution prohibits anyone from questioning the words spoken by any member of a legislative body, essentially immunizing the Board and Pittsylvania County from an Establishment Clause challenge to government-sponsored prayer. This argument has no merit.
The Speech or Debate Clause reinforces the separation of powers and protects legislative independence.
"The Federal Speech or Debate Clause, of course, ... by its terms is confined to federal legislators." United States v. Gillock, 445 U.S. 360, 374, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980). As such, it cannot provide immunity to the members of the Board. Nor does the Virginia Constitution provide the Board any cover for unconstitutional conduct. The Virginia Constitution contains a provision similar to the Speech or Debate Clause applicable to members of the Virginia General Assembly: "Members of the General Assembly shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during the sessions of their respective houses; and for any speech or debate in either house shall not be questioned in any other place." Va. Const. art. IV, § 9. While this provision provides certain legislative immunity to members of the General Assembly for speeches made on the floor of that body, it is not, by its own terms, applicable to local governmental entities such as the Board.
For the same reason, there is no testimonial privilege applicable to bar admission into evidence the Board's Christian prayer practice at issue in this case. Again, the Speech or Debate Clause applies only to members of Congress, not to the Board. As such, any claimed evidentiary privilege flowing from the Speech or Debate Clause's "shall not be questioned" language has no application to the Board or this case. Gillock, 445 U.S. at 374, 100 S.Ct. 1185; Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 403-04, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979).
The case law is clear that any legislative immunity
"[T]he Supreme Court has left no doubt that municipalities and local governments are not entitled to immunity from suits under section 1983." Berkley v. Common Council of Charleston, 63 F.3d 295, 296 (4th Cir.1995), cert. denied, 516 U.S. 1073, 116 S.Ct. 775, 133 L.Ed.2d 727 (1996) (citing Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993)); Owen v. City of Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). The Fourth Circuit in Berkley concluded "that a municipality is not immune from section 1983 liability for unconstitutional enactments and other legislative activities of the local legislature." 63 F.3d at 296. As the Berkley court explained:
Id. at 300.
As in Berkley, plaintiff herein has not sued the members of the Board in their individual capacities; rather, the suit names only Pittsylvania County and its governing body, the Board. The Fourth Circuit in Berkley rejected the extension of legislative immunity to the governmental entity itself, and the same reasoning applies here:
Id. at 300-01.
The holding in Berkley is amply supported by Supreme Court precedent. See, e.g., Bogan, 523 U.S. at 53, 118 S.Ct. 966 ("Municipalities themselves can be held liable for constitutional violations."). As the Court noted in Owen, "[t]he concerns that justified [granting individual immunity from personal liability to governmental officials] in those decisions, however, are less compelling, if not wholly inapplicable, when the liability of the municipal entity is at issue." 445 U.S. at 653, 100 S.Ct. 1398.
The second reason why legislative immunity has no application to this case is because legislative prayer is beyond the proper scope of common law legislative immunity. The purpose of legislative immunity is "to protect the integrity of the legislative process by insuring the independence of individual legislators." Brewster, 408 U.S. at 507, 92 S.Ct. 2531. As such, legislative immunity only applies "in the sphere of legitimate legislative activity." Tenney, 341 U.S. at 376-77, 71 S.Ct. 783 ("This Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role."); see Brewster, 408 U.S. at 528, 92 S.Ct. 2531 (legislative immunity afforded by the Speech or Debate Clause "does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself); Alexander v. Holden, 66 F.3d 62, 65 (4th Cir.1995) ("Legislative immunity only attaches to legislative actions."); Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 415 (D.C.Cir.1995) ("The Clause is not, to be sure, a blanket prohibition on suits against congressmen. It protects only those congressional acts properly thought to fall within the legislative function — those `generally done in a session of the House by one of its Members in relation to the business before it.' Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881)."); Bruce, 631 F.2d at 279 (legislative immunity applies to "legislators of any political subdivision of a state function[ing] in a legislative capacity"); Greenburg v. Collier, 482 F.Supp. 200, 202 (E.D.Va.1979) ("Only those activities properly termed legislative are protected from inquiry by the speech or debate clause."). In Bogan, the Court found the actions of the Mayor of Fall River, Massachusetts in introducing a budget and signing an ordinance into law to be protected by the doctrine of legislative immunity because "they were integral steps in the legislative process." 523 U.S. at 55, 118 S.Ct. 966. Here, in contrast, nothing about the Board's sectarian prayer practice approaches such an integral legislative step.
Though not recognized by the Board in argument or briefing, the leading legislative prayer case of Marsh v. Chambers,
Marsh, 675 F.2d at 232-33. In their certiorari petition to the Supreme Court, the Nebraska legislative officials sought review of the Eighth Circuit's holding that legislative immunity does not bar an Establishment Clause challenge to the prayer practice of the Nebraska Legislature. Marsh, 463 U.S. at 786 n. 4, 103 S.Ct. 3330. In its ensuing decision, the Court left undisturbed the Eighth Circuit's decision rejecting the extension of legislative immunity to legislative prayer. See id. at 785-86, 103 S.Ct. 3330. Moreover, the Court's opinion nowhere suggests that it did not have jurisdiction or that it was otherwise barred by the doctrine of legislative immunity from reaching the merits of the Establishment Clause challenge to the prayer practices of the Nebraska Legislature. As such, the history of the Marsh decision supports the proposition that legislative immunity does not bar an Establishment Clause challenge to legislative prayer.
Likewise, the district court in Kurtz v. Baker, 630 F.Supp. 850, 856 (D.D.C.1986), rev'd on other grounds, 829 F.2d 1133 (D.C.Cir.1987), cert. denied, 486 U.S. 1059, 108 S.Ct. 2831, 100 L.Ed.2d 931 (1988), rejected a Speech or Debate Clause challenge to the legislative prayer practices of Congress, ruling that no immunity applied because "[t]he practice of legislative prayer does not provide meaningful input into... legislative decision making." In a dissent filed to the District of Columbia Circuit Court of Appeals' opinion reversing the district court in Kurtz on standing grounds, then-Circuit Justice Ruth Bader Ginsburg wrote "[i]n accord with the district court, I find no threshold blockage to Kurtz's claim against the chaplains and Treasury officers by reason of the Speech or Debate Clause. While inspirational, prayer in Congress does not appear to be `integral to lawmaking.'" Kurtz, 829 F.2d at 1146 n. 2 (Ginsburg, J., dissenting).
To be sure, Marsh and Kurtz involved prayers by legislative chaplains, rather than individual legislators. Regardless, these cases squarely reject the argument that opening prayers are activities integral to lawmaking and subject to legislative immunity. Likewise, in this case, the
The Board's argument that its sectarian prayer practices are protected by a testimonial privilege and are beyond constitutional review likewise misses the mark. In contrast to the privilege enjoyed by members of Congress under the Speech or Debate Clause, there is no absolute "evidentiary privilege for state legislators for their legislative acts." Gillock, 445 U.S. at 373, 100 S.Ct. 1185. Nor has the Court recognized an absolute testimonial privilege for state or local legislators in civil cases. In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), the Court declined to declare all judicial inquiries into legislative motivation to be off-limits, stating, "[i]n some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of official action, although even then such testimony frequently will be barred by privilege." Id. at 268, 97 S.Ct. 555; see also Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292, 304 (D.Md.1992) (Murnaghan, J. and Motz, J., concurring) ("The doctrine of legislative immunity (both in its substantive and testimonial aspects) ... does not ... necessarily prohibit judicial inquiry into legislative motive where the challenged legislative action is alleged to have violated an overriding, free-standing public policy.").
Testimonial exclusionary rules and privileges are not favored. This is so because they "contravene the fundamental principle that `the public ... has the right to every man's evidence.'" Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906 63 L.Ed.2d 186 (1980) (quoting United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 (1950)). Privileges consequently must be "strictly construed and accepted `only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.'" Id. (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting)).
There are several reasons why legislative testimonial privilege has no application to this case. First, as the Board's opening prayers do not fall within the sphere of legitimate legislative activities, it cannot be credibly argued that any common law evidentiary privilege applies to this case. See EEOC v. Wash. Suburban Sanitary Comm'n, 666 F.Supp.2d 526, 531 (D.Md. 2009) ("[T]he privilege is only permitted to protect actions that are considered legislative."), aff'd, 631 F.3d 174 (4th Cir.2011). Unlike the sectarian prayers at issue here, "[l]egislative acts, the ones for which the immunity and privilege are granted, typically involve the adopt[ion of] prospective, legislative-type rules, rules that establish[ ]... a general policy affecting the larger population." Wash. Suburban Sanitary Comm'n, 631 F.3d at 184 (internal quotations and citation omitted). Because the Board's opening prayers are not legislative
Second, even if a common law legislative testimonial privilege were to attach, it would not preclude the court from examining the constitutionality of the public prayers of the Board. The challenged conduct in this case consists entirely of words spoken as opening prayers in a public forum. While "the legislative privilege may shield legislators ... from testifying about non-public matters related to legislative conduct," Kay v. City of Rancho Palos Verdes, No. 02-03922, 2003 WL 25294710, at *10 (C.D.Cal. Oct. 10, 2003), the privilege cannot shield public actions of the Board from constitutional scrutiny.
Indeed, there is no need to inquire into the motives of any individual Board member or the Board's deliberative processes because the challenged prayers were spoken aloud and in public for all to hear. Thus, the evidence central to this case involves no challenge to legislative independence, works no interference with the legislative process, nor poses any threat to its integrity. Allowing the court to assess the constitutionality of the words spoken by the Board members in public meetings poses no burden to those members. None of the traditional policy rationales applicable to the doctrines of legislative immunity or privilege have any application here. In contrast, there is a very strong federal interest in the enforcement of civil rights statutes that provide remedies for violations of the Constitution. See, e.g., Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) ("The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights — to protect the people from unconstitutional action under color of state law, `whether that action be executive, legislative, or judicial.'"); see also United States v. Irvin, 127 F.R.D. 169, 174 (C.D.Cal. 1989) (legislative privilege of county board of supervisors must yield to the need for disclosure to enforce Voting Rights Act); East End Ventures, LLC v. Inc. Village of Sag Harbor, No. 09-3967, 2011 WL 6337708, at *4 (E.D.N.Y. Dec. 19, 2011) ("Because the subject matter on which Plaintiffs seek testimony is one of the central issues in this case, the legislative privilege is inapplicable."). In sum, the Board's sectarian prayer practices are not shielded from constitutional review by grasping at the inapplicable straw of legislative testimonial privilege.
Finally, in Joyner, Turner, Simpson, and Wynne, the Fourth Circuit recently decided four legislative prayer cases involving local governmental entities and their governing bodies, and neither legislative immunity nor privilege precluded the court from reaching the merits of the Establishment Clause issue. For all of these reasons, the doctrines of legislative immunity and privilege have no application to this case.
Disagreeing with the clear holdings of the Fourth Circuit on the unconstitutionality of sectarian legislative prayer, the Board argues that its practice of Christian prayer is constitutional. Bound by controlling Fourth Circuit precedent, the court must reject the Board's argument.
In Wynne, decided in 2004, and Joyner, decided this past summer, the Fourth Circuit makes it very clear that a local government violates the Establishment Clause by opening its meetings with sectarian prayer. The Supreme Court denied certiorari review in each case. Those decisions are the law of this circuit and binding precedent on this court.
The facts in Wynne bear a strong resemblance to this case. There, the Town Council of Great Falls, South Carolina opened its meetings with a prayer led by a member of the Council. Wynne, 376 F.3d at 294. Each of the Council members was Christian, and the opening or closing portion of the prayers frequently referred to "Jesus," "Jesus Christ," "Christ," or "Savior." Id. During the prayers, citizens attending the meetings customarily stood and bowed their heads, and town residents participated in the prayers by saying "Amen" at the end. Id. Wynne, a follower of the Wiccan faith, objected to the Town Council's practice of referring to "Jesus Christ" in its prayers and requested that the prayers be limited to God and that members of different religions be invited to give prayers. Id. at 294-95. The district court found that the Mayor responded at the meeting that the Council had always done it that way and was not going to change. Id. at 295. Wynne testified that thereafter she became very uncomfortable, and claimed to be ostracized and treated differently by the Council. Id. at 295-96. Her Establishment Clause suit followed. Id. at 296. After suit was filed, but before trial, the Town Council adopted a resolution providing, inter alia, that "[t]he invocation shall not contain or address any specific beliefs ... of any specific religion." Id. at 296 n. 2. Regardless, after adoption of the resolution, the Mayor announced that he would not prohibit any Council member from making a specific reference to "Jesus," "Jesus Christ," or "Christ." Id. As the resolution did not discontinue the practice of Christian prayer challenged by Wynne, the district court concluded that the resolution did not moot Wynne's request for injunctive relief, id., to which the Fourth Circuit agreed.
In Wynne, the Fourth Circuit discussed in detail the Supreme Court's legislative prayer decision in Marsh, and the further guidance on the proper scope of the Marsh decision provided by the Court in County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106
Wynne, 376 F.3d at 297.
The Wynne decision went on to explain that six years later, in Allegheny, the Court provided further guidance on Marsh by explaining 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. (quoting Allegheny, 492 U.S. at 603, 109 S.Ct. 3086). As the Fourth Circuit explained, "[t]he [Allegheny] Court further stressed that while Marsh may have found that history can `affect the constitutionality of nonsectarian references to religion by the government,' the Court had never held that `history can[ ] legitimate practices that demonstrate the government's allegiance to a particular sect or creed.'" Id. (quoting Allegheny, 492 U.S. at 603, 109 S.Ct. 3086 (emphasis added by Fourth Circuit)). As the Fourth Circuit in Wynne recognized, the Allegheny Court concluded that:
The Fourth Circuit in Wynne concluded its summary of Marsh and Allegheny as follows:
Id. at 298.
Applying those precedents to the opening prayers of the Great Falls Town Council that, as here, routinely invoked the name of Jesus Christ, the Fourth Circuit held in Wynne that the Town Council's practice of Christian prayer crossed the constitutional line established in Marsh and Allegheny:
Id. at 298-99, 301-302. This case is factually and legally indistinguishable from Wynne, which, as controlling precedent, requires the court to deny the Board's motion to dismiss.
The Fourth Circuit's 2011 Joyner decision reaffirms this conclusion. In Joyner, plaintiffs sued the Forsyth County Board of Commissioners, challenging the practice of opening its meetings with sectarian invocations delivered by local religious leaders. The invocation at the December 17, 2007 Board meeting attended by plaintiffs, like almost every previous invocation, invoked the name of Jesus. The December 17, 2007 prayer also made a number of other references to specific tenets of Christianity.
Joyner thus differed from Wynne in that the invocations were given by religious
As was the case in Wynne, and here, after the constitutional challenge to the sectarian prayer practice was raised, the Forsyth County Board decided to formalize its legislative prayer policy:
Id. at 344.
To be sure, the written policy adopted by the Forsyth County Board, like that adopted in Wynne and at issue here, is facially neutral. Id. at 353. Despite adoption of this policy, however, the prayers at the Forsyth County Board meetings "repeatedly continued to reference specific tenets of Christianity." Id. "These were not isolated occurrences [as] ... almost four-fifths of the prayers referred to `Jesus,' `Jesus Christ,' `Christ,' or `Savior.'" Id. The Joyner court declined to "turn a blind eye to the practical effects of the invocations at issue," and concluded that references to Christian beliefs in sectarian invocations given at "meeting after meeting... advanced Christianity and ... made at least two citizens feel uncomfortable, unwelcome, and unwilling to participate in the public affairs of Forsyth County." Id. at 354. As such, the Fourth Circuit held that the legislative prayer of the Forsyth County Board violated the Establishment Clause because it "'engage[d], as part of public business and for the citizenry as a whole, in prayers that contain[ed] explicit references to a deity in whose divinity only those of one faith believe.'" Id. at 349 (quoting Wynne, 376 F.3d at 301). The court explained:
Id. at 354-55 (quoting Simpson, 404 F.3d at 284).
The Fourth Circuit distinguished the sectarian invocations in Wynne and Joyner from the circumstances in Simpson, where the invocations preceding meetings of the
The Fourth Circuit in Joyner sets out "clear boundaries" for legislative prayer:
653 F.3d at 349.
The Board argues that the passage of a resolution on September 6, 2011 providing that the prayer to be delivered by the designated Board member should not "proselytize or advance any faith, or disparage the religious faith or non-religious views of others," Verified Compl., Dkt. # 1, at Ex. A ¶ 6, allows it to continue its Christian prayers. The Fourth Circuit's decisions in Wynne and Joyner hold to the contrary. Resolutions very similar to the Board's September 6, 2011 resolution were adopted by the local governing bodies in both Wynne and Joyner, and the Fourth Circuit held in each case that the resolutions alone did not exonerate the constitutional violation. Indeed, while the text of the resolutions espouses neutrality, the actual practices of the governing bodies in Wynne and Joyner remained largely sectarian. Plaintiff in this case has alleged that regardless of the language of the resolution, Board members have "stated their
Plaintiff's allegations in the verified complaint state a plausible claim that the Board's sectarian prayer practice violates the Establishment Clause. As in Wynne and Joyner, plaintiff alleges that the Board regularly opens its meetings with invocations making explicit reference to "Jesus Christ," "Jesus," or "Christ" and that this practice has continued despite the adoption of a neutral prayer resolution. As such, plaintiff has plausibly alleged that the Board has run afoul of the "clear boundaries" articulated in Joyner.
Finally, the Board cannot seek to justify its sectarian prayer practice by invoking notions of democracy, arguing that nothing prevents a non-Christian from being elected to the Board and publicly expressing his or her beliefs at Board meetings. Such a rationalization disregards the fundamental purpose of the Bill of Rights. The Bill of Rights exists to protect the rights of individuals from popular tyranny. While the members of the Board of Supervisors of Pittsylvania County are subject to popular election, the right of the citizens of Pittsylvania County to be free from government-sponsored religion is not. In short, the fundamental right of a citizen of Pittsylvania County to be free from sectarian prayer at government meetings is not dependent upon the faith of those elected by the majority to its Board of Supervisors.
Allegheny, 492 U.S. at 605, 109 S.Ct. 3086.
As it is abundantly clear that the Board's practice of regularly opening its meetings with Christian prayer runs afoul of just that command, its motion to dismiss must be
U.S. Const, art. I, § 6.
The Council's decision to provide only nonsectarian legislative prayers places it squarely within the range of conduct permitted by Marsh and Simpson. The restriction that prayers be nonsectarian in nature is designed to make the prayers accessible to people who come from a variety of backgrounds, not to exclude or disparage a particular faith. The Council's decision to open its legislative meetings with nondenominational prayers does not violate the Establishment Clause. 534 F.3d at 356.
