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From “Let Us Pray” to “Let Us Reconsider”


By: Rachel Leitschuck, Volume 101 Staff Member

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . .”[1] This language is known as the Establishment Clause of the First Amendment and it prohibits the government from “establishing” a religion. While there has been much debate about the meaning of the term “establishment of a religion,”[2] for thirty years now the Supreme Court has expressly permitted the practice of legislative prayer[3] and stressed its unique status.[4] Legislative prayer is defined as an invocation that “invoke[s] Divine guidance on a public body entrusted with making the laws.”[5] In layman’s terms, it is the practice of opening the meetings of state and federal legislatures, city councils, and other governmental bodies with prayer.

The Supreme Court recently revisited the legislative prayer doctrine in 2014 with its decision in Town of Greece v. Galloway.[6] This year, the Fourth Circuit became the first circuit to decide a legislative prayer case under the new Town of Greece framework. In its decision in Lund v. Rowan County,[7] the Fourth Circuit upheld the practice of a North Carolina county board of commissioners who opened its public meetings with Christian prayers given by the elected commissioners.[8] However, the story does not end there. Soon after the decision, the Fourth Circuit granted en banc review.[9] This Article will argue that the Fourth Circuit should reverse its earlier decision and hold that Rowan County’s legislative prayer practice violates Establishment Clause principles as set forth in Town of Greece v. Galloway. First, I will give a brief summary of Establishment Clause law as it relates to legislative prayer. Second, I will summarize the Fourth Circuit’s opinion in Lund v. Rowan County and last, analyze it compared to the Supreme Court’s opinion in Town of Greece.


The logic behind the exception for legislative prayer is as follows: legislative prayer dates back to the founding, so therefore, it must be constitutional. In other words, because the same Congress that ratified the First Amendment in 1791 allowed legislative prayer, they must not have intended legislative prayer to be excluded by the Establishment Clause.[10] While this logic may seem straight-forward, legislative prayer jurisprudence has been anything but.

In 1983, the Supreme Court expressly declared the practice of legislative prayer constitutional in Marsh v Chambers.[11] The Court upheld the Nebraska legislature’s practice of hiring a chaplain to offer an opening prayer at each legislative session, despite the fact that the legislature had selected the same Presbyterian minister for sixteen years and the chaplain was essentially a paid state employee.[12] The Court held that unless there were “impermissible motives” in choosing the chaplain, inviting clergy from only one religious denomination did not violate the Establishment Clause.[13]

In the same breath that the Court approved the practice of legislative prayer, it also mandated that the opportunity to pray not be exploited “to proselytize or advance any one [religion], or to disparage any other, faith or belief.”[14] What it means to be in violation of this mandate is unclear, and was widely debated at the circuit level.[15]

A few years later, the Supreme Court referenced its holding in Marsh in County of Allegheny, a case regarding the constitutionality of a religious holiday display at a government building.[16] In its reference, 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.”[17] This comment sparked a legislative prayer doctrine among the lower courts that decided constitutionality largely based on the sectarian or nonsectarian nature of the prayers.[18]

In the Supreme Court’s most recent legislative prayer decision, Town of Greece, the Court rejected the sectarian versus nonsectarian approach, disavowing the comment in Allegheny as dictum and holding that “[a]n insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in [our] cases.”[19] The Court went on to uphold a town council’s practice of inviting local clergy to deliver prayers at the beginning of its sessions, despite the fact that the guest chaplains were all Christian.[20] The Court held that a legislature has broad discretion to host opening prayers “so long as [it] maintains a policy of nondiscrimination.”[21]


Soon after the Supreme Court’s 2014 decision, the Fourth Circuit had the opportunity to apply the new Town of Greece framework in Lund v. Rowan County.[22] In Rowan County, North Carolina, the elected Board of Commissioners held public meetings twice a month.[23] To open these meetings, each elected commissioner was permitted to give an invocation on a rotating basis.[24] While the Board, as a Board, had no role in prayer selection or content, the overwhelming majority of the prayers invoked the Christian faith.[25] Additionally, the commissioners’ invocations usually began with some variant of “let us pray” or “please pray with me,” and the audience largely joined the commissioners in standing and bowing their heads during the prayer.[26]

The ACLU and three Rowan County residents filed a complaint in the U.S. District Court for the Middle District of North Carolina, seeking an injunction against the practice.[27] The district court found for the plaintiffs, factually distinguishing Lund from Town of Greece, and finding that the Board’s practice was coercive.[28] The Fourth Circuit reversed, holding that the Board’s legislative prayer practice falls within the realm of recognized tradition protected by Marsh and further, that the practice does not coerce participation.[29]

One of the main issues the district court and the Fourth Circuit differed on was the fact that only the elected commissioners were allowed to deliver prayers. While the lower court found that limitation a “crucial” and “determinative difference,”[30] the Fourth Circuit was unpersuaded. In supporting its opinion, the Fourth Circuit was faced with various Establishment Clause issues outlined in Town of Greece that seem to bump up against a practice of law-maker led prayer: Does that make legislatures “supervisors and censors of religious speech?”[31] Is that practice in line with maintaining a “policy of nondiscrimination”?[32] Does it “advance any one . . . faith or belief” over time?[33] The Fourth Circuit answered “no” to all of these questions, finding that the practice of lawmakerled prayer was well supported by history and tradition[34] and that having a closed universe of prayer-givers could not be a violation of the Establishment Clause given that the practice in Marsh was upheld where the same chaplain was hired for sixteen years straight.[35]

As for the issue of coercion, the Fourth Circuit held that residents’ subjectively perceived pressure to participate was not enough to qualify, and that absent evidence of “red flags” identified in Town of Greece, such as commissioners “singl[ing] out dissidents for opprobrium, or indicat[ing] that their decisions might be influenced by a person’s acquiescence in the prayer opportunity,”[36] the practice does not rise to unconstitutional coercion.[37] The Fourth Circuit also found that invitations like “let us pray” were no more coercive coming from a legislator than a chaplain invited or hired by the legislature and additionally, that those phrases are commonly known as a call to open an invocation “that hardly compels in the rational mind thoughts of submission.”[38]

In sum, the Fourth Circuit upheld the Rowan County practice of legislator-only led prayer because it was supported by the history and tradition required by Marsh, and was not coercive under the standards set forth in Town of Greece.


While Rowan County’s legislative prayer practice is not necessarily a flagrant or extreme violation of the Establishment Clause, the practice as is does seem distinguishable from the authorized practice in Town of Greece.[39] In its en banc review, the Fourth Circuit should reverse its earlier holding and issue an opinion more in line with the requirements set forth by the Supreme Court in Town of Greece.

First, the Fourth Circuit erred in dismissing the issue of a closed universe of prayer-givers as permissible by the standards of Marsh and seemingly permissible by the lack of express prohibition in Town of Greece. However, a practice that does not allow other interested parties to give prayers if they so request might not actually be constitutional anymore. In Town of Greece, the Supreme Court specifically noted that “[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.”[40] The Court held that “[s]o long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.”[41]

The same practice of openness is not present in Rowan County, and without this open invitation to outsiders, can the practice truly satisfy the “policy of nondiscrimination” mandated by Town of Greece? It does not seem likely. The Fourth Circuit claims that the applicable standard for discrimination is Marsh’s “impermissible motive,”[42] but that does not seem to square with Town of Greece’s “policy of nondiscrimination.” If the standard has in fact changed, Rowan County will need to open the floor to other people who would like to give prayers alongside the elected commissioners.[43]

In addition to the issue of legislators as prayer-givers, the Fourth Circuit also seems to have ignored the Supreme Court’s holding in Town of Greece on the issue of coercion. When reviewing phrases like “let us pray,” the Court underscored that the requests in Town of Greece “came not from town leaders but from the guest ministers.”[44] The Court goes on to explicitly warn that its “analysis would be different if town board members directed the public to participate in prayers.”[45] The Fourth Circuit completely ignored this warning and held that “mature adults” should not feel compelled to participate based on the identity of the prayer-giver.[46] This holding ignores the power the county board holds to affect residents’ property and livelihood and the impropriety of having sectarian exercises so close in proximity to citizen petitions for the benefits that local boards dole out.[47]

In conclusion, while a history of legislator-led prayer at public meetings does seem to be in line with the historical practice of legislative prayer, the exact practices being used in Rowan County do not pass the constitutional standards required by Town of Greece. The Fourth Circuit should reverse its earlier ruling and hold that the Rowan County Board of Commissioner’s practice violates the Establishment Clause because it lacks the required “policy of nondiscrimination” and is coercive. While the commissioners can no doubt continue to offer invocations at their meetings, they need to open the opportunity to those of other religions who request in order to have a “policy of nondiscrimination.” Additionally, the commissioners need to cease the practice of soliciting participation in their prayers to avoid an unconstitutionally coercive religious exercise. If Rowan County alters those two features, its legislative prayer practice will then be in line with the Establishment Clause requirements enumerated in Town of Greece.

  1. U.S. Const. amend. I.
  2. Some judges, including former Chief Justice William Rehnquist, have argued that the term was intended to prohibit only the establishment of a single national church, such as the Church of England. See Wallace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, J., dissenting). However, the Supreme Court held in Everson v. Board of Education that the Establishment Clause also means that government may not “pass laws which aid one religion, aid all religions, or prefer one religion over another . . . . [F]orce nor influence a person to go to or to remain away from church against his will . . . openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.” 301 U.S. 1, 15–16 (1947). “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state.’” Id. at 16.
  3. The Supreme Court declared legislative prayer constitutional in Marsh v. Chambers, 463 U.S. 783 (1983).
  4. As Justice Brennan explained in Marsh, “[t]he Court makes no pretense of subjecting [the] practice of legislative prayer to any of the formal ‘tests’ that have traditionally structured our inquiry under the Establishment Clause;” instead, “the Court is carving out an exception to the Establishment Clause rather than reshaping Establishment Clause doctrine to accommodate legislative prayer.” Id. at 796 (Brennan, J., dissenting).
  5. Id. at 792.
  6. 134 S. Ct. 1811 (2014).
  7. No. 15-1591, 2016 WL 4992499 (4th Cir. Sept. 19, 2016).
  8. Id. at *1.
  9. Lund v. Rowan County, No. 15-1591, 2016 WL 6441047 (4th Cir. Oct. 31, 2016) (mem)). The oral arguments are tentatively calendared for January 2017.
  10. Town of Greece v. Galloway, 134 S. Ct. 1811, 1819 (2014) (“That the First Congress provided for the appointment of a chaplain only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.”).
  11. 436 U.S. 783.
  12. Id. at 792–93.
  13. Id. at 793–94.
  14. Id. at 794–95.
  15. See Kristopher L. Caudle, Unanswered Prayers: Lund v. Rowan County and the Permissiveness of Sectarian Prayer in Municipalities, 12 First Amend. L. Rev. 625, 640–51 n.99 (2014) (detailing the five circuits that issued opinions analyzing Marsh and the subsequent circuit split).
  16. Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989) abrogated by Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).
  17. Id. at 603.
  18. See Caudle, supra note 15, at 630; see also Joyner v. Forsyth Cty., 653 F.3d 341, 347 (4th Cir. 2011) (explaining how the Fourth Circuit’s case law operated on the understanding that the constitutionality of legislative prayer depends largely on the nonsectarian nature of the prayer in question).
  19. Town of Greece v. Galloway, 134 S. Ct. 1811, 1820 (2014).
  20. Id. at 1816.
  21. Id. at 1814.
  22. No. 15-1591, 2016 WL 4992499 (4th Cir. Sept. 19, 2016).
  23. Id. at *1.
  24. Id.
  25. It was calculated that 97% of the meetings had opened with a sectarian prayer that invoked the Christian faith. Id. at *2.
  26. Id. at *1.
  27. Verified Complaint for Declaratory and Injunctive Relief and Nominal Damages, Lund v. Rowan Cty., 103 F. Supp. 3d 712 (2015) (No. 1:13CV207), 2013 WL 960466.
  28. Lund v. Rowan Cty., 103 F. Supp. 3d 712, 723–24, 733 (M.D.N.C. 2015), rev’d, No. 15-1591, 2016 WL 4992499 (4th Cir. Sept. 19, 2016).
  29. Lund, 2016 WL 4992499, at *18.
  30. Lund, 103 F. Supp. 3d at 722, 724.
  31. Town of Greece v. Galloway, 134 S. Ct. 1811, 1822 (2014).
  32. Id. 1814.
  33. Id. at 1823 (quoting Marsh v. Chambers, 436 U.S. 783, 794–95 (1983)).
  34. Lund, 2016 WL 4992499, at *7–9.
  35. Id. at *7.
  36. Town of Greece, 134 S. Ct. at 1826.
  37. Lund, 2016 WL 4992499, at *15–16.
  38. Id. at *17.
  39. Judge Wilkinson wrote in his dissenting opinion, “This case is more than a factual wrinkle of Town of Greece v. Galloway. It is a conceptual world apart.” Id. at *18 (Wilkinson, J., dissenting) (citation omitted).
  40. Town of Greece, 134 S. Ct. at 1852.
  41. Id. at 1824.
  42. Lund, 2016 WL 4992499, at *11.
  43. While a practice that gives people of all faiths the opportunity to give an invocation might seem like a sensible way to solve the dispute, opening the legislative prayer floor to all has the potential to disrupt in a way that is unfavorable to those who benefit from a Christian-only invocation practice. See Ian Millhiser, Satanists Have Trolled a Major City Into Submission, ThinkProgress (Feb. 5, 2016), (detailing how a member of the Satanic Temple in Phoenix, Arizona, requested to offer a Satanic prayer at a city council meeting and the city council voted to abandon its practice of opening sessions with a prayer instead of letting the member give an invocation).
  44. Town of Greece, 134 S. Ct. at 1826.
  45. Id.
  46. Lund, 2016 WL 4992499, at *17.
  47. Lund, 2016 WL 4992499, at *22 (Wilkinson, J., dissenting).