Coleman et al v. Hamilton County Government et al, No. 1:2012cv00190 - Document 66 (E.D. Tenn. 2012)
Court Description: ORDER denying 16 Motion for Preliminary Injunction.The parties are ORDERED to appear in chambers for a scheduling conference at 11:00 a.m. on October 2, 2012. Signed by District Judge Harry S Mattice, Jr on 8/29/2012. (SAC, )
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Coleman et al v. Hamilton County Government et al Doc. 66 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at CHATTANOOGA BRANDON RAYMOND J ONES and THOMAS J OSEPH COLEMAN, III, Plaintiffs, v. HAMILTON COUNTY, TENNESSEE, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 1:12-cv-190 J udge Mattice ORD ER Before the Court is Plaintiffs’ Motion for Prelim inary Injunction. (Doc. 16). Plaintiffs m ove the Court to enjoin Defendant Ham ilton County, Tennessee (“Ham ilton County” or “the County”) from continuing its practice of com m encing m eetings of the Ham ilton County Com m ission (“the Com m ission”) with a prayer. This case presents a unique question, the legal underpinnings of which the United States Court of Appeals for the Sixth Circuit has yet to address. For the reasons explained below, Plaintiffs’ Motion for Prelim inary Injunction (Doc. 16) will be D EN IED . I. In large m easure, the parties have stipulated to the relevant facts in this case. (Doc. 38). Their stipulation binds the parties and the court alike. Parks v. LaFace Records, 329 F.3d 437, 444 n.2 (6th Cir. 20 0 3). Ham ilton County is a political subdivision of the State of Tennessee, and the Com m ission is its elected legislature and final policym aker. The Com m ission conducts the County’s business during its regularly scheduled public m eetings. It begins those m eetings with a prayer. Dockets.Justia.com Prior to J uly 3, 20 12, the Com m ission had no form al written prayer policy, but according to the parties, “invocation speakers cam e from a variety of faith traditions, including non-Christian faith traditions, and som e speakers were invited by the County without knowing the faith tradition followed by the speaker.” Invocations were offered by various individuals, including private citizens, local clergy, and the comm issioners them selves. Som e of the invocations “referred to a deity in a way consistent with the Christian faith.” In May 20 12, the Freedom From Religion Foundation (“the Foundation”) sent a letter to the Com m ission, objecting to the Com m ission’s practice of beginning its m eetings with prayer. (Doc. 17-2). The Foundation requested that the Com m ission discontinue all prayer before m eetings. The prayers continued, however, and at the Com m ission’s J une 14, 20 12 m eeting, a Christian pastor recited the “Lord’s Prayer” as the invocation. (Doc. 38). During the prayer, som e com m issioners (as well as m em bers of the audience) stood and joined in the spoken recitation of the prayer. Others bowed their heads. On J une 15, 20 12, Plaintiffs filed the instant suit. (Doc. 1). The record dem onstrates that prayers (both of which were invoked “in the nam e of J esus”) were also offered at the J une 20 and J une 28, 20 12 Com m ission m eetings. (DVD, J une 20 & J une 28 invocations).1 On J uly 3, 20 12, the invocation speaker recited the “Lord’s Prayer,” during which all visible com m issioners are standing, and som e are participating in the spoken recitation. (DVD, J uly 3 invocation). 1 Occasionally herein, the Court will cite to digital recordings of prayers organized by date and stored on a DVD received into evidence on J uly 31, 20 12. The videos are not contained within the Court’s electronic record, but a physical copy of the DVD has been m ade a part of the record in this action. (See unnum bered docket entry dated J uly 31, 20 12). 2 Also on J uly 3, 20 12 – after the recitation of the “Lord’s Prayer” – the Com m ission adopted Resolution 712-13, entitled “A Resolution Adopting a Policy Regarding Opening Invocations Before Meetings of the Ham ilton County Com m ission” (“the prayer policy” or “the policy”). (Doc. 38-1). It expressly repealed and replaced any prior practices concerning opening invocations at Com m ission m eetings. (Id. at 5). The resolution is nine pages in length, and it contains approxim ately five pages of pream ble, in which various clauses set forth, inter alia, the Com m ission’s intention to “invoke divine guidance”; quotes from Suprem e Court and federal appellate cases concerning the constitutionality of legislative prayer; and the resolution’s goal of adopting a policy that does not “proselytize or advance any particular faith, or show any purposeful preference of one religious view to the exclusion of others.” (Id. at 1-5). The policy perm its “an eligible m em ber of the clergy in Ham ilton County, Tennessee,” to give an invocation at the opening of Com m ission m eetings. (Id. at 5). The invocation speakers are drawn from a list of “all the religious congregations with an established presence in Ham ilton County.” (Id.). Legislative Adm inistrator Chris Hixson testified at the hearing on the instant Motion that she com piled the list based on local listings for religious institutions found within the Yellow Pages. The denom inational character of all institutions on the list is not clear from the evidence of record, but the substantial m ajority is com prised of Christian churches. Institutions representing Muslim , J ewish, and Baha’i faiths, as well as others, are also included. (See Doc. 38-2). If an institution is not represented on the list, it m ay request inclusion via letter, with any dispute as to an organization’s religious bona fides being resolved by reference to the Internal Revenue Code’s guidelines for tax-exem pt status. (Doc. 38-1 at 6). 3 The Com m ission does not engage in any content review of the invocations, and it places no guidelines on what m ay be said, except: “[T]he Com m ission requests that no invocation should proselytize or advance any faith, disparage the religious faith or nonreligious views of others, or exceed five m inutes in length.” (Doc. 38). To that end, the policy dictates the contents of a letter to be m ailed to religious leaders. (Doc. 38-1 at 78). It states that: This opportunity is voluntary, and you are free to offer the invocation according to the dictates of your own conscience. However, please try not to exceed no [sic] m ore than five (5) m inutes for your presentation. To m aintain a spirit of respect for all, the Com m ission requests only that the opportunity not be exploited as an effort to convert others to the particular faith of the invocation speaker, nor to disparage any faith or belief different than that of the invocation speaker. (Id. at 7). Additionally, Com m ission agendas will include the following printed language: Any invocation that m ay be offered before the official start of the Com m ission m eeting shall be the voluntary offering of a private citizen, to and for the benefit of the Com m ission. The view s or beliefs expressed by the invocation speaker have not been previously review ed or approved by the Com m ission and do not necessarily represent the religious beliefs or view s of the Com m ission in part or as a w hole. N o m em ber of the com m unity is required to attend or participate in the invocation and such decision w ill have no im pact on their right to actively participate in the business of the Com m ission. (Id. at 8) (em phasis original). Religious leaders will notify the Com m ission of their willingness to offer an invocation via reply letter. (Id. at 7-8). The policy provides that religious leaders will then be selected on a “first-com e, first-serve basis.” (Id. at 8). Since the adoption of the policy, religious leaders of various congregations – including Baptist, Lutheran, Church of God, Presbyterian, J ewish, and Unitarian Universalist – have volunteered to be placed on future m eetings’ agendas as the invocation speaker. (Doc. 38). 4 Since the adoption of the policy, the Com m ission’s invocation practice has continued to involve Christian prayer, though the record contains evidence of invocations offered at only two subsequent m eetings. The J uly 12, 20 12 prayer asks for divine guidance and blessings on the Com m ission “in J esus’ nam e.” (DVD, J uly 12 invocation). The J uly 18 prayer seeks the sam e, but it is sought “in the nam e of J esus Christ, our savior, your son, and our only hope, in J esus’ nam e.” (DVD, J uly 18 invocation). Plaintiffs have m oved the Court to issue a prelim inary injunction. (Doc. 16). They ask the Court to “halt the prayer activities of the defendant[] pending a final disposition of this m atter.” Plaintiffs essentially contend that, under Lem on v. Kurtzm an, 40 3 U.S 60 2, 612 (1971), the Com m ission’s practice of beginning its m eetings with an invocation is unconstitutional. (Id.; see Docs. 17, 19, 21, 24, 60 ). They characterize the prayer policy as a “sham ,” and they therefore ask the Court to tem porarily enjoin the County from beginning Com m ission m eetings with a prayer. (See, e.g., Docs. 24, 60 ). Defendant opposes Plaintiffs’ Motion. (Docs. 39, 63). Succinctly put, it asserts that the challenge to the policy is necessarily facial and that the policy, as written, withstands constitutional scrutiny. (See Doc. 63 at 3-5). It further asserts that the Suprem e Court has “clearly approved legislative prayers that are explicitly Christian,” and, alternatively, that the entire question before the Court m ay be non-justiciable. (Id. at 11-15). 5 II. A. At this stage of litigation, the only relief sought is Plaintiff’s requested prelim inary injunction. The United States Court of Appeals for the Sixth Circuit recently reiterated that, when reviewing m otions for prelim inary injunctions, courts m ust consider: (1) the m ovant’s likelihood of success on the m erits; (2) whether the m ovant will suffer irreparable injury without a prelim inary injunction; (3) whether issuance of a prelim inary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a prelim inary injunction. McN eilly v. Land, 684 F.3d 611, 615 (6th Cir. 20 12) (citing Am . Im aging Svcs., Inc. v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.), 963 F.2d 855, 858 (6th Cir. 1992)). In First Am endm ent cases, “the crucial inquiry is usually whether the plaintiff has dem onstrated a likelihood of success on the m erits. This is so because the issues of the public interest and harm to the respective parties largely depend on the constitutionality of the state action.” Bay s v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 20 12) (quotation and alterations om itted). The preliminary injunction considerations are factors to be balanced; they are not prerequisites that m ust each be satisfied before prelim inary relief m ay issue. EaglePicher, 963 F.2d at 859. Nor are they “rigid and unbending requirem ents” – rather, “[t]hese factors sim ply guide the discretion of the court.” Id. The party seeking a prelim inary injunction bears the burden of justifying such relief. Id. The issuance of a prelim inary injunction is an “extraordinary remedy” that m ay only occur “upon a clear showing that the plaintiff is entitled to such relief.” W inter v. NRDC, 555 U.S. 7, 22, 24 (20 0 8). Plaintiffs seeking prelim inary relief m ust 6 dem onstrate not only the possibility of future harm , but “that in the absence of a prelim inary injunction, the applicant is likely to suffer irreparable harm before a decision on the m erits can be reached.” Id. (emphasis added) (citation om itted). “Because injunctive relief is drafted in light of what the court believes will be the future course of events, a court m ust never ignore significant changes in the law or circum stances underlying an injunction lest the decree be turned into an ‘instrum ent of wrong.’” Salazar v. Buono, 130 S. Ct. 180 3, 1816 (20 10 ) (plurality opinion) (citation om itted). Inasm uch as a preliminary injunction is designed to stave off irreparable harm an applicant is likely to suffer before resolution of a case’s m erits, it is necessarily prospective in nature. See, e.g., Doe v. Briley , 562 F.3d 777, 781 (6th Cir. 20 0 9) (noting that perm anent and tem porary injunctions are “prospective judgm ents,” subject to revisitation when their prospective application is no longer equitable). On J uly 3, 20 12 – after the initiation of the instant litigation – the Com m ission passed Resolution 712-13, officially adopting a new written policy to govern its invocation practices. The new policy unam biguously replaces any prior policy or practice concerning opening invocations at Com m ission m eetings. Therefore, any future constitutional violation that the Com m ission and Ham ilton County m ay com m it – and any resulting harm visited upon Plaintiffs and the public – m ust necessarily occur under the auspices of the J uly 3, 20 12 prayer policy. Consequently, when reviewing Plaintiffs’ Motion for Prelim inary Injunction and the likelihood of their success on the m erits, the Court will assess whether, based on the present record before it, they have dem onstrated that the newly im plem ented prayer policy is likely to result in a constitutional violation. 7 B. Plaintiffs have sued Ham ilton County for a purported constitutional violation pursuant to 42 U.S.C. § 1983. In pertinent part, § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom , or usage, of any State or Territory or the District of Colum bia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or im m unities secured by the Constitution and laws, shall be liable to the party injured . . . . 42 U.S.C. § 1983. It is well settled that m unicipalities and other local governing bodies m ay be sued under § 1983. See Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). In order to establish m unicipal liability under § 1983, however, “the plaintiff m ust establish that: (1) the plaintiff’s harm was caused by a constitutional violation; and (2) the [m unicipality] was responsible for that violation.” Spears v. Ruth, 589 F.3d 249, 256 (6th Cir. 20 0 9). To dem onstrate that a m unicipality is responsible for a constitutional violation, a plaintiff m ust point to som e “policy” or “custom ” of the m unicipal defendant causing the com plained-of constitutional violation. Monell, 436 U.S. at 691. This “official policy” requirem ent is intended to ensure that a m unicipality is held liable only for its own acts rather than the acts of its em ployees – a m unicipality cannot be held responsible under a theory of respondeat superior. See id.; Pem baur v. City of Cincinnati, 475 U.S. 469, 479 (1986). There are a variety of ways in which a plaintiff m ay establish the existence of a policy or custom sufficient to im plicate § 1983 m unicipal liability. See Thom as v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 20 0 5). First, and m ost obviously, “official policies” are often considered to be “formal rules or understandings – often but not 8 always com m itted to writing – that are intended to, and do, establish fixed plans of action to be followed under sim ilar circum stances consistently and over tim e.” Pem baur, 475 U.S. at 480 -81. Thus, a plaintiff m ay point to legislative enactm ents or officially adopted policies. Thom as, 398 F.3d at 429; see Monell, 436 U.S. at 690 . Second, actions taken by officials with final decision-m aking authority m ay render a m unicipal entity liable under § 1983. Thom as, 398 F.3d at 429; see Bd. of Cnty . Com m ’rs of Bry an Cnty ., Okl. v. Brow n, 520 U.S. 397 (1997). Third, § 1983 plaintiffs m ay identify a policy of inadequate training or supervision. Thom as, 398 F.3d at 429. Finally, a m unicipality can be shown to have a “custom ” that causes constitutional violations – even if that custom was not form ally sanctioned – “provided that the plaintiff offers proof of policym aking officials’ knowledge and acquiescence to the established practice.” Id.; Spears, 589 F.3d at 256 (citing Monell, 436 U.S. at 690 -91; Mem phis, Tenn. Area Local, Am . Postal W orkers Union v. City of Mem phis, 361 F.3d 898, 90 2 (6th Cir. 20 0 4)). In other words, a plaintiff m ay establish § 1983 m unicipal liability by establishing “a custom of tolerance or acquiescence of federal rights violations.” Id. In any case, a plaintiff m ust also dem onstrate a “direct causal link” between the challenged policy or custom and the alleged constitutional violation. Spears, 589 F.3d at 256 (citation om itted). That is, the “plaintiff m ust establish that his or her constitutional rights were violated and that a policy or custom of the m unicipality was the ‘m oving force’ behind the deprivation of the plaintiff’s rights.” Miller v. Sanilac Cnty ., 60 6 F.3d 240 , 254-55 (6th Cir. 20 10 ). Here, Hamilton County recently adopted a form al resolution perm itting “opening invocations before m eetings of the Ham ilton County Com m ission.” 9 It has also stipulated that, prior to the im plem entation of the form al policy, the Com m ission “start[ed] [its] m eetings with an invocation.” There can be little doubt that, within the m eaning of § 1983, Ham ilton County operated for all relevant tim es under a policy of perm itting prayer at the beginning of Com m ission m eetings. The Court m ust therefore determ ine whether that policy, as written or im plem ented, violates the First Am endm ent. III. A. The First Am endm ent to the United States Constitution provides: “Congress shall m ake no law respecting an establishm ent of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assem ble, and to petition the Governm ent for a redress of grievances.” U.S. Const. am end. I. At issue here is the Establishm ent Clause – providing that “Congress shall m ake no law respecting an establishm ent of religion” – which has been incorporated against the states via the Fourteenth Am endm ent. See Everson v. Bd. of Educ., 330 U.S. 1, 5 (1947). The language of the Establishm ent Clause is “at best opaque” and, as the Sixth Circuit has noted, “far from self-defining.” ACLU v. DeW eese, 633 F.3d 424, 430 (6th Cir. 20 11) (quotation om itted). Rather, “[t]he Clause erects a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” Ly nch v. Donnelly , 465 U.S. 668, 679 (1984) (quotation om itted). In 1971, recognizing the need for analytical guidance as well as the im portance (and m urkiness) of the First Am endm ent’s prohibition on the establishm ent of religion, the Suprem e Court articulated a three-part test for determ ining whether governm ent conduct violates the 10 Establishm ent Clause. See Lem on v. Kurtzm an, 40 3 U.S 60 2, 612 (1971). That test “asks (1) whether the challenged governm ent action has a secular purpose; (2) whether the action’s prim ary effect neither advances nor inhibits religion; and (3) whether the action fosters an excessive entanglem ent with religion.” DeW eese, 633 F.3d at 430 -31 (alterations om itted) (quoting ACLU v. Ashbrook, 375 F.3d 484, 490 (6th Cir. 20 0 4), and citing Lem on, 40 3 U.S. at 612-13).2 Plaintiffs urge the Court to adopt the so-called “Lem on test,” apply it to the facts at hand, determ ine that Ham ilton County’s practice of beginning Com m ission m eetings with prayer offends the First Am endm ent, grant the Motion for Prelim inary Injunction, and be done with the m atter altogether. Undeniably, this would be a straightforward approach that – if applicable – would produce a clear result based on a succinct three-pronged inquiry. However, considerations of brevity notwithstanding, Lem on is not, and cannot be, the foundation on which the Court’s analysis rests. Purported Establishm ent Clause violations appear in a variety of contexts. In Lem on, for exam ple, the Suprem e Court considered statutory program s that provided financial support to church-related elem entary and secondary schools. See Lem on, 40 3 U.S. at 60 6-0 7. Other cases have involved governm ental displays of the Ten Com m andm ents, e.g., Van Orden v. Perry , 545 U.S. 677 (20 0 5), or of other religious im agery on public property, e.g., Cnty . of Allegheny v. ACLU, 492 U.S. 573 (1989). Still others im plicate the constitutionality (or lack thereof) of prayers offered during public 2 The first and second prongs of the Lem on test were reform ulated in view of the Suprem e Court’s opinion in McCreary Cnty ., Ky . v. ACLU, 545 U.S. 844 (20 0 5). See ACLU v. Mercer Cnty ., Ky ., 432 F.3d 624 (6th Cir. 20 0 5) (“The first and second prongs [of the Lem on test] have since been reformulated. After McCreary County , the first is now the predom inant purpose test . . . The second, the so-called “endorsement” test, asks whether the government action has the purpose or effect of endorsing religion.”) (citing, inter alia, McCreary Cnty ., 545 U.S. at 860 -61; id. at 90 0 -0 2 (Scalia, J ., dissenting)). 11 school events, e.g, Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (20 0 0 ) (addressing prayer at public school football gam es). At tim es, the Suprem e Court has invoked Lem on with scant explanation. See, e.g., Bow en v. Kendrick, 487 U.S. 589, 60 2 (1988) (“As in previous cases involving facial challenges on Establishm ent Clause grounds . . . we assess the constitutionality of an enactm ent by reference to the three factors first articulated in Lem on v. Kurtzm an . . . .) (citations om itted). On other occasions, the Court has cited Lem on, but “em phasized [its] unwillingness to be confined to any single test or criterion in this sensitive area.” Ly nch, 465 U.S. at 679. In yet other Establishm ent Clause cases, the Court has disregarded Lem on altogether. See, e.g., Zelm an v. Sim m ons-Harris, 536 U.S. 639 (20 0 2) (addressing a school voucher program ). As the Sixth Circuit has observed, this approach has, at tim es, yielded inconsistent holdings.3 Com pare Van Orden, 545 U.S. 3 It has also received the sharp disapproval of m ore than one Suprem e Court J ustice. In Lam b’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 50 8 U.S. 384 (1993), J ustice Scalia considered the Court’s disposition of various Establishment Clause cases, writing: As to the Court’s invocation of the Lem on test: Like som e ghoul in a late-night horror m ovie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lem on stalks our Establishm ent Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its m ost recent burial, only last Term , was, to be sure, not fully six feet under: Our decision in Lee v. W eism an, 50 5 U.S. 577, 586– 587 (1992), conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting J ustices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so. . . . The secret of the Lem on test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can com m and it to return to the tomb at will. See, e.g., Ly nch v. Donnelly , 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lem on test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Felton, 473 U.S. 40 2, (1985) (striking down state rem edial education program adm inistered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Cham bers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a m iddle course, calling its three prongs “no m ore than helpful signposts,” Hunt v. McN air, 413 U.S. 734, 741 (1973). Such a docile and useful m onster is worth keeping around, at least in a som nolent state; one never knows when one m ight need him . 12 at 684 n.3 (considering the display of the Ten Com m andm ents at the Texas State Capitol, declining to apply Lem on, and noting “[d]espite J ustice Stevens’ recitation of occasional language to the contrary . . . we have not, and do not, adhere to the principle that the Establishm ent Clause bars any and all governm ental preference for religion over irreligion”) (plurality opinion) w ith McCreary Cnty ., Ky . V. ACLU, 545 U.S. 844, 860 (20 0 5) (considering the display of the Ten Comm andm ents in state courthouses, applying Lem on, and holding that “[t]he touchstone for our analysis is the principle that the ‘First Am endm ent m andates governm ental neutrality between religion and religion, and between religion and nonreligion’”); but see DeW eese, 633 F.3d at 431 (taking note of this inconsistency and holding: “Nevertheless, Lem on rem ains the law governing Establishm ent Clause cases.”); ACLU v. Mercer Cnty ., Ky ., 432 F.3d 624, 636 (6th Cir. 20 0 5) (“[W]e rem ain in Establishm ent Clause purgatory.”). Unlike the parties to the cases listed above, the Plaintiffs in this suit do not seek redress based on prayers offered at public school functions. They do not challenge a governm ent’s religious display. They do not attem pt to lim it the governm ent’s interaction with religious schools. They instead seek to halt prayers said before an elected legislature. This, then, is not a case about the Establishm ent Clause in general. It is a case about legislative prayer – a peculiar subspecies of governm ent conduct im plicating the First Am endm ent. See, e.g., Joy ner v. Forsy th Cnty ., 653 F.3d 341, 345 (4th Cir. 20 11) (“[T]his is not a case about the Establishm ent Clause in general, but about legislative prayer in particular.”); Sny der v. Murray City Corp., 159 F.3d 1227, Lam b’s Chapel, 50 8 U.S. at 398-99 (Scalia, J . concurring); see also, e.g., Utah Highw ay Patrol Ass’n v. Am . Atheists, Inc., 132 S.Ct. 12 (m em .) (20 11) (Thomas, J . dissenting from denial of certiorari) (noting that lower courts have expressed confusion as to the applicability of Lem on and stating that “[o]ur jurisprudence provides no principled basis by which a lower court could discern whether Lem on / endorsem ent, or som e other test, should apply in Establishm ent Clause cases”). 13 1232 (10 th Cir. 1999) (en banc) (“[T]he evolution of Establishm ent Clause jurisprudence indicates that the constitutionality of legislative prayers is a sui generis legal question.”).4 Viewing the case law on the whole, there is a lack of guidance as to Lem on’s applicability within the greater universe of Establishm ent Clause jurisprudence. However, one thing at least appears settled: regardless of when and how Lem on m ay steer the course of courts’ Establishm ent Clauses analyses, in the narrow context of legislative prayer, it sim ply does not apply. The Court reaches this conclusion (and begins its analysis of the m erits of Plaintiffs’ Motion), as it m ust, in view of the Suprem e Court’s decision in Marsh v. Cham bers, 463 U.S. 783 (1983), the first and only opinion in which the Suprem e Court has squarely addressed the issue of legislative prayer. In Marsh, the Court considered “whether the Nebraska Legislature’s practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishm ent Clause of the First Am endm ent.” Id. at 784. In its analysis, the Court m ade no m ention of Lem on or the syllabus it established.5 Instead, the Court focused on the unique position legislative prayer occupies in Am erican history, beginning with the recognition that [t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply em bedded in the history and tradition of this country. From colonial tim es through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishm ent and religious freedom . 4 The Sixth Circuit also appears to have recognized – albeit indirectly – a distinction between the analysis in legislative prayer cases and that which is em ployed in other Establish Clause contexts. See, e.g., ACLU v. Ashbrook, 375 F.3d 484, 494-95 (6th Cir. 20 0 4) (rejecting the application of Marsh v. Cham bers, infra, to the display of the Ten Com m andm ents in county courthouses); Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 381 (6th Cir. 1999) (en banc) (“Marsh is one-of-a-kind . . . .”) . 5 A careful reading of Marsh dem onstrates that the decision to forgo the Lem on test was m ore than m ere oversight. The Supreme Court expressly noted that the appellate court applied Lem on’s three-part test, but it declined to do so in its own analysis. Marsh, 463 U.S. at 786. 14 Id. at 786. The Court engaged in a lengthy historical analysis, recognizing that Mem bers of the First Congress approved the First Am endm ent and appointed a legislative chaplain in the sam e week, and concluding that “[i]t can hardly be thought that . . . they intended the Establishm ent Clause . . . to forbid what they had just declared acceptable.” Id. at 790 . Ultim ately, “in light of the unam biguous and unbroken history of m ore than 20 0 years,” the Court concluded that there can be no doubt that the practice of opening legislative sessions with prayer has becom e part of the fabric of our society. To invoke Divine guidance on a public body entrusted with m aking the laws is not, in these circum stances, an “establishm ent” of religion or a step toward establishm ent; it is sim ply a tolerable acknowledgm ent of beliefs widely held am ong the people of this country. As J ustice Douglas observed, “[w]e are a religious people whose institutions presuppose a Suprem e Being.” Id. at 792 (citing Zorach v. Clauson, 343 U.S. 30 6, 313 (1952)). After determ ining that legislative prayer was generally constitutionally perm issible, the Court addressed the chaplain’s lengthy appointm ent and the nature of the prayers he offered before the legislature. The Court suggested that the selection and retention of the m inister m ay violate the Establishm ent Clause if based on an “im perm issible m otive.” Id. at 793-94. Absent evidence of such m otivation, the Court rejected the argum ent that his long tenure had “the effect of giving preference to his religious views,” noting that the m inister characterized his prayers as “nonsectarian,” “J udeo Christian,” and involving “elem ents of the Am erican civil religion.” Id. at 793 n.14. Though som e of his earlier prayers were overtly Christian, he rem oved all references to Christ after receiving a com plaint from a J ewish legislator. Id. The Court noted: Beyond the bare fact that a prayer is offered, three points have been m ade: first, that a clergym an of only one denom ination – Presbyterian – has been selected for 16 years; second, that the chaplain is paid at public 15 expense; and third, that the prayers are in the J udeo-Christian tradition. Weighed against the historical background, these factors do not serve to invalidate Nebraska’s practice. Id. at 793. The Court cautioned: “The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to em bark on a sensitive evaluation or to parse the content of a particular prayer.” Id. at 794-95. In Marsh, the Suprem e Court essentially dictated that the guidance offered by Lem on (and other traditional Establishm ent Clause jurisprudence) does not extend to the realm of legislative prayer. The Court has recognized as m uch itself. See, e.g., Edw ards v. Aguillard, 482 U.S. 578, 583 n.4 (1987) (“The Lem on test has been applied in all cases since its adoption in 1971, except in Marsh[, supra] . . . . The Court based its conclusion in that case on the historical acceptance of the practice.”); Ly nch, 465 U.S. at 679 (“In two cases, the Court did not even apply the Lem on ‘test.’ We did not, for exam ple, consider that analysis relevant in Marsh, supra.”). This Court thus concludes that its decision concerning the constitutionality of the legislative prayer practice at issue in this lawsuit will turn largely on an interpretation and application of the standards articulated in Marsh.6 In 1989, the Suprem e Court had occasion to revisit Marsh and provide som e direction as to its application, albeit in a case not involving legislative prayer. See Cnty . 6 The Court’s research yielded – and the parties have identified – no legislative prayer case that post-dates Marsh and either (1) disregards Marsh or (2) relies on Lem on to test the constitutionality of a challenged prayer practice. See, e.g., Gallow ay v. Tow n of Greece, 681 F.3d 20 , 26 (2d Cir. 20 12); Joy ner v. Forsy th Cnty ., 653 F.3d at 345; Pelphrey v. Cobb Cnty ., 547 F.3d 1263, 1268-69 (11th Cir. 20 0 8); Hinrichs v. Bosm a, 440 F.3d 393 (7th Cir. 20 0 6); Sny der v. Murray City Corp., 159 F.3d 1227, 1232 (10 th Cir. 1999) (en banc). 16 of Allegheny v. ACLU, 492 U.S. 573 (1989).7 In Allegheny , the Court concluded in part that a crèche displayed in a county courthouse violated the Establishm ent Clause (though, for reasons not relevant to this case, the display of a Menorah at a different public building did not). See id. at 595-60 2. In response to J ustice Kennedy’s dissent, the m ajority specifically addressed the contours of its holding in Marsh: However history m ay affect the constitutionality of nonsectarian references to religion by the governm ent, history cannot legitim ate practices that dem onstrate the governm ent’s allegiance to a particular sect or creed. Indeed, in Marsh itself, the Court recognized that not even the “unique history” of legislative prayer . . . can justify contem porary legislative prayers that have the effect of affiliating the governm ent with any one specific faith or belief. . . . The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had “rem oved all references to Christ.” . . . Thus, Marsh plainly does not stand for the sweeping proposition J ustice Kennedy apparently would ascribe to it, nam ely, that all accepted practices 20 0 years old and their equivalents are constitutional today. Nor can Marsh, given its facts and its reasoning, com pel the conclusion that the display of the crèche involved in this lawsuit is constitutional. Although J ustice Kennedy says that he “cannot com prehend” how the crèche display could be invalid after Marsh . . ., surely he is able to distinguish between a specifically Christian sym bol, like a crèche, and m ore general religious references, like the legislative prayers in Marsh. J ustice Kennedy’s reading of Marsh would gut the core of the Establishm ent Clause, as this Court understands it. The history of this Nation, it is perhaps sad to say, contains num erous exam ples of official acts that endorsed Christianity specifically. Som e of these exam ples date back to the Founding of the Republic, but this heritage of official discrim ination against non-Christians has no place in the jurisprudence of the Establishm ent Clause. Whatever else the Establishm ent Clause m ay m ean (and we have held it to m ean no official preference even for religion over nonreligion, see, e.g., Texas Monthly , Inc. v. Bullock, 489 U.S. 1, 10 9 S.Ct. 890 , 10 3 L.Ed.2d 1 (1989)), it certainly m eans at the very least that 7 Ham ilton County characterizes the Allegheny Court’s elucidation of Marsh as J ustice Blackm un’s “plurality opinion.” (See Doc. 63 at 6-7 n.3). The County is incorrect. J ustice Blackm un “announced the judgment of the Court and delivered the opinion of the Court with respect to parts III-A, IV, and V, in which Brennan, Marshall, Stevens, and O’Connor, J J . joined . . . .” Allegheny , 492 U.S. at 577. The Court’s discussion of Marsh is contained within part V of the opinion, which was written on behalf of the m ajority. Thus, it is the opinion of the Court, not of J ustice Blackmun. 17 governm ent m ay not dem onstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). “The clearest com m and of the Establishm ent Clause is that one religious denom ination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244, 10 2 S.Ct. 1673, 1683, 72 L.Ed.2d 33 (1982). There have been breaches of this com m and throughout this Nation’s history, but they cannot dim inish in any way the force of the com m and. Id. at 60 2-0 5 (footnotes and select internal citations om itted). The Court went on to recognize “the bedrock Establishm ent Clause principle that, regardless of history, governm ent m ay not dem onstrate a preference for a particular faith . . . .” Id. at 60 5. In Lee v. W eism an, 50 5 U.S. 577 (1992), the Suprem e Court considered a school principal’s directive that com m encem ent prayers be nondenom inational. The court clarified that the governm ent should not ordinarily dictate the content of prayer. See id. at 588-90 . Notably, Lee involved a situation the Court expressly recognized as distinct from legislative prayer: a benediction offered as part of public school graduation cerem onies. See id. at 580 -81, 597-98. While Lee’s applicability to the case at bar is som ewhat unclear, the Court spoke in relatively broad term s: “It is a cornerstone principle of our Establishm ent Clause jurisprudence that it is no part of the business of governm ent to com pose official prayers for any group of the Am erican people to recite as a part of a religious program carried on by governm ent . . . .” Id. at 588 (quotation om itted). The Court held that “the First Am endm ent does not allow the governm ent to stifle prayers which aspire to [nonsectarian] ends, neither does it perm it the governm ent to undertake that task for itself.” Id. at 589. In short, the Court rejected “[t]he suggestion that governm ent m ay establish an official or civil religion as a m eans of avoiding the establishm ent of a religion with m ore specific creeds . . . .” Id. at 590 . It is largely within this fram ework that circuit courts have taken up the difficult task of evaluating the constitutionality of legislative prayer. As represented by the 18 parties and confirm ed by the Court’s independent research, it appears that the Sixth Circuit has yet to address the issue head-on. It has, however, discussed the Establishm ent Clause and Marsh generally; these cases provide som e guidance. In Stein v. Plainw ell Cm ty . Schs., 822 F.2d 140 6, 140 9 (6th Cir. 1987), the Sixth Circuit provided its interpretation of the holding in Marsh: In Marsh v. Cham bers, the Suprem e Court, looking prim arily to the intent of the fram ers of the Constitution and historical practice since 1789, upheld “nonsectarian,” . . . “nonproselytizing” legislative invocations that do not “sym bolically place the governm ent’s official seal of approval on one religious view.” . . . The Court em phasized that “civil” or secularized invocations are used across the country to open legislative, judicial, and adm inistrative sessions of state legislatures, city councils, courts and other public bodies, as well as by private institutions of all kinds. So long as the invocation or benediction on these public occasions does not go beyond “the Am erican civil religion,” so long as it preserves the substance of the principle of equal liberty of conscience, no violation of the Establishm ent Clause occurs under the reasoning of Marsh. Id. (citations and footnote om itted). Im portantly, the holding in Stein was announced before Allegheny and Lee were decided, the latter of which specifically addressed Stein and affirm ed an appellate court opinion that found Stein to be “flawed.” See id. at 586; W eism an v. Lee, 90 8 F.2d 10 90 (1st Cir. 1990 ). In 1992, after both Allegheny and Lee were decided, the Sixth Circuit held that the privately funded m enorah display erected in a traditional public form did not violate the Establishm ent Clause. Am ericans United for Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538 (6th Cir. 1992) (en banc). In reaching its decision, the court quoted J ustice O’Connor’s concurrence in Allegheny , in which she discussed the constitutional perm issibility of legislative prayer: “It is the com bination of the longstanding existence of practices such as opening legislative sessions with legislative prayers, as well as their nonsectarian nature, that lead m e to the conclusion that those 19 particular practices, despite their religious roots, do not convey a m essage of endorsem ent of particular religious beliefs.” Id. at 1544 (quoting Allegheny , 492 U.S at 630 -31) (em phasis supplied by the Sixth Circuit). Other m ore recent cases reach conclusions sim ilar to those in Stein and Am ericans United. See, e.g., ACLU v. Capitol Square Review & Advisory Bd., 243 F.3d 289, 30 0 (6th Cir. 20 0 1) (en banc) (citing Marsh and concluding that Ohio’s Motto, “With God, All Things are Possible,” was “[l]ike state-financed prayers by a legislative chaplain . . . sim ply a tolerable acknowledgem ent of beliefs widely held am ong the people of this country.”); Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 379-80 (6th Cir. 1999) (recognizing what the court called Marsh’s “Legislative Prayer Exception” and noting that such prayer was perm issible due to its unique history); W ashegesic v . Bloom ingdale Pub. Schs., 33 F.3d 679, 683 (6th Cir. 1994) (relying on Stein, and characterizing Marsh as “upholding ‘non-sectarian’ legislative invocations”). None of these holdings, however, dealt squarely with the issue of legislative prayer. Thus, the Court turns its attention to other circuits’ attem pts to define the constitutional boundaries of legislative prayer in the wake of Marsh. Most recently, the Second Circuit considered a case in which residents brought a civil rights action against a town, alleging that the practice of opening town board m eetings with a prayer violated the Establishm ent Clause. Gallow ay v. Tow n of Greece, 681 F.3d 20 (20 12). For all relevant periods, the town did not have a form al prayer policy, but the opportunity to conduct the invocation at board m eetings was open: anyone (including atheists and nonreligious individuals) were perm itted to request perm ission to offer the m eeting invocation, and the town had never rejected a request. Id. at 23. A Wiccan priestess, a Baha’i congregant, and other non-Christians had offered 20 invocations, but the town was largely Christian, and Christian clergy m em bers gave the m ajority of prayers. Id. at 23-25. Roughly two-thirds of the prayers given in the tenyear period at issue m ade som e reference to J esus Christ, and the rem aining third m ade general theistic references. Id. at 24-25. Discussing Marsh and Allegheny , the court surveyed other appellate opinions and concluded that a legislature’s prayer practice – when viewed in its entirety – cannot advance a single religious sect, or otherwise “proselytize,” “disparage,” or “have the effect of affiliating the governm ent with any one specific faith or belief.” Id. at 28 (citing Allegheny , 492 U.S. at 60 3; Marsh, 463 U.S. at 794-95). Nevertheless, the court held that the Establishm ent Clause did not preclude all legislative invocations “that are denom inational in nature,” and it em phasized that the sectarian nature of som e individual prayers was not inherently a problem .8 Id. at 28, 31-32. Instead, the court asked “whether the town’s practice, viewed in its totality by an ordinary, reasonable observer, conveyed the view that the town favored or disfavored certain religious beliefs.” Id. at 29-30 . It found that it did not need to “em bark on a sensitive evaluation” or “parse the content of a particular prayer” (as prohibited by Marsh) to recognize that the vast m ajority of prayers offered were uniquely Christian. Further noting that the town’s process of inviting prayer-givers from only within the town borders “virtually ensured” a Christian viewpoint, the court found that the town’s prayer practice violated the Establishm ent Clause. The Fourth Circuit has had several opportunities to take up the issue of legislative prayer. See Joy ner v. Forsy th Cnty ., 653 F.3d 341 (4th Cir. 20 11), cert. denied, 132 S.Ct. 8 The Second Circuit left open the possibility that “Stein m ight be read sim ply to reiterate” the standard articulated in Allegheny rather than “precluding denom inational content in any individual prayer.” See Gallow ay , 681 F.3d at 28-29 (citing Stein, 822 F.2d at 140 9). 21 10 97 (20 12); Sim pson v. Chesterfield Cnty . Bd. of Supervisors, 40 4 F.3d 276 (4th Cir. 20 0 5), cert. denied, 546 U.S. 937 (20 0 5); W y nne v. Tow n of Great Falls, 376 F.3d 292 (4th Cir. 20 0 4), cert. denied, 545 U.S. 1152 (20 0 5). In Joy ner, the m ost recent of those instances, the court considered a case that was, in som e respects, sim ilar to the one before this Court: residents brought suit against a county board of com m issioners, alleging that its policy of opening public m eetings with clergy-led prayers violated the Establishm ent Clause. Joy ner, 653 F.3d at 343-44. As in this case, the county did not have a written policy in place at the tim e the suit was filed but adopted one after litigation began.9 See id. at 343-44. Unlike this case, however, the plaintiffs in Joy ner put before the court a post-policy record of prayers spanning approxim ately one-and-ahalf years, in which “alm ost four-fifths” of the prayers m ade explicit references to J esus Christ. See id. at 344. Joy ner relied on past Fourth Circuit cases – namely Sim pson and W y nne – in noting that the court had “repeatedly [upheld] the practice of legislative prayer,” and that invocations at the start of legislative sessions serve m any functions, such as 9 The Court notes that the policy at issue in Joy ner was rem arkably sim ilar – and in parts, nearly identical – to the one adopted by Ham ilton County. Com pare, e.g., (Doc. 38-1 at 7), stating in the letter sent to invited religious leaders that: This opportunity is voluntary, and you are free to offer the invocation according to the dictates of your own conscience. However, please try not to exceed no [sic] more than five (5) minutes for your presentation. To m aintain a spirit of respect for all, the Com m ission requests only that the opportunity not be exploited as an effort to convert others to the particular faith of the invocation speaker, nor to disparage any faith or belief different than that of the invocation speaker. w ith Joy ner, 653 F.3d at 343, noting that the letter sent to invocation speakers in that case stated: This opportunity is voluntary, and you are free to offer the invocation according to the dictates of your own conscience. To m aintain a spirit of respect and ecumenism , the Board requests only that the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocational speaker, nor to disparage any faith or belief different than that of the invocational speaker. (See also M.D.N.C. Case No. 1:0 7-cv-243, Doc. 65-2). 22 solem nizing the occasion, urging participants to act “on their noblest instinct,” and fostering hum ility. Id. at 346-47. However, the Fourth Circuit placed “clear boundaries on invocations . . . approving legislative prayer only when it is nonsectarian in both policy and practice.” Id. at 347-48. The court determ ined that “infrequent” references to specific deities, standing alone, do not constitute a violation of the First Am endm ent, but that “legislative prayer m ust strive to be nondenom inational so long as that is reasonably possible – it should send a signal of welcom e rather than exclusion.” Id. at 349. The court characterized the county’s policy as facially neutral, but referencing specific prayers said before the board, it noted that the policy, as im plem ented, resulted in “sectarian invocations m eeting after m eeting that advanced Christianity and that m ade at least two citizens feel uncom fortable, unwelcom e, and unwilling to participate in the public affairs of Forsyth County.” Id. at 354 (noting further that “citizens attending [b]oard m eetings hear the prayers, not the policy.”). The court therefore held that the facially neutral policy, as im plem ented, violated the Establishm ent Clause. In 20 0 8, the Eleventh Circuit upheld a county prayer practice in deciding a case on which Ham ilton County now heavily relies, Pelphrey v. Cobb Cnty ., Ga., 547 F.3d 1263 (11th Cir. 20 0 8).10 The Court in that case considered whether a county com m ission’s practice of allowing volunteer religious leaders to offer invocations on a rotating basis violated the Establishm ent Clause. Id. at 1266. The Eleventh Circuit determ ined that, even though 70 percent of the invocations offered over 10 years contained Christian references, there was no evidence of exploitation of the practice to 10 In Pelphrey , the Eleventh Circuit considered separately whether a county planning com m ission’s invocation practice violated the Establishm ent Clause. It upheld the county com m ission’s practice, but it found that the planning com m ission’s ran afoul of the First Am endm ent, as the planning com m ission had “categorically excluded” certain faiths from offering prayers. Pelphrey , 547 F.3d at 1282. 23 advance religious particular beliefs. Id. at 1278. Thus, the court declined to “parse or censor the legislative prayers” at issue. Id. Even though the county relied on predominantly Christian speakers, the Eleventh Circuit noted that the prayers were also offered by m em bers of the J ewish, Unitarian, and Muslim faiths. Id. at 1277. This, the court declared, “represented ‘a wide cross- section of the [c]ounty’s religious leaders.’” Id. (quoting Sim pson, 40 4 F.3d at 285). Viewing the prayers cum ulatively, the court determ ined that the “diversity of the religious expressions” supported a finding that the prayer practice did not advance any particular faith. Id. at 1278. Consequently, the court upheld the prayer practice as constitutional. Id. Notably, in so doing, the Eleventh Circuit characterized relevant portions of Stein (specifically, the Sixth Circuit’s statem ents concerning Marsh) as “dicta” later rejected by the Suprem e Court. Id. at 1274. Other courts have addressed the scope of Marsh’s reasoning, som e m ore perm issively than others. For exam ple, the Tenth Circuit sum m arized: “[T]he kind of legislative prayer that will run afoul of the Constitution is one that proselytizes a particular religious tenet or belief, or that aggressively advocates a specific religious creed, or that derogates another religious faith or doctrine.” Sny der, 159 F.3d at 1234. In refusing to stay an injunction against a prayer policy em ployed by the Indiana House of Representatives, the Seventh Circuit “read Marsh as hinging on the nonsectarian nature of the invocations at issue there.” Hinrichs v. Bosm a, 440 F.3d 393, 40 0 -0 1 (7th Cir. 20 0 6) (rejecting the argum ent that, under Marsh, “all legislative prayer is constitutionally perm issible”). And in an unpublished opinion, the Ninth Circuit held that a school board’s practice of nearly uniform ly praying “in the Nam e of J esus” would have violated the Establishm ent Clause as interpreted by Marsh. Bacus v. Palo Verde 24 Unified Sch. Dist. Bd. of Educ., 52 F. App’x 355, 356-57 (9th Cir. 20 0 2) (addressing without deciding whether a school board was m ore sim ilar to a “school prayer” or a “legislative prayer” setting). When taken together, Marsh, Allegheny , and the circuit courts’ subsequent jurisprudence yield certain broad them es. First, as discussed above, legislative prayer has a unique and well-established history that, relative to the First Am endm ent, renders it unlike other types of governm ent conduct. It presents a sui generis legal question, one that the Sixth Circuit has yet to fully address. Second, in large m easure due to the unique historical place it occupies, legislative prayer is, in general, perm issible. Marsh, 463 U.S. at 795. Legislatures m ay call upon – or even em ploy – ordained ministers to invoke divine guidance on a group of elected officials. Id. Although such conduct m ay “harm onize with the tenets of som e or all religions,” it does not “sym bolically plac[e] the governm ent’s official seal of approval on one religious view.” Id. at 792 (quotation om itted). It is instead “a tolerable acknowledgem ent of beliefs widely held am ong the people of this country.” Id. Thus, to the extent a clear m essage can be heard from Marsh, it is this: as a basic legal principle, the Establishm ent Clause is not offended if a legislature form ally invokes divine blessings on its official business. Finally, despite its marked differences from other governm ental involvem ent with the sacred, a legislature’s ability to call on the divine at public m eetings is not lim itless. Historical patterns, standing alone, cannot justify violations of constitutional guarantees, and the governm ent m ay not express its allegiance to a particular sect or creed. Marsh, 463 U.S. at 790 ; Allegheny , 492 U.S. at 60 3. It is for that reason that the prayer opportunity cannot be used to proselytize listeners. See, e.g., Marsh, 463 U.S. at 25 794; Allegheny , 492 U.S. at 60 3; Joy ner, 653 F.3d at 350 -51; Sny der, 159 F.3d at 1234. Likewise, such prayer practices m ay not be used to advance any one belief or to disparage any other. See, e.g., Marsh, 463 U.S. at 794; Allegheny , 492 U.S. at 60 3; Gallow ay , 681 F.3d at 28. Nor m ay legislative prayers “have the effect of affiliating the governm ent with one specific faith or belief.” Allegheny , 492 U.S. at 60 3. Even when operating under a facially neutral policy, a legislature m ay not select invocational speakers based on im perm issible m otives or sectarian preferences. Marsh, 463 U.S. at 793-94; see, e.g., Pelphrey , 547 F.3d at 1278. In short, nothing in Marsh or its progeny dim inishes the force of the “clearest com m and of the Establishm ent Clause[, which] is that one religious denom ination cannot be officially preferred over another.” Allegheny , 492 U.S. at 60 5. It is with these precepts in m ind that this Court undertakes the task of determ ining whether Ham ilton County’s prayer practice, as established by the language of the policy itself and the facts currently of record, violates the Constitution. B. As a prelim inary m atter, the Court notes that Plaintiffs prim arily assert that the policy violates the First Am endm ent, in that it perm its expressions of faith in excess of “m om ents of silence.” Plaintiffs’ thus appear to challenge the County’s prayer policy on its face. See, e.g., John Doe # 1 v. Reed, 130 S.Ct. 2811, 2817 (20 10 ) (holding that if the “plaintiffs’ claim and the relief that would follow . . . reach beyond the particular circum stances of these plaintiffs,” then a challenge is a facial challenge, even if the plaintiffs bringing the claim label it otherwise) (quotation and alteration om itted). Although efficiency norm ally dictates that the “usual judicial practice is to address an as-applied challenge before a facial challenge,” such an approach is not practicable in 26 this case. See Connection Distrib. Co. v. Holder, 557 F.3d 321, 327 (6th Cir. 20 0 9) (en banc). Plaintiffs’ facial challenge to the policy requires them to scale a “steep standard of review.” Discount Tobacco City & Lottery , Inc. v. United States, 674 F.3d 50 9, 554 (6th Cir. 20 12). “A facial challenge to a legislative Act is, of course, the m ost difficult challenge to m ount successfully, since the challenger m ust establish that no set of circum stances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Facial challenges to legislative acts are disfavored for several reasons, not the least of which is a consideration particularly noteworthy in this case: claims of facial invalidity often rest on speculation. W ash. State Grange v. W ash. State Republican Party , 552 U.S. 442, 450 (20 0 8). “As a consequence, they raise the risk of prem ature interpretation of statutes on the basis of factually barebones records.” Id. (quotation om itted). Further, facial challenges threaten to underm ine dem ocratic processes, in that they m ay frustrate the will of the people as im plem ented by elected representatives. Id. Finally, facial challenges m ay run afoul of judicial restraint: “courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor form ulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Id. (quotations om itted). Bearing this in m ind, the Court cannot say that Ham ilton County’s prayer policy, on its face, violates the Establishm ent Clause. It appears to the Court that, at least as written, the policy strives for neutrality. The policy specifically states it is not intended to “proselytize or advance any particular faith, or show any purposeful preference of one religious view to the exclusion of 27 others.” (Doc. 38-1 at 4). It expressly contem plates invocations that do not constitute prayer, but instead include only “a reflective m om ent of silence, or a short solem nizing m essage.” (Id. at 5). It does not require the participation of Com m issioners or m eeting attendees. (Id.). Additionally, it provides that: “all religious congregations with an established presence in Ham ilton County” m ay be included on the list from which prayer-givers will be drawn, any congregation m ay request inclusion, and all questions of “authenticity” will be resolved by reference to the Internal Revenue Code’s criteria for religious entities. (Id. at 6). In extending invitations to local religious leaders, the Com m ission will request that the speaker “m aintain a spirit of respect for all,” not attem pt to use the opportunity to convert others, and refrain from disparaging any other faith. (Id. at 7). No doubt the policy perm its – and arguably even encourages – private citizens to solem nize public m eetings with prayers to a divine being. Plaintiffs quite understandably recite the language oft-repeated by the Suprem e Court: “[T]he First Am endm ent m andates governm ental neutrality between religion and religion, and betw een religion and nonreligion.” (em phasis added). See, e.g., McCreary Cnty ., 545 U.S. at 860 It is undeniably difficult to square that language with Marsh’s holding, i.e., that a legislature m ay officially em ploy a Christian chaplain and endorse his practice of beginning legislative sessions with prayers to “God” offered in the “J udeoChristian tradition.” Marsh, 463 U.S. at 793. The Court can reach only one logical conclusion: this apparent disparity m erely serves to underscore the fundam ental differences between the law governing the “m ainline body of Establishm ent Clause case law” and that governing the discrete subject of legislative prayer. Sim pson, 40 4 F.3d at 281 (quoting Sny der, 159 F.3d at 1232). As to the latter, Marsh controls. 28 Plaintiffs have not clearly established that there is no set of circum stances under which the policy could be implem ented in a way that does not offend the First Am endm ent. They suggest that the policy is a “sham ,” im plying that it is merely legal cover for Ham ilton County to select speakers who will inevitably advance the Christian faith. To that end, they point to the County’s com pilation of local congregations, the m ajority of which are Christian. (Doc. 38-2). At present, it would be prem ature and judicially im provident for the Court to predict the identity of the individuals who will be selected or the nature and character of prayers that have yet to be offered. See W ash. State Grange, 552 U.S. at 450 . For exam ple, the m ere fact that a prayer-giver m ay be Christian does not necessarily m ean that his or her invocations will call on Christ – a m em ber of the Christian faith m ay call for a m om ent of silence with no m ore difficulty than could a Muslim , a J ew, or an atheist. Alternatively, if the Com m ission’s practice develops into one that is inclusive of all faiths and creeds, or that represents the participation of a wide cross-section of diverse religious leaders, it can hardly be said to violate the First Am endm ent. See, e.g., Gallow ay , 681 F.3d at 29 (“Accordingly, our inquiry cannot look solely to whether the town’s legislative prayer practice contained sectarian references. We m ust ask, instead, whether the town’s practice, viewed in its totality by an ordinary, reasonable observer, conveyed the view that the town favored or disfavored certain religious beliefs.”); Sim pson, 40 4 F.3d at 284 (concluding that a policy had not “crossed the constitutional line,” in part because of the county’s “effort to include diverse creeds, . . . [with] a wide variety of prayers, the richness of which is quite revealing”); Pelphrey , 547 F.3d at 1278 (“The diversity of the religious expressions, in contrast with the prayers in the J udeo-Christian tradition allowed in Marsh, supports the finding that the prayers, taken as a whole, did not advance any particular faith.”) 29 Plaintiffs’ speculation as to invocations not yet m ade cannot form the basis of a successful facial challenge to prayer policy. See id.; Sabri v. United States, 541 U.S. 60 0 , 60 9 (20 0 4). Ham ilton County’s prayer policy evinces no im perm issible m otive that m ay be fairly ascribed to the Com m ission. There is no evidence that the County seeks to use the prayer opportunity to advance one faith or disparage another. The policy’s overt goals are all-inclusive, contem plating invocations offered by citizens of various creeds. In short, the policy appears on its face to foster the kind of official solem nizations that, by “harm oniz[ing] with the tenets of som e or all religions,” do not run afoul of the Establishm ent Clause. Marsh, 463 U.S. at 792 (quotation om itted). To the extent Plaintiffs allege that, when applied, the prayer policy w ill violate the First Am endm ent, their claim is not ripe. Typically, determ ining whether a policy runs afoul of the Establishm ent Clause requires the Court to engage in “delicate and factsensitive inquiry.” Lee, 50 5 U.S. at 597. But at this point, the factual record before the Court is far too attenuated to perm it any reasoned conclusion concerning the constitutionality of the policy’s application. As above, the prelim inary relief Plaintiffs seek is necessarily prospective. It therefore relates to – and m ust be prem ised upon – invocations under the policy as presently written. See Briley , 562 F.3d at 781. The evidence before the Court concerns only two post-policy Com m ission m eetings: those held on J uly 12 and J uly 18, 20 12.11 This dearth of evidence – necessarily brought about by the brevity of the period between the adoption of the policy and the hearing on Plaintiffs’ Motion – is drawn into 11 As Plaintiffs acknowledged at the injunction hearing, the invocation used to open the J uly 3 m eeting was said under the auspices of the prior unwritten prayer practice. 30 sharp relief when com pared with the facts before other courts presented with sim ilar questions. For example, in Hinrichs, the Seventh Circuit considered a prayer practice that dated back 188 years, and it reviewed over 50 individual invocations. See Hinrichs, 440 F.3d at 395. The plaintiffs in Pelphrey presented seven years’ worth of legislative prayer. See Pelphrey , 547 F.3d at 1267. And in Joy ner, even though a written policy was adopted m id-litigation, the Fourth Circuit was presented with a record com prising m ore than one year of post-policy prayers. See Joy ner, 653 F.3d at 344. Here, any challenge to the application of the policy or to the Com m issioners’ m otives would be predicated on scant facts: two prayers, each of which appealed to God and to J esus Christ. See Sabri, 541 U.S. at 60 9 (discouraging constitutional challenges “on fact-poor records”). In light of the Suprem e Court’s unam biguous holding in Marsh, legislative prayers containing references to God are constitutionally perm issible. See Marsh, 463 U.S. at 794. Consequently, the only rem aining question is whether the two prayers offered “in J esus’ nam e” are tantam ount to the County’s im perm issible expression of official allegiance to Christianity. Based on the guidance of Marsh, Allegheny , and subsequent appellate cases, the Court answers in the negative. Without m ore, two prayers m ade in the nam e of a sectarian sacred figure (be it Christ, Muham m ad, Buddha, or another) are insufficient to “sym bolically place the governm ent’s official seal of approval” on the religion the holy figure represents. Id. at 792; see, e.g., Gallow ay , 681 F.3d at 29 (“But this does not m ean that any single denom inational prayer has the forbidden effect of affiliating the governm ent with any one faith.”) (em phasis original); Joy ner, 653 F.3d at 354-55; Pelphrey , 547 F.3d at 127778 (upholding a finding that, even though som e prayers referenced J esus Christ, “the prayers, viewed cum ulatively, did not advance a single faith . . .”). 31 In sum , Plaintiffs have failed to establish that there is no set of circum stances under which Ham ilton County’s prayer policy m ay be im plem ented in a m anner that com ports with the First Am endm ent. Thus, their facial challenge to the policy fails. See Salerno, 481 U.S. at 745. Inasm uch as they claim the policy is unconstitutional as applied, the record before the Court is far too underdeveloped to adequately analyze their claim. While there m ay be a possibility for future constitutional violations under the policy, Plaintiffs have not dem onstrated that they are “likely to suffer irreparable harm before a decision on the m erits can be reached.” W inter, 555 U.S. at 20 (em phasis added). Consequently, the Court will D EN Y their Motion for Prelim inary Injunction (Doc. 16). To be clear, the Court acknowledges two explicit conclusions that m ay be drawn from this Order. First, a legislative body m ay begin its public m eetings with som e type of prayer to a deity. Marsh, 463 U.S. at 794. Com pliance with the First Am endm ent does not m andate that a legislature lim it its invocations to nothing m ore than a “m om ent of silence.” See, e.g., id.; Gallow ay , 681 F.3d at 33-34; Joy ner, 653 F.3d at 354; Pelphrey , 547 F.3d at 1277-78. Second, the Court cannot conclude on the record before it that two prayers referencing J esus Christ, offered by m inisters at a tim e set aside for prayer by the Com m ission, constitute an im perm issible affiliation of the governm ent with Christianity. C. Ham ilton County urges the Court to go further. It suggests that its facially neutral prayer policy has entirely m ooted any future possibility of its invocation practice violating the First Am endm ent. The Court cannot agree. 32 The Court is not prepared to hold that, through its adoption of the J uly 3 prayer policy, the County has perm anently insulated itself from all liability for future violations of the Establishm ent Clause. Plaintiffs’ “as-applied” challenge to the prayer policy is not yet ripe. Because there is no m eaningful record of the policy’s application, the Court is unable to gauge the likely success of Plaintiffs’ constitutional claim , and a prelim inary injunction cannot issue. Nevertheless, this litigation is not over, and eventually, a sufficient record will develop. The County argues that “Marsh clearly approved legislative prayers that are explicitly Christian,” suggesting that subsequent conflicting “dicta” should be disregarded. Put generously, the County’s reading of Marsh is strained. First, in Marsh itself, the Court took pains to note that although the prayers at issue were offered “in the J udeo-Christian tradition,” the chaplain “rem oved all references to Christ” after a legislator com plained. Marsh, 463 U.S. at 793 n.14. It also suggested at least that an inquiry into the content of legislative prayers m ay be appropriate when evidence dem onstrates that the prayers advance one religion, disparage another, or proselytize the audience. Id. at 794-95. Moreover, the County disregards the Suprem e Court’s own subsequent interpretation of Marsh, which it announced in Allegheny . There, the Court stated that even the unique history of legislative prayers does not allow them to “have the effect of affiliating the governm ent with any one specific faith or belief. . . . The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had rem oved all references to Christ.” Allegheny , 492 U.S. at 60 3. As noted above (see FN 7, supra), the County is incorrect in characterizing Allegheny ’s discussion of Marsh as J ustice Blackm un’s “plurality opinion.” In stating that “governm ent m ay not 33 dem onstrate a preference for one particular sect or creed (including a preference for Christianity over other religions),” J ustice Blackm un did m ore than m erely speak for him self – he announced the opinion of the United States Suprem e Court. Even assum ing the statem ents are dicta, they plainly post-date Marsh, and they are no less binding on this Court. See, e.g., Murray v. U.S. Dep’t of Treasury , 681 F.3d 744, 751 n.5 (6th Cir. 20 12) (“Lower courts are obligated to follow Suprem e Court dicta, particularly where there is not substantial reason for disregarding it, such as age or subsequent statem ents underm ining its rationale.”) (quotation om itted). At this stage of the litigation, at least, the Court is not prepared to accept that, after Marsh, a legislative body m ay uniform ly open m eeting after m eeting with explicitly Christian prayers without facing som e constitutional scrutiny. At the very least, that is a proposition called into question by Allegheny and explicitly rejected by several courts of appeal. See, e.g., Allegheny , 492 U.S. at 60 2-0 6, Gallow ay , 681 F.3d at 31-32; Joy ner, 653 F.3d at 353-54; Hinrichs, 440 F.3d at 398-40 2. Indeed, in an en banc opinion, the Sixth Circuit has im plied that the constitutional perm issibility of a legislative prayer m ay be tied in part to its nonsectarian character. Am ericans United, 980 F.2d at 1544. The County argues that the Suprem e Court’s holding in Lee renders it constitutionally unable to regulate what prayers are offered at its m eetings. It further argues that, in any event, “the im possibility of determ ining what language is ‘sectarian’ m ay render the issue nonjusticiable.” (Doc. 63 at 3). These issues are not before the Court at this stage of litigation. However, two brief observations are warranted. First, at least one court of appeals has flatly rejected the County’s argum ent that Lee restricts its ability to regulate the character of prayers offered at Com m ission m eetings: “We do 34 not read Lee as holding that a governm ent cannot require legislative prayers to be nonsectarian. Instead, Lee established that governm ent cannot com pel students to participate in a religious exercise as part of a school program .” Turner, 534 F.3d at 355. Second, of all the cases to address legislative prayer, Ham ilton County has identified none that raise m eaningful questions of non-justiciability.12 It is not the role of this Court, or of any other court, to craft a constitutionally acceptable policy concerning legislative prayer at Ham ilton County Com m ission m eetings.13 See U.S. Const. art. III, § 2. That responsibility rests – as it should – solely with the Com m ission, which is com prised of the elected representatives of the people of Ham ilton County. There appears to the Court to be a continuum of options from which policym akers m ay choose when crafting such a policy. It includes: (1) perm itting no prayer whatsoever; (2) allowing for only a reflective mom ent of silence; (3) perm itting ecum enical, nondenom inational prayers of the kind found acceptable in Marsh; or (4) 12 The burden of distinguishing between “sectarian” and “non-sectarian” prayers m ay be less insurm ountable than the County would suggest. Many Courts to have confronted the issue – including those cited by the County – have reached a conclusion concerning the m eaning of such classifications. See, e.g., Gallow ay , 681 F.3d at 28 (“[T]he distinction between sectarian and nonsectarian prayers m erely serves as a shorthand, albeit a potentially confusing one, for the prohibition on religious advancem ent or affiliation outlined in Marsh and Allegheny .”). 13 On this point, the Second Circuit sum marized: It is true that contextual inquiries like this one can give only lim ited guidance to m unicipalities that wish to m aintain a legislative prayer practice and still com ply with the m andates of the Establishm ent Clause. As the foregoing indicates, a m unicipality cannot – in our judgm ent – ensure that its prayer practice com plies with the Establishment Clause sim ply by stating, expressly, that it does not mean to affiliate itself with any particular faith. Nor can a m unicipality insulate itself from liability by adopting a lottery to select prayer-givers or by actively pursuing prayer-givers of m inority faiths whose m em bers reside within the town. Similarly, there is no substantive m ixture of prayer language that will, on its own, necessarily avert the appearance of affiliation. Ultim ately, m unicipalities m ust consider their prayer practices in context and as a whole. A m unicipality m ust ask itself whether what it does, in context, reasonably can be seen as endorsing a particular faith or creed over others. That is the delicate balancing act required by the Establishm ent Clause and its jurisprudence. Gallow ay , 681 F.3d at 33 (footnotes om itted). 35 authorizing som e denom inational prayer while taking care to ensure that its public recitation does not proselytize listeners, advance one religion or disparage another, or otherwise affiliate the governm ent with any specific faith. No one option is constitutionally m andated to the exclusion of the others. The Com m ission has chosen the fourth of these four options, and it is entirely within its rights to do so. However, in so choosing, it has assum ed – on its own behalf and on behalf of the citizens and taxpayers of Ham ilton County – the responsibility of ensuring that its policy is im plem ented in a m anner that respects both the rights of its citizens and the com m ands of the First Am endm ent. Whether it will actually effect its policy in such a fashion has yet to be seen. D. Having disposed of Plaintiffs Motion for Prelim inary Injunction, litigation will proceed on the m erits of Plaintiffs’ Com plaint. Thus, the Court will ORD ER the parties to appear in cham bers for a scheduling conference, to be conducted at 11:0 0 a.m . on Octo be r 2 , 2 0 12 . The Court recognizes that this Order m ay be im m ediately appealable as of right pursuant to 28 U.S.C. § 1292(a)(1). See, e.g., Freem an v. Helldoerfer, 20 8 F.3d 213 (table), 20 0 0 WL 125885 at *1 (6th Cir. J an. 28, 20 0 0 ) (“While a party generally can only appeal a district court order ending the litigation, [a court of appeals] has jurisdiction to consider an appeal from the denial of a prelim inary injunction under 28 U.S.C. § 1292(a)(1).”). Should a party elect to appeal this Order, the scheduling conference will be canceled. 36 IV. Accordingly, and for the reasons stated, Plaintiffs’ Motion for Prelim inary Injunction (Doc. 16) is hereby D EN IED . The parties are ORD ERED to appear in cham bers for a scheduling conference at 11:0 0 a.m . on Octo be r 2 , 2 0 12 . If a party elects to appeal this Order to the United States Court of Appeals for the Sixth Circuit, that conference will be canceled. SO ORD ERED this 29th day of August, 20 12. / s/ Harry S. Mattice, Jr._ _ _ _ _ _ _ HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 37
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