                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-1591


NANCY LUND; LIESA MONTAG-SIEGEL; ROBERT VOELKER,

                Plaintiffs - Appellees,

           v.

ROWAN COUNTY, NORTH CAROLINA,

                Defendant - Appellant.

----------------------------

STATE OF WEST VIRGINIA; STATE OF ALABAMA; STATE OF ARIZONA;
STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF INDIANA; STATE
OF MICHIGAN; STATE OF NEBRASKA; STATE OF NEVADA; STATE OF
OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF
TEXAS; MEMBERS OF CONGRESS,

                Amici Supporting Appellant,

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE;
AMERICAN   HUMANIST  ASSOCIATION;   ANTI-DEFAMATION LEAGUE;
CENTER FOR INQUIRY; FREEDOM FROM RELIGION FOUNDATION;
INTERFAITH ALLIANCE FOUNDATION; SIKH COALITION; UNION FOR
REFORM JUDAISM; WOMEN OF REFORM JUDAISM,

                Amici Supporting Appellees.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cv-00207-JAB-JLW)


Argued:   January 27, 2016            Decided:   September 19, 2016
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.


Reversed and remanded with directions by published opinion.
Judge Agee wrote the majority opinion, in which Judge Shedd
concurs. Judge Wilkinson wrote a dissenting opinion.


ARGUED: Allyson Newton Ho, MORGAN, LEWIS & BOCKIUS LLP, Dallas,
Texas, for Appellant.     Christopher Anderson Brook, AMERICAN
CIVIL LIBERTIES UNION OF NORTH CAROLINA, Raleigh, North
Carolina, for Appellees.    ON BRIEF: David C. Gibbs, III, THE
NATIONAL CENTER FOR LIFE AND LIBERTY, Flower Mound, Texas; John
C. Sullivan, MORGAN, LEWIS & BOCKIUS LLP, Dallas, Texas; David
A. Cortman, Brett B. Harvey, ALLIANCE DEFENDING FREEDOM,
Scottsdale, Arizona; Hiram S. Sasser, III, LIBERTY INSTITUTE,
Plano, Texas, for Appellant.     Daniel Mach, Heather L. Weaver,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C., for
Appellees.    Patrick Morrisey, Attorney General, Elbert Lin,
Solicitor  General,   Julie   Marie   Blake,  Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia, for Amicus State of West Virginia;
Luther Strange, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF ALABAMA, Montgomery, Alabama, for Amicus State of Alabama;
Mark Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF ARIZONA, Phoenix, Arizona, for Amicus State of Arizona;
Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of
Arkansas; Pamela Jo Bondi, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF FLORIDA, Tallahassee, Florida, for Amicus
State of Florida; Gregory F. Zoeller, Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, for
Amicus State of Indiana; Bill Schuette, Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for
Amicus State of Michigan; Douglas J. Peterson, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF NEBRASKA, Lincoln, Nebraska,
for Amicus State of Nebraska; Adam Paul Laxalt, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF NEVADA, Carson City,
Nevada, for Amicus State of Nevada; Michael DeWine, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio,
for Amicus State of Ohio; E. Scott Pruitt, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City,
Oklahoma, for Amicus State of Oklahoma; Alan Wilson, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Amicus State of South Carolina;
Ken Paxton, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
TEXAS, Austin, Texas, for Amicus State of Texas.            Sean

                                2
Sandoloski, Dallas, Texas, Thomas G. Hungar, Alex Gesch, Lindsay
S. See, Russell Balikian, GIBSON, DUNN & CRUTCHER LLP,
Washington, D.C., for Amici Members of Congress.       Richard B.
Katskee, Gregory M. Lipper, AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE, Washington, D.C., for Amici Americans United
for   Separation  of   Church   and  State,   American    Humanist
Association, Anti-Defamation League, Center for Inquiry, Freedom
From Religion Foundation, Interfaith Alliance Foundation, Sikh
Coalition, Union for Reform Judaism, and Women of Reform
Judaism.




                                3
AGEE, Circuit Judge:

      The Board of Commissioners of Rowan County, North Carolina,

(“the     Board”)     opens    its    public        meetings     with     an     invocation

delivered      by    a    member     of     the    Board.        The    district         court

determined that practice violates the Establishment Clause of

the   First    Amendment.           Under    the    Supreme      Court’s       most   recent

decision      explaining       legislative          prayer,      Town     of     Greece     v.

Galloway,      134       S.   Ct.    1811     (2014),       we    find     the        Board’s

legislative         prayer    practice       constitutional         and        reverse     the

judgment of the district court.



                                             I.

      The relevant facts are undisputed.                         Rowan County, North

Carolina, exercises its municipal power through an elected Board

of Commissioners, which typically holds public meetings twice a

month.       For many years prior to this proceeding, the Board has

permitted each commissioner, on a rotating basis, to offer an

invocation before the start of the Board’s legislative agenda. 1

        At   most    Board    meetings,       the    chairperson        would     call     the

meeting to order and invite the Board and audience to stand for

the ceremonial opening.               A designated commissioner would then


      1The record does not reflect that the Board adopted a
written policy regarding the invocations but it followed a
relatively routine practice.


                                              4
deliver an invocation of his or her choosing followed by the

pledge      of    allegiance.           The     content       of    each        invocation   was

entirely in the discretion of the respective commissioner; the

Board, as a Board, had no role in prayer selection or content.

The     overwhelming         majority         of       the   prayers       offered      by   the

commissioners invoked the Christian faith in some form.                                      For

example,         prayers     frequently        included        references         to    “Jesus,”

“Christ,” and “Lord.”               E.g., Supp. J.A. 36-37. 2                      It was also

typical for the invocation to begin with some variant of “let us

pray” or “please pray with me.”                        Id.    Although not required to

do so, the audience largely joined the commissioners in standing

and bowing their heads during the prayer and remained standing

for the pledge of allegiance.

        In February 2012, the American Civil Liberties Union of

North       Carolina       sent   the     Board         a    letter      objecting      to   the

invocations         and     asserting     a        violation       of     the    Establishment

Clause.           The     Board   did    not        formally       respond,       but   several

commissioners           expressed       their       intent     to       continue    delivering

prayers consistent with their Christian faith.                                  For example, a

then-commissioner stated, “I will continue to pray in Jesus’

name.       I am not perfect so I need all the help I can get, and




        2
       This opinion omits internal marks, alterations, citations,
emphasis, and footnotes from quotations unless otherwise noted.


                                                   5
asking for guidance for my decisions from Jesus is the best I,

and Rowan County, can ever hope for.”                 J.A. 325.

       Subsequently,       Rowan    County       residents       Nancy    Lund,     Liesa

Montag–Siegel, and Robert Voelker (collectively, “Plaintiffs”)

filed a complaint in the U.S. District Court for the Middle

District of North Carolina “to challenge the constitutionality

of    [the   Board’s]     practice      of   delivering       sectarian     prayer     at

meetings[.]”          J.A. 10.     Specifically, Plaintiffs alleged that

the prayer practice unconstitutionally affiliated the Board with

one    particular      faith     and    caused     them    to     feel    excluded     as

“outsiders.”      J.A. 12.

       Apart    from     their   objections       to    the      prayers’    contents,

Plaintiffs further alleged that the overall atmosphere of the

meetings       coerced    them     to    participate        as     a     condition    of

attendance.       Lund stated she felt “compelled to stand [during

the invocation] so that [she] would not stand out.”                         Supp. J.A.

2.    Voelker offered a similar account, claiming he was “coerced”

into participating because the commissioners and most audience

members stood and bowed their heads.                      Supp. J.A. 9.           Voelker

also posited that any public opposition to the prayers could

negatively affect his business before the Board.

       Based on these allegations, Plaintiffs sought a declaratory

judgment       that     the    Board’s       prayer    practice          violated     the

Establishment Clause, along with an injunction preventing any

                                             6
similar future prayers.                  Plaintiffs also moved for a preliminary

injunction      based       on     then-controlling              precedent       that       sectarian

legislative prayer was a constitutional violation.                                      See Joyner

v. Forsyth Cty., 653 F.3d 341, 347 (4th Cir. 2011) (explaining

that    our    decisions           “hewed       to       [the]    approach       [of]       approving

legislative prayer only when it is nonsectarian in both policy

and practice”).             Observing that “97% of the [Board’s recorded]

meetings[]          have    opened        with       a     [commissioner]          delivering        a

sectarian prayer that invokes the Christian faith,” the district

court entered a preliminary injunction barring the County from

permitting such invocations.                    J.A. 296.

       The    Supreme        Court       then    issued          its    decision       in    Town   of

Greece,       holding       that       the    legislative              prayer    in    that    case,

although clearly sectarian, was constitutionally valid and did

not    transgress          the    Establishment            Clause.         Id.    at    1820     (“An

insistence on nonsectarian or ecumenical prayer as a single,

fixed       standard        is     not       consistent          with      the    tradition         of

legislative prayer outlined in [our] cases.”); see also id. at

1815,       1824.          The     parties       filed       cross-motions            for    summary

judgment in light of Town of Greece.

       In    reviewing           the   summary       judgment          motions,       the    district

court acknowledged that in Town of Greece the Supreme Court had

“repudiated” and “dismantled” “the Fourth Circuit’s                                    legislative

prayer       doctrine            [that       had]         developed        around       the      core

                                                     7
understanding that the sectarian nature of legislative prayers

was   largely       dispositive”            of   its     constitutionality.                Lund       v.

Rowan Cty., N.C., 103 F. Supp. 3d 712, 719, 721 (M.D.N.C. 2015).

Moreover, the Plaintiffs did not raise the sectarian nature of

the    prayers        as       part     of       their        summary      judgment         motion.

Nonetheless,         the       district          court     struck       down        the     Board’s

legislative         invocation         practice,          concluding        that      “[s]everal

significant differences” between Town of Greece and this case

rendered that practice unconstitutional.                            Lund, 103 F. Supp. 3d

at    724.         The     district         court       thought      the     fact         that    the

commissioners delivered the prayers, instead of invited clergy,

“deviates      from      the    long-standing            history     and     tradition           of    a

chaplain,      separate        from     the      legislative        body,      delivering         the

prayer.”       Id. at 723.              The district court further emphasized

that the Board’s practice created a “closed-universe of prayer-

givers” that “inherently discriminates and disfavors religious

minorities.”        Id. at 723.

      After         finding           the        Board’s        practice        outside           the

constitutionally           protected         historical         practice       of    legislative

prayer,      the    district      court          went    on    to   consider        whether       the

Board’s prayer practice otherwise “violate[d] the Establishment

Clause    as    a    coercive         religious          exercise.”         Id.      at     724-25.

Although the unrefuted record disclosed that individuals could

leave the room or remain seated during the opening prayer, the

                                                   8
district court held the Board’s conduct was nonetheless coercive

because, among other things, the commissioners often invited the

public to stand before the invocation.                         In the court’s words,

             the   Board’s  legislative   prayer   practice
             leads to prayers adhering to the faiths of
             five elected Commissioners.         The Board
             maintains exclusive and complete control
             over the content of the prayers, and only
             the Commissioners deliver the prayers.      In
             turn, the Commissioners ask everyone --
             including the audience -- to stand and join
             in what almost always is a Christian prayer.
             On the whole, these details and context
             establish that [the Board’s] prayer practice
             is an unconstitutionally coercive practice
             in violation of the Establishment Clause.

Id. at 733.

     Based        on     this        analysis,          the        district   court      granted

Plaintiffs’ motion for summary judgment and entered a permanent

injunction barring the Board’s legislative prayer practice.                                   The

Board   timely         appealed,       and     we       review       the   district     court’s

decision     de        novo.         Simpson           v.    Chesterfield       Cty.    Bd.    of

Supervisors,       404     F.3d       276,     280          (4th    Cir.   2005);      see    also

Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir.

2008)   (“We      review        de    novo     a       district       court’s    findings      of

constitutional          fact    and    its   ultimate              conclusions   regarding       a

First Amendment challenge.”).




                                                   9
                                              II.

                                               A.

       Recognizing          “this    Nation’s       history    has       not       been      one   of

entirely      sanitized          separation    between       Church          and    State,”        the

Supreme       Court        has    acknowledged        that     government,                in    some

instances,      may    properly           commemorate   religion             in    public       life.

Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S.

756,    760    (1973).            Pertinent     here,    the       Court          has   expressly

approved      the     practice        of    opening     legislative               sessions      with

prayer.       See Joyner, 653 F.3d at 347 (“There is a clear line of

precedent not only upholding the practice of legislative prayer,

but    acknowledging          the    ways     in    which     it       can    bring       together

citizens of all backgrounds and encourage them to participate in

the    workings       of    their     government.”).           In       contrast        to      other

Establishment Clause jurisprudence, legislative prayer stands on

its own distinct ground owing to its historically based practice

and acceptance.

       While legislative prayer is generally a type of government

speech, Turner v. City Council of Fredricksburg, 534 F.3d 352,

354 (4th Cir. 2008), the Supreme Court has always stressed its

unique status.             That status was evident in Marsh v. Chambers,

463    U.S.     783        (1983),    which        involved        a    challenge          to      the

constitutionality            of     the    Nebraska     legislature’s               practice        of

having a paid chaplain offer a prayer to open each legislative

                                               10
session.       Applying the three-part test from Lemon v. Kurtzman,

403   U.S.     602    (1971),    the    Eighth      Circuit    had    concluded        such

invocations      violated       the    Establishment        Clause.        The    Supreme

Court disagreed.

      Recounting the long-standing American tradition of opening

legislative sessions with prayer, the Supreme Court traced its

history      “[f]rom    colonial       times    through      the   founding       of    the

Republic and ever since.”               Marsh, 463 U.S. at 786.              The Court

noted that “the First Congress, as one of its early items of

business, adopted the policy of selecting a chaplain to open

each session with prayer.”                Id. at 787–88.              The Senate and

House,    in    turn,    appointed      official      chaplains       in   1789.        Id.

Ascribing       great     significance         to    these     events,      the       Court

explained      they     shed    light    on    how    the     Founders     viewed       the

Establishment Clause in relation to legislative prayer.                           “It can

hardly be thought that . . . they intended the Establishment

Clause . . . to forbid what they had just declared acceptable.”

Id. at 790.          “This unique history [led the Court] to accept the

interpretation of the First Amendment draftsmen who saw no real

threat to the Establishment Clause arising from [the] practice

of [legislative] prayer.”             Id. at 791.

      Having     upheld    legislative         prayer   in     general,     the       Marsh

Court next considered whether specific features of Nebraska's

practice       fell    outside    constitutional          protection.            In    that

                                          11
regard, the plaintiff raised three challenges: (i) Nebraska had

selected a representative of “only one denomination” for sixteen

years; (ii) the chaplain was a paid state employee; and (iii)

his    prayers      were    offered    “in    the      Judeo–Christian     tradition.”

Id. at 792–93.             The Supreme Court rejected all three claims,

noting that the First Congress “did not consider opening prayers

as    a    proselytizing      activity       or   as    symbolically       placing      the

government’s official seal of approval on one religious view.”

Id. at 792.         Moreover, there was no evidence that the chaplain’s

long tenure “stemmed from an impermissible motive,” and thus his

continuous        appointment    did    “not      in    itself   conflict       with    the

Establishment Clause.”              Id. at 793–94.          That the chaplain was

paid      from    public    funds     was    similarly     “grounded       in    historic

practice” and thus not prohibited.                      Id. at 794.        As for the

content      of    the   prayers,     the    Court     explained     it   was    “not    of

concern”         because    “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.”                          Id. at 794-

95.       “That being so,” the Supreme Court concluded it would not

“embark on a sensitive evaluation or to parse the content of a

particular prayer.”          Id. at 795.

          The Supreme Court later referenced its holding in Marsh

during the course of ruling on the propriety of two religious

holiday      displays       located    on     public      property    in    County       of

                                             12
Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 578-

79, 602 (1989).          In dicta commenting about legislative prayer

practice     permitted        in   Marsh,     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.”                  Id. at 603.              The Court also

observed that “not even the unique history of legislative prayer

can   justify     contemporary        legislative           prayers         that       have     the

effect of affiliating the government with any one specific faith

or belief.”      Id.

      Whatever fleeting validity those observations may have had,

the   Supreme    Court     flatly     rejected         this      approach         in     Town    of

Greece.     Clarifying its earlier holdings, the Court disavowed a

requirement      that     legislative        prayers          must      be     neutral          and

reference only a generic God to comply with the Establishment

Clause: “An insistence on nonsectarian or ecumenical prayer as a

single, fixed standard is not consistent with the tradition of

legislative prayer outlined in [our] cases.”                             Town of Greece,

134 S. Ct. at 1820.

      The    Supreme     Court’s      decision         in   Town       of    Greece       guides

review of this case, which, like other legislative prayer cases,

requires     a   case-specific        evaluation            of    all       the    facts        and

circumstances.          See   Lynch    v.    Donnelly,           465    U.S.      668,    678-79

(1984)      (observing        that    the        Establishment              Clause        cannot

                                            13
mechanistically be applied to draw unwavering, universal lines

for the varying contexts of public life).                          To guide that review

we    turn     to   a     fuller         examination       of   the       Supreme       Court’s

discussion in Town of Greece.

                                               B.

      The town of Greece opened its monthly legislative meetings

with an invocation delivered by volunteer clergy.                             It solicited

guest chaplains by placing calls to local congregations listed

in a directory.           Town of Greece, 134 S. Ct. at 1816.                     Nearly all

of the local churches were Christian, as were the guest clergy,

and     thus     most     invocations         referenced        some      aspect       of   the

Christian faith.           The town made no attempt to guide the prayer-

givers in the content of the prayer.                      Id.   Although the district

court    found      the     town’s        practice        constitutional         the     Second

Circuit disagreed and concluded that the “steady drumbeat of

Christian       prayer     .    .    .    tended     to    affiliate       the     town     with

Christianity,” in violation of the Establishment Clause.                                Id. at

1818.    The Supreme Court reversed.

      Beginning         with   a     summary    of    Marsh,       the    Court     explained

“that the Establishment Clause must be interpreted by reference

to historical practices and understandings.”                             Id. at 1819; see

also id. at 1818-19.                “Marsh stands for the proposition that it

is    not      necessary       to    define     the       precise        boundary      of   the

Establishment       Clause          where   history        shows    that     the       specific

                                               14
practice is permitted.”           Id. at 1819.        The pertinent inquiry in

legislative prayer cases, therefore, is whether the practice at

issue “fits within the tradition long followed in Congress and

the state legislatures.”          Id.    The Court added, “[a]ny test [we]

adopt[] [for analyzing invocations] must acknowledge a practice

that was accepted by the Framers and has withstood the critical

scrutiny of time and political change.”               Id.

       Rooted thus, the Court rejected the plaintiffs’ argument

that legislative prayer must be generic or nonsectarian under

the     Establishment         Clause.         Observing       that     legislative

invocations containing explicitly religious themes were accepted

at the time of the first Congress and remain vibrant today, the

Court concluded, “[a]n insistence on nonsectarian or ecumenical

prayer as a single, fixed standard is not consistent with [our

accepted] tradition of legislative prayer.”                   Id. at 1820.         On

this    point,      the   Court   disavowed       Allegheny’s        “nonsectarian”

interpretation       of   Marsh    as    dictum      “that   was    disputed     when

written and has been repudiated by later cases.”                      Id. at 1821;

see     also        id.    (“Marsh       nowhere       suggested        that      the

constitutionality of legislative prayer turns on the neutrality

of its content.”).

       The Court further observed that a content-based rule “would

force the legislatures that sponsor prayers and the courts that

are    asked   to    decide    these    cases   to    act    as    supervisors    and

                                         15
censors of religious speech.”                    Id. at 1822.             Enforcing such a

line would “involve government in religious matters to a far

greater    degree       than       is    the    case    under     the      town’s       current

practice of neither editing or approving prayers in advance nor

criticizing       their    content        after       the   fact.”         Id.        “Once     it

invites    prayer       into       the    public      sphere,”     the      Court       stated,

“government must permit a prayer giver to address his or her own

God   or   gods    as     conscience           dictates,     unfettered          by    what     an

administrator or judge considers to be nonsectarian.”                                       Id. at

1822-23.

      Noting that legislative prayer has historically served a

ceremonial function, “[t]he relevant constraint derives from its

place at the opening of legislative sessions, where it is meant

to lend gravity to the occasion and reflect values long part of

the   Nation’s     heritage.”             Id.    at    1823.      Even      so,       the    Court

cautioned    there      could       be    a    circumstance       where     a     legislative

prayer practice failed to “serve[] [its] legitimate function”:

“If the course and practice over time shows that the invocations

denigrate       nonbelievers             or     religious       minorities,            threaten

damnation, or preach conversion[.]”                    Id. at 1823.

      Synthesizing these factors, the Court held that the prayers

offered    on    behalf       of    the       town,    although      almost       exclusively

Christian,      did     not    evidence         any    pattern       of    denigration          or

proselytization.          See id. (“Our tradition assumes that adult

                                                16
citizens, firm in their own beliefs, can tolerate and perhaps

appreciate    a    ceremonial         prayer    delivered       by    a    person    of   a

different faith.”).             Though the plaintiffs pointed to at least

two prayers in the record that arguably contained disparaging

content, the Court concluded that the prayer practice as a whole

served only to solemnize the board meetings.                          A few deviating

prayers,     the     Court       explained,       were     of    no       constitutional

consequence.       Id. at 1824.

       Relatedly,       the      Court     also       determined      there     was       no

constitutional defect arising from the fact that the invited

prayer-givers were predominantly Christian: “[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.”       Id.     Continuing, the Court observed

       [t]he quest to promote a diversity of religious views
       would require the town to make wholly inappropriate
       judgments about the number of religions [it] should
       sponsor and the relative frequency with which it
       should sponsor each, a form of government entanglement
       with religion that is far more troublesome than the
       current approach.

Id.

       Lastly, the Court addressed the plaintiffs’ contention that

the    prayers       unconstitutionally             “coerce      participation            by

nonadherents.”            Id.   (Kennedy,       J.,    plurality      opinion).           In

jettisoning        this       argument,     the        Court     acknowledged         that

                                           17
“coercion” could render legislative prayer beyond constitutional

protection     in    some    outlier     circumstances.              But   the   justices

differed in their understandings of what constituted coercion.

Compare id. at 1824-28 (Sec. II.B of Justice Kennedy’s plurality

opinion),     with    id.    at   1837-38     (Sec.       II.   of   Justice     Thomas’s

concurring opinion).

     Justice        Kennedy,      joined      by    Chief       Justice    Roberts      and

Justice Alito, framed the coercion inquiry as “a fact-sensitive

one that considers both the setting in which the prayer arises

and the audience to whom it is directed.”                       Id. at 1825 (Kennedy,

J., plurality opinion).            These Justices found no coercion in the

town’s   prayer      practice     and    relied      heavily      on   the   historical

approach of Marsh.           They presumed that reasonable observers are

aware    of   the    multiple        traditions      acknowledging         God   in    this

country, including legislative prayer, the pledge of allegiance,

and presidential prayers.             They concluded that, because of these

traditions, citizens could appreciate the town’s prayer practice

without being compelled to participate.                     Id.      Furthermore, they

observed that the purpose of the prayers was to put legislators

in a contemplative state of mind rather than have an effect on

observers.      Id. at 1826.            Justice Kennedy further stated that

“[o]ffense . . . does not equate to coercion.”                             Id.    “Adults

often    encounter          speech     they        find    disagreeable;         and     an

Establishment Clause violation is not made out any time a person

                                           18
experiences a sense of affront from the expression of contrary

religious views in a legislative forum.”                       Id. 3

       With these principles from Town of Greece in mind, we now

apply them to the facts presented here.



                                            III.

       Legislative prayer thus has a unique status relative to the

First Amendment that places it in a different legal setting than

other      types     of   government    conduct         touching       the   Establishment

Clause.         See Marsh, 463 U.S. at 792. Town of Greece reflects

that the constitutionality of legislative prayer hinges on its

historical precedence, as it “has become part of the fabric of

our society.”             134 S. Ct. at 1819.             If a prayer exercise has

long been “followed in Congress and the state legislatures,”

Town       of   Greece     reflects    that       a    court    must    view    it   “as   a

tolerable        acknowledgement       of     beliefs         widely    held   among   the

people of this country.”               Id. at 1818-19.             A court reviewing a

challenge       to    legislative      prayer         “must    acknowledge     a   practice

       3
       Justices Thomas and Scalia, on the other hand, interpreted
the Establishment Clause as prohibiting only “actual legal
coercion,” which they defined as the exercise of “government
power in order to exact financial support of the church, compel
religious observance, or control religious doctrine.”     Town of
Greece, 134 S. Ct. at 1837 (Thomas J., concurring in part and
concurring in the judgment). As no such evidence was present in
the record, they concurred in the holding that the town’s prayer
practice should be upheld. Id. at 1837-38.



                                             19
that was accepted by the Framers and has withstood the critical

scrutiny of time and political change.”                            Id. at 1819.         “A test

that would sweep away what has so long been settled would create

new    controversy         and        begin    anew        the    very      divisions      along

religious lines that the Establishment Clause seeks to prevent.”

Id.

                                                A.

       Following          Town        of      Greece,          both   parties        correctly

acknowledge        that    sectarian          legislative         prayer,     as    a    general

matter,      is    compatible         with     the       Establishment      Clause. 4         What

remains      in    dispute       is    whether       the       Board’s    practice       of   the

elected       commissioners                delivering          such   prayers        makes      a

substantive constitutional difference.                           The district court found

this feature largely dispositive.                         See Lund, 103 F. Supp. 3d at

722.       In its view, the prayer-giver’s status as “a member of the

legislative body” is a “crucial” and “determinative difference.”

Id.    at    722,    724.         The       district        court’s      decision       has   the

practical         effect    of    imposing           a    bright-line        prohibition        on

lawmaker-led prayer.

       In    reaching      its    conclusion,            the     district    court      observed

that the Supreme Court has never before sanctioned legislator-

       4At oral argument before this Court, the Plaintiffs
specifically agreed the sectarian aspect of the invocation
prayers at the Board meetings was not an issue they raise. Oral
Argument at 17:10-17:32 and 20:10-21:24.


                                                20
led prayers: “[I]t is telling that throughout its Town of Greece

opinion and the opinion in Marsh, the Supreme Court consistently

discussed     legislative          prayer      practices         in    terms      of    invited

ministers, clergy, or volunteers providing the prayer, and not

once described a situation in which the legislators themselves

gave the invocation.”               Id. at 722.             In essence, the district

court   treated       the    Supreme      Court’s         jurisprudential         silence      on

lawmaker-led prayer as conclusively excluding legislators from

being permissible prayer-givers to their own legislative bodies.

That conclusion is not supportable.

     While Town of Greece involved a rotating group of local

clergy and Marsh concerned a paid chaplain, the Supreme Court

attached     no     significance         to    the    speakers’       identities        in    its

analysis      and     simply       confined       its      discussion       to    the    facts

surrounding the prayer practices before it.                           See Town of Greece,

134 S. Ct. at 1816; Marsh, 463 U.S. at 784-85.                             Nowhere did the

Court   say    anything          that    could      reasonably        be   construed      as   a

requirement         that    outside       or     retained        clergy     are    the       only

constitutionally            permissible        givers       of    legislative           prayer.

Quite   the    opposite,         Town    of    Greece      specifically          directs      our

focus   to     what        has    been    done       in    “Congress       and    the     state

legislatures”        without       any   limitation         regarding      the     officiant.

Id. at 1819.         We find the Supreme Court’s silence on the issue

of lawmaker-led prayer to be simply that: silence.                                See United

                                               21
States v. Stewart, 650 F.2d 178, 180 (9th Cir. 1981) (remarking

it would be improper to draw any inference from the Supreme

Court’s silence on an issue not placed before it).

       Nor    has   this    Court    previously         assigned    weight    to    the

identity      of    the    prayer-giver.           To   the    contrary,     we     have

suggested this feature is irrelevant.                   For example, in Wynne v.

Town of Great Falls, we remarked that “[p]ublic officials’ brief

invocations of the Almighty before engaging in public business

have always, as the Marsh Court so carefully explained, been

part of our Nation’s heritage.”                  376 F.3d 292, 302 (4th Cir.

2004).       Similarly, Joyner v. Forsyth County observed that “[i]t

[is]   the     governmental       setting    for    the     delivery   of   sectarian

prayers that courted constitutional difficulty, not those who

actually gave the invocation.”              653 F.3d at 350; see also id. at

351.         And    in    Simpson    v.      Chesterfield       County      Board    of

Supervisors, we noted that the Supreme Court, “neither in Marsh

nor in Allegheny, held that the identity of the prayer-giver,

rather than the content of the prayer, was what would affiliate

the government with any one specific faith or belief.”                       404 F.3d

at 286.        Although these cases ultimately turned on the now-

rejected      position     that    sectarian       prayer     was   constitutionally

invalid, none made the prayer-giver’s identity dispositive.

       On a broader level, and more importantly, the very “history

and tradition” anchoring the Supreme Court’s holding in Town of

                                            22
Greece     underscores       a    long-standing            practice        not    only     of

legislative       prayer     generally          but     of       lawmaker-led         prayer

specifically.             Opening       invocations             offered     by        elected

legislators have long been accepted as a permissible form of

religious    observance.          See    S.    Rep.     No.     32-376,     at    4    (1853)

(commenting that the authors of the Establishment Clause “did

not intend to prohibit a just expression of religious devotion

by the legislators of the nation, even in their public character

as legislators” (emphasis added)); see also Lynch, 465 U.S. at

674 (“There is an unbroken history of official acknowledgment by

all three branches of government of the role of religion in

American life from at least 1789.”).                       As just one example, the

South    Carolina    Provincial         Congress      --    South     Carolina’s        first

independent legislature -- welcomed an elected member to deliver

its     opening     invocations.           See        South      Carolina        Provincial

Congress, Thanks to the Continental Congress (Jan. 11, 1775),

http://amarch.lib.niu.edu/islandora/object/niu-amarch%3A94077

(last     visited     Aug.       31,    2016     and       saved      as    ECF       opinion

attachment).      “The recognition of religion in these early public

pronouncements       is    important,         unless       we   are   to    presume      the

founders of the United States were unable to understand their

own handiwork.”       Myers v. Loudoun Cty. Sch. Bd., 418 F.3d 395,

404 (4th Cir. 2005).



                                           23
      This    tradition      of    legislative          prayer       has   continued      to

modern   day.      A   majority     of    state     and      territorial         assemblies

honor requests from individual legislators to give an opening

invocation.        See    National       Conference       of     State     Legislatures,

Inside the Legislative Process 5-151 to -152 (2002), http://

www.ncsl.org/documents/legismgt/ILP/02Tab5Pt7.pdf                                (observing

legislators may offer an opening prayer in at least thirty-one

states).      Lawmaker-led prayer is especially prevalent in the

states     under    our     jurisdiction,          where        seven      of     the     ten

legislative chambers utilize elected members for this purpose.

See   id.;   Br.   for     State    of    W.     Va.    et     al.    as    Amici    Curiae

Supporting      Defendant-Appellant         at     14    &     Addend.      2;    see    also

Prayers Offered in the North Carolina House of Representatives:

2011-2014,               http://nchousespeaker.com/docs/opening-prayers-

nchouse-2011-2014.pdf (last visited July 12, 2016).                              Several of

these states have enacted legislation recognizing the historical

practice of legislative prayer.                 For example, a Virginia statute

protects     legislators      who    deliver       a     sectarian         prayer    during

deliberative sessions.            See Va. Code § 15.2-1416.1.                    And South

Carolina     expressly     authorizes       its    elected        officials         to   open

meetings with prayer.             See S.C. Code § 6-1-160(B)(1); see also

Mich. H.R. Rule 16 (requiring the clerk of the Michigan House of

Representatives to arrange “for a Member to offer an invocation”

at the beginning of each session).

                                           24
      Lawmaker-led        prayer      finds    contemporary               validation       in   the

federal    government      as     well.        Both       houses      of     Congress       allow

members to deliver an opening invocation.                             As recently as May

2015, Senator James Lankford commenced legislative business in

the Senate with a prayer invoking the name of Jesus.                                 161 Cong.

Rec. S3313 (daily ed. May 23, 2015).                        The congressional record

is replete with similar examples.                         See, e.g., 159 Cong. Rec.

S3915    (daily    ed.    June     4,   2013)        (prayer         by    Sen.     William      M.

Cowan);    155    Cong.    Rec.     S13401-01            (daily      ed.    Dec.     18,    2009)

(prayer by Sen. John Barrasso); 119 Cong. Rec. 17,441 (1973)

(statement of Rep. William H. Hudnut III); see also 2 Robert C.

Byrd, The    Senate       1789-1989:      Addresses             on   the     History       of   the

United    States    Senate      305     (Wendy       Wolff       ed.,      1990)    (“Senators

have, from time to time, delivered the prayer.”).

      In view of this long and varied tradition of lawmaker-led

prayer,    the     district      court’s       judicial           wall      barring    elected

legislators from religious invocations runs headlong into the

Supreme Court’s acknowledgement that “[a]ny test [we] adopt[]

must acknowledge a practice that was accepted by the Framers and

has   withstood     the     critical      scrutiny           of      time     and    political

change.”    Town of Greece, 134 S. Ct. at 1819.                             As Justice Alito

aptly    explained,      “if    there     is       any    inconsistency           between       any

[Establishment      Clause]        test[]      and        the     historic        practice       of

legislative prayer, the inconsistency calls into question the

                                              25
validity of the test, not the historic practice.”                         Id. at 1834

(Alito, J., concurring).               Heeding this advice, we decline to

accept     the     district       court’s    view    that      legislative     prayer

forfeits     its     constitutionally            protected     status      because    a

legislator       delivers       the   invocation.      A     legal   framework    that

would result in striking down legislative prayer practices that

have long been accepted as “part of the fabric of our society”

cannot be correct.          Id. at 1819.

     In reaching its decision, the district court seems to have

wholly ignored a foundational principle in Town of Greece.                        “The

principal audience for these invocations is not, indeed, the

public but lawmakers themselves, who may find that a moment of

prayer or quiet reflection sets the mind to a higher purpose and

thereby eases the task of governing.”                 Id. at 1825 (Kennedy, J.,

plurality opinion).

     Not     only    are     the      legislators     themselves      the    intended

“congregation” for legislative prayer, but the practice carries

special meaning to the thousands of state and local legislators

who are citizen representatives.                  In this respect, the Supreme

Court has specifically singled out “members of town boards and

commissions, who often serve part-time and as volunteers,” as

lawmakers for whom “ceremonial prayer may . . . reflect the

values   they      hold    as    private    citizens.”         Id.   at   1826.      If

legislative prayer is intended to allow lawmakers to “show who

                                            26
and what they are” in a public forum, then it stands to reason

that they should be able to lead such prayers for the intended

audience:       themselves.       Id.        Indeed,        legislators        are   perhaps

uniquely     qualified      to    offer      uplifting,        heartfelt        prayer     on

matters that concern themselves and their fellow legislators.

      The district court’s determination that the fact that a

legislator       delivers     a   legislative          prayer       is    a    significant

constitutional         distinction,     at     least     in    the     context       of   this

case, was error.

                                             B.

      We turn now to the question of whether some other facet of

the Board’s practice, beyond the bare fact that lawmaker-led

prayer     is    offered,     takes     this      case      outside      the    protective

umbrella of legislative prayer.                   Although the Supreme Court has

not   forged       a     comprehensive         template        for       all    acceptable

legislative       prayer,     its     decisions          set    out      guideposts       for

analyzing        whether      a      particular             practice       goes       beyond

constitutional bounds.              See Snyder, 159 F.3d at 1233 (“Marsh

implicitly acknowledges some constitutional limits on the scope

and selection of legislative prayers[.]”).

                                             1.

      An    initial      guidepost      relates        to     the    selection       of   the

content of legislative prayer.                    In rejecting the plaintiffs’

position    that       invocations      must      be   nonsectarian,           the   Supreme

                                             27
Court in Town of Greece explained that such a rule “would force

the legislatures that sponsor prayers and the courts that are

asked to decide these cases to act as supervisors and censors of

religious speech.”               134 S. Ct. at 1822.                 Such an outcome, the

Court continued, “would involve government in religious matters

to   a    far    greater        degree    than    is     the       case    under    the       town’s

current        practice    of      neither    editing         or    approving       prayers       in

advance nor criticizing their content after the fact.”                                  Id.

         The    district      court      determined       the       Board’s    practice          was

invalid under this standard because the individual commissioners

author         their    own        invocations,         and    by     doing        so     act     as

“supervisors of the prayers.”                 Lund, 103 F. Supp. 3d at 723.                       It

reasoned that “the government is [thus improperly] delivering

prayers that were exclusively prepared and controlled by the

government[.]”            Id.       We disagree.          The Board’s practice here,

where      each        commissioner        gives        their        own    prayer        without

oversight,        input,      or    direction      by    the       Board    simply      does     not

present the same concerns of the “government [attempting] to

define permissible categories of religious speech.”                                       Town of

Greece, 134 S. Ct. at 1822 (emphasis added).

         What    the    Supreme       Court      has     cautioned         against       in     this

context is “for[cing] the legislatures that sponsor prayers . .

. to act as . . . supervisors and censors of religious speech.”

Id. (emphasis added).                To be sure, in offering the invocations

                                              28
the    individual         commissioners         sometimes         convey    their       personal

alignment with a particular faith.                        But the Court has always

looked      to     the    activities      of     the    legislature        as     a    whole    in

considering legislative prayer.                       This makes perfect sense; for

it    is    only    through       act    of    the    deliberative         body   writing       or

editing         religious    speech       that       government     would       impermissibly

seek “to promote a preferred system of belief or code of moral

behavior” with selected content.                      Town of Greece, 134 S. Ct. at

1822.       There is no evidence that the Board, as a Board, had any

role in any of the prayers by the individual commissioners.                                    The

record is devoid of any suggestion that any prayer in this case

is anything but a            personal creation of each commissioner acting

in accord with his or her own personal views.

       In       effect,    each    commissioner          is   a    free    agent       like    the

ministers in Town of Greece and the chaplain in Marsh who gave

invocations         of    their     own    choosing.          In    other       Establishment

Clause contexts, the Supreme Court has stressed this element of

private choice, holding that when a neutral government policy or

program merely allows or enables private religious acts, those

acts do not necessarily bear the state’s imprimatur.                                  See Zelman

v.    Simmons–Harris,         536       U.S.   639,     652    (2002)      (school       voucher

programs); Mueller v. Allen, 463 U.S. 388, 399 (1983) (school-

related income tax deductions).                       As the Supreme Court stated in

Town       of   Greece,     “[o]nce       it    invites       prayer      into    the     public

                                                 29
sphere, government must permit a prayer giver to address his or

her own God or gods as conscience dictates, unfettered by what

an administrator or judge considers to be nonsectarian.”                         134 S.

Ct. at 1822-23.

      The Board’s legislative prayer practice amounts to nothing

more than an individual commissioner leading a prayer of his or

her own choosing.

                                            2.

      A    second       guidepost      to     acceptable      legislative        prayer

discussed      in    Town    of    Greece     concerns      its   content.        After

reaffirming       the    holding      in    Marsh    that    lower     courts    should

refrain from becoming embroiled in the review of the substance

of legislative prayer, the Supreme Court noted that there could

be   certain    circumstances         where      sectarian    references        cause   a

legislative         prayer   practice       to    fall     outside     constitutional

protection.         Id. at 1823.      “If the course and practice over time

shows that the invocations denigrate nonbelievers or religious

minorities,         threaten      damnation,        or   preach      conversion,”       a

constitutional line can be crossed.                  Id.     In that circumstance,

the Court observed, “many present may consider the prayer to

fall short of the desire to elevate the purpose of the occasion

and to unite lawmakers in their common effort.”                      Id.

      To   this      end,    courts    need      only    assure      themselves    that

sectarian      legislative         prayer,        viewed     from      a   cumulative

                                            30
perspective, is not being exploited to proselytize or disparage.

Below      this   threshold,      the   Supreme             Court   has   disclaimed    any

interest in the content of legislative invocations, announcing a

strong disinclination “to embark on a sensitive evaluation or to

parse the content of a particular prayer.”                           Marsh, 463 U.S. at

795.

       The record in this case reflects that the Board’s prayer

practice      did    not    stray    across          this     constitutional     line    of

proselytization or disparagement.                      See Wynne, 376 F.3d at 300

(“To ‘proselytize’ on behalf of a particular religious belief

necessarily         means    to     seek        to     ‘convert’      others     to    that

belief[.]”).         The content of the commissioners’ prayers largely

encompassed         universal     themes,            such     as    giving   thanks     and

requesting        divine    guidance       in    deliberations.            References   to

exclusively         Christian     concepts           typically       consisted    of    the

closing line, such as “In Jesus’ name.                         Amen.”     See Supp. J.A.

29-31.      There is no prayer in the record asking those who may

hear it to convert to the prayer-giver’s faith or belittling

those who believe differently. 5                     And even if there were, it is




       5 The   four   prayers  that   the   dissent   cites   as
constitutionally offensive bear in common the fact that none
attempt to convert any hearer to change their faith; none
belittle those of another faith; and none portend that a person
of another faith would be treated any differently by the prayer-
giver in the business of the Board.     In short, none of those
(Continued)
                                            31
the practice as a whole -- not a few isolated incidents -- which

controls.    Town of Greece, 134 S. Ct. at 1824 (“Absent a pattern

of prayers that over time denigrate, proselytize, or betray an

impermissible government purpose, a challenge based solely on

the    content   of    a   prayer     will     not   likely      establish   a

constitutional violation.”).

       The invocation delivered at the Board’s October 17, 2011,

meeting is illustrative of what the Board members and the public

in Rowan County would hear:

            Let us pray. Father we do thank you for the
            privilege of being here tonight.   We thank
            you for the beautiful day you’ve given us,
            for health and strength, for all the things
            we take for granted.   Lord, as we read the
            paper today, the economic times are not
            good, and many people are suffering and
            doing without.   We pray for them; we pray
            that you would help us to help. We pray for
            the decisions that we will make tonight,
            that God, they will honor and glorify you.
            We pray that you would give us wisdom and
            understanding.  We’ll thank you for it.  In
            Jesus’ name. Amen.

Supp. J.A. 31.        Such prayer comes nowhere near the realm of

prayer that is out of bounds under the standards announced in

Town of Greece.       Prayers that chastise dissenters or attempt to

sway   nonbelievers     press   the   limits    of   the    Supreme   Court’s

instruction and may not merit constitutional protection, but no



cited prayers bears any of the hallmarks                   of   constitutional
question set out in Town of Greece.


                                      32
such   prayers    have   been    proffered      in     this    case.      See,    e.g.,

Snyder,    159    F.3d   at   1235    (finding       the    plaintiff’s    proffered

prayers    unconstitutional          because    they       “strongly    disparage[d]

other religious views” and “s[ought] to convert his audience”).

       Plaintiffs    call     our    attention       to    a   few     examples      that

contain    more   forceful      references      to    Christianity       out    of   the

hundreds of legislative prayers delivered before Board meetings.

As an initial matter, the sectarian content cited in Plaintiffs’

opening brief (and referenced by the dissent) is austere and

innocuous   when    measured        against    invocations      upheld     in     Marsh.

See 463 U.S. at 823 n.2 (Stevens, J., dissenting) (quoting an

exemplar     challenged         prayer).              Regardless,        Plaintiffs’

hypersensitive focus is misguided.               Town of Greece “requires an

inquiry into the prayer opportunity as a whole, rather than into

the contents of a single prayer.”               134 S. Ct. at 1824.             “Absent

a pattern of prayers that over time denigrate, proselytize, or

betray an impermissible government purpose, a challenge based

solely on the content of a prayer will not likely establish a

constitutional violation.”             Id.     Given the respectful tone of

nearly all the invocations delivered here, which largely mirror

those identified in Town of Greece, the Board’s practice crossed

no constitutional line.             See id. at 1824 (holding that a few

stray remarks are insufficient to “despoil a practice that on

the whole reflects and embraces our tradition”).

                                         33
                                          3.

      Moving beyond the invocations themselves, a third guidepost

to legislative prayer relates to the selection of the prayer-

giver.      In Town of Greece, the challenged practice resulted in

“a predominately Christian set of ministers . . .                   lead[ing] the

prayer.”      Id.     The Court found this fact unremarkable because

“[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.”      Id.      “So long as the town maintains a policy of

nondiscrimination,” then “the Constitution does not require it

to search beyond its borders for non-Christian prayer givers in

an effort to achieve religious balancing.”               Id.

      The    district    court    found    the   Board’s    legislative    prayer

practice objectionable         because     the   invocation     opportunity     was

rotated among only the elected commissioners; that is, all of

the Board members.        According to the district court, “[w]hen all

faiths but those of the five elected Commissioners are excluded,

the   policy    inherently       discriminates     and     disfavors    religious

minorities.”        Lund, 103 F. Supp. 3d at 723.              Marsh and Town of

Greece      reflect     that   the    district     court’s       conclusion     was

mistaken.

      The Supreme Court’s prohibition on discrimination in this

context is aimed at barring government practices that result

                                          34
from a deliberate choice to favor one religious view to the

exclusion of others.                 As explained in Town of Greece, concerns

arise only if there is evidence of “an aversion or bias on the

part of town leaders against minority faiths” in choosing the

prayer-giver.           134 S. Ct. at 1824.                    The Marsh Court likewise

alluded to this requirement when it cautioned that the selection

of a guest chaplain cannot stem from “an impermissible motive.”

463   U.S.    at       793.         Read   in    context,       this    condition       appears

directed     at    the        conscious      selection         of    the    prayer-giver       on

account of religious affiliation.                      See id. at 793.

      The    district         court’s      opinion       aims    elsewhere,        essentially

mandating prayer-giver diversity.                       See Lund, 103 F. Supp. 3d at

723 (“[T]he present case presents a closed-universe of prayer-

givers, . . . [leaving] minority faiths [with] no means of being

recognized.”).                For       example,       under     the       district     court’s

framework,         a     legislature,            including          Congress,        would    be

prohibited     from       permitting         individual         members      to    deliver    the

opening      invocation            to    solemnize       its    proceedings         unless     an

unlimited     number          of    faiths      were    actually       represented      by    the

elected      representatives.                But       diversity       among      the   beliefs

represented        in    a    legislature         has    never       been   the     measure    of

legislative prayer.                 Town of Greece specifically rejected the

notion      that       lawmaking        bodies     must    “promote         a     diversity    of

religious views.”              134 S. Ct. at 1824.                  Consequently, the town

                                                 35
was not obliged to “search beyond its borders for non-Christian

prayer givers in an effort to achieve religious balancing.”                                       Id.

And    in    Marsh,       the      Nebraska    legislature             appointed       the    same

Presbyterian minister for sixteen years to the exclusion of all

other    creeds.          The      Court    was     unpersuaded         that        this    made    a

constitutional difference.                 See Marsh, 463 U.S. at 793.

       Thus,      while      the    Board’s    practice          limits       the    represented

faiths      to    those      of    the   individual     commissioners,               that    is    no

different        from     the     limitations       built       into    the    constitutional

prayer practices in Town of Greece and Marsh.                             See Simpson, 404

F.3d    at       285   (“A      party    challenging        a    legislative          invocation

practice cannot . . . rely on the mere fact that the selecting

authority chose a representative of a particular faith, because

some adherent or representative of some faith will invariably

give the invocation.”).                  There is simply no requirement in our

case law that a legislative prayer practice reflect multiple

faiths or even more than one to be constitutionally valid.

       Absent proof the Board restricted the prayer opportunity

among the commissioners as part of an effort to promote only

Christianity, we must view its decision to rely on lawmaker-led

prayer as constitutionally insignificant.                          See Pelphrey v. Cobb

Cty., 547 F.3d 1263, 1281 (11th Cir. 2008) (“[Marsh] does not

require that all faiths be allowed the opportunity to pray.                                       The

standard          instead          prohibits        purposeful           discrimination.”).

                                               36
Plaintiffs       have    not      directed        the       Court    to      any    evidence          that

would     suggest       the       Board     harbored          such       a    motive.            It     is

uncontested that the Board’s policy was facially neutral and

bereft of government discretion.                        A person of any creed can be

elected     to     the     Board          and     is        entitled         to    speak        without

censorship.        Furthermore, as far as we can tell, the Board never

altered its practice to limit a non-Christian commissioner or

attempted to silence prayers of any viewpoint.                                    See Lund, 103 F.

Supp. 3d at 714-16.

       The Supreme Court has determined that the selection of a

prayer-giver who represents a single religious sect, even over

many    years,     does       not    advance          any    one     faith        or    belief        over

another.     See Marsh, 463 U.S. at 793 (“We cannot, any more than

Members     of     the     Congresses            of     this        century,           perceive       any

suggestion       that     choosing           a    clergyman           of      one       denomination

advances     the     beliefs         of     a     particular             church.”);         Ctr.      for

Inquiry, Inc. v. Marion Circuit Court Clerk, 758 F.3d 869, 874

(7th Cir. 2014) (“Marsh and Greece show that a government may,

consistent with the First Amendment, open legislative sessions

with    Christian        prayers       while      not        inviting         leaders       of     other

religions[.]”).               A     party       challenging          a       legislative         prayer

practice     cannot       rely       on     the       mere     fact       that      the     selecting

authority    has        confined       the       invocation         speakers           to   a    narrow

group.     This is particularly true here as the Board has no voice

                                                  37
in the selection of commissioners, which is entirely up to the

citizens by election.

                                           4.

       A final guidepost to legislative prayer is found in the

statement from Town of Greece that the prayer practice “over

time” may not be “exploited to . . . advance any one . . . faith

or belief.”        134 S. Ct. at 1823.           We must discern, then, whether

over   time       the    Board’s     practice    conveys     the    view    that    Rowan

County “advance[d]” Christianity over other creeds.                        Id.

       The   Board       has   not   picked     any   of   the    prayers    under    its

legislative prayer practice of ceremonial invocation by which

the commissioners’ prayers solemnize their meeting.                               Town of

Greece fully supports this approach, reaffirming the principle

first set out in Marsh that a governmental subdivision does not

endorse any one faith or belief by opening its forum to prayers,

even sectarian ones.             See McCreary Cty. v. Am. Civil Liberties

Union of Ky., 545 U.S. 844, 859 n.10 (2005) (citing Marsh as an

example      of   a     permissible    governmental        action    whose       “manifest

purpose was presumably religious”).                   And this remains true even

when sectarian religious content is communicated regularly.                           See

Galloway v. Town of Greece, 681 F.3d 20, 24-25 (2d Cir. 2012)

(observing that “[r]oughly two-thirds” of the prayers at issue

in   that    case       “contained     uniquely       Christian     language,”      while



                                           38
“[t]he remaining third of the prayers spoke in more generically

theistic terms”).

      The prayers in this case, like those in Town of Greece,

were largely generic petitions to bless the commissioners before

turning to public business.                 References to Christian concepts

typically consisted of the closing statement “in Jesus’ name we

pray,” or a similar variation.                   Supp. J.A. 31.            As Town of

Greece imparts, such prayers do not unconstitutionally convey

the   appearance      of    an    official       preference      for     Christianity.

Rather, “[o]ur tradition assumes that adult citizens, firm in

their     own    beliefs,        can   tolerate       and       perhaps     appreciate

[sectarian] ceremonial prayer[.]”                Town of Greece, 134 S. Ct. at

1823.

      Had a chaplain offered prayers identical to those in the

instant    case,     Town   of    Greece     and    Marsh      would    unquestionably

apply   to   uphold    the       Board’s    practice.          Unlike    the    district

court, we are unconvinced the feature of a legislator delivering

the   prayer    to   fellow      legislators       signals      an    unconstitutional

endorsement of religion.

      Practically speaking, the public seems unlikely to draw a

meaningful      distinction       between    a     state-paid        chaplain   and   the

legislative body that appoints him.                   “Such chaplains speak for

the   legislature.”          Snyder,       159     F.3d   at    1238     (Lucero,     J.,

concurring in judgment).               They are in essence “deputized” to

                                            39
represent      the    governing            body   in     this    context.        Cf.    Town    of

Greece,        134      S.       Ct.       at     1850     (Kagan,        J,     dissenting).

Consequently,        when        an    elected       representative        underscores         his

alignment with a particular faith during the invocation, as is

sometimes the case here, the risk of placing the government’s

weight behind this view is the same as those practices upheld in

Marsh    and     Town       of    Greece.         In     other    words,       the    degree   of

denominational          preference          projected      onto     the    government        with

lawmaker-led         prayer           is    not        significantly        different        from

selecting denominational clergy to do the same.                                  Both prayers

arise in the same context and serve the same purpose.

       If anything, allowing the legislative body to collectively

select a tenured chaplain as in Marsh would seem to pose a

greater problem.                 The presence of a single religious figure,

particularly a paid state employee, seems more likely to reflect

a   perceived        governmental               endorsement        of     the        faith   that

individual represents.                     Yet, the Supreme Court has concluded

this      more       obvious           preference          is     not      constitutionally

significant.         See Rubin v. Lancaster, 710 F.3d 1087, 1097 (9th

Cir.    2013)    (“[W]hatever              message      Nebraska    might       have    conveyed

through its practice of selecting, paying, and retaining for

sixteen     years       a    Presbyterian              chaplain    who     often       delivered

explicitly       Christian         invocations,          the    Supreme     Court      concluded

that the legislature had not advanced Christianity.”).

                                                  40
     Legislative prayer is constitutionally acceptable when it

“fits within the tradition long followed in Congress and the

state legislatures.”        Town of Greece, 134 S. Ct. at 1819.                    The

Supreme   Court     has   observed     that    prayers    offered    within        this

tradition have a common theme and “respectful” tone –- they are

given “at the opening of legislative sessions, where it is meant

to lend gravity to the occasion.”                 Id. at 1823.          Acceptable

legislative prayer thus “solemnize[s] the occasion” and “invites

lawmakers to reflect upon shared ideals and common ends before

they embark on the fractious business of governing[.]”                       Id.   The

record here reflects just such prayers.

                                        C.

     We   now      turn   to     Plaintiffs’     claims       that   the      Board’s

legislative     prayer    practice     is     impermissibly     coercive.           The

“coercion test” under the Establishment Clause reflects that the

government    violates     the    Constitution     if    it   compels      religious

participation.       See Allegheny, 492 U.S. at 660 (Kennedy, J.,

concurring    in     judgment     in    part    and     dissenting      in     part).

Although spurned by the Supreme Court for some time, see Sch.

Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223 (1963)

(noting that Free Exercise cases were “predicated on coercion

while [an] Establishment Clause violation need not be”), the

coercion test gradually emerged as part of Establishment Clause

doctrine in several decisions regarding school-sponsored prayer.

                                        41
See Lee v. Weisman, 505 U.S. 577, 593 (1992) (striking down

clergy-led prayers at graduation ceremonies because the school

district’s     “supervision        and      control         .    .     .     places       public

pressure, as well as peer pressure, on attending students . . .

as real as any overt compulsion.”); Santa Fe Indep. Sch. Dist.

v. Doe, 530 U.S. 290, 310-17 (2000) (finding prayers at high

school football games unconstitutionally coercive).

      Although     previously        unclear         whether          the    coercion       test

applied beyond the schoolhouse, see G. Sidney Buchanan, Prayer

in   Governmental       Institutions:       The      Who,       the    What,       and    the   At

Which    Level,    74   Temp.   L.      Rev.     299,   339-42         (2001);       see    also

Mellen    v.   Bunting,      327     F.3d        355,   366-72          (4th       Cir.    2003)

(recognizing a gap in Supreme Court precedent with regard to

secular expression not directed to children), Town of Greece

settled     that   ambiguity       by     observing         that        a    coercion-based

analysis applies to adults encountering religious observances in

governmental settings.             See 134 S. Ct. at 1825 (Kennedy, J.,

plurality      opinion)     (“It     is        an    elemental             First     Amendment

principle that government may not coerce its citizens to support

or participate in any religion or its exercise.”).

      The Town of Greece majority, however, was unable to settle

on what constitutes coercion in the legislative prayer context.

Although five Justices agreed that the town did not engage in an

unconstitutional        coercion,       they        reached       this       conclusion         by

                                            42
separate    paths.     Justices      Thomas     and   Scalia      would       require

coercion to consist of “the coercive state establishments that

existed at the founding,” which essentially equates to religious

observance “by force of law and threat of penalty.”                       Town of

Greece, 134 S. Ct. at 1837 (Thomas J., concurring in part and

concurring in the judgment).            Justice Kennedy, joined by Chief

Justice    Roberts   and   Justice     Alito,   framed     the   inquiry       as   “a

fact-sensitive one that considers both the setting in which the

prayer arises and the audience to whom it is directed.”                       Id. at

1825     (Kennedy,   J.,   plurality     opinion).         Under       this    view,

“[c]ourts remain free to review the pattern of prayers over time

to determine whether they comport with the tradition of solemn,

respectful prayer approved in Marsh, or whether coercion is a

real and substantial likelihood.”           Id. at 1826-27.            The history

and tradition of legislative prayer is relevant here, too, and

the    “reasonable   observer”    is    presumed      to   be    aware    of    that

history and recognize the purpose of such practices.                          Id. at

1825.

       The district court divided its coercion analysis into two

parts.     First, it considered the issue under Town of Greece,

concluding     “Justice    Kennedy’s     general      rules      for    evaluating

potential coercion in the legislative prayer context . . . point

the [c]ourt in the direction of finding the practice of [the

Board] unconstitutionally coercive.”             Lund, 130 F. Supp. 3d at

                                       43
729.        The district court then “turn[ed] to the principles of

[the] coercion doctrine developed prior to the Town of Greece

decision,”         finding       these    cases     likewise        suggested         the    Board

violated the Establishment Clause.                     Id.

       As noted above, the Supreme Court’s coercion doctrine prior

to Town of Greece developed in several cases involving public

school events with children.                 The potential for undue influence,

however, is less significant when dealing with prayer involving

adults,       and        this     distinction          warrants       a      difference            in

constitutional           analysis.          The     law      recognizes         a     meaningful

distinction            between     children       in    a     school        setting         and    a

legislative         session      where     adults      are    the    participants.                See

Stein v. Plainwell Cmty. Schs., 822 F.2d 1406, 1409 (6th Cir.

1987) (“The potential for coercion in the prayer opportunity was

one    of    the       distinctions       employed      by    the    Court       in    Marsh       to

separate      legislative          prayer     from      classroom         prayer.”).              The

Supreme Court assumes that adults are “not readily susceptible

to religious indoctrination or peer pressure.”                              Marsh, 463 U.S.

at 792; see also Town of Greece, 134 S. Ct. at 1823 (“[A]dult

citizens, firm in their own beliefs, can tolerate and perhaps

appreciate         a    ceremonial       prayer     delivered        by     a    person      of    a

different faith.”).

       Consistent         with     this     distinction,        we     do       not   find        the

Supreme      Court’s       prior    coercion       cases     applicable          in    analyzing

                                              44
legislative prayer like that at issue here.                        See Simpson, 404

F.3d at 281 (“Marsh, in short, has made legislative prayer a

field of Establishment Clause jurisprudence with its own set of

boundaries and guidelines.”).                 Thus, we look to the coercion

analysis in Town of Greece, recognizing first that the Board

clearly did not engage in coercion under the view expressed by

Justices Scalia and Thomas.            But we analyze the issue under the

view more favorable to the Plaintiffs as expressed in Justice

Kennedy’s plurality opinion.                Under that approach, the Court

must conduct a fact-sensitive inquiry “consider[ing] both the

setting in which the prayer arises and the audience to whom it

is directed.”         Town of Greece, 134 S. Ct. at 1825 (Kennedy, J.,

plurality opinion).

     In upholding the invocation practice in Town of Greece, the

Supreme    Court      plurality     identified         several   “red   flags”   that

could signal when a prayer exercise is coercive and thus not

within    the   historical        tradition      of    constitutionally     protected

legislative     prayer.       See    id.    at     1825-27.      Specifically,     the

Court explained that coercion may exist “if town board members

directed the public to participate in the prayers, singled out

dissidents      for   opprobrium,      or    indicated      that    their   decisions

might be influenced by a person’s acquiescence in the prayer

opportunity.”          Id.   at    1826.         The   Court   also   identified   as

problematic “practice[s] that classified citizens based on their

                                            45
religious views” or resulted in a pattern of prayers used to

“intimidate” or “chastise[] dissenters.”              Id.

       It is not difficult to understand why the Court placed the

coercion bar so high in this context.                As noted, adults are not

presumed    susceptible     to    religious    indoctrination        or    pressure

simply from speech they would rather not hear.                  Thus, there is

limited risk that disenchanted listeners would be affected by

mere    contact   with    lawmaker-led       legislative     prayer.        “Adults

often     encounter      speech      they    find     disagreeable;        and    an

Establishment Clause violation is not made out any time a person

experiences a sense of affront from the expression of contrary

religious views[.]”        Id.; see also Elk Grove Unified Sch. Dist.

v. Newdow, 542 U.S. 1, 44 (2004) (O'Connor, J., concurring in

the judgment) (“[T]he Constitution does not guarantee citizens a

right entirely to avoid ideas with which they disagree.”).

       The district court erred in concluding the Board’s prayer

practice was coercive under this framework.                  The commissioners’

prayers    “neither      chastised    dissenters      nor    attempted     lengthy

disquisition on religious dogma.”             Town of Greece, 134 S. Ct. at

1826 (Kennedy, J., plurality opinion).                Rather, as illustrated

previously, the content largely followed the spirit of solemn,

respectful    prayer      approved     in    Marsh    and    Town     of   Greece.

Moreover,     the     record      shows      that     both     attendance        and

participation in the invocations were voluntary.                    The Board has

                                        46
represented     without       contradiction            that    members     of   the    public

were    free    to     remain       seated        or     otherwise        “disregard     the

Invocation in a manner that [was] not disruptive.”                                J.A. 277.

Thus, as a practical matter, citizens attending a Board meeting

who found the prayer unwanted had several options available --

they could arrive after the invocation, leave for the duration

of the prayer, or remain for the prayer without participating:

just like the audiences in Marsh and Town of Greece.                              And to the

extent individuals like Plaintiffs elected to stay, “their quiet

acquiescence        [would]     not,    in      light         of   our    traditions,     be

interpreted as an agreement with the words or ideas expressed.”

Town    of   Greece,   134     S.    Ct.   at      1827       (Kennedy,     J.,    plurality

opinion).

       The record is similarly devoid of evidence that anyone who

chose    not   to    participate       during      the        prayer     suffered     adverse

consequences, that their absence was perceived as disrespectful,

or was recognized by the Board in any way.                         To the contrary, the

Board has attested that such conduct would have “no impact on

[the constituent’s] right to fully participate in the public

meeting, including addressing the commission and participating

in the agenda items in the same matter as permitted any citizen

of Rowan County.”        J.A. 277.         Plaintiffs point us to no evidence

to the contrary.          Thus, it is implausible on this record to

suggest that Plaintiffs were “in a fair and real sense” coerced

                                             47
to participate in the Board’s exercise of legislative prayer.

Lee, 505 U.S. at 586.

     Plaintiffs’ allegations that the prayer practice made them

feel subjectively “excluded at meetings” and that the Board’s

“disagreement with [their] public opposition to sectarian prayer

could make [them] less effective advocate[s]” does nothing to

change the outcome.          Lund, 130 F. Supp. 3d at 715-16.             Town of

Greece explicitly rejected the claim that a citizen’s perceived

“subtle pressure to participate in prayers that violate their

beliefs in order to please the board members from whom they are

about to seek a favorable ruling” constitutes coercion.                    134 S.

Ct. at 1825 (Kennedy, J., plurality opinion).                 This is true even

where the legislative body may “know many of their constituents

by name,” making anonymity less likely for those citizens who

decline to rise or otherwise participate in the invocation.                     Id.

Likewise,     merely       exposing     constituents    to   prayer     they    find

offensive        is   not    enough.        “[I]n      the   general     course[,]

legislative       bodies     do   not    engage   in    impermissible     coercion

merely by exposing constituents to prayer they would rather not

hear and in which they need not participate.”                Id. at 1827.

     To     be    sure,     legislative     prayer     may   stray     across    the

constitutional line if “town leaders allocate[e] benefits and

burdens based on participation in the prayer, or that citizens

were received differently depending on whether they joined the

                                          48
invocation or quietly declined.”                     Id. at 1826.        But there must

be evidence in the record to support allegations of that sort.

There is no such evidence in this case.

       Plaintiffs       make    several         arguments       in    support     of   the

district court’s coercion ruling.                         They first claim that the

prayer practice here was “an external act focused on the broader

public,” which “has a type of coercive power that the internally

directed [prayers] in Town of Greece [did] not.”                            Response Br.

8,    11.     Plaintiffs       point      to    several       invocations      where   the

commissioners offered prayers on behalf of others as well as

themselves.       This evidence, in Plaintiffs’ view, shows that the

commissioners did “not consider the prayer practice an internal

act    directed    at    one    another,            but    rather,   that   it    is   also

directed toward citizens and for the benefit of all.”                              Id. at

11.

       Town of Greece notes the internal or external nature of a

prayer      practice    in    determining           whether   impermissible      coercion

occurred.       See     134    S.   Ct.    at        1825    (Kennedy,   J.,     plurality

opinion) (“The principal audience for these invocations is not,

indeed, the public but lawmakers themselves, who may find that a

moment of prayer or quiet reflection sets the mind to a higher

purpose and thereby eases the task of governing.”).                          The Supreme

Court’s rationale here is obvious.                        The probability of coercion

can be heightened should the prayers be directed at those in

                                               49
attendance.          Plaintiffs’         argument,       however,     posits       that    any

prayer referencing a person or concern beyond the members of the

legislative         body   is     externally      directed     and    thus       prohibited.

That       cannot    be.          Legislative         prayer   does        not    lose     its

constitutionally protected status because it includes a request

for divine protection for persons other than those serving in

office, such as our troops overseas or first responders.                                   The

Supreme Court has never required such a single-minded purpose.

Indeed,      the     prayers       in     Town    of     Greece      contained       similar

expressions focused at persons other than fellow legislators.

See id. at 1824.                The fact that individual commissioners here

sometimes      prayed       that    God    bless,       protect,     and    heal    wounded

soldiers in Iraq and injured police officers does not take the

prayers       outside       the     realm        of     constitutionally          protected

legislative prayer. 6

       Plaintiffs next argue that the commissioners unacceptably

directed public participation in the prayers.                         To reiterate, the

Board’s      opening       ceremony      usually       began   with    the       chairperson

asking      everyone       to    stand    “for    the    Invocation        and    Pledge    of


       6
       Taking two of the exemplar prayers referenced by the
dissent, we do not understand the connection to coercion if the
gallery audience heard the Commissioner delivering the prayer
ask God to “continue to bless everyone in this room, our
families, our friends, and our homes” or to “forgive our pride
and arrogance, heal our souls, and renew our vision.” Cf. infra
70 (citing J.A. 16, 17).


                                             50
Allegiance.”        Lund, 103 F. Supp. 3d at 714.                      The designated

commissioner       would     then   offer       an    invocation       that    typically

started     with    “let    us   pray”   or       “please      pray   with    me.”      Id.

Plaintiffs         maintain      that       these        statements          amount     to

unconstitutional           coercion.          The       district       court     agreed,

concluding the commissioners’ statements “fall squarely within

the realm of soliciting, asking, requesting, or directing, and

thus within the territory of concern [in] Town of Greece.”                              Id.

at 728.

     Again,        we   disagree.          Similar        invitations         have    been

routinely offered for over two centuries in the U.S. Congress,

the state legislatures, and countless local boards and councils.

No   case    has    ever     held   such      a      routine    courtesy      opening    a

legislative session amounts to coercion of the gallery audience.

It would come as quite a shock to the Founders if it had.

     When the Supreme Court in Town of Greece expressed concern

about prayer-givers “direct[ing] the public to participate in

the prayers,” it did not have the foregoing in mind.                          134 S. Ct.

at 1826 (Kennedy, J., plurality opinion).                       Coercion is measured

“against the backdrop of historical practice.”                           Id. at 1825.

“As a practice that has long endured, legislative prayer has

become part of our heritage and tradition . . . similar to the

Pledge of Allegiance [or] inaugural prayer[.]”                           Id.     “It is

presumed that the reasonable observer is acquainted with this

                                           51
tradition and understands that its purposes are to lend gravity

to    public       proceedings      and     to    acknowledge         the    place       religion

holds in the lives of many private citizens[.]”                                    Id.     Viewed

through      this     lens,    no    reasonable         person    would       interpret          the

commissioners’ commonplace invitations as government directives

commanding         participation       in    the      prayer.         The    phrase       “let    us

pray”   is     a    familiar     and       “almost     reflexive”        call      to    open    an

invocation that hardly compels in the rational mind thoughts of

submission.         Id. at 1832 (Alito, J., concurring).                       The same goes

for the Board’s request for audience members to stand.                                     We may

safely assume that mature adults, like Plaintiffs, can follow

such      contextual          cues         without       the      risk        of        religious

indoctrination.          See Marsh, 463 U.S. at 792.                         Telling here is

Plaintiffs’ own evidence, which indicates that some portion of

the    audience       often    chose       not    to    participate.            See      J.A.     12

(noting only “most” of the audience stood).                             In sum, opening a

legislative         prayer    with     a    short      invitation       to    rise       and   join

hardly amounts to “orchestrat[ing] the performance of a formal

religious exercise in a fashion that practically obliges the

involvement of non-participants.”                     Myers, 418 F.3d at 406.

       Lastly,       Plaintiffs        claim          they     were     singled          out     for

opprobrium by “Board members signaling their disfavor of those

who did not fall in line.”                  Response Br. 20.           Plaintiffs cite to

several      public      statements          where       acting       commissioners            were

                                                 52
critical of those in the religious minority.                           See, e.g., Lund,

103 F. Supp. 3d at 715. (then-chairman Jim Sides: “I am sick and

tired    of     being    told    by    the    minority       what’s      best     for     the

majority.       My friends, we’ve come a long way -- the wrong way.

We call evil good and good evil.”).                   Even giving these comments

the    weight    Plaintiffs       would      like,    which      is    itself     doubtful

because   most     came    post-litigation           and    in    response       to     other

issues having nothing to do with legislative prayer, they are

insufficient to carry the day.                    Such isolated incidents do not

come close to showing, as Town of Greece requires, “a pattern of

prayers   that     over    time    denigrate,         proselytize,        or    betray     an

impermissible       government         purpose.”           134    S.     Ct.     at     1824.

Indeed, the comments cited here are not materially different

from    those     referenced          in   Town      of    Greece,       where        several

invocations referred to prayer opponents as the “minority” and

“ignorant.”       Id.    A few stray remarks are simply insufficient to

“despoil a practice that on the whole reflects and embraces our

tradition.”      Id.

       Participation      in    the    Board’s       opening     ceremony,       including

the invocation, is voluntary.                Yet the district court concluded

that Plaintiffs are subject to unconstitutional coercion because

they claim to be compelled and coerced based on their subjective

speculation about how their abstention might be received.                               That

conclusion      cannot    be    reconciled        with    Town   of     Greece    and     its

                                             53
rejection    of   the   notion    of    coercion     of     adults    in    similar

circumstances.      Town   of    Greece      identified     a   narrow     range    of

exceptional circumstances that could render a legislative prayer

practice     coercive   and     outside      the   historical      tradition        of

invocations that comport with the Establishment Clause.                            The

Board’s legislative prayer practice is not close to crossing

that constitutional line.



                                       IV.

     None    of   the   constitutional         contentions       raised     by     the

Plaintiffs have validity under the facts of this case for the

reasons     set   out   above.         Similarly,    even       taking     all     the

Plaintiffs’ claims as an amalgamated whole, they do not reflect

a meritorious claim for the same reasons such claims failed in

Marsh and Town of Greece.

     The Board’s legislative prayer practice falls within our

recognized     tradition   and     does      not   coerce       participation       by

nonadherents.      It is therefore constitutional.                   The district

court erred in concluding to the contrary.                      Accordingly, the

judgment of the district court is reversed and remanded with

directions to dismiss the complaint.

                                                          REVERSED AND REMANDED
                                                                WITH DIRECTIONS




                                        54
WILKINSON, Circuit Judge, dissenting:

     Welcome to the meeting of the Rowan County Board of
Commissioners. As many of you are aware, we customarily begin
these meetings with an invocation. Those who deliver the
invocation may make reference to their own religious faith as
you might refer to yours when offering a prayer. We wish to
emphasize, however, that members of all religious faiths are
welcome not only in these meetings, but in our community as
well. The participation of all our citizens in the process of
self-government will help our fine county best serve the good
people who live here.
                                 --Message of Religious Welcome

     The message actually delivered in this case was not one of

welcome but of exclusion. That is a pity, because even a brief

prefatory statement akin to that above might have helped to set

a different tone for the meetings here while not requiring the

judiciary to police the content of legislative prayer.

                                            I.

     Religious faith is not only a source of personal guidance,

strength,       and    comfort.     Its   observance         is   also    a     treasured

communal        exercise   which     serves        in     times   of     need    as    the

foundation       for   mutual     support    and     charitable     sustenance.         But

when a seat of government begins to resemble a house of worship,

the values of religious observance are put at risk, and the

danger     of     religious     division         rises    accordingly.        S.A.     1-10

(affidavits       of    Nancy     Lund,   Liesa         Montag-Siegel,     and       Robert

Voelker). This, I respectfully suggest, is what is happening

here. It cannot be right. This case is more than a factual



                                            55
wrinkle on Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).

It is a conceptual world apart.

       Rowan      County’s     prayer       practice        featured          invocations     week

after week, month after month, year after year, with the same

sectarian      references.        To   be    sure,        Town     of    Greece      ruled    that

sectarian prayer is not by itself unconstitutional. 134 S. Ct.

at 1820-23. But the issue before us turns on more than just

prayer content, the primary concern in Town of Greece. Whereas

guest      ministers     led      prayers       in        that     case,       it    was    public

officials      who   exclusively        delivered           the    invocations         in     Rowan

County. Those prayers served to open a meeting of our most basic

unit of government, a local board of commissioners that passes

laws    affecting      citizens        in    the     most        daily    aspects      of    their

lives.      The    prayers,       bordering          at     times        on    exhortation      or

proselytization, were uniformly sectarian, referencing one and

only one faith though law by definition binds us all.

       I    have     seen      nothing        like        it.      This        combination      of

legislators as the sole prayer-givers, official invitation for

audience          participation,            consistently                sectarian          prayers

referencing but a single faith, and the intimacy of a local

governmental setting exceeds even a broad reading of Town of

Greece. That case in no way sought to dictate the outcome of

every      legislative      prayer      case.      Nor      did     it    suggest      that    “no

constraints        remain    on    [prayer]          content.”           Id.    at    1823.    The

                                              56
Establishment      Clause   still     cannot     play    host   to   prayers     that

“over time . . . denigrate nonbelievers or religious minorities,

threaten damnation, or preach conversion.” Id. To assess those

risks, “[c]ourts remain free to review the pattern of prayers

over time.” Id. at 1826-27.

      Above all, the Supreme Court stressed that “[t]he inquiry

[into    legislative     prayer]    remains       a    fact-sensitive     one    that

considers both the setting in which the prayer arises and the

audience to whom it is directed.” Id. at 1825 (emphasis added).

The   parties     have   not   cited    any      legislative     prayer   decision

combining the particular speakers, audience involvement, prayer

content,    and    local    government     setting       presented   here.      Rowan

County’s counsel conceded during oral argument that this case is

without precedent. Oral Argument at 9:20-10:08, Lund v. Rowan

Cty. (No. 15-1591). I am left to wonder what limits, if any, to

sectarian invocations at meetings of local government appellants

would be prepared to recognize.

      No one disputes that localities enjoy considerable latitude

in opening their meetings with invocations and prayers. But the

legislative prayer practice here pushes every envelope. I would

not   welcome     this   exceptional       set    of    circumstances     into   the

constitutional      fold    without    considering        its    implications.     A

ruling     for    the    County    bears      unfortunate       consequences     for

American pluralism, for a nation whose very penny envisions one

                                        57
out of many, a nation whose surpassing orthodoxy belongs in its

constitutional    respect       for   all        beliefs    and    faiths,     a   nation

which    enshrined    in    the     First    and        Fourteenth      Amendments      the

conviction     that   diversity       in     all    of     its    dimensions       is   our

abiding strength.

                                           II.

     Though the majority treats this case as all but resolved by

Town of Greece, that decision did not touch upon the combination

of   factors    presented         here,      particularly         the     question       of

legislator-led prayer. Indeed, prayers by public officials form

a distinct minority within Establishment Clause case law. The

great majority of legislative prayer cases have not involved

legislators at all, but invocations by guest ministers or local

religious leaders. E.g., Marsh v. Chambers, 463 U.S. 783, 784-85

(1983)    (invocation      by   a   chaplain        paid    by    the    state     at   the

opening of state legislative sessions); Joyner v. Forsyth Cty.,

653 F.3d 341, 343 (4th Cir. 2011) (prayers by leaders of local

congregations at county commission meetings). The invocations in

Town of Greece were likewise delivered solely by ministers from

local    congregations.     134     S.     Ct.     at    1816-17.    Nearly      all    the

congregations were Christian, and every minister selected during

an eight-year period came from that faith. Id. But crucially, no

public officials delivered prayers or influenced their content

in any way. Id. As the district court noted, Town of Greece

                                            58
“consistently discussed legislative prayer practices in terms of

invited ministers, clergy, or volunteers providing the prayer,

and    not   once     described    a   situation          in    which      the    legislators

themselves gave the invocation.” Lund, 103 F. Supp. 3d at 722.

       By    contrast,     the     only    eligible         prayer-givers          at     Rowan

County commission meetings were the five board commissioners,

each of whom took up the responsibility in turn. Not only did

they    lead    the      prayers,      but        they     also      composed       all     the

invocations     “according        to   their       personal       faiths,”        which    were

uniformly      Christian       denominations.            Id.    at     724;      J.A.    275-94

(affidavits of the five Rowan County commissioners). Compared to

Town of Greece, the “much greater and more intimate government

involvement” by the Rowan County board led the district court to

find its prayer practice unconstitutional. Lund, 103 F. Supp. at

723.

       Of    course,     the     prayer    practice         was      not    infirm       simply

because it was led by the commissioners. As the majority and the

states’      amicus    brief     rightly     remind,           there    exists      a    robust

tradition of prayers delivered by legislators. According to a

national     survey     and    amici’s     own     research,         all    but    two    state

legislative bodies engage in legislative prayer or a moment of

silence. Br. of Amici Curiae State of West Virginia and 12 Other

States at 13. Lawmakers lead at least some legislative prayers

in just over half of those states, including seven of the ten

                                             59
state legislative chambers within our circuit. Id. at 13-14.

Many    county       and     city    governments         also     call     upon   elected

officials to give prayer. Id. at 15.

       The tradition of prayer by legislators is but one indicator

of how unrealistic it would be to divorce democratic life from

religious     practice.       We    see       their    intertwined   nature       whenever

candidates for all levels of political office proclaim their

faith on the campaign trail. Voters may understandably wish to

factor the religious devotion of those they elect into their

political assessments. It could not be otherwise. As Justice

William O. Douglas aptly observed, “We are a religious people

whose     institutions        presuppose         a     Supreme    Being.”     Zorach        v.

Clauson, 343 U.S. 306, 313 (1952).

       The Supreme Court thus recognized that “a moment of prayer

or   quiet    reflection       sets      the     mind[s]    [of   legislators]         to   a

higher purpose and thereby eases the task of governing.” Town of

Greece, 134 S. Ct. at 1825. The solemnizing effect for lawmakers

is likely heightened when they personally utter the prayer. In

deference to that purpose, I would not for a moment cast all

legislator-led        prayer        as    constitutionally          suspect.      As    the

Supreme      Court     has     emphasized,            “[L]egislative     prayer        lends

gravity to public business, reminds lawmakers to transcend petty

differences      in   pursuit       of    a    higher    purpose,    and    expresses       a

common aspiration to a just and peaceful society.” Id. at 1818.

                                               60
       Prayers delivered by legislators, however, are themselves

quite       diverse.          We    cannot    discern         from     the     general       survey

proffered by amici which prayers were primarily for the benefit

of legislators or commissioners as in Town of Greece and which

focused, as the prayers did here, on requesting the citizens at

the    meeting          to    pray.     Nor   do     we    know      from    the    survey        what

percentage         of        prayers      given    by      elected     officials          generally

contain sectarian references or proselytizing exhortations, or

which       are    non-denominational              or     delivered     by     legislators          of

diverse      faiths.          And    in    fact,     the      very    survey       on    which     the

majority and amici rely takes care to note that highly sectarian

prayers represent “not only a breach of etiquette,” but also an

“insensitivity to the faith of others.” National Conference of

State Legislatures, Inside the Legislative Process 5-145 (2002)

[hereinafter NCSL Survey]; see Maj. Op. at 24; Br. of Amici

Curiae       State       of    West       Virginia      and    12    Other     States       at     13.

Further,          the    survey        cautions,        the    prayer-giver             “should     be

especially sensitive to expressions that may be unsuitable to

members of some faiths.” NCSL Survey at 5-146.

       We should focus then not on any general survey but on the

interaction among elements specific to this case -- legislative

prayer-givers exclusively of one faith, legislative invitation

to    the    citizens          before      them    to     participate,       and        exclusively

sectarian prayers referencing a single faith in every regular

                                                   61
meeting of a local governing body over a period of many years.

At a certain point, the interaction of these elements rises to

the level of coercion that Town of Greece condemned. Id. at

1823.

                                             III.

                                              A.

       I    shall      discuss    each   of    the       aforementioned       elements   in

turn, beginning with the fact that the commissioners themselves

delivered the invocations. Legislator-led prayer, when combined

with       the    other      elements,   poses       a    danger    not    present     when

ministers        lead     prayers.     The   Rowan       County    commissioners,      when

assembled         in    their     regular     public       meetings,      are    the   very

embodiment of the state. From November 2007, when the county

began recording its board meetings, to the start of this lawsuit

in March 2013, 139 out of 143 meetings, or 97%, began with

legislators             delivering       prayers           explicitly           referencing

Christianity. Lund, 103 F. Supp. 3d at 714; see also Lee v.

Weisman, 505 U.S. 577, 588 (1992) (defining sectarian prayer as

“us[ing]         ideas       or   images      identified          with    a      particular

religion”). The vast majority of those 139 prayers closed with

some variant of “in Jesus’ name.” S.A. 12-38 (transcript of all

Rowan County prayers on record). Only four invocations, given by

the same now-retired commissioner, were non-sectarian, J.A. 296

&   n.2,         and    no    prayer     mentioned         a   religion       other    than

                                              62
Christianity in five-and-a-half years, Lund, 103 F. Supp. 3d at

714.

       The    five     commissioners,         all    Christian,      “maintain[ed]

exclusive and complete control over the content of the prayers.”

Lund, 103 F. Supp. 3d at 733. At times, the prayers seemed to

blend into their legislative role. As one commissioner put it,

“Lord, we represent you and we represent the taxpayers of Rowan

County.”      S.A.     16.    When     the      state’s      representatives     so

emphatically evoke a single religion in nearly every prayer over

a period of many years, that faith comes to be perceived as the

one true faith, not merely of individual prayer-givers, but of

government     itself.       The    board’s     rules      and   regulations    bind

residents of all faiths, Christian, Hindu, Jewish, Muslim, and

many other believers and non-believers as well. And yet those

laws that govern members of every faith are passed in meetings

where     government      overtly     embraces      only     one.   That   singular

embrace      runs    up   against      “[t]he       clearest     command   of   the

Establishment Clause,” that “one religious denomination cannot

be officially preferred over another.” Larson v. Valente, 456

U.S. 228, 244 (1982).

       An equally clear command is that “each separate government

in this country should stay out of the business of writing or

sanctioning official prayers.” Engel v. Vitale, 370 U.S. 421,

435 (1962). Town of Greece echoed that principle even as it

                                         63
upheld legislative prayer: “Our Government is prohibited from

prescribing prayers to be recited in our public institutions in

order to promote a preferred system of belief or code of moral

behavior.”       134    S.    Ct.    at    1822.   These    age-old      warnings    have

apparently fallen on deaf ears here. By instituting its elected

officials      as    the     sole    proclaimers      of    the   sole    faith,    Rowan

County    is        elbow-deep       in     the      activities     banned     by    the

Establishment          Clause   --       selecting    and    prescribing     sectarian

prayers. Although the county contends that the prayer practice

reflects only the desire of individual members of the board,

Appellant’s Reply Br. at 8-9, it is hard to believe that a

practice observed so uniformly over so many years was not by any

practical yardstick reflective of board policy.

     Further, the prayer-giver’s identity affects the range of

religions        represented        in     legislative      prayer.      Because     only

commissioners could give the invocation, potential prayer-givers

in Rowan County came from a “closed-universe” dependent solely

on electoral outcomes. Lund, 103 F. Supp. 3d at 723. Appellant

frames this as a benefit. The election process, it says, which

welcomes candidates of all faiths or no faith, holds greater

promise     of      diversity       than     the     selection     of    ministers    by

government officials, which, the county points out, resulted in

the same chaplain for sixteen years in the case of Marsh v.

Chambers. Appellant’s Br. at 26.

                                             64
       But the county is comparing apples and oranges. While a

small group of legislators can diversify their appointment of

prayer-givers at will, it may be more difficult to expect voters

to    elect   representatives           of    minority      religious      faiths.     For

instance, after residents in the town of Greece complained about

the    pervasive     Christian         prayers,      local    officials         granted    a

Jewish layman, a Baha’i practitioner, and a Wiccan priestess the

opportunity to lead prayers. Town of Greece, 134 S. Ct. at 1817.

The Court took comfort in the fact that “any member of the

public is welcome in turn to offer an invocation reflecting his

or her own convictions.” Id. at 1826. But no guest ministers or

clergy and no member of the public delivered an invocation here,

that being reserved for the commissioners belonging to the faith

that dominates the electorate.

       Entrenching this single faith reality takes us one step

closer to a de facto religious litmus test for public office.

When    delivering       the    same    sectarian       prayers      becomes      embedded

legislative     custom,        voters    may      wonder    what    kind   of     prayer   a

candidate of a minority religious persuasion would select if

elected. Failure to pray in the name of the prevailing faith

risks   becoming     a    campaign      issue      or   a   tacit    political      debit,

which   in    turn   deters      those       of    minority    faiths      from    seeking

office. It should not be so.



                                             65
     None of this is to imply a need for “religious balancing”

among candidates, elected officials, or legislative prayers. Id.

at 1824. Without going so far, we still must contend with the

far-reaching        implications            of     an      unremitting          record--

overwhelmingly       sectarian         prayers     led    solely    by     legislators

through    many    meetings      over      many   years.    No    single      aspect   or

consequence of this case alone creates an Establishment Clause

problem.    Rather,      it     is   the   combination      of    the    role    of    the

commissioners,       their       instructions        to    the     audience,      their

invocation of a single faith, and the local governmental setting

that threatens to blur the line between church and state to a

degree unimaginable in Town of Greece.

                                            B.

     That brings us to the second problematic element in this

case:   the   fact       that    the    prayers     of    the    commissioners        were

preceded      by     a     request         or     encouragement         for     audience

participation. Town of Greece reminds us to look to the effect

of legislative prayer on the audience, not merely the actions of

the prayer-givers. See 134 S. Ct. at 1825-26. Here the effect is

apparent. The attendees at Rowan County board meetings, upon

hearing the invocations uttered by the state’s representatives

day in and day out, must have grasped the obvious: the Rowan

County commission favors one faith and one faith only. In the

eyes and ears of the attendees, that approval sets the tone for

                                            66
the meetings to follow. As expressed by one plaintiff in this

case, “[T]he prayers sent a message that the County and Board

favors     Christians    and    that        non-Christians,     like       [her],   are

outsiders.” S.A. 5 (affidavit of Liesa Montag-Siegel).

     This     message    was        amplified      by     frequent     exhortations.

Commissioners    spoke    directly          to   the    attendees    during     prayer,

asking them to stand and leading with phrases like “Let us pray”

or “Please pray with me.” Lund, 103 F. Supp. 3d at 714, 727. The

record reflects that the great majority of attendees did in fact

“join the Board in standing and bowing their heads,” id. at 714,

and that plaintiffs themselves “[a]s a result of the [Board]

Chair’s instructions” felt “compelled to stand” so that they

would not stand out, S.A. 1-10 (plaintiffs’ affidavits). When

reviewing phrases like “Let us pray” or “Please pray with me,”

Town of Greece underscored that the requests “came not from town

leaders but from the guest ministers.” 134 S. Ct. at 1826. The

Court noted that its “analysis would be different if town board

members directed the public to participate in the prayers.” Id.

(emphasis added). Here they did. “[T]he Board’s statements,” the

district     court   noted,         “fall    squarely      within    the    realm    of

soliciting, asking, requesting, or directing . . . of concern to

the Town of Greece plurality.” Lund, 103 F. Supp. 3d at 728.

     A request to an audience to stand or pray carries special

weight   when   conveyed       in    an     official     capacity    by    an   elected

                                            67
commissioner         facing   his     constituents,           with   his    board    arrayed

behind or beside him, directly before discharging his official

duties.    Id.       County   board       decisions        affect    both    property      and

livelihood, including zoning laws and variances, school funding,

police protection, fire prevention and sanitation budgets, and

the location of parks and other areas of recreation. Br. of

Amici Curiae Religious Liberty Orgs. at 25. I do not at all

suggest that commissioners would base their decisions on who

prays    and    who     doesn’t.      I    do    note,     however,    that     the      close

proximity       of     participatory            sectarian      exercises      to     citizen

petitions for the many benefits that local boards can withhold

or   dispense        presents,   to       say    the   least,    the   opportunity         for

abuse.

                                                C.

      Nothing         about   the         constitutional         drawbacks      of       Rowan

County’s prayer practice should be construed as disparaging the

prayers    themselves,        which       were       moving    and   beautiful      on    many

levels. Each invocation was luminous in the language that many

millions       of    Americans      have        used    over    many       generations     to

proclaim       the     Christian      faith.         The    constitutional         challenge

directed at the invocations is in no sense a commentary on the

worth and value of prayer or on the devotion of the citizens of

Rowan County and their elected officials to their faith.



                                                68
       The   prayers    here,   which   would     be    so    welcome    in     many   a

setting, cannot be divorced from the proceedings in which they

were spoken. It is not the prayers but the context that invites

constitutional scrutiny. Establishment Clause questions are by

their    nature      “matter[s]    of    degree,”       which        indicates    some

acceptable practices and others that cross the line. Van Orden

v. Perry, 545 U.S. 677, 704 (2005) (Breyer, J., concurring in

judgment).     For     the   average    citizen    of     Rowan       County,    these

meetings might well have been the closest interaction he or she

would have with government at any level. To reserve that setting

for an embrace of one and only one faith over a period of years

goes too far.

       This is especially so where prayers have on occasion veered

from    invocation      to   proselytization.          Even    with     the     greater

latitude afforded in Town of Greece, legislative prayer still

cannot be “exploited to proselytize or advance any one . . .

faith or belief.” 134 S. Ct. at 1823 (quoting Marsh, 463 U.S. at

794-95).     Plaintiffs,     all   non-Christians,           cited    examples    that

they found overtly sectarian or proselytizing:

  •    “As we get ready to celebrate the Christmas season, we’d
       like to thank you for the Virgin Birth, we’d like to thank
       you for the Cross at Calvary, and we’d like to thank you
       for the resurrection. Because we do believe that there is
       only one way to salvation, and that is Jesus Christ.” J.A.
       16 (prayer of December 3, 2007).

  •    “Our Heavenly Father, we will never, ever forget that we
       are not alive unless your life is in us. We are the

                                        69
      recipients of your immeasurable grace. We can’t be
      defeated, we can’t be destroyed, and we won’t be denied,
      because of our salvation through the Lord Jesus Christ. I
      ask you to be with us as we conduct the business of Rowan
      County this evening, and continue to bless everyone in this
      room, our families, our friends, and our homes. I ask all
      these things in the name of Jesus, Amen.” Id. (prayer of
      May 18, 2009).

  •   “Let us pray. Holy Spirit, open our hearts to Christ’s
      teachings, and enable us to spread His message amongst the
      people we know and love through the applying of the sacred
      words in our everyday lives. In Jesus’ name I pray. Amen.”
      Id. at 17 (prayer of March 7, 2011).

  •   “Let us pray. Merciful God, although you made all people in
      your image, we confess that we live with deep division.
      Although you sent Jesus to be Savior of the world, we
      confess that we treat Him as our own personal God. Although
      you are one, and the body of Christ is one, we fail to
      display that unity in our worship, our mission, and our
      fellowship. Forgive our pride and arrogance, heal our
      souls, and renew our vision. For the sake of your Son, our
      Savior, the Lord Jesus Christ, Amen.” Id. (prayer of
      October 3, 2011).

      The point here is not to pick apart these prayers or to

measure    objectively    their    proselytizing       content.      It    is   to

consider   how   this   language   might   fall   on    the   ears    of    Hindu

attendees, Jewish attendees, Muslim attendees, or others who do

not share the commissioners’ particular view of salvation or

their religious beliefs. It is not right to think that adherents

of minority faiths are “hypersensitive.” Maj. Op. at 33. If we

Christians   were   a    religious    minority,    we     would      surely     be

sensitive to the invariable commencement of town hall meetings

through invocation of a faith to which we did not subscribe. And

if religious faith was not a matter of sensitivity, then why

                                     70
would two of our Constitution’s best known and most prominent

provisions have been devoted to it?

     The invocations here can sound like an invitation to take

up the tenets of Christian doctrine. And an invitation can take

on tones of exhortation when issued from the lips of county

leaders. Although those attending the board meeting may have

“had several options available -- they could arrive after the

invocation, leave for the duration of the prayer, or remain for

the prayer without participating,” maj. op. at 47, such options

served only to marginalize.

     Indeed, to speak of options masks important differences.

People often go to church or join groups and organizations out

of a sense of choice. It is the faith they have chosen or it is

a group to which they wish to belong. But people often go to

local government meetings in their capacity as citizens in order

to assert their views or defend their rights vis-à-vis an entity

with legal and coercive powers. These are two very different

forms of attendance. In board meetings, it fell to non-Christian

attendees, facing their elected representatives and surrounded

by   bowed    heads,   to   choose    “between   staying   seated   and

unobservant, or acquiescing to the prayer practice.” Lund, 103

F. Supp. 3d at 732. It is no trivial choice, involving, as it

does, the pressures of civic life and the intimate precincts of

the spirit.

                                     71
     The Rowan County board can solemnize its meetings without

creating      such   tensions.     The   desire       of       this    fine        county   for

prayer at the opening of its public sessions can be realized in

many ways, such as non-denominational prayers or diverse prayer-

givers. Another possibility, open to legislators of any faith,

might be the Message of Religious Welcome described above. Such

an expression of religious freedom and inclusion would promote

the core idea behind legislative prayer, “that people of many

faiths may be united in a community of tolerance and devotion.”

Town of Greece, 134 S. Ct. at 1823. A Message of Religious

Welcome separate from the invocation itself also reduces the

risk that courts will “act as supervisors and censors” of prayer

language, a major concern voiced by the Supreme Court. Id. at

1822. Indeed, the availability of so many inclusive alternatives

throws into relief the unfortunate confluence of factors in the

county’s      practice.      For   the   county           to    insist       on     uniformly

sectarian prayer led by legislators of one faith in a closed and

purely    governmental       space    carries        us        far    from    the       central

premise of the Establishment Clause.

                                         IV.

     By pairing the Free Exercise Clause with the Establishment

Clause   in    the   First    Amendment,       the    Framers         struck        a   careful

balance.      Americans   are      encouraged        to    practice          and    celebrate

their    faith   but   not    to   establish      it       through      the        state.   See

                                         72
Engel, 370 U.S. at 429-34 (discussing the historic roots of the

Establishment Clause as it relates to the Free Exercise Clause).

This seems an inapt moment to upset that ancient balance. The

violent sectarian tensions in the Middle East are only the most

visible   religious       divisions   now    roiling     the    globe.       Are   such

levels of hostility likely here? Probably not, but it behooves

us not to take our relative religious peace for granted and to

recognize   that    the    balance    struck      by   our    two    great   religion

clauses just may have played a part in it. In venues large and

small, a message of religious welcome becomes our nation’s great

weapon,   never    to     be   sheathed     in    this   or    any    other    global

struggle. Believing that legislative prayer in Rowan County can

further   both     religious     exercise        and   religious      tolerance,     I

respectfully dissent.




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