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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1591
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:
Decided:
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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
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Board)
delivered
by
opens
a
its
member
public
of
the
meetings
with
Board.
The
an
invocation
district
court
First
decision
Amendment.
explaining
Galloway,
134
legislative
S.
prayer
Under
the
legislative
Ct.
1811
practice
Supreme
prayer,
(2014),
Courts
Town
we
of
find
constitutional
most
and
recent
Greece
the
v.
Boards
reverse
the
I.
The relevant facts are undisputed.
most
Board
meetings,
the
chairperson
would
call
the
meeting to order and invite the Board and audience to stand for
the ceremonial opening.
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of
allegiance.
The
content
of
each
invocation
was
overwhelming
majority
of
the
prayers
offered
by
prayers
frequently
included
references
to
the
For
Jesus,
It was also
Id.
Carolina
invocations
Clause.
and
The
commissioners
sent
the
asserting
Board
did
expressed
Board
a
not
their
letter
violation
formally
intent
of
objecting
the
but
continue
the
Establishment
respond,
to
to
several
delivering
For example, a
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Rowan
County
J.A. 325.
residents
Nancy
Lund,
Liesa
[the
Boards]
meetings[.]
practice
J.A. 10.
of
delivering
sectarian
prayer
at
particular
outsiders.
Apart
faith
and
caused
them
to
feel
excluded
as
J.A. 12.
from
their
objections
to
the
prayers
contents,
coerced
attendance.
them
to
participate
as
condition
of
Supp. J.A.
Supp. J.A. 9.
Voelker
that
the
Boards
prayer
practice
violated
the
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based
on
Pg: 7 of 73
then-controlling
precedent
that
sectarian
See Joyner
v. Forsyth Cty., 653 F.3d 341, 347 (4th Cir. 2011) (explaining
that
our
decisions
hewed
to
[the]
approach
[of]
approving
meetings[]
opened
have
with
[commissioner]
delivering
Supreme
holding
Court
that
J.A. 296.
then
the
issued
its
legislative
decision
prayer
in
in
Town
that
of
case,
transgress
the
Establishment
Clause.
Id.
at
1820
(An
standard
is
not
consistent
with
the
tradition
of
1824.
The
parties
filed
cross-motions
for
summary
reviewing
the
summary
judgment
motions,
the
district
doctrine
[that
had]
developed
7
around
legislative
the
core
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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
Nonetheless,
the
legislative
part
of
their
summary
district
court
struck
invocation
practice,
judgment
down
concluding
motion.
the
that
Boards
[s]everal
724.
The
district
court
thought
fact
that
the
from
the
long-standing
chaplain,
separate
prayer.
Id. at 723.
from
the
history
legislative
and
body,
tradition
of
delivering
the
that the Boards practice created a closed-universe of prayergivers that inherently discriminates and disfavors religious
minorities.
After
Id. at 723.
finding
constitutionally
prayer,
the
the
protected
district
court
Boards
practice
historical
practice
went
on
to
outside
of
consider
the
legislative
whether
the
as
coercive
religious
exercise.
Id.
at
724-25.
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the
Boards
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 Boards] prayer practice
is an unconstitutionally coercive practice
in violation of the Establishment Clause.
Id. at 733.
Based
on
this
analysis,
the
district
court
granted
timely
decision
appealed,
de
novo.
Supervisors,
404
and
we
Simpson
F.3d
276,
review
v.
280
the
district
Chesterfield
(4th
Cir.
Cty.
2005);
The
courts
Bd.
see
of
also
Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir.
2008)
(We
review
constitutional
fact
de
and
novo
its
district
ultimate
courts
conclusions
findings
regarding
of
a
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II.
A.
Recognizing
this
entirely
sanitized
Supreme
Court
instances,
separation
has
may
Nations
history
between
acknowledged
properly
has
Church
that
commemorate
not
been
and
State,
government,
religion
in
one
of
the
in
some
public
life.
Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S.
756,
760
approved
prayer.
(1973).
the
Pertinent
practice
of
here,
opening
the
Court
has
legislative
expressly
sessions
with
acknowledging
the
ways
in
which
it
can
bring
together
workings
of
their
government.).
In
contrast
to
other
U.S.
783
constitutionality
of
which
the
involved
Nebraska
challenge
legislatures
to
practice
the
of
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session.
403
602
U.S.
invocations
(1971),
violated
the
the
Eighth
Circuit
Establishment
had
concluded
Clause.
The
such
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
The Court
in
turn,
Ascribing
great
explained
they
appointed
Id. at 78788.
official
significance
shed
light
to
on
chaplains
these
how
the
events,
Founders
1789.
Id.
the
Court
viewed
the
It can
upheld
Id. at 791.
legislative
prayer
in
general,
the
Marsh
fell
outside
constitutional
11
protection.
In
that
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prayers
were
Id. at 79293.
offered
in
the
JudeoChristian
tradition.
noting that the First Congress did not consider opening prayers
as
proselytizing
activity
or
as
symbolically
placing
the
appointment
did
Establishment Clause.
paid
from
public
not
in
itself
Id. at 79394.
funds
was
similarly
of
the
prayers,
because
there
the
is
Court
no
conflict
with
the
in
Id. at 794.
explained
indication
it
historic
As for the
was
that
the
not
of
prayer
Id. at 794-
Id. at 795.
displays
located
on
public
12
property
in
County
of
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Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 57879, 602 (1989).
practice
permitted
legislative
in
prayers
Establishment
Marsh,
involved
Clause]
the
in
because
Court
Marsh
the
noted
did
that
not
violate
[the
chaplain
had
particular
Id. at 603.
[t]he
justify
contemporary
legislative
prayers
that
have
the
Id.
Supreme
Greece.
Court
flatly
rejected
this
approach
in
Town
of
requirement
that
legislative
prayers
must
be
neutral
and
Town of Greece,
Supreme
Courts
decision
in
Town
of
Greece
guides
case-specific
circumstances.
(1984)
See
(observing
evaluation
Lynch
v.
that
the
of
Donnelly,
all
465
Establishment
13
the
U.S.
facts
668,
Clause
and
678-79
cannot
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turn
to
fuller
examination
of
Supreme
Courts
It solicited
Nearly all
thus
most
invocations
Christian faith.
referenced
found
the
aspect
of
the
some
towns
Id.
practice
constitutional
the
Second
prayer
tended
to
affiliate
the
town
with
Id. at
Beginning
with
summary
of
Marsh,
the
Court
explained
not
necessary
Establishment
Clause
define
where
the
history
14
precise
shows
boundary
that
the
of
the
specific
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practice is permitted.
Pg: 15 of 73
Id. at 1819.
Id.
Id.
Establishment
Clause.
Observing
that
legislative
point,
interpretation
the
of
Court
Marsh
disavowed
as
Id. at 1820.
Alleghenys
dictum
that
nonsectarian
was
disputed
also
id.
(Marsh
nowhere
On
suggested
when
Id. at 1821;
that
the
asked
to
decide
these
cases
15
to
act
as
supervisors
and
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Id. at 1822.
Enforcing such a
degree
than
is
the
case
under
the
towns
current
their
prayer
content
into
after
the
public
the
fact.
sphere,
Id.
the
Once
Court
it
stated,
or
gods
as
conscience
dictates,
unfettered
by
what
an
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
Nations
cautioned
heritage.
there
could
Id.
be
at
1823.
circumstance
Even
so,
where
the
Court
legislative
nonbelievers
or
religious
minorities,
threaten
Id. at 1823.
on
Christian,
behalf
did
proselytization.
of
not
the
town,
evidence
any
although
pattern
almost
of
exclusively
denigration
or
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ceremonial
different faith.).
prayer
delivered
by
person
of
the
Court
consequence.
explained,
were
of
A few deviating
no
constitutional
Id. at 1824.
Relatedly,
the
Court
also
determined
there
was
no
not
require
it
prayer
givers
Christian
balancing.
Id.
to
search
beyond
its
borders
for
in
effort
to
achieve
religious
an
non-
prayers
unconstitutionally
nonadherents.
jettisoning
this
Id.
(Kennedy,
argument,
coerce
J.,
the
17
participation
plurality
Court
opinion).
acknowledged
by
In
that
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in
some
outlier
circumstances.
But
the
justices
with
id.
at
1837-38
(Sec.
II.
of
Justice
Thomass
concurring opinion).
Justice
Kennedy,
joined
by
Chief
Justice
Roberts
and
towns
and
prayer
practice
approach of Marsh.
aware
of
the
relied
heavily
on
the
historical
multiple
traditions
acknowledging
God
in
this
Id.
Furthermore, they
Id. at 1826.
encounter
speech
they
find
Id.
disagreeable;
Adults
and
an
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III.
Legislative prayer thus has a unique status relative to the
First Amendment that places it in a different legal setting than
other
types
Clause.
of
government
conduct
touching
the
Establishment
of
tolerable
Greece
reflects
acknowledgement
that
of
court
beliefs
must
view
it
widely
held
among
Id. at 1818-19.
challenge
prayer
to
legislative
must
as
the
A court reviewing a
acknowledge
practice
19
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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
Town
of
acknowledge
that
matter,
is
compatible
remains
in
dispute
elected
Greece,
sectarian
legislative
with
is
the
the
prayer,
Boards
delivering
such
parties
as
correctly
a
general
Clause. 4
Establishment
whether
commissioners
both
practice
prayers
What
of
makes
the
a
at
722,
practical
724.
effect
The
of
district
imposing
courts
decision
bright-line
has
prohibition
the
on
lawmaker-led prayer.
In
reaching
its
conclusion,
the
district
court
observed
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legislative
prayer
practices
in
terms
of
invited
treated
the
Id. at 722.
Supreme
Courts
silence
on
no
analysis
and
significance
simply
to
the
confined
speakers
its
identities
discussion
to
in
the
its
facts
Court
construed
say
anything
requirement
that
constitutionally
that
outside
could
or
permissible
Quite
the
opposite,
Town
focus
to
what
been
has
any
of
reasonably
retained
givers
Greece
done
in
limitation
of
be
clergy
are
the
legislative
specifically
Congress
regarding
as
only
prayer.
directs
and
the
the
our
state
legislatures
without
Id. at 1819.
officiant.
See United
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States v. Stewart, 650 F.2d 178, 180 (9th Cir. 1981) (remarking
it would be improper to draw any inference from the Supreme
Courts silence on an issue not placed before it).
Nor
has
identity
of
this
the
Court
previously
prayer-giver.
To
assigned
the
weight
contrary,
to
we
the
have
the
governmental
setting
for
the
delivery
of
sectarian
351.
Chesterfield
And
in
Simpson
v.
County
Board
of
404 F.3d
that
sectarian
prayer
was
constitutionally
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Greece
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underscores
legislative
prayer
specifically.
Pg: 23 of 73
long-standing
generally
Opening
but
practice
of
invocations
not
only
lawmaker-led
offered
by
of
prayer
elected
observance.
See
S.
Rep.
No.
32-376,
at
(1853)
Carolina
Provincial
Congress
South
Carolinas
first
opening
invocations.
See
South
Carolina
Provincial
visited
attachment).
Aug.
31,
2016
and
saved
as
ECF
opinion
pronouncements
is
important,
unless
we
are
to
presume
the
23
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This
modern
Filed: 09/19/2016
tradition
day.
of
Pg: 24 of 73
legislative
majority
of
state
prayer
and
has
continued
territorial
to
assemblies
See
National
Conference
of
State
Legislatures,
(observing
our
jurisdiction,
where
seven
of
the
ten
id.;
Br.
Supporting
for
State
of
W.
Defendant-Appellant
Va.
at
14
et
&
al.
as
Amici
Addend.
2;
Curiae
see
also
http://nchousespeaker.com/docs/opening-prayers-
Several of
legislators
deliberative sessions.
Carolina
expressly
who
deliver
sectarian
prayer
authorizes
its
elected
officials
during
And South
to
open
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Lawmaker-led
federal
prayer
government
as
finds
well.
Pg: 25 of 73
contemporary
validation
Both
of
houses
in
Congress
the
allow
As recently as May
(daily
Cowan);
155
ed.
June
Cong.
4,
Rec.
2013)
161 Cong.
(prayer
S13401-01
by
(daily
Sen.
ed.
William
Dec.
18,
M.
2009)
Senate
States
1789-1989:
Senate
305
Addresses
(Wendy
on
Wolff
the
ed.,
History
1990)
of
the
(Senators
the
district
courts
judicial
wall
barring
elected
withstood
change.
aptly
the
critical
scrutiny
of
time
explained,
[Establishment
if
Clause]
there
is
test[]
any
and
and
political
As Justice Alito
inconsistency
between
the
practice
historic
any
of
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the
forfeits
legislator
district
its
courts
view
constitutionally
delivers
the
Id. at 1834
that
protected
invocation.
legislative
status
legal
prayer
because
framework
that
Id. at 1819.
The
plurality opinion).
Not
only
are
the
legislators
themselves
the
intended
they
hold
as
private
citizens.
Id.
at
1826.
If
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themselves.
uniquely
qualified
to
Id.
Indeed,
legislators
offer
uplifting,
are
heartfelt
perhaps
prayer
on
delivers
constitutional
legislative
distinction,
at
prayer
least
in
is
the
significant
context
of
this
is
offered,
takes
this
case
forged
legislative
analyzing
comprehensive
prayer,
whether
its
constitutional bounds.
the
protective
decisions
outside
for
set
particular
all
out
acceptable
guideposts
practice
goes
for
beyond
initial
guidepost
relates
that
invocations
must
27
to
the
selection
of
the
nonsectarian,
the
Supreme
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far
current
greater
practice
degree
of
than
neither
is
the
editing
case
or
under
the
approving
prayers
district
court
determined
the
Boards
towns
in
Id.
practice
was
their
own
invocations,
and
by
doing
so
act
as
It
each
oversight,
Id.
We disagree.
commissioner
input,
or
gives
direction
by
own
Board
prayer
simply
without
does
not
Town of
the
Supreme
Court
has
cautioned
against
in
this
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the
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individual
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commissioners
Pg: 29 of 73
sometimes
to
the
activities
of
the
convey
their
personal
as
whole
in
it
deliberative
is
only
editing
through
religious
act
of
speech
the
that
government
body
would
writing
or
impermissibly
The
effect,
each
commissioner
is
free
agent
like
the
of
their
own
choosing.
In
other
Establishment
SimmonsHarris,
536
U.S.
639,
652
(2002)
See Zelman
(school
voucher
programs); Mueller v. Allen, 463 U.S. 388, 399 (1983) (schoolrelated income tax deductions).
Town
of
Greece,
[o]nce
it
invites
29
prayer
into
the
public
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134 S.
Ct. at 1822-23.
The Boards legislative prayer practice amounts to nothing
more than an individual commissioner leading a prayer of his or
her own choosing.
2.
A
second
discussed
in
reaffirming
guidepost
Town
the
of
to
acceptable
Greece
holding
in
concerns
Marsh
legislative
its
that
prayer
content.
lower
courts
After
should
certain
circumstances
legislative
prayer
protection.
Id. at 1823.
where
practice
to
sectarian
fall
references
outside
cause
constitutional
threaten
damnation,
or
preach
Id.
conversion,
In that circumstance,
this
end,
courts
legislative
need
prayer,
30
only
assure
viewed
from
Id.
themselves
a
that
cumulative
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this
threshold,
the
Supreme
Court
has
disclaimed
any
795.
The record in this case reflects that the Boards prayer
practice
did
not
stray
across
this
proselytization or disparagement.
constitutional
line
of
means
belief[.]).
encompassed
requesting
exclusively
to
seek
to
convert
to
that
divine
themes,
guidance
Christian
in
such
as
giving
deliberations.
concepts
typically
others
thanks
and
References
to
consisted
Amen.
of
the
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 prayergiver in the business of the Board.
In short, none of those
(Continued)
31
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content
of
prayer
will
not
likely
establish
constitutional violation.).
The invocation delivered at the Boards 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 youve 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.
Well thank you for it.
In
Jesus name. Amen.
Supp. J.A. 31.
nonbelievers
press
the
limits
of
the
Supreme
Courts
of
constitutional
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such
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prayers
have
F.3d
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been
in
at
proffered
Snyder,
159
1235
prayers
unconstitutional
(finding
because
this
the
they
case.
See,
plaintiffs
strongly
e.g.,
proffered
disparage[d]
more
call
our
forceful
attention
references
to
to
few
examples
Christianity
out
that
of
the
when
measured
against
invocations
upheld
in
Marsh.
challenged
prayer).
Regardless,
Plaintiffs
Absent
Id.
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3.
Moving beyond the invocations themselves, a third guidepost
to legislative prayer relates to the selection of the prayergiver.
Id.
town
lead[ing] the
made
reasonable
efforts
to
identify
all
of
the
Id.
district
court
practice objectionable
Id.
found
the
Boards
legislative
because
the
invocation
prayer
opportunity
was
policy
minorities.
Greece
inherently
discriminates
and
disfavors
reflect
that
the
district
courts
religious
was
mistaken.
The Supreme Courts prohibition on discrimination in this
context is aimed at barring government practices that result
34
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U.S.
directed
at
at
793.
the
Read
in
conscious
context,
selection
district
courts
this
of
condition
the
appears
prayer-giver
on
opinion
aims
elsewhere,
essentially
723 ([T]he present case presents a closed-universe of prayergivers, . . . [leaving] minority faiths [with] no means of being
recognized.).
For
example,
framework,
legislature,
prohibited
from
permitting
opening
invocation
unlimited
elected
number
to
of
in
that
its
were
But
Congress,
members
to
proceedings
actually
diversity
has
district
never
courts
would
be
deliver
the
unless
an
represented
by
among
beliefs
been
the
the
measure
the
of
lawmaking
religious views.
individual
legislature
legislative prayer.
notion
faiths
the
including
solemnize
representatives.
represented
under
bodies
must
promote
diversity
of
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in
Marsh,
the
Nebraska
legislature
appointed
the
Id.
same
creeds.
The
Court
constitutional difference.
Thus,
faiths
to
different
while
the
those
of
from
the
was
practice
individual
limitations
limits
at
285
(A
party
this
built
challenging
the
commissioners,
into
that
made
Boards
the
unpersuaded
the
represented
that
is
no
constitutional
legislative
invocation
Cty., 547 F.3d 1263, 1281 (11th Cir. 2008) ([Marsh] does not
require that all faiths be allowed the opportunity to pray.
standard
instead
prohibits
purposeful
36
The
discrimination.).
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Plaintiffs
would
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have
not
suggest
the
directed
Board
Pg: 37 of 73
the
Court
harbored
to
such
any
evidence
motive.
that
It
is
to
the
censorship.
Board
and
is
entitled
to
speak
without
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,
another.
does
not
advance
any
one
faith
or
belief
over
See Marsh, 463 U.S. at 793 (We cannot, any more than
Members
of
suggestion
advances
the
that
the
Congresses
choosing
beliefs
of
of
this
century,
clergyman
particular
of
one
perceive
any
denomination
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
religions[.]).
practice
cannot
authority
group.
has
while
party
rely
on
confined
not
inviting
challenging
the
the
mere
fact
invocation
leaders
of
legislative
that
speakers
the
to
other
prayer
selecting
a
narrow
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time
Boards
practice
conveys
the
view
Board
has
not
picked
any
of
the
that
Rowan
Id.
prayers
under
its
Town of
Union of Ky., 545 U.S. 844, 859 n.10 (2005) (citing Marsh as an
example
of
permissible
governmental
action
whose
manifest
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
38
Christian
language,
while
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As Town of
appearance
of
an
official
preference
for
Christianity.
own
beliefs,
can
tolerate
and
perhaps
appreciate
1823.
Had a chaplain offered prayers identical to those in the
instant
apply
case,
to
Town
uphold
of
the
Greece
Boards
and
Marsh
practice.
would
Unlike
unquestionably
the
district
prayer
to
fellow
legislators
signals
an
unconstitutional
endorsement of religion.
Practically speaking, the public seems unlikely to draw a
meaningful
distinction
between
state-paid
legislature.
Snyder,
concurring in judgment).
159
chaplain
and
the
F.3d
at
1238
(Lucero,
J.,
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represent
the
Greece,
Filed: 09/19/2016
governing
body
in
S.
Ct.
at
1850
when
an
134
Consequently,
Pg: 40 of 73
elected
this
context.
(Kagan,
Cf.
J,
representative
Town
of
dissenting).
underscores
his
and
Town
denominational
lawmaker-led
of
Greece.
preference
prayer
In
other
projected
is
not
words,
onto
the
significantly
the
degree
of
government
with
different
from
Both prayers
perceived
governmental
individual represents.
this
more
obvious
significant.
Cir.
2013)
endorsement
of
the
faith
that
is
not
constitutionally
message
Nebraska
might
have
conveyed
years
explicitly
Presbyterian
Christian
chaplain
invocations,
the
who
Supreme
often
delivered
Court
concluded
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Court
has
that
prayers
offered
within
The
this
Id. at 1823.
Acceptable
Id.
The
now
legislative
turn
prayer
to
Plaintiffs
practice
is
claims
that
impermissibly
the
Boards
coercive.
The
violates
participation.
concurring
in
the
Constitution
if
it
compels
religious
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
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See Lee v. Weisman, 505 U.S. 577, 593 (1992) (striking down
clergy-led prayers at graduation ceremonies because the school
districts
supervision
and
control
places
public
previously
unclear
whether
the
coercion
test
Governmental
Which
Level,
Mellen
v.
74
Institutions:
Temp.
Bunting,
L.
327
The
Rev.
Who,
299,
F.3d
355,
the
What,
and
339-42
(2001);
366-72
(4th
the
see
Cir.
At
also
2003)
that
ambiguity
by
observing
that
coercion-based
opinion)
(It
is
an
elemental
First
Amendment
coercion,
they
42
reached
this
conclusion
by
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separate
paths.
Filed: 09/19/2016
Justices
Pg: 43 of 73
Thomas
and
Scalia
would
require
Town of
Roberts
and
Justice
framed
the
inquiry
as
(Kennedy,
J.,
plurality
opinion).
Under
Id. at
this
view,
Id. at 1826-27.
The history
reasonable
observer
is
presumed
to
be
aware
of
that
Id. at
1825.
The district court divided its coercion analysis into two
parts.
concluding
Justice
Kennedys
general
rules
for
evaluating
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729.
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finding
these
cases
likewise
suggested
the
Board
Id.
and
this
constitutional
distinction
legislative
distinction
analysis.
between
session
warrants
The
children
where
law
in
adults
a
are
difference
recognizes
school
the
in
meaningful
setting
and
participants.
a
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
separate
distinctions
legislative
employed
prayer
from
by
the
Court
classroom
in
Marsh
prayer.).
to
The
ceremonial
prayer
delivered
by
person
of
different faith.).
Consistent
Supreme
Courts
with
prior
this
distinction,
coercion
44
cases
we
do
applicable
not
in
find
the
analyzing
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plurality opinion).
In upholding the invocation practice in Town of Greece, the
Supreme
Court
plurality
identified
several
red
flags
that
the
legislative
historical
prayer.
tradition
See
id.
of
at
constitutionally
1825-27.
protected
Specifically,
the
for
opprobrium,
or
indicated
that
their
decisions
Id.
at
1826.
The
Court
also
identified
as
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Id.
susceptible
to
religious
indoctrination
or
pressure
Thus, there is
contact
often
with
lawmaker-led
encounter
speech
they
legislative
find
prayer.
disagreeable;
Adults
and
an
The commissioners
prayers
attempted
neither
chastised
dissenters
nor
lengthy
Rather, as illustrated
prayer
Moreover,
the
approved
record
in
shows
Marsh
and
that
both
Town
Greece.
attendance
of
and
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represented
without
were
to
free
Pg: 47 of 73
contradiction
remain
seated
that
or
members
otherwise
of
the
public
disregard
the
J.A. 277.
And to the
[would]
not,
in
light
of
our
traditions,
be
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
J.A. 277.
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Town of
134 S.
merely
offensive
is
legislative
not
exposing
bodies
constituents
enough.
do
not
[I]n
engage
in
to
the
prayer
they
general
Id.
find
course[,]
impermissible
coercion
be
sure,
legislative
prayer
may
Id. at 1827.
stray
across
the
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Id. at 1826.
make
several
arguments
in
support
of
the
11.
Plaintiffs
point
to
several
Response Br.
invocations
where
the
directed
at
one
another,
but
rather,
that
it
is
also
Id. at
11.
Town of Greece notes the internal or external nature of a
prayer
practice
occurred.
See
in
134
determining
S.
Ct.
at
whether
1825
impermissible
(Kennedy,
J.,
coercion
plurality
The Supreme
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attendance.
Filed: 09/19/2016
Plaintiffs
Pg: 50 of 73
argument,
however,
posits
that
any
cannot
body
is
externally
be.
directed
Legislative
prayer
and
thus
does
not
prohibited.
lose
its
The
the
prayers
in
Town
of
Greece
contained
similar
prayed
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.
Boards
asking
opening
everyone
ceremony
to
stand
usually
for
began
the
To reiterate, the
with
Invocation
the
and
chairperson
Pledge
of
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Allegiance.
Filed: 09/19/2016
commissioner
would
started
let
with
Plaintiffs
Pg: 51 of 73
then
us
maintain
unconstitutional
offer
pray
an
or
that
coercion.
The designated
invocation
please
these
The
pray
that
with
statements
district
typically
me.
Id.
amount
to
court
agreed,
Id.
at 728.
Again,
we
disagree.
Similar
invitations
have
been
case
has
ever
held
such
routine
courtesy
opening
134 S. Ct.
Coercion is measured
Id. at 1825.
Id.
It is
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public
proceedings
and
to
acknowledge
the
place
this
lens,
no
reasonable
person
would
religion
Id.
Viewed
interpret
the
is
participation
a
familiar
in
and
the
prayer.
almost
The
reflexive
phrase
call
to
let
us
open
an
We may
contextual
indoctrination.
cues
without
the
risk
of
religious
Telling here is
audience
often
chose
not
to
participate.
See
J.A.
12
In sum, opening a
legislative
to
prayer
with
short
invitation
rise
and
join
Plaintiffs
claim
were
singled
out
for
public
statements
acting
Plaintiffs cite to
commissioners
were
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of
being
majority.
told
by
the
minority
whats
best
for
the
the
which
weight
because
Plaintiffs
most
came
would
like,
post-litigation
and
in
is
itself
doubtful
response
to
other
that
impermissible
over
time
denigrate,
government
proselytize,
purpose.
134
S.
or
betray
Ct.
at
an
1824.
those
referenced
in
Town
of
Greece,
where
several
Id.
Id.
Participation
in
the
Boards
opening
ceremony,
including
cannot
be
reconciled
53
with
Town
of
Greece
and
That
its
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rejection
of
circumstances.
Filed: 09/19/2016
the
notion
Town
of
of
Pg: 54 of 73
coercion
Greece
of
adults
identified
in
narrow
similar
range
of
coercive
and
outside
the
historical
tradition
of
The
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
tradition
nonadherents.
and
does
not
coerce
participation
It is therefore constitutional.
by
The district
Accordingly, the
54
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and
comfort.
exercise
foundation
for
Its
which
mutual
observance
serves
support
in
and
is
times
also
of
charitable
treasured
need
as
sustenance.
the
But
of
(affidavits
religious
of
Nancy
division
Lund,
rises
Liesa
accordingly.
Montag-Siegel,
S.A.
and
1-10
Robert
55
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Countys
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
ministers
officials
who
led
prayers
exclusively
in
that
delivered
case,
the
it
was
invocations
public
in
Rowan
affecting
lives.
The
citizens
prayers,
in
the
bordering
most
at
daily
times
aspects
on
of
their
exhortation
or
have
seen
nothing
like
it.
This
combination
of
participation,
consistently
sectarian
prayers
legislative
constraints
remain
prayer
on
case.
[prayer]
56
Nor
did
it
content.
suggest
Id.
at
that
no
1823.
The
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Establishment
Filed: 09/19/2016
Clause
still
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cannot
play
host
to
prayers
that
legislative
prayer]
remains
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
and
local
government
setting
presented
here.
Rowan
welcome
this
constitutional
ruling
for
exceptional
fold
the
without
County
set
of
circumstances
considering
bears
its
unfortunate
into
the
implications.
consequences
for
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respect
enshrined
conviction
that
in
for
the
all
First
diversity
in
beliefs
and
all
and
faiths,
Fourteenth
of
its
nation
Amendments
dimensions
is
the
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
(invocation
by
chaplain
paid
by
the
state
at
the
congregations.
134
S.
Ct.
at
1816-17.
Nearly
all
the
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not
once
described
situation
in
which
the
legislators
contrast,
the
only
eligible
prayer-givers
at
Rowan
lead
invocations
uniformly
the
prayers,
according
Christian
to
but
they
their
also
personal
denominations.
Id.
composed
faiths,
at
724;
all
the
which
were
J.A.
275-94
course,
the
prayer
practice
was
not
infirm
simply
amicus
brief
rightly
remind,
there
exists
robust
survey
and
amicis
own
research,
all
but
two
state
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county
and
city
governments
also
call
upon
elected
practice.
We
see
their
intertwined
nature
whenever
institutions
presuppose
Supreme
Being.
Zorach
v.
quiet
reflection
sets
the
mind[s]
[of
legislators]
to
prayer
Supreme
has
Court
as
constitutionally
emphasized,
suspect.
[L]egislative
prayer
As
the
lends
in
pursuit
of
higher
purpose,
and
expresses
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diverse.
We
cannot
discern
from
the
general
survey
meeting
percentage
to
of
pray.
Nor
prayers
do
given
we
know
by
from
elected
the
survey
officials
what
generally
are
diverse
non-denominational
faiths.
And
in
or
fact,
delivered
the
very
by
legislators
survey
on
which
of
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
Further,
the
of
West
survey
Virginia
and
12
Other
States
cautions,
the
prayer-giver
at
should
13.
be
the
citizens
before
them
to
participate,
and
exclusively
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shall
discuss
each
of
the
aforementioned
elements
in
the
other
ministers
lead
assembled
in
elements,
prayers.
their
poses
The
regular
Rowan
public
danger
County
not
present
when
commissioners,
when
meetings,
are
the
very
delivering
prayers
explicitly
referencing
ideas
or
images
identified
with
particular
n.2,
and
no
prayer
mentioned
62
religion
other
than
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five
commissioners,
all
Christian,
maintain[ed]
S.A.
16.
When
the
states
representatives
so
itself.
The
boards
rules
and
regulations
bind
government
runs
up
overtly
against
embraces
[t]he
only
one.
clearest
That
command
singular
of
the
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134
S.
Ct.
at
1822.
These
age-old
warnings
have
as
is
the
sole
proclaimers
elbow-deep
Establishment
Clause
in
--
the
selecting
of
the
sole
activities
and
faith,
banned
prescribing
Rowan
by
the
sectarian
represented
in
legislative
prayer.
Because
only
of
diversity
than
the
selection
of
ministers
by
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elect
representatives
of
minority
religious
faiths.
For
pervasive
Christian
prayers,
local
officials
granted
delivering
legislative
the
custom,
same
voters
sectarian
may
prayers
wonder
what
becomes
kind
of
embedded
prayer
becoming
which
in
deters
turn
campaign
issue
those
of
65
or
tacit
minority
political
faiths
from
debit,
seeking
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implications
overwhelmingly
through
many
sectarian
meetings
of
an
prayers
over
led
many
unremitting
solely
years.
No
by
record-legislators
single
aspect
or
Rather,
commissioners,
it
their
is
the
combination
instructions
to
of
the
the
role
of
audience,
the
their
the
preceded
fact
by
that
a
the
request
prayers
or
of
the
commissioners
encouragement
for
were
audience
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Christians
and
that
non-Christians,
like
[her],
are
message
Commissioners
spoke
was
amplified
directly
to
by
the
frequent
attendees
exhortations.
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]
Chairs 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 Boards statements, the
district
court
noted,
fall
squarely
within
the
realm
of
when
conveyed
in
an
official
67
capacity
by
an
elected
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commissioner
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facing
his
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constituents,
with
his
board
arrayed
Id.
County
board
decisions
affect
both
property
and
and
proximity
who
of
doesnt.
do
participatory
note,
however,
sectarian
that
exercises
the
to
close
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
themselves,
which
were
moving
and
beautiful
on
many
of
proclaim
the
Americans
Christian
have
used
faith.
over
The
many
generations
constitutional
to
challenge
68
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The
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prayers
here,
which
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would
be
so
welcome
in
many
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
invocation
to
proselytization.
Even
with
the
greater
Plaintiffs,
all
non-Christians,
cited
examples
that
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measure
consider
objectively
how
this
their
language
proselytizing
might
fall
content.
on
the
ears
It
of
is
to
Hindu
were
religious
minority,
we
would
surely
be
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bowed
heads,
to
choose
between
staying
seated
and
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such
tensions.
The
desire
of
this
fine
county
for
practice.
For
the
county
to
insist
on
uniformly
governmental
space
carries
us
far
from
the
central
in
balance.
their
the
First
Americans
faith
but
Amendment,
are
not
to
the
Framers
struck
encouraged
to
practice
establish
it
through
72
and
the
careful
celebrate
state.
See
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religious
divisions
now
roiling
the
globe.
Are
such
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 nations great
weapon,
never
to
be
sheathed
in
this
or
any
other
global
both
religious
exercise
respectfully dissent.
73
and
religious
tolerance,