Legislative prayer is under attack and the challenges appear far from over. Our Fourth Circuit’s Lund v. Rowan County decision, on rehearing en banc, declaring Rowan County’s prayer practices unconstitutional is a perfect illustration. Despite years of protracted litigation, Lund‘s appellate history and that of its sister cases represent the fundamental difficulty our courts have in evaluating the constitutionality of legislative prayer. Each case requires a fact intensive analysis considering whether the prayer practice is in fitting with historical practices; our nation’s Establishment Clause jurisprudence does not prescribe a particular test.
What we can glean from the relatively new prayer jurisprudence is that legislative sponsored prayer, typically offered in the form of an invocation before an open meeting, is a generally accepted practice and one with rich tradition in our country. The content of the prayer, even if sectarian in nature, is not inherently unconstitutional. Similarly, legislative-led prayer, standing alone, is not prohibited by the Establishment Clause. A confluence of factors must exist to push prayer practices into unconstitutional territory.
So how do we know when legislative prayer crosses the line? The facts in Lund are somewhat instructive as to the constitutional tipping point. Rowan County landed itself under judicial scrutiny in 2013 when three Rowan County residents (Nancy Lund, Liesa Montag-Siegel, and Robert Voelker) filed suit declaring the County Board of Commissioners’ prayer practices unconstitutional under the Establishment Clause. Prior to suit, the co-Plaintiffs regularly attended Board meetings and along with the ACLU vocally opposed and sent written notice to the Board expressing their dissatisfaction with the Board’s prayer practices. While there was no formal response from the Board, several Commissioners individually responded publicly with a commitment to always pray in the name of “Jesus” and select Commissioners campaigned on the issue. The proposal to open meetings with nondenominational prayer was rejected and Christian-specific prayers, often declaring the spiritual and moral supremacy of Christianity, continued. In fact, over a 5.5 year period, 97% of the Board’s prayers mentioned “Jesus,” “Christ,” or the “Savior.”
Lund hinges on practices that were distinguishable from those evaluated in the leading Marsh v. Chambers and Town of Greece v. Galloway decisions finding no Establishment Clause violation. Remarkably different from Marsh and Town of Greece, the Lund co-Plaintiffs exposed a pattern of prayer practices reserved only for the elected Commissioners, exclusively Christian in content, occurring in an “intimate setting” (municipal board meeting), along with elements of proselytization and coercion. Marsh and Town of Greece both involved prayer by invited clergy and lay people and neither restricted prayer opportunity to any particular group. Judge Wilkinson, writing for the Lund majority, described the Rowan Board’s practice as “unprecedented.”
While there was not one glaring element that pushed Rowan County’s prayer practices over the line, the Lund majority refused to evaluate the prayers in piecemeal form. The focus was not limited to “who” delivered the prayers, “when” the prayers were delivered or “where” they occurred. Equal attention was devoted to “why” the practice continued after avid objection. Troubled by the Board’s unwillingness to modify practices, the majority wrote “Instead of embracing religious pluralism and the possibility of a correspondingly diverse invocation practice, Rowan County Commissioners created a closed universe of prayer-givers dependent solely on election outcomes.” The Board’s response to vocal opposition from the public essentially opened the door for the court to question the very purpose for which the practice existed. For the majority, the content of select prayers gave credence to the Plaintiffs’ position that the prayers were not delivered to solemnize the occasion for which the Commissioners were meeting, but instead took on a greater purpose at times aiming to convert non-believing members of the public and endorsing Christianity as the supreme religion of the County.
Without fail, Lund leaves us with two dissenting opinions. While difficult to summarize in this post, a noteworthy theme in both is that the majority opinion is grounded on a basic misunderstanding of the Establishment Clause’s role in regulating religious speech. As proclaimed by Judge Niemeyer, the Establishment Clause was not designed to erect barriers around prayer practices and is not an “anti-religion” clause. Rejecting the majority’s “totality of the circumstances” analysis, the dissent cautions against delving into the content specifics of legislative prayers. For the dissenters, this crosses the line into censorship and governmental regulation of faith that the Establishment Clause expressly forbids. Criticism was also directed at the significance the majority placed on the identity of the prayer giver (commissioner-led vs. non-commissioner led).
Rest assured, we are not alone in this era of uncertainty. Just a few months following Lund, the 6th Circuit issued its own en banc decision in Bormuth v. County of Jackson, upholding commissioner led Christian prayer practices. With facts eerily similar to those in Lund, Bormuth further highlights the practical difficulty in determining prayer boundaries. In Bormuth, the majority distinguished Lund in just a few ways: 1) there was no evidence of antagonism towards Plaintiff’s faith, 2) Jackson County had a content neutral prayer policy which permitted prayers of any faith (Rowan County did not have a policy), and 3) there was no evidence of proselytization.
Despite split en banc Court of Appeals decisions, the courts undoubtedly agree that they are without the power to prescribe a particular form of legislative prayer. Likewise, as practitioners, neither can we. As much as we would like to avoid potentially uncomfortable situations and religious tension, Lund suggests that we cannot write the “perfect” prayer for governmental boards. To do so, would improperly entangle government with religion. Suffice it to say that these cases do establish some safe zones for legislative prayer – that is legislative prayer that is 1) open to all clergy and lay people; 2) does not restrict the opportunity to give the prayer to one group or a select group; 3) is prayer that is not coercive or proselytizing and; 4) is given without request for public participation or suggestion of adherence to what is said.
For now, the decisions in Lund and Bormuth give us guidance on what practices might cross the line. But limits of legislative prayer practices remain unsettled. The US Supreme Court has only twice visited the area of legislative prayer and in both, focused not as much on establishment clause jurisprudence but more on the history and tradition of legislative prayer itself. Rowan County has filed a writ of certiorari before the U.S. Supreme Court and a companion writ has been filed by the Plaintiff in the 6th Circuit’s Bormuth v. County of Jackson. You can track their status at: www.scotusblog.com/.
Allison Pope Cooper is a Senior Assistant County Attorney in the Wake County Attorney’s Office. Prior to joining Wake County, Allison was in private practice where she represented occupational licensing boards and local government clients. She is a 2002 graduate of Virginia Tech and a 2005 graduate of Campbell Law School.
 “Legislative prayer” is the offering of an invocation at open government meetings. Simpson v. Chesterfield Cty. Board of Supervisors, 404 F.3d 276, 281 (4th Cir. 2005).
 Lund v. Rowan Cty., 863 F.3d 268 (4th Cir. 2017).
 The challenged prayer practice consisted of prayers composed exclusively by the five members of the Board of Commissioners (”Board”), delivered on a rotating basis between 2007-2013 at the beginning of bi-monthly open meetings.
 Town of Greece v. Galloway, 134 S. Ct. 1811 (2014); Lund v. Rowan Cty, 863 F.3d 268 (4th Cir. 2017); Bormuth v. County of Jackson, 870 F. 3d 494 (6th Cir. 2017); Williamson v. Brevard Cty, 276 F. Supp 3d 1260 (M.D. Fla 2017).
 Lund, 863 F.3d at 279.
 Lund, 863 F.3d at 275.
 Lund, 863 F.3d at 276.
 Lund, 863 F.3d at 280.
 Lund, 863 F.3d at 273.
 Lund, 863 F.3d at 274.
 Lund, 863 F.3d at 273.
 Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330 (1983). (Prayer practice at opening of sessions at Nebraska legislature by a paid chaplain)
 Town of Greece (Town board meetings with sectarian invocations given by volunteer guest ministers)
 Lund, 863 F.3d at 272. (“The prayers referenced one and only one faith and veered from time to time into over proselytization. Before each invocation, attendees were requested to rise and often asked to pray with the commissioners.”)
 Lund, 863 F.3d at 277.
 Lund, 863 F.3d at 282.
 Lund, 863 F.3d at 284. (“Not only did the Board’s invocations convey its singular approval of Christianity, the prayer opportunity on occasion served to advance that faith. The tradition of legislative prayer in Town of Greece was composed of prayers that ‘reflect upon shared ideals and common ends’ and that ‘strive for the idea that people of many faiths may be united in a community of tolerance and devotion’….”)
 Lund, 863 F.3d at 296.
 Lund, 863 F.3d at 317.
 Bormuth v. County of Jackson, 870 F. 3d 494 (6th Cir. 2017).
 Bormuth, 870 F. 3d at 518
 Lund, 837 F. 3d at 281; cf Bormuth,870 F. 3d at 511, 512.
 Lund, 837 F. 3d at 281, quoting Town of Greece, 134 S. Ct. at 1822, “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.”