September 01, 2004
Guidance from the Fourth Circuit in Wynne v. Town of Great Falls
Late this summer, the Fourth Circuit Court of Appeals — the federal appellate court with jurisdiction over North Carolina — decided Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004). In this case, the Fourth Circuit held that the prayers and invocations used to open town council meetings in Great Falls, South Carolina violated the Establishment Clause of the First Amendment to the United States Constitution because they improperly advanced one religion over others. The court’s holding and analysis provide guidance to other governmental bodies, including boards of education, regarding what constitutional precautions must be taken when opening a meeting with a prayer or invocation. This legal update examines the Town of Great Falls decision in the context of the well-established constitutional prohibition against prayer at public school functions.
I. The Rule: Government-sanctioned prayer in the public schools or at school-sponsored activities is unconstitutional.
The United States Supreme Court has long held that use of prayer or ceremonial Bible reading in public schools is an unconstitutional governmental advancement of religion in violation of the Establishment Clause. See Abington School Dist. v. Schempp, 374 U.S. 203 (1963). More recently, the Court has made clear that prayers and nonsectarian invocations at school-related activities — including at graduation ceremonies and extra-curricular activities — are unconstitutional as well. See Lee v. Weisman, 505 U.S. 577 (1992) (graduation ceremonies), and Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290 (2000) (football games). The general rule with respect to prayer and public schools is plain: prayers, including nonsectarian invocations, are impermissible at school-sponsored gatherings.
II. The Possible Exception: Nonsectarian “legislative prayers” may be used to open meetings of some legislative bodies so long as they do not advance one religion over others.
In Marsh v. Chambers, 463 U.S. 783 (1983), the United States Supreme Court created a “unique” exception to traditional Establishment Clause doctrine. In most instances, the Establishment Clause requires that government action have a secular purpose, an effect that neither advances nor prohibits religion, and an outcome that does not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602 (1971). In Marsh the Supreme Court held that the Nebraska legislature’s practice of opening each session with a nonsectarian prayer offered by a chaplain paid out of public funds did not violate the Establishment Clause (even though it did appear to have a religious purpose and effect) because such prayers are “deeply embedded in the history and tradition of this country” and do not serve to advance one religion over others. The practice at issue in Marsh was similar to the one employed by the First Congress in 1789 and the chaplain delivering the prayers at issue in Marsh had “removed all references to Christ.”
In Marsh the Supreme Court applied the “legislative prayer” exception to a state legislature but did not consider whether this exception would also apply to local governmental bodies such as city councils or school boards. In light of later Supreme Court decisions holding that opening prayers at graduation ceremonies and athletic events are unconstitutional, school boards face this unanswered question: Are prayers at the opening of school board meetings more like the “school prayers” prohibited by Lee v. Weisman and Santa Fe Independent School District v. Doe, or are they closer to the “legislative prayers” permitted by Marsh?
It is worth noting that a school board’s practice of opening meetings with prayer has been challenged in at least two states. In both cases, federal appellate courts held that the practice at issue was unconstitutional. In Coles v. Cleveland Board of Education, 171 F.3d 369 (6th Cir. 1999), the court held that the “legislative prayer exception” does not apply to a practice of opening school board meetings with a prayer. The court distinguished school board meetings from meetings of other local governmental bodies, citing the fact that students regularly attend and participate in school board meetings and that the Supreme Court has repeatedly struck down the official endorsement of religion in the public school context. In Bacus v. Palo Verde Unified School District, 52 Fed. Appx. 355 (9th Cir. 2002), the court held that even if the legislative prayer exception applied to school boards, in this case the prayers at issue almost always were given ‘”in the Name of Jesus'” and thus did not satisfy the requirements of Marsh.
III. Wynne v. Town of Great Falls: The Fourth Circuit Applies the “Legislative Prayer” Exception to Local Government Bodies.
There is no court case in this jurisdiction deciding the constitutionality of opening school board meetings with prayer. The Fourth Circuit Court’s decision in Wynne v. Town of Great Falls, involving town council meetings, did not address the unique issues of school board meetings raised by the Sixth Circuit in Coles. The decision does, however, establish what is not constitutionally permissible under any circumstances and, to that extent, is binding authority for school boards.
In the town of Great Falls, South Carolina, a town council member or the mayor typically opened council meetings with prayers such as:
“Our Heavenly Father we are here tonight to discuss town business. We ask that you would clear up our minds and our hearts from animosity that we might face these issues and address them with an open mind tonight. We pray that all decisions made tonight would be most beneficial for the town and the citizens. In Christ’s name we pray. Amen.”
Darla Kaye Wynne, a citizen and resident of Great Falls, challenged the town council’s practice of engaging in prayers invoking Jesus, Jesus Christ, Christ or Savior, during monthly council meetings.
Prior to filing her lawsuit, at a regularly-scheduled council meeting, Ms. Wynne objected to the town council’s reference to specifically Christian deities. She proposed that the prayer’s references be limited to “God” or that members of different religions be invited to give prayers.
The town council solicited input from the town’s citizens regarding Ms. Wynne’s request. Over 100 citizens appeared at the next town council meeting and numerous citizens wrote letters supporting the prayers. Ultimately, the town council refused to alter the customary prayer. The town council argued that its practice was constitutional under Marsh. Ms. Wynne continued to attend town council meetings, but she felt uncomfortable and was ostracized by town council members and others, treated differently, and threatened.
Ms. Wynne ultimately brought a lawsuit federal court seeking an injunction ordering the town council to stop delivering Christian prayers during meetings. The district court granted her injunction and the Fourth Circuit affirmed the district court. The Fourth Circuit recognized that Marsh upheld “legislative prayer” in a narrow context. However, it emphasized that the Supreme Court’s jurisprudence is clear: “[G]overnment may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”
The court further explained that the Supreme Court’s legislative prayer cases teach that: “[I]n view of our Nation’s long and ‘unique history,’ a legislative body generally may, without violating the Establishment Clause, invoke Divine guidance for itself before engaging in its public business. But Marsh and Allegheny also teach that a legislative body cannot, consistent with the Establishment Clause, ‘exploit’ this prayer opportunity to ‘affiliate’ the Government with one specific faith or belief in preference to others.”
The Fourth Circuit explained that the prayers in Town of Great Falls “stand in sharp contrast” to the prayers in Marsh. In Marsh the prayers were “nonsectarian” and “civil.” In fact, the chaplain had affirmatively removed all references to Christ. In contrast, the prayers in Town of Great Falls “frequently” contained references to Jesus, Jesus Christ, Christ or Savior — a Christian deity. As such, according to the Fourth Circuit, the prayers used by the Great Falls town council “promoted one religion over all others, dividing the Town’s citizens along denominational lines.” In so doing, the town council’s prayers violated the Establishment Clause: “Marsh does not permit legislators to do what . . . the Town Council of Great Falls did here — that is to engage, as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe.”
The Fourth Circuit’s decision in Town of Great Falls offers important guidance to school boards, even though it leaves open the ultimate question of whether opening school board meetings with a prayer ever is constitutional. The primary lessons to be learned from Town of Great Falls are these: If a school board uses a prayer or invocation to open a meeting, the board must ensure that the prayer satisfies the following standards:
1. The prayer or invocation must be nonsectarian.
2. The prayer or invocation may reference God or the “Almighty,” but may not reference Jesus, Jesus Christ, Christ, Savior or a patron saint.
3. The prayer or invocation may not invoke one religion in preference to others.
4. The prayer or invocation must be directed only at the board members themselves.
5. The prayer or invocation must precede public business and not be a part of public business.
As always, if you have questions about this legal update, please do not hesitate to contact us.