Wynne v. Town of Great Falls

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DARLA KAYE WYNNE, 
Plaintiff-Appellee,
v.
TOWN OF GREAT FALLS, SOUTH
CAROLINA, an incorporated town of
the State of South Carolina, County
of Chester; HENRY CLAYTON
STARNES, Mayor; JOHN BROOM,
Councilman; HENRY STEVENSON,
Councilman; BARBARA HILTON,
Councilwoman; RAYMOND H. BAKER,
Councilman,
Defendants-Appellants,  No. 03-2069
and
JOE V. PENDERGRASS, Councilman,
Defendant.
STATE OF SOUTH CAROLINA,
Amicus Supporting Appellant,
THE AMERICAN JEWISH CONGRESS;
AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE,
Amici Supporting Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Cameron McGowan Currie, District Judge.
(CA-01-3409-0)
Argued: June 2, 2004
Decided: July 22, 2004
2 WYNNE v. TOWN OF GREAT FALLS
Before MOTZ and KING, Circuit Judges, and
David R. HANSEN, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Senior Judge Hansen joined.
COUNSEL
ARGUED: Andrew Frederick Lindemann, DAVIDSON, MORRI-
SON & LINDEMANN, P.A., Columbia, South Carolina, for Appel-
lants. Herbert E. Buhl, III, Columbia, South Carolina, for Appellee.
ON BRIEF: Brian M. Gibbons, HAMILTON, DELLENEY & GIB-
BONS, P.A., Chester, South Carolina, for Appellants. Henry Dargan
McMaster, Attorney General, John W. McIntosh, Chief Deputy Attor-
ney General, Robert D. Cook, Assistant Deputy Attorney General, C.
Havird Jones, Jr., Senior Assistant Attorney General, Columbia,
South Carolina, for Amicus Curiae State of South Carolina. Ayesha
N. Khan, Legal Director, AMERICANS UNITED FOR SEPARA-
TION OF CHURCH AND STATE, Washington, D.C., for Amicus
Curiae Americans United for Separation of Church and State. Marc
D. Stern, AMERICAN JEWISH CONGRESS, New York, New York,
for Amicus Curiae The American Jewish Congress.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Darla Kaye Wynne brought this suit to prohibit the Town Council
of Great Falls, South Carolina from engaging in prayers that specifi-
cally invoke Jesus Christ during monthly council meetings. Following
a bench trial, the district court entered judgment for Wynne, ruling
that the "practice of members of Town Council invoking name(s) spe-
cifically associated with the Christian faith at Town Council meetings
WYNNE v. TOWN OF GREAT FALLS 3
violate[d] the Establishment Clause of the First Amendment to the
United States Constitution." For the reasons that follow, we affirm.
I.
After consideration of all of the evidence, including the testimony
of Darla Wynne and the Mayor of Great Falls, Henry Clayton Starnes,
the district court made numerous findings of fact. It is upon these
findings and the trial evidence that we base the account set forth below.1
First, the court found that "Town Council meetings always open
with prayer," that the Mayor and all Council Members are Christian,
and that Council Member John Broom "often" leads the prayer. The
court further found that this prayer "frequently refers to Jesus, Jesus
Christ, Christ or Savior in the opening or closing portion" of the
prayer.
The Mayor agreed that a typical prayer opening a council meeting
states:
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 (in unison).
(emphasis added). During the prayers, the court found that "citizens
attending the meetings customarily stand and bow their heads." The
record also contains uncontroverted evidence that residents of the
Town participated in the prayers by saying "amen" at the end.
1
The record in this case offers substantial support for each of the dis-
trict court’s findings. Perhaps for this reason, at oral argument the Town
Council expressly disavowed a claim that any of these factual findings
are erroneous.
4 WYNNE v. TOWN OF GREAT FALLS
Wynne, a citizen and resident of Great Falls and a follower of the
Wiccan faith (an earth-based religion reconstructed from ancient
Pagan beliefs), has regularly attended Council meetings since 1999.
At trial, the Town Council conceded that Wynne "had a legitimate
purpose for attending" these meetings "unrelated to her religion."
The district court found that initially Wynne "stood and bowed her
head during the prayer" along with her neighbors. Wynne testified she
did so because she felt "on the spot" and "wanted to show respect."
For the next five consecutive Council meetings, she continued to
stand and bow her head during the prayer. But, as the "references to
Savior, Christ, Jesus, or Jesus Christ in the prayers continued,"
Wynne ultimately stopped. She explained that there were "a lot of
‘amens,’" that "it was a very church environment," and that she
became "most uncomfortable"; she believed a prayer "that mentions
Jesus Christ [wa]s a promotion of the Christian religion," in which
she did not believe.
Finally, at a Council meeting in late 2000, Wynne objected to the
Town Council’s practice of referring to "Jesus," "Christ," or "Jesus
Christ" in its prayers. As an alternative, she "proposed that the
prayer’s references be limited to ‘God’" or, instead, "that members of
different religions be invited to give prayers." The district court found
that Mayor Starnes responded at the meeting "to the effect that: ‘This
is the way we’ve always done things and we’re not going to change.’"
Prior to the next Council meeting in February 2001, Council Mem-
ber Barbara Hilton posted a message on the Town’s website address-
ing Wynne’s "request of alternative prayer," stating that she felt "it
was imperative that we act[ ] quickly and decisively to Ms. Wynne’s
request" at the next meeting, and urging the Town’s citizens to "call
your council members and mayor with your opinions on this." Subse-
quently, several Christian ministers drafted letter resolutions on
behalf of their members expressing support for continuance of a
"Christian" prayer at Council meetings and "opposition to allowing an
alternative prayer to a professed ‘witch,’" and numerous citizens
signed a petition urging the Council to "not stop praying to our God
in heaven!" At the February meeting, the church ministers and mem-
bers presented the letters and petitions to the Town Council. Many
church members and ministers attended that meeting — the record
WYNNE v. TOWN OF GREAT FALLS 5
indicates that about 100 citizens were in attendance, as opposed to the
usual "five or six," — and "hallelujahs," as well as "amens," were
heard from the citizens following Broom’s delivery of the Christian
prayer. Wynne again asked for an "alternative" nonsectarian prayer,
and the Town Council again refused her request, announcing that it
would adhere to its customary prayer.
Wynne continued to attend Town Council meetings but, she testi-
fied, "it began to get hard." When she refused to stand during the
Christian invocation, she heard a voice, which she believed was
Councilman Broom’s, state, "Well, I guess some people aren’t going
to participate." Her fellow citizens then told Wynne she "wasn’t
wanted," and that she "should leave town"; they accused her of being
a "Satanist," and threatened that she "could possibly be burned out."
Wynne felt "very, very uncomfortable" and "a little scar[ed]."
Moreover, the district court found that Wynne’s "efforts to partici-
pate in Town Council’s meetings as a member of the public [were]
adversely affected by her refusal to accept the Christian prayer tradi-
tion." At one Council meeting, the Council would not permit Wynne
to participate after arriving a few minutes late to avoid the prayer,
even though "she had signed up to speak at the meeting, and was
listed on the agenda." More generally, Wynne testified that the Coun-
cil limited her allotted speaking time, "ostracized" her, and "treated
[her] differently" than other members of the community. She
explained that she did not believe the Mayor took her seriously, and
that he attempted to intimidate her.
On August 20, 2001, Wynne filed this action, naming the Town,
the Mayor, and the council members (collectively hereinafter, "the
Town Council" or "the Council"), as defendants. The complaint
alleged that the Town Council’s consistent practice of including a
"Christian prayer ritual" in Town Council meetings violated the
Establishment Clause of the First Amendment. Wynne sought an
injunction ordering the Council to "cease and desist forthwith from
holding any Christian prayers." She explained at trial that she did not
want the Town Council "punished or anything else like that." She just
asked "the court to decide that a generic deity such as ‘God’ . . . with-
out a specific reference to a deity that is associated with one religion
be invoked at these prayers so that all of my community could feel
6 WYNNE v. TOWN OF GREAT FALLS
welcome there," and she wouldn’t "have to betray [her] faith" and no
one else would "have to betray theirs."
On July 11, 2003, after the district court had followed the magis-
trate judge’s recommendation and denied the Town Council’s motion
for summary judgment, the court conducted a bench trial. Six weeks
later, the court issued its written opinion, granting judgment to Wynne
and permanently enjoining the Town Council "from invoking the
name of a specific deity associated with any one specific faith or
belief in prayers given at Town Council meetings." The Town Coun-
cil timely appealed.2
II.
The Establishment Clause of the First Amendment, made applica-
2
On June 23, 2003, a few weeks before the trial, the Town Council
adopted a resolution setting forth a policy governing prayers at Council
meetings. The Resolution provided, inter alia, that "[t]he invocation shall
not contain or address any specific beliefs . . . of any specific religion."
But, after adoption of the Resolution, Council Member Henry Stevenson
told Wynne that things "would stay the same." Moreover, Mayor Starnes
testified at the trial that the Resolution "would not prohibit any Town
Council member from making specific reference to Jesus, Jesus Christ,
or Christ in any prayer opening the Town Council meeting." He
explained that he saw "nothing wrong with" the Council’s invocation of
"Jesus Christ," "Christ Our Lord," or "Christ the Savior" because he
believed "Christ is God," though admittedly a "Christian God." (empha-
sis added). The Mayor further testified that ninety-nine percent of the
people in the town are Christian, and that the prayers were not likely to
change until someone of a different religion was elected to the Council.
Although the Council never suggested that the Resolution might moot
Wynne’s request for injunctive relief, the district court independently
considered the question and concluded that it did not. Councilman Ste-
venson’s statement and the Mayor’s trial testimony — both of which
demonstrate that the Resolution does not discontinue the practice chal-
lenged by Wynne — would seem to require this conclusion. See, e.g.,
Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 800 (4th Cir.
2001); Steakhouse, Inc. v. City of Raleigh, N.C., 166 F.3d 634, 636 n.2
(4th Cir. 1999). On appeal, the Town Council does not contend to the
contrary.
WYNNE v. TOWN OF GREAT FALLS 7
ble to the states and their political subdivisions through the Fourteenth
Amendment, see Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947), com-
mands that the Government "shall make no law respecting an estab-
lishment of religion." U.S. Const. amend I. Wynne contends that the
Town Council’s practice of invoking "Jesus Christ" at Council meet-
ings violates the Establishment Clause by advancing the Christian
religion. The Town Council counters that the Supreme Court’s deci-
sion in Marsh v. Chambers, 463 U.S. 783 (1983), dictates that the
prayers at issue here pass constitutional muster under the Establish-
ment Clause.
In Marsh, the Court upheld the Nebraska legislature’s practice of
opening each session with a nonsectarian prayer led by a chaplain
paid with public funds. The Court based this holding on an extensive
historical inquiry, concluding that since members of the First Con-
gress had authorized the appointment of paid chaplains only three
days before agreeing to the language of the Establishment Clause,
they could not have intended the Establishment Clause "to forbid
what they had just declared acceptable." Id. at 786-90. The Marsh
Court also pointed out that the "practice of opening sessions with
prayer has continued without interruption ever since that early session
of Congress" and has "been followed consistently in most of the
states." Id. at 788-89.
"This unique history" led the Court to "accept the interpretation of
the First Amendment draftsmen who saw no real threat to the Estab-
lishment Clause arising from a practice of prayer similar to that now
challenged." Id. at 791. Thus, the Court concluded that "[t]o invoke
Divine guidance on a public body entrusted with making the laws is
not, in these circumstances, an ‘establishment’ of religion." Id. at 792
(emphasis added). The Marsh Court emphasized, however, that the
legislative prayer at issue there did not attempt "to proselytize or
advance any one, or to disparage any other, faith or belief." Id. at 794-
95.
Six years later, the Supreme Court offered further guidance on the
proper scope of the Marsh holding. In County of Allegheny v. ACLU
Greater Pittsburgh Chapter, 492 U.S. 573 (1989), the Court
explained that Marsh "recognized that not even the ‘unique history’
of legislative prayer can justify contemporary legislative prayers that
8 WYNNE v. TOWN OF GREAT FALLS
have the effect of affiliating the government with any one specific
faith or belief." Id. at 603 (internal citations omitted). The Court fur-
ther stressed that while Marsh may have found that history can "affect
the constitutionality of nonsectarian references to religion by the gov-
ernment," the Court had never held that "history can[ ] legitimate
practices that demonstrate the government’s allegiance to a particular
sect or creed." Id. (emphasis added). Thus, the Allegheny Court con-
cluded:
Marsh plainly does not stand for the sweeping proposition
. . . that all accepted practices 200 years old and their equiv-
alents are constitutional today. . . . The history of this
Nation, it is perhaps sad to say, contains numerous examples
of official acts that endorsed Christianity specifically. Some
of these examples date back to the Founding of the Repub-
lic, but this heritage of official discrimination against non-
Christians has no place in the jurisprudence of the Establish-
ment Clause. Whatever else the Establishment Clause may
mean (and we have held it to mean no official preference
even for religion over nonreligion), it certainly means at the
very least that government may not demonstrate a prefer-
ence 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 denomina-
tion cannot be officially preferred over another. There have
been breaches of this command throughout this Nation’s
history, but they cannot diminish in any way the force of the
command.
Id. at 603-05 (emphasis added) (internal quotation marks and citations
omitted).3
3
The Town Council’s only response to Allegheny’s extended discus-
sion of Marsh is to dismiss it as dicta. But as we and our sister circuits
have frequently noted, with "inferior [c]ourt[s]," like ourselves, "that
argument carries no weight since carefully considered language of the
Supreme Court, even if technically dictum, generally must be treated as
authoritative." Sierra Club v. E.P.A., 322 F.3d 718, 724 (D.C. Cir. 2003)
(internal quotation marks and citation omitted); McCalla v. Royal Mac-
Cabees Life Ins. Co., 369 F.3d 1128, 1132 (9th Cir. 2004); Crowe v. Bol-
WYNNE v. TOWN OF GREAT FALLS 9
Thus, Marsh and Allegheny teach that, in view of our Nation’s long
and "unique history," a legislative body generally may, without vio-
lating 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. With these
principles in mind, we turn to the case at hand.
III.
The question before us is whether the Town Council’s practice
crossed the constitutional line established in Marsh and Allegheny. In
view of the record in this case, and particularly the district court’s fac-
tual findings, we can only conclude that the Council has crossed that
line. Rather than engaging in the sort of "legislative prayer" approved
of in Marsh, the Council has improperly "exploited" a "prayer oppor-
tunity" to "advance" one religion over others. Marsh, 463 U.S. at 794.
The prayers challenged here stand in sharp contrast to the prayer
held not to constitute an "‘establishment’ of religion" in Marsh. In
Marsh, the approved prayer was characterized as "nonsectarian" and
"civil"; indeed, the chaplain had affirmatively "removed all references
to Christ." Marsh, 463 U.S. at 793 n.14. Here, on the other hand, the
prayers sponsored by the Town Council "frequently" contained refer-
ences to "Jesus Christ,"4 and thus promoted one religion over all oth-
ers, dividing the Town’s citizens along denominational lines.
duc, 365 F.3d 86, 92 (1st Cir. 2004); Johnson v. McKune, 288 F.3d 1187,
1199 (10th Cir. 2002); United States v. City of Hialeah, 140 F.3d 968,
974 (11th Cir. 1998); Reich v. Cont’l Cas. Co., 33 F.3d 754, 757 (7th Cir.
1994); Fouts v. Maryland Cas. Co., 30 F.2d 357, 359 (4th Cir. 1929).
Moreover, Allegheny’s discussion of Marsh entirely accords with the
limits the Marsh Court itself placed on its holding. See Marsh, 463 U.S.
at 794-95 (explaining that legislative "prayer opportunity" must not be
"exploited to proselytize or advance any one, or to disparage any other,
faith or belief").
4
Marsh noted that a court need not "embark on a sensitive evaluation
or . . . parse the content of a particular prayer" when nothing indicates
10 WYNNE v. TOWN OF GREAT FALLS
The Supreme Court has long made clear that the Constitution pro-
hibits any such displays of "denominational preference" by the Gov-
ernment. Larson v. Valente, 456 U.S. 228, 244 (1982). Regardless of
the context or applicable "test," one "command of the Establishment
Clause" is absolutely "clear[ ]": "one religious denomination cannot
be officially preferred over another." Id.; Allegheny, 492 U.S. at 605
(embracing this as the "clearest command of the Establishment
Clause" when discussing the legislative speech approved in Marsh).
The Establishment Clause "at least" means that neither "a state nor the
Federal Government can . . . prefer one religion over another." Ever-
son, 330 U.S. at 15; see also Bd. of Educ. v. Grumet, 512 U.S. 687,
703 (1994) (explaining that this principle is "at the heart of the Estab-
lishment Clause"). With respect to this fundamental principle, there
is little disagreement. See, e.g., Lee v. Weisman, 505 U.S. 577, 641
(1992) (Scalia, J., dissenting) (conceding "that our constitutional tra-
dition . . . [has] ruled out of order government-sponsored endorsement
of religion — even when no legal coercion is present, and indeed
even when no ersatz, ‘peer-pressure’ psycho-coercion is present —
where the endorsement is sectarian, in the sense of specifying details
upon which men and women who believe in a benevolent, omnipotent
that it has been used to "proselytize or advance" any one faith. 463 U.S.
at 794-95. In the analysis that follows, we have not engaged in any such
"parsing" but instead simply rely on the district court’s factual finding
that the challenged prayers "frequently" invoked "‘Jesus,’ ‘Jesus Christ,’
‘Christ,’ or ‘Savior.’" As the Town Council conceded at oral argument,
a recognition that the prayers often included an invocation to Jesus Christ
does not constitute the "parsing" referred to in Marsh. We note, however,
that "pars[ing]" the prayers in this case would seemingly be permitted
under Marsh, for the record in this case is replete with powerful "indica-
tion[s]" that the Town Council did indeed "exploit" the prayer opportu-
nity "to proselytize or advance" one faith. These indications include the
findings that Wynne’s refusal to accept the Christian prayer practice
adversely affected her efforts to participate in the Council meetings; that
the Council steadfastly rejected Wynne’s requests to eliminate from the
prayers invocations to a deity recognized only by Christians; and that
members and ministers from several Christian churches, at a council
member’s urging, presented letters and petitions to the Council, encour-
aging its decision to open its meetings with "Christian prayer" and
opposing "an alternative prayer to a self-proclaimed ‘witch.’"
WYNNE v. TOWN OF GREAT FALLS 11
Creator and Ruler of the world are known to differ (for example, the
divinity of Christ)").
If Marsh itself left any question as to whether the Court somehow
intended to exempt invocations of deliberative public bodies from this
"bedrock Establishment Clause principle," Allegheny, 492 U.S. at
605, the Court made clear in Allegheny that it had no such intention.
Indeed, the Allegheny Court clarified that it only upheld the prayer in
Marsh against Establishment Clause challenge because the Marsh
prayer did not violate this nonsectarian maxim — "because the partic-
ular chaplain had ‘removed all references to Christ.’" Id. at 603
(emphasis added) (quoting Marsh, 463 U.S. at 793 n.14). The Court
in Allegheny explained that invocations "that have the effect of affili-
ating the government with any one specific faith or belief" or demon-
strate "the government’s allegiance to a particular sect or creed" do
not fall within the category of legislative prayers justified by the
"unique history" discussed in Marsh. Id.
Nevertheless, the Town Council argues that Marsh’s approval of a
prayer "in the Judeo-Christian tradition," Marsh, 463 U.S. at 793,
constitutes approval of prayers, like those at issue here, that invoke
Jesus Christ, the Christian deity. The Town Council maintains that
these prayers fall within the "Judeo-Christian tradition" because there
is "no meaningful distinction between a reference to the Judeo-
Christian God or ‘Heavenly Father’ and a reference to ‘Jesus Christ.’"
Brief of Appellant at 19. That argument misunderstands the term,
"Judeo-Christian tradition," and misreads Supreme Court precedent.
As the district court pointed out, quoting Merriam-Webster’s Col-
legiate Dictionary 633 (10th ed. 1999), a prayer in the "Judeo-
Christian" tradition has "‘historical roots in both Judaism and Chris-
tianity.’" Accord Random House Webster’s Unabridged Dictionary
1036 (2d ed. 1998) (defining "Judeo-Christian" as "of or pertaining
to the religious writings, beliefs, values or traditions held in common
by Judaism and Christianity") (emphasis added); see also Allegheny,
492 U.S. at 604 n.53 (distinguishing the Judeo-Christian prayer
approved in Marsh from "sectarian proclamations" that "demonstrate
an official preference for Christianity, and a corresponding official
discrimination against all non-Christians") (emphasis in original). The
prayers sponsored by the Town Council have invoked a deity in
12 WYNNE v. TOWN OF GREAT FALLS
whose divinity only those of the Christian faith believe. This is not a
"prayer within the embrace of what is known as the Judeo-Christian
tradition," which is a "nonsectarian prayer" without "explicit refer-
ences . . . to Jesus Christ, or to a patron saint" — references that can
"foster a different sort of sectarian rivalry than an invocation or bene-
diction in terms more neutral." Lee, 505 U.S. at 588, 589. Thus, we
must reject the Town Council’s contention that the Marsh Court’s
approval of a nonsectarian prayer "within the Judeo-Christian tradi-
tion" equates to approval of prayers like those challenged here, which
invoke the exclusively Christian deity — Jesus Christ.5
We also find unpersuasive the Council’s argument that, although
its prayers frequently referred to Christ, because each did so only
once, the prayers did not "advance" Christianity. The Council con-
tends that in warning legislators against "exploit[ing]" a "prayer
opportunity" to "proselytize or advance any one . . . faith or belief,"
Marsh, 463 U.S. at 794-95, the Marsh Court intended "advance" sim-
ply to be a synonym for "proselytize." See Brief of Appellant at 20;
Reply Brief at 7-8. The Council maintains that "[a]ny other interpreta-
tion of ‘advance’ would render the use of the term ‘proselytize’ mean-
ingless." Reply Brief at 8.
But "proselytize" and "advance" have different meanings and
denote different activities. To "proselytize" on behalf of a particular
religious belief necessarily means to seek to "convert" others to that
belief, whereas to "advance" a religious belief means simply to "for-
ward, further, [or] promote" the belief. Webster’s Third New Interna-
tional Dictionary 30, 1821 (3d ed. 1993). Advancement could include
"conversion" but it does not necessarily contain any "conversion" or
"proselytization" element. Similarly, although proselytization cer-
5
We note, further, that the Town Council has made no effort to balance
its exclusively Christian references with any reference to a deity specifi-
cally associated with Judaism, nor has it ever included any credo-
statements typically included in Jewish prayers, such as "Shema Yisrael."
In fact, the Council has never invoked a deity associated with any spe-
cific faith other than Christianity. Indeed, although Wynne expressly and
repeatedly requested that the Council either partake in nonsectarian
prayers, or include in its prayers references to deities associated with
other religions, the Council steadfastly refused to do so.
WYNNE v. TOWN OF GREAT FALLS 13
tainly involves some element of advancement, the word "proselytize"
stresses conversion in a manner that the word "advance" does not.
Thus, according each word — "proselytize" and "advance" — its par-
ticular, ordinary meaning does not render the other "meaningless."
Rather, to adopt the Town Council’s contrary view and interpret
"advance" as merely a synonym for "proselytize," would most cer-
tainly render the word "advance" meaningless, and would force us to
ignore the Marsh Court’s use of the disjunctive in cautioning against
"proselytiz[ation] or advance[ment]" of a particular religious creed.
463 U.S. at 794. Adopting the Town Council’s interpretation would
also force us to ignore the Supreme Court’s subsequent interpretation
of the Marsh language in Allegheny. Rather than finding that this lan-
guage refers only to prayers that "proselytize" a particular faith, as the
Council argues, the Supreme Court has explained that Marsh prohib-
its "contemporary legislative prayers that have the effect of affiliating
the government with any one specific faith or belief." Allegheny, 492
U.S. at 603 (emphasis added).6
6
The Town Council and its amicus heavily rely on some dicta in Sny-
der v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998) (en banc), to
support their "‘advance’-means-‘proselytize’" argument. Snyder holds
that a city council did not violate the Establishment Clause by denying
a citizen permission to recite an aggressively anti-religious prayer prior
to council meetings. This holding, and most of the Snyder court’s discus-
sion, entirely accord with our reasoning here. Snyder distinguishes, as we
do, the "‘Judeo-Christian,’ ‘non-sectarian’ invocations," approved in
Marsh from sectarian prayers like those at issue here, id. at 234 n.10, and
quotes, as we do, the Supreme Court’s conclusion that nonsectarian
prayers, unlike sectarian prayers, do not have the "effect of affiliating the
government with any one specific faith or belief." Id. at 1234 (quoting
Allegheny, 492 U.S. at 603). But in a footnote, Snyder appears to ignore
these principles, and posits that because "all prayers ‘advance’ a particu-
lar faith or belief in one way or another," Marsh must have prohibited
only the "more aggressive form of advancement, i.e., proselytization." Id.
at 1234 n.10. Both premise and conclusion are wrong. Not "all prayers"
"‘advance’ a particular faith." Rather, nonsectarian prayers, by definition,
do not advance a particular sect or faith. Moreover, as explained in the
text above, Marsh prohibits prayers that "proselytize or advance" a par-
ticular faith, not just prayers that proselytize a particular faith. Thus, we
find this statement from the Snyder court unpersuasive, and inconsistent
with the plain language of Marsh.
14 WYNNE v. TOWN OF GREAT FALLS
Here, the Town Council insisted upon invoking the name "Jesus
Christ," to the exclusion of deities associated with any other particular
religious faith, at Town Council meetings in public prayers in which
the Town’s citizens participated.7 Thus, the Town Council clearly
"advance[d]" one faith, Christianity, in preference to others, in a man-
ner decidedly inconsistent with Marsh.
In sum, we must reject the Town Council’s arguments that Marsh
renders the challenged prayers constitutional. Marsh does not permit
legislators to do what the district court, after a full trial, found 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 con-
tain explicit references to a deity in whose divinity only those of one
faith believe. The invocations at issue here, which specifically call
upon Jesus Christ, are simply not constitutionally acceptable legisla-
tive prayer like that approved in Marsh. Rather, they embody the pre-
cise kind of "advance[ment]" of one particular religion that Marsh
cautioned against. Accordingly, we hold the district court did not err
in finding that the challenged prayers violated the Establishment
Clause and enjoining the Town Council "from invoking the name of
7
The Town Council briefly contends that the prayers at issue here were
"only and for the benefit of the Council members." Brief of Appellant at
22. Given the record evidence and unchallenged factual findings of the
district court, that contention is simply untenable. The district court
found that the Town Council specifically listed the prayers first on its
agenda of public business and that citizens customarily participated in
the prayers by standing and bowing their heads. Indeed, citizens actively
joined in the prayers by declaring "amen" and sometimes "hallelujah" at
the conclusion. Moreover, a Council member urged the Town’s citizens
to get involved in the prayer controversy, and a large number of the
Town’s citizenry and church leaders obviously felt that they had enough
personal investment in the Council’s "Christian prayer" to organize peti-
tions and draft resolutions in support of it. Finally, in its June 2003 Reso-
lution, the Town Council stated that the "invocation may request divine
guidance for the Town of Great Falls and its . . . citizens," (emphasis
added), and so itself has recognized that the Town’s prayers are not just
for the council members but for all of the Town’s citizens. Thus, in a
very real sense, the Town Council has directed Christian prayers at —
and thereby advanced Christianity to — the citizens in attendance at its
meetings and the citizenry at large.
WYNNE v. TOWN OF GREAT FALLS 15
a specific deity associated with any one specific faith or belief in
prayers given at Town Council meetings."8
We note that this conclusion accords with the Supreme Court’s
apparent intent to confine its holding in Marsh to the specific "cir-
cumstances" before it — a nonsectarian prayer preceding public busi-
ness, directed only at the legislators themselves. Marsh, 463 U.S. at
792. We also note that, in the more than twenty years since Marsh,
the Court has never found its analysis applicable to any other circum-
stances; rather, the Court has twice specifically refused to extend the
Marsh approach to other situations. See Lee, 505 U.S. at 596; Alle-
gheny, 492 U.S. at 603. Similarly, we and our sister circuits have
steadfastly refused to extend Marsh. See, e.g., Coles v. Cleveland Bd.
of Educ., 171 F.3d 369, 381 (6th Cir. 1999); North Carolina Civil
Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1148-49
(4th Cir. 1991). Indeed, as the district court noted, the Town Council
has not cited any case upholding prayers by legislative or other public
bodies that explicitly invoke one religion in preference to others. We
refuse to do so here. Such a holding would, we believe, be plainly
contrary to "[t]he clearest command of the Establishment Clause . . .
that one religious denomination cannot be officially preferred over
another." Larson, 456 U.S. at 244; accord Grumet, 512 U.S. at 703;
Allegheny, 492 U.S. at 604-05; Everson, 330 U.S. at 15.
IV.
Public 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 history. The Town Council of
Great Falls remains free to engage in such invocations prior to Coun-
8
The Town Council does not contend that its prayers withstand consti-
tutional scrutiny under the test fashioned in Lemon v. Kurtzman, 403
U.S. 602 (1971), the endorsement test, Lynch v. Donnelly, 465 U.S. 668,
690 (1984) (O’Connor, J., concurring), the neutrality test, Rosenberger
v. Rector of Univ. of Virginia, 515 U.S. 819, 839 (1995), or the coercion
test, Lee, 505 U.S. at 587. Indeed, the Town Council conceded at oral
argument that it relied exclusively on Marsh, and thus if the challenged
prayers did not equate to the constitutionally acceptable legislative
prayer upheld in Marsh, its appeal failed.
16 WYNNE v. TOWN OF GREAT FALLS
cil meetings. The opportunity to do so may provide a source of
strength to believers, and a time of quiet reflection for all. This oppor-
tunity does not, however, provide the Town Council, or any other leg-
islative body, license to advance its own religious views in preference
to all others, as the Town Council did here. The First Amendment
bars such official preference for one religion, and corresponding offi-
cial discrimination against all others. Accordingly, for the reasons set
forth within, we affirm the judgment of the district court.
AFFIRMED