Simpson v. Chesterfield County Board of Supervisors

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CYNTHIA SIMPSON, 
Plaintiff-Appellee,
v.
CHESTERFIELD COUNTY BOARD OF
SUPERVISORS,  No. 04-1045
Defendant-Appellant.
NATIONAL LEGAL FOUNDATION,
Amicus Supporting Appellant.

CYNTHIA SIMPSON, 
Plaintiff-Appellant,
v.
CHESTERFIELD COUNTY BOARD OF
SUPERVISORS,  No. 04-1141
Defendant-Appellee.
NATIONAL LEGAL FOUNDATION,
Amicus Supporting Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Dennis W. Dohnal, Magistrate Judge.
(CA-02-888-03)
Argued: February 3, 2005
Decided: April 14, 2005
2 SIMPSON v. CHESTERFIELD COUNTY
Before WILKINSON, NIEMEYER, and WILLIAMS,
Circuit Judges.
Affirmed in part, reversed in part, and remanded with directions by
published opinion. Judge Wilkinson wrote the opinion, in which
Judge Niemeyer and Judge Williams joined. Judge Niemeyer wrote
a concurring opinion.
COUNSEL
ARGUED: Steven Latham Micas, COUNTY ATTORNEY’S
OFFICE FOR THE COUNTY OF CHESTERFIELD, Chesterfield,
Virginia, for Chesterfield County Board of Supervisors. Rebecca Kim
Glenberg, AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF VIRGINIA, Richmond, Virginia, for Cynthia Simpson. ON
BRIEF: Jeffrey L. Mincks, Stylian P. Parthemos, COUNTY
ATTORNEY’S OFFICE FOR THE COUNTY OF CHESTERFIELD,
Chesterfield, Virginia, for Chesterfield County Board of Supervisors.
Victor M. Glasberg, Kelly M. Baldrate, VICTOR M. GLASBERG &
ASSOCIATES, Alexandria, Virginia; Ayesha Khan, AMERICANS
UNITED FOR SEPARATION OF CHURCH & STATE, Washing-
ton, D.C., for Cynthia Simpson. Steven W. Fitschen, THE
NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia, for
Amicus Supporting Chesterfield County Board of Supervisors.
OPINION
WILKINSON, Circuit Judge:
In this case we consider the effect of the Establishment Clause on
a local government’s policy concerning legislative invocations.
Because that policy does not "proselytize or advance any one, or [ ]
disparage any other, faith or belief," Marsh v. Chambers, 463 U.S.
783, 794-95 (1983), we believe it fits within the Supreme Court’s
SIMPSON v. CHESTERFIELD COUNTY 3
requirements for legislative prayer. We therefore remand the case
with directions that the district court dismiss the complaint.
I.
A.
Chesterfield County, Virginia, a suburban jurisdiction south of
Richmond, has a population of approximately 280,000. The County
is governed by a Board of Supervisors composed of five elected rep-
resentatives. The Board of Supervisors — like the United States Con-
gress and many state and local legislative bodies — has adopted a
policy under which its public meetings include a non-sectarian invo-
cation. It instituted this practice in 1984, immediately after the
Supreme Court upheld legislative invocations under the First Amend-
ment’s Establishment Clause. See Marsh v. Chambers, 463 U.S. 783(1983). The County’s policy, tracking the language of Marsh, states
that each "invocation must be non-sectarian with elements of the
American civil religion and must not be used to proselytize or
advance any one faith or belief or to disparage any other faith or
belief."
On days when it meets, the Board conducts some business in the
afternoon, breaking for dinner at about 5:00. The evening session,
which begins at 7:00, includes most of the substantive work requiring
public hearings, and also provides an opportunity for citizens to
address the Board. The Board begins this evening session with a
"non-sectarian invocation" and the pledge of allegiance.
Instead of choosing a single chaplain to provide the invocations,
the Board invites religious leaders from congregations within Chester-
field County. The Board’s clerk maintains a record of such congrega-
tions, with addresses taken primarily from the phone book. Each
December, the clerk sends an invitation to these congregations,
addressed to the "religious leader." Sending these letters is designed
to foster widespread participation throughout the County and to facili-
tate planning. Those who reply are scheduled to give the invocation
on a first-come, first-serve basis.
4 SIMPSON v. CHESTERFIELD COUNTY
The 2003 list maintained by the clerk includes 235 congregations.
The bulk of them, but by no means all, are traditional Christian
churches. The Islamic Center of Virginia is in Chesterfield County,
and it is on the list. Imams associated with the Center have been
involved in giving invocations, including at a Board meeting shortly
after September 11, 2001. A Spanish-speaking Protestant church is on
the list too; the invocation on July 25, 2001, given by a minister of
that church, was split between Spanish and English. Several Jewish
congregations appear on the list, and a rabbi gave an invocation
before the Board. Roman Catholic and mainline Protestant churches
are well represented, but the list also includes Jehovah’s Witness con-
gregations, a number of Mormon churches, and many independent
churches.
This diversity reflects the Board’s requirement that prayers be
"non-sectarian." The magistrate judge noted that this principle was
generally satisfied: "As to the effect and/or impact of the invocations
. . . , they are but brief, benign pronouncements of simple values that
are not controversial nor confrontational but for, at most, mention of
specific Judeo-Christian references that are nevertheless clearly rec-
ognized as symbols of the universal values intended to be conveyed."
Simpson v. Chesterfield County Bd. of Supervisors, 292 F. Supp. 2d
805, 820 (E.D. Va. 2003). The County, seeking to avoid the slightest
hint of sectarianism, revised its invitation letter to the clergy. The let-
ter now directs clerics to avoid invoking the name of Jesus Christ, a
custom to which Christian clergy often had adhered when closing
their invocations in the past.1
B.
Cynthia Simpson, a resident of Chesterfield County, contacted the
clerk of the County Board in August 2002 seeking to be added to the
list of religious leaders available to give an invocation.2 Asked of
1
That this policy was changed subsequent to litigation is not signifi-
cant. Precisely the same policy revision was noted in Marsh itself, where
the complaint was dated December 1979 but the chaplain "removed all
references to Christ" in 1980. Marsh, 463 U.S. at 793 n.14.
2
The County argues that Simpson lacks standing to bring this suit. She
has never been denied the opportunity to address the County Board or to
SIMPSON v. CHESTERFIELD COUNTY 5
which religion she was a leader, Simpson "told [the deputy clerk] that
[she] was a witch." Simpson stated in her deposition that there was
no difference between the words "Wicca" and "witchcraft," but that
"I prefer the words witchcraft and witch myself, but that’s a personal
preference." She belongs to the Reclaiming Tradition of Wicca, and
is a member of a local group known as the Broom Riders Association.
Simpson claims eligibility to lead an invocation because she is a
"spiritual leader" who frequently takes a leadership position in con-
ducting the rites and worship for her group. Simpson identified her-
self as "a monotheistic witch" who "believe[s] in the goddess," in a
pantheistic sense. Although she acknowledged that in the course of
her worship gods and goddesses such as Kore, Diana, Hecate, and Pan
had been invoked, she explained that, to her, "they are aspects of the
one."
The deputy clerk referred Simpson’s request to the County Attor-
ney, who stated to Simpson and her attorneys that she was not eligible
to be added to the list. He observed that "Chesterfield’s non-sectarian
invocations are traditionally made to a divinity that is consistent with
the Judeo-Christian tradition," a divinity that would not be invoked by
practitioners of witchcraft.
The first letter that Simpson’s attorney sent to the County, mean-
while, pointed out the constitutional tension in denying witches the
opportunity to lead an invocation. She then suggested a solution:
"This is easily — and constitutionally — accomplished by eliminating
prayer as part of the meetings. If, however, the Board insists on hav-
ing prayers," it could not exclude Simpson.
Spurred to review its policy by Simpson’s repeated requests — the
first time the policy had ever been challenged — the County Board
affirmed it. After it became clear that the County would not recon-
practice her religion. The County also suggests that she lacks standing
because her proposed invocation would not, as she acknowledges, "in-
voke" a deity’s guidance, but would be more akin to inspirational, wel-
coming remarks. We agree with the magistrate judge that Simpson’s
exclusion from the list of those eligible to give an invocation is an injury
sufficient to satisfy standing requirements. See Simpson, 292 F. Supp. 2d
at 809.
6 SIMPSON v. CHESTERFIELD COUNTY
sider or make an exception for Simpson, she brought suit in the U.S.
District Court for the Eastern District of Virginia. She alleged that her
exclusion from the list amounted to a violation of the Establishment
Clause in that the County’s policy impermissibly advanced Judeo-
Christian religions. She also argued that the policy violated her rights
under the Free Exercise and Free Speech Clauses of the First Amend-
ment, as well as the Equal Protection Clause of the Fourteenth
Amendment.
The district court, on cross motions for summary judgment, granted
Simpson’s motion as to the Establishment Clause claim, finding that
the County had engaged in impermissible denominational preference.
It simultaneously granted the County’s motion as to the remaining
allegations. Simpson, 292 F. Supp. 2d at 823. Both parties have
appealed, and we consider the issues de novo. See Canal Ins. Co. v.
Distribution Servs., Inc., 320 F.3d 488, 491 (4th Cir. 2003).
II.
The parties here differ as to which lines of precedent govern this
case. Simpson rejects the County’s argument that the principles of
Marsh v. Chambers suffice to resolve the dispute. She instead offers,
and the district court accepted, Larson v. Valente, 456 U.S. 228(1982) (finding "denominational preference" to violate the Establish-
ment Clause), as well as Lemon v. Kurtzman, 403 U.S. 602, 612-13
(1971) (creating a general framework to evaluate Establishment
Clause challenges). We think her reliance on these cases is misplaced
and conclude that Marsh v. Chambers controls the outcome of this
case.
First, Marsh deals directly with legislative invocations, the specific
issue before us. Marsh defines legislative prayer as an act to "invoke
Divine guidance on a public body entrusted with making the laws
. . . ." Marsh, 463 U.S. at 792. The County’s invocations have been
explicitly tied to this notion since their inception in 1984.
Second, Marsh was decided after both Lemon and Larson, and it
declined to apply either of them. Marsh mentioned Lemon only once,
and then only to note that the court of appeals, which the Supreme
Court reversed, had relied on it. Id. at 786. The Court’s failure to
SIMPSON v. CHESTERFIELD COUNTY 7
apply this well-known precedent suggests that Lemon was not the
proper lens through which to view this particular dispute. Larson,
meanwhile, was not even referenced, despite being a particularly
fresh precedent, decided barely a year before Marsh itself. Even
though Marsh considered the question of clergy selection, which
Simpson claims is governed by Larson, the Court found Larson’s
denominational preference test no more dispositive than it found
Lemon.
Marsh’s refusal to adopt the framework of Lemon or Larson could
not have been inadvertent. This impression is confirmed by the dis-
sent’s heavy reliance on both cases, and its frustration that the Court
had refused to acknowledge their relevance. The dissent quite accu-
rately observed that "[t]he Court makes no pretense of subjecting
Nebraska’s practice of legislative prayer to any of the formal ‘tests’
that have traditionally structured our inquiry under the Establishment
Clause," id. at 796 (Brennan, J., dissenting), and asserted that "the
Nebraska practice, at least, would fail the Larson test." Id. at 801 n.11
(Brennan, J., dissenting). The dissent added that "if any group of law
students were asked to apply the principles of Lemon to the question
of legislative prayer, they would nearly unanimously find the practice
to be unconstitutional." Id. at 800-01 (Brennan, J., dissenting).
We are of course governed not by the dissent, but by the majority.
Thus we must follow the rubric announced in Marsh itself, and not
the tests it rejected, in the limited context of legislative prayer. We do
not disrespect Lemon or Larson by so doing. We simply recognize
that their guidance, though generally applicable to Establishment
Clause disputes, does not extend to the present controversy. The
Court itself recognized as much, stating that in Marsh it "did not even
apply the Lemon ‘test.’" Lynch v. Donnelly, 465 U.S. 668, 679 (1984).
See also Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987) (noting
that Marsh had not applied the Lemon test). Marsh, in short, has made
legislative prayer a field of Establishment Clause jurisprudence with
its own set of boundaries and guidelines. We therefore agree with the
Tenth Circuit, considering a similar challenge to a legislative prayer
policy, that "the mainline body of Establishment Clause case law pro-
vides little guidance for our decision in this case. Our decision,
instead, depends on our interpretation of the holding in Marsh." Sny-
8 SIMPSON v. CHESTERFIELD COUNTY
der v. Murray City Corp., 159 F.3d 1227, 1232 (10th Cir. 1998) (en
banc).3
Third, applying Marsh here follows this circuit’s case law. The
magistrate judge, during oral argument, remarked that "[s]everal
courts, including our own Fourth Circuit, want to escape somewhat
of Marsh." This is incorrect. Fourth Circuit case law demonstrates not
an intent to escape Marsh but a determination to apply it as the
Supreme Court has directed. Most recently, our decision in Wynne v.
Town of Great Falls, 376 F.3d 292 (4th Cir. 2004), found a Town
Council’s practice explicitly advancing exclusively Christian themes
to be unconstitutional. Wynne reached this conclusion by applying
Marsh, unequivocally signaling thereby that Marsh provided the
appropriate rubric for questions of this sort.
Moreover, even when we have declined to apply Marsh, we have
done so in a way that clearly indicates its appropriate application to
the present case. For instance, in North Carolina Civil Liberties
Union Legal Foundation v. Constangy, 947 F.3d 1145, 1148 (4th Cir.
1991), we declined to apply Marsh for the simple reason that judges
praying from the bench did not fit within the ambit of the Court’s dis-
cussion of legislative prayer. Likewise, Mellen v. Bunting, 327 F.3d
355, 370 (4th Cir. 2003), did not apply Marsh because "the supper
prayer [at a state-sponsored university] does not share Marsh’s
‘unique history.’"
In short, this case squarely presents questions concerning legisla-
tive prayer. To ignore Marsh, when the Supreme Court explicitly tied
3
Simpson claims that the Court modified Marsh in County of Alle-
gheny v. American Civil Liberties Union, 492 U.S. 573 (1989). We rec-
ognize, as the court did in Wynne, that Allegheny’s language was
"carefully considered" and "must be treated as authoritative." Wynne, 376
F.3d at 298 n.3 (internal quotation omitted). That language, however,
does not operate to invalidate the County’s policy, because that policy
does "not demonstrate a preference for one particular sect or creed." Alle-
gheny, 492 U.S. at 605. Allegheny concerned religious holiday displays,
referencing Marsh to confirm that Marsh did not apply in that context.
Nothing in Allegheny suggests that it supplants Marsh in the area of leg-
islative prayer.
SIMPSON v. CHESTERFIELD COUNTY 9
Marsh to the domain of legislative prayer, would be to ignore the
Supreme Court’s own directions. We therefore proceed to apply the
principles of Marsh to the questions presented in this case. We shall
first address the prayers themselves and then take up the aspect of the
County’s policy governing clergy selection.
III.
A.
Based on the long history of legislative prayer in Congress, Marsh
concluded that non-sectarian legislative prayer generally does not vio-
late the Establishment Clause. Marsh, 463 U.S. at 793-95. Although
Simpson aims much of her challenge at the selection of clergy, the
invocations themselves, as part and parcel of the unitary policy under
attack, warrant our examination because they are what the general
public sees and hears. In other words, "[w]hat matters under Marsh
is whether the prayer to be offered fits within the genre of legislative
invocational prayer that ‘has become part of the fabric of our society’
. . . ." Snyder, 159 F.3d at 1233 (quoting Marsh, 463 U.S. at 792). As
Marsh teaches, legislative invocations perform the venerable function
of seeking divine guidance for the legislature. As such, these invoca-
tions constitute "a tolerable acknowledgment of beliefs widely held
among the people of this country," being as we are "‘a religious peo-
ple whose institutions presuppose a Supreme Being.’" Marsh, 463
U.S. at 792 (quoting Zorach v. Clauson, 343 U.S. 306, 313 (1952)).
The Court also recognized that legislative invocations comport with
the Establishment Clause not only because that tradition is ancient,
but because invocations are intended to harmonize broadly "‘with the
tenets of some or all religions.’" Id. (quoting McGowan v. Maryland,
366 U.S. 420, 442 (1961)). Legislative invocations thus belong
among "[t]hose government acknowledgments of religion [that] serve,
in the only ways reasonably possible in our culture, the legitimate sec-
ular purposes of solemnizing public occasions, expressing confidence
in the future, and encouraging the recognition of what is worthy of
appreciation in society." Lynch, 465 U.S. at 693 (O’Connor, J., con-
curring).
Additionally, it mattered in Marsh that the audience during legisla-
tive invocations consists of "adult[s], presumably not readily suscepti-
10 SIMPSON v. CHESTERFIELD COUNTY
ble to religious indoctrination or peer pressure." Marsh, 463 U.S. at
792 (internal quotations and citations omitted). This contrasts greatly
with the Court’s concern with, for instance, school children. See, e.g.,
Lee v. Weisman, 505 U.S. 577, 596-97 (1992) (comparing the "atmo-
sphere at the opening of a session of a state legislature where adults
are free to enter and leave" with public school functions like gradua-
tions). See also School Dist. of Abington Tp. v. Schempp, 374 U.S.
203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).
Marsh also considered, and found constitutionally acceptable, the
fact that the prayers in question fit broadly within "the Judeo-
Christian tradition." Marsh, 463 U.S. at 793. The Supreme Court
pointedly declined to discount the prospect that such prayer can aid
public bodies in the performance of their duties. Id. at 792. Instead,
it recognized the capacity of legislative invocations to bring the unify-
ing aspects of our heritage to the difficult task of public deliberation.
See, e.g., id. at 786, 791. Simpson’s position would essentially repeal
this understanding.
B.
In recognizing the value of invocations, Marsh did not suggest that
there are no limits on the practice of legislative prayer. Rather, the
Court stated that a practice would remain constitutionally unremark-
able where "there is no indication that the prayer opportunity has been
exploited to proselytize or advance any one, or to disparage any other,
faith or belief." Id. at 794-95.
Our recent decision in Wynne is illustrative. In Wynne, sectarian
references in invocations were far more than occasional or incidental.
Even a perfunctory reading of the prayers reveals their pervasively
and exclusively sectarian nature. In Great Falls, "the Town Council
insisted upon invoking the name ‘Jesus Christ’" in an exclusive man-
ner in prayer "in which the Town’s citizens participated." Wynne, 376
F.3d at 301 & n.7. Town leaders made plain that they intended to
begin meetings with elements of what can only be described as Chris-
tian worship. See id. at 295 (quoting the mayor as stating that "[t]his
is the way we’ve always done things and we’re not going to change").
In finding this practice unconstitutional, the court held that Marsh
precluded local legislatures from improperly exploiting "a ‘prayer
SIMPSON v. CHESTERFIELD COUNTY 11
opportunity’ to ‘advance’ one religion over others." Id. at 298 (quot-
ing Marsh, 463 U.S. at 794). Wynne was concerned that repeated
invocation of the tenets of a single faith undermined our commitment
to participation by persons of all faiths in public life. For ours is a
diverse nation not only in matters of secular viewpoint but also in
matters of religious adherence. Advancing one specific creed at the
outset of each public meeting runs counter to the credo of American
pluralism and discourages the diverse views on which our democracy
depends.
The facts of Wynne, however, contrast sharply with those in the
present case. The insistent sectarianism of the Great Falls prayers, see
id. at 294-96 & n.2, violated even the spacious boundaries set forth
in Marsh. Chesterfield’s policy, adopted in the immediate aftermath
of Marsh, echoes rather than exceeds Marsh’s teachings. The County
never insisted on the invocation of Jesus Christ by name, as the Town
Council in Great Falls did. Id. at 301. In fact, Chesterfield has aspired
to non-sectarianism and requested that invocations refrain from using
Christ’s name or, for that matter, any denominational appeal.
Reflecting the effort to include diverse creeds, Chesterfield has had
a wide variety of prayers, the richness of which is quite revealing.
Clerics from multiple faiths and traditions have described divinity in
wide and embracive terms — "Lord God, our creator," "giver and sus-
tainer of life," "the God of Abraham, Isaac and Jacob," "the God of
Abraham, of Moses, Jesus, and Mohammad," "Heavenly Father,"
"Lord our Governor," "mighty God," "Lord of Lords, King of Kings,
creator of planet Earth and the universe and our own creator." Ches-
terfield’s openness to this ecumenism is consonant with our character
both as a nation of faith and as a country of free religious exercise and
broad religious tolerance.
Moreover, Chesterfield, unlike Great Falls, did not invite the citi-
zenry at large to participate during its invocations. Board members
made clear in depositions that the invocation "is a blessing . . . for the
benefit of the board," rather than for the individual leading the invo-
cation or for those who might also be present. In other words, Ches-
terfield’s invocations are "directed only at the legislators themselves,"
as the court in Wynne explained that they should be. Id. at 302.
12 SIMPSON v. CHESTERFIELD COUNTY
Bearing in mind the differences between Chesterfield’s practices
and those found wanting in Wynne, it is hard to fault the Board for
its attempt to foster inclusiveness in invocations. Understood in this
manner, Chesterfield’s invocation policy embodies the principle that
religious expression can promote common bonds through solemnizing
rituals, without producing the divisiveness the Establishment Clause
seeks rightly to avoid. We therefore conclude that the content of the
invocations given at County Board meetings has not "crossed the con-
stitutional line." Id. at 298. Rather, the restraints made plain in the
Board’s policy and respected by those who lead invocations ensure
that the prayers do not "proselytize or advance any one, or [ ] dispar-
age any other, faith or belief," Marsh, 463 U.S. at 794-95, and there-
fore are constitutionally sound.
IV.
A.
Simpson argues that even if the invocations themselves are not
objectionable, the selection process for those who lead them is. More
specifically, she objects to her own exclusion as a potential prayer-
giver. Her inability to participate follows from the County’s policy,
which allows only monotheistic congregations to add their religious
leaders to the list of those eligible to give an invocation.
We again apply the principles announced in Marsh. In that case,
the Supreme Court considered the chaplaincy of the Nebraska legisla-
ture, a position with a state-paid salary which for some sixteen years
had been held by a single Presbyterian minister. The Court had no
concerns with the public funding, which was "grounded in historic
practice initiated . . . by the same Congress that drafted the Establish-
ment Clause of the First Amendment." Id. at 794.
Nor was the Court persuaded that the selection of the minister from
one denomination, to the exclusion of other clerics, made a constitu-
tional difference. So long as the annual retention of a chaplain did not
"ste[m] from an impermissible motive," then "his long tenure does not
in itself conflict with the Establishment Clause." Id. at 793-94. Indi-
cating the latitude retained by legislatures, however, the Court did not
remand for a determination as to whether there had been such an "im-
SIMPSON v. CHESTERFIELD COUNTY 13
permissible motive." Instead it simply noted that the Nebraska legisla-
ture had not strayed beyond permissible bounds.
In upholding the practice at issue in Marsh, the Court relied heavily
upon congressional precedent. It noted that only three days after
authorizing paid chaplains for each House of Congress, that same
First Congress agreed on the final form of the Bill of Rights. Id. at
788. "[T]he practice of opening sessions with prayer has continued
without interruption ever since that early session of Congress." Id.Marsh also indicated that acceptable practice was not limited to the
selection of a single minister, as Nebraska had done. In fact, Con-
gress’s own method of selecting the prayer giver has not remained
constant. Marsh noted that although Congress has usually appointed
its chaplains, like the Nebraska legislature, it for some time "aban-
doned th[at] practice . . . in favor of inviting local clergy to officiate."
Id. at 789 n.10 (citing Cong. Globe, 35th Cong., 1st Sess. 14, 27-28
(1857)). This latter system, also part of what the Court saw as a prac-
tice "continu[ing] without interruption" since the First Congress, id.
at 788, mirrors the system adopted by Chesterfield County.
In noting the Presbyterian identity of the chaplain in Marsh, the
Court recognized the reality that any choice of minister would reflect,
if not denominational preference, then at least denominational aware-
ness. Id. at 793. A chaplain by definition is a member of one denomi-
nation or faith. Yet this did not cause the Court in Marsh to void the
practice of the Nebraska legislature. A party challenging a legislative
invocation practice cannot, therefore, rely on the mere fact that the
selecting authority chose a representative of a particular faith, because
some adherent or representative of some faith will invariably give the
invocation.
B.
The principles set forth in Marsh work to sustain the County’s
clergy selection policy. The fact that Chesterfield’s invocations are
not given by a single, paid chaplain does not deprive the County of
Marsh’s protection. Indeed, the selection aspect of the practice here
is in many ways more inclusive than that approved by the Marsh
Court. Ministers in Chesterfield, unlike in Marsh, are not paid with
public funds. In contrast to Marsh’s single Presbyterian clergyman,
14 SIMPSON v. CHESTERFIELD COUNTY
the County welcomes rabbis, imams, priests, pastors, and ministers.
Chesterfield not only sought but achieved diversity. Its first-come,
first-serve system led to prayers being given by a wide cross-section
of the County’s religious leaders.4
Moreover, any particular cleric who leads an invocation in Chester-
field is self-selected. The Nebraska legislature chose its chaplain
itself, but the Chesterfield Board does not even know the names of
clerics, since invitations are sent to congregations, addressed only to
the "religious leader." The County has no ability to dictate selection;
the clergy itself controls it by choosing to respond or not.
Simpson regards the County’s inclusiveness as a negative, because
in moving beyond Marsh’s approval of a single Presbyterian minister,
4
Simpson nonetheless complains that the cross-section of religious
leaders failed to include her. She says the County’s refusal to allow her
to lead an invocation was not due solely to the fact that she was an
acknowledged pantheist. She notes that one County Board member was
quoted in the press as stating, "It is a mockery. It is not any religion I
would subscribe to." A second Board member was quoted in an October
5, 2002, article as saying, "I hope she’s a good witch like Glenda," and
"There is always Halloween." This Board member later explained that
she made these comments immediately after returning to the Board after
two months of maternity leave. During her leave, she had been targeted
by the "World Church of the Creator about being a woman in office." At
this point, during the commotion of returning to work as a Board mem-
ber, another member of the Board briefly mentioned to her that a constit-
uent who was a witch had requested permission to lead an invocation.
Without then knowing who Simpson was or even what Wicca was, she
was contacted by a journalist less than a day later and gave the flippant
responses noted above. In her deposition, the Board member acknowl-
edged that those statements "were not respectful of Wiccans" and
explained that her jesting reference to Halloween came simply because
the month of October — when the interview occurred — makes such
images readily available.
Such statements, even if they were off the cuff and made in jest,
undermine the respect that is due to any citizen. On the other hand, such
ill-advised remarks do not override the fact that the County seriously
considered Simpson’s request and, as described at length herein, adopted
an indisputably broad and inclusive legislative invocation practice.
SIMPSON v. CHESTERFIELD COUNTY 15
the County has not also chosen to go beyond the monotheistic tradi-
tion. But neither Marsh nor our case law bars this approach in the leg-
islative invocation context. The plaintiff in Wynne, for instance, did
not challenge the prayer-giver, even though she knew that her request
— to substitute numerous references to "Jesus Christ" with something
general, like "God," see Wynne, 376 F.3d at 296 — would still allow
prayers to be given by the same representatives who gave the sectar-
ian prayers to which she had objected.
The Supreme Court, elaborating on the proscriptions in Marsh, has
noted that
in Marsh itself, the Court recognized that not even the
‘unique history’ of legislative prayer can justify contempo-
rary legislative prayers that have the effect of affiliating the
government with any one specific faith or belief. The legis-
lative prayers involved in Marsh did not violate this princi-
ple because the particular chaplain had ‘removed all
references to Christ.’
County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 603
(1989) (internal citations omitted). The Court, neither in Marsh nor
in Allegheny, held that the identity of the prayer-giver, rather than the
content of the prayer, was what would "affiliat[e] the government
with any one specific faith or belief." Chesterfield has likewise made
plain that it was not affiliated with any one specific faith by opening
its doors to a very wide pool of clergy. The Judeo-Christian tradition
is, after all, not a single faith but an umbrella covering many faiths.
We need not resolve the parties’ dispute as to its precise extent, as
Chesterfield County has spread it wide enough in this case to include
Islam. For these efforts, the County should not be made the object of
constitutional condemnation.
It would, of course, be possible for any court to pick fault with any
elected body’s selection of clergy. While deference under Marsh is
not unlimited, too much judicial fine-tuning of legislative prayer poli-
cies risks unwarranted interference in the internal operations of a
coordinate branch. The Chesterfield policy of clergy selection may
not encompass as much as Simpson would like, and were it to be
applied beyond the "unique" and limited context of legislative prayer,
16 SIMPSON v. CHESTERFIELD COUNTY
see Marsh, 463 U.S. at 791, it may not encompass as much as Larson
would require. But that context is all important, for if Marsh means
anything, it is that the Establishment Clause does not scrutinize legis-
lative invocations with the same rigor that it appraises other religious
activities. At oral argument, counsel for Simpson tried to equate the
selection of a cleric with the selection of a county assessor. It is
unsurprising, however, that scrutiny of governmental actions outside
the realm of legislative prayer, such as ordinary hiring practices for
government jobs, might follow different standards. Chesterfield has
followed the standards that control — those of Marsh.
C.
Simpson’s attempt to make the greater inclusiveness of the Ches-
terfield policy the very basis of its invalidation would achieve a par-
ticularly perverse result. For it would push localities intent on
avoiding litigation to select only one minister from only one faith. We
do not believe Marsh intended to mandate such exclusivity. It is true
that Nebraska hired only one Presbyterian minister for sixteen years.
But nothing in Marsh says that legislative or local governmental
bodies must have a single minister or chaplain drawn from only one
denomination. Marsh’s caution against "impermissible motives" does
not fasten on local governments a limitation to a prayer-giver from
one religious view. This would have the consequence of making
America and its public events more insular and sectarian rather than
less so.
In seeking to invalidate the Chesterfield system, Simpson effec-
tively denies the ecumenical potential of legislative invocations, and
ignores Marsh’s insight that ministers of any given faith can appeal
beyond their own adherents. Indeed, Marsh requires that a divine
appeal be wide-ranging, tying its legitimacy to common religious
ground. See Marsh, 463 U.S. at 786, 792. Invocations across our
country have been capable of transcending denominational bounda-
ries and appealing broadly to the aspirations of all citizens. As Marsh
and other cases recognize, appropriately ecumenical invocations can
be "solemnizing occasions" that highlight "beliefs widely held." See,
e.g., Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301, 2322
(2004) (O’Connor, J., concurring in judgment); Allegheny, 492 U.S.
SIMPSON v. CHESTERFIELD COUNTY 17
at 625 (O’Connor, J., concurring in part); Lynch, 465 U.S. at 693(O’Connor, J., concurring).
We cannot adopt a view of the tradition of legislative prayer that
chops up American citizens on public occasions into representatives
of one sect and one sect only, whether Christian, Jewish, or Wiccan.
In private observances, the faithful surely choose to express the
unique aspects of their creeds. But in their civic faith, Americans have
reached more broadly. Our civic faith seeks guidance that is not the
property of any sect. To ban all manifestations of this faith would
needlessly transform and devitalize the very nature of our culture.
When we gather as Americans, we do not abandon all expressions of
religious faith. Instead, our expressions evoke common and inclusive
themes and forswear, as Chesterfield has done, the forbidding charac-
ter of sectarian invocations.
V.
Simpson also raised a challenge to the County’s practice under the
Free Exercise and Free Speech Clauses of the First Amendment and
the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution. We affirm the magistrate judge’s grant of
summary judgment to the County on these claims.
The district court correctly concluded that "the issue of whether
[Simpson] has been denied her full, free, and equal right to express
and exercise her religious beliefs is subject to a unitary analysis."
Simpson, 292 F. Supp. 2d at 818 (citing Columbia Union College v.
Clarke, 159 F.3d 151, 155 n.1 (4th Cir. 1998)). Correctly adhering to
Supreme Court precedent, the district court also found that this issue
turns on the characterization of the invocations as government speech:
The avowed purpose of the invocation is simply that of a
brief pronouncement of simple values presumably intended
to solemnize the occasion. The invocation is not intended
for the exchange of views or other public discourse. Nor is
it intended for the exercise of one’s religion . . . . The con-
text, and to a degree, the content of the invocation segment
is governed by established guidelines by which the Board
18 SIMPSON v. CHESTERFIELD COUNTY
may regulate the content of what is or is not expressed when
it "enlists private entities to convey its own message."
Simpson, 292 F. Supp. 2d at 819 (internal citations omitted) (quoting
Rosenberger v. Rector, 515 U.S. 819, 833 (1995)).
We therefore agree with the district court’s determination that the
speech in this case was government speech "subject only to the pro-
scriptions of the Establishment Clause." Id. at 820. In light of our con-
clusion that none of the Establishment Clause’s proscriptions were
transgressed here, the standards for challenges to government speech,
properly applied by the district court, require that Simpson’s other
claims must be rejected.
For these reasons, the judgment of the district court is affirmed in
part, reversed in part, and remanded with directions to dismiss the
complaint.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH DIRECTIONS
NIEMEYER, Circuit Judge, concurring:
I am pleased to join Judge Wilkinson’s fine opinion. I write sepa-
rately only to clarify an implicit argument in the opinion, supra at 12,
which, if recognized explicitly, demonstrates conclusively the propri-
ety of relying on Marsh v. Chambers, 463 U.S. 783, 793 (1983), to
dispose of the case before us.
It is well-accepted that the analysis for scrutinizing the govern-
ment’s own speech under the First Amendment is different from and
more relaxed than the analysis for scrutinizing government prohibi-
tions or impositions of speech on the people. See Bd. of Regents of
the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000); id.
at 235 ("Where the [State] University speaks, either in its own name
through its regents or officers, or in myriad other ways through its
diverse faculties, the analysis likely would be altogether different").
This is so because "when the State is the speaker, it may make
content-based choices." Rosenberger v. Rector & Visitors of Univ. of
SIMPSON v. CHESTERFIELD COUNTY 19
Va., 515 U.S. 819, 833 (1995). Similarly, the analysis for scrutinizing
the government’s own prayer under the First Amendment is different
from and more relaxed than the analysis for scrutinizing government
prescriptions or proscriptions of prayer for the people. See Allegheny
Co. v. Greater Pittsburgh ACLU, 492 U.S. 573, 603 n.52 (1989)
("Legislative prayer does not urge citizens to engage in religious prac-
tices, and on that basis could well be distinguishable from an exhorta-
tion from government to the people that they engage in religious
conduct") (emphasis added). These distinctions flow from the struc-
ture of the Constitution itself, under which "We the People" insist on
the prohibition of various governmental intrusions on the people’s lib-
erty.
Thus, when a governmental body engages in prayer for itself and
does not impose that prayer on the people, the governmental body is
given greater latitude than when the government imposes prayer on
the people. When the "people" are involved, the Supreme Court has
held that the Establishment Clause "guarantees that government may
not coerce anyone to support or participate in religion or its exercise,
or otherwise act in a way which establishes a state religion or reli-
gious faith, or tends to do so." Lee v. Weisman, 505 U.S. 577, 587
(1992) (emphasis added) (citations and internal quotation marks omit-
ted). It is a cornerstone principle of our Establishment Clause juris-
prudence that "it is no part of the business of government to compose
official prayers for any group of the American people to recite as a
part of a religious program carried on by government." Engel v.
Vitale, 370 U.S. 421, 425 (1962) (emphasis added); see also Weis-
man, 505 U.S. at 589 ("The First Amendment’s Religion Clauses
mean that religious beliefs and religious expression are too precious
to be either proscribed or prescribed by the State").
But when members of a governmental body participate in a prayer
for themselves and do not impose it on or prescribe it for the people,
the religious liberties secured to the people by the First Amendment
are not directly implicated, and the distinct, more tolerant analysis
articulated in Marsh governs. Marsh holds, as Judge Wilkinson ably
articulates in his opinion for the court, that a governmental body may
select and say nondenominational prayers for the purpose and benefit
of that body so long as the prayers do not "proselytize or advance any
one, or . . . disparage any other, faith or belief." 463 U.S. at 794-95;
20 SIMPSON v. CHESTERFIELD COUNTY
cf. Rust v. Sullivan, 500 U.S. 173, 192-200 (1991) (holding that the
government may control the content of its speech).
Ever since Marsh, the Supreme Court has continued to recognize
the distinction between prayer engaged in by the government for itself
and prayer imposed on the people, subjecting the latter form of prayer
to heightened scrutiny. In Allegheny County v. Greater Pittsburgh
ACLU, for example, the Court explicitly relied on this distinction:
It is worth noting that just because Marsh sustained the
validity of legislative prayer, it does not necessarily follow
that practices like proclaiming a National Day of Prayer are
constitutional. Legislative prayer does not urge citizens to
engage in religious practices, and on that basis could well
be distinguishable from the exhortation from government to
the people that they engage in religious conduct.
492 U.S. at 603 n.52 (emphasis added) (citation omitted).
Our recent decisions in Mellen v. Bunting, 327 F.3d 355 (4th Cir.
2003), and Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir.
2004), are fully consistent with the distinction made between legisla-
tive prayer and prayer for the people. In Mellen, we struck down a
prayer said at evening meals at the Virginia Military Institute, a state
college, when the prayer was composed and sponsored by state offi-
cials for "the people," i.e. the students during the meal hour. 327 F.3d
at 375. And in Wynne, we struck down a uniquely Christian legisla-
tive prayer designed for and participated in by the people. 376 F.3d
at 302. In response to the Town Council’s argument in Wynne that its
prayer should be approved under Marsh because it was given for the
Town Council, not the people, we said:
The Town Council briefly contends that the prayers at issue
here were "only and for the benefit of the Council mem-
bers." Given the record evidence and unchallenged factual
findings of the district court, that contention is simply unten-
able. The district court found that the Town Council specifi-
cally 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
SIMPSON v. CHESTERFIELD COUNTY 21
joined in the prayers by declaring "amen" and sometimes
"hallelujah" at the conclusion. . . . Finally in its June 2003
Resolution, 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 rec-
ognized that the town’s prayers are not just for 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, 376 F.3d at 301 n.7 (second emphasis added) (citations omit-
ted).
The undisputed evidence in the case before us readily distinguishes
this case from Wynne because the Chesterfield County Board of
Supervisors engages in prayer for itself and not for the people. As one
of the supervisors testified:
The purpose of an invocation is for the board members to
invoke God’s blessing upon our organization, upon our
meetings, and that is my understanding as to what the
board’s purpose is, is to serve the board, not the individual.
* * *
[I]t’s to have God’s blessing invoked on sometimes very
contentious hearings. It’s for our benefit.
(Emphasis added).
And this is precisely the type of prayer considered and upheld
against an Establishment Clause challenge in Marsh. See 463 U.S. at
792 (pointing out that the prayer there was "[t]o invoke Divine guid-
ance on a public body entrusted with making the laws"). Because the
prayers received and used by the Chesterfield County Board of Super-
visors were for the Board alone — to invoke God’s blessing upon that
organization — under Marsh, the Board’s selection and use of prayer
did not amount to "an ‘establishment’ of religion or a step toward
establishment." Id.