County residents, represented by the ACLU of Georgia, filed suit in federal court, challenging the practice by two County Commissions of opening meetings with sectarian prayers. Roughly 70% of the meetings’ invocations were sectarian (all Christian); and more than 90% of the clergy invited to deliver the prayers had been Christian. In September 2006, the district court held that the sectarian references in the prayers were "rather innocuous" and therefore were constitutionally permissible. The court also held that the commissions’ practice of using the Yellow Pages to create their lists of prayergivers was unobjectionable. The court did find, however, that one of the commissions had, in the past, engaged in impermissible religious discrimination by systematically excluding non-Christians from its list. The court awarded nominal damages for that violation, but it refused to issue an injunction because the discriminatory practice had ceased. The ACLU asked us to participate as co-counsel in appealing the decision to the U.S. Court of Appeals for the Eleventh Circuit; and the County cross-appealed on the nominal-damages award. We filed our opening appellate brief in September 2007. The County filed its combined response and cross-appeal brief in November 2007. We filed our reply and cross-response brief in January 2008. The Eleventh Circuit heard oral argument in August 2008. On October 28, 2008, the court issued its decision. The court unanimously (a) upheld the district court’s ruling that one of the commissions had, in the past, engaged in impermissible religious discrimination, (b) upheld the district court’s nominal-damages award, and (c) concluded that Plaintiffs had standing to sue. A majority of the court also upheld the district court’s ruling that the legislative prayer was constitutional. It reasoned that the Establishment Clause permits any legislative prayer, so long as the prayer opportunity has not been exploited to advance or disparage religion, and hence that the diversity of religions represented in the prayers and the lack of evidence of an impermissible motive in the commissions’ current method of selecting prayergivers were sufficient to render the prayers constitutional. The parties agreed not to seek review of the decision by the U.S. Supreme Court. The County agreed to pay the Plaintiffs attorney’s fees for the portion of the case that they won. The case was thus concluded.
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