A federal court on Sept. 30 struck down a Florida county’s divisive practice of refusing to allow non-theistic invocations at the start of the county commission’s meetings. The ruling was in response to a lawsuit brought by Americans United and allies.
The U.S. District Court for the Middle District of Florida ruled that the policy of Brevard County’s Board of Commissioners to allow only monotheistic, overwhelmingly Christian invocations violated both the U.S. and Florida Constitutions – due to the government’s favoring of certain faiths.
“‘[T]he great promise of the Establishment Clause is that religion will not operate as an instrument of division in our nation,’” wrote U.S. District Judge John Antoon II (quoting another case). “Regrettably, religion has become such an instrument in Brevard County. The County defines rights and opportunities of its citizens to participate in the ceremonial pre-meeting invocation during the County Board’s regular meetings based on the citizens’ religious beliefs. …[T]he County’s policy and practice violate the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 2 and 3 of the Florida Constitution.”
Americans United welcomed the ruling.
“It is unconstitutional for any governing body to discriminate against people who don’t believe in God,” said Alex J. Luchenitser, AU’s associate legal director and lead counsel in the case. “Yet that is exactly what Brevard County did through its invocation policy. We’re pleased that the court put an end to the county’s discriminatory practice.”
David Williamson, one of the plaintiffs in the case, told the newspaper Florida Today, “I’m very pleased with what I read in the decision. This was straight-up discrimination, in relegating us to second-class citizenship in denying us our participating in the invocations. We weren’t going to stand for it, and the judge agreed.”
Americans United and allies filed the federal lawsuit Williamson v. Brevard County in 2015 on behalf of several Brevard County residents and organizations after the county commissioners refused to allow residents to offer non- theistic invocations. A review of the county’s prayer practices found that during a six-year span that included 195 meeting invocations, 96 percent of them were given by Christian faith leaders and/or contained Christian content.
In 2014, Williamson, a U.S. Navy veteran and ordained Humanist celebrant, requested that a member of the Central Florida Freethought Community (CFFC, a Freedom From Religion Foundation chapter that he had founded) be permitted to offer an invocation. He was denied.
Later that year, Brevard residents Ronald Gordon, an atheist/agnostic U.S. Army veteran, and the Rev. Ann Fuller, a humanist and ordained Unitarian Universalist minister (who is not a plaintiff in the case), also requested opportunities to deliver invocations. They were also denied.
In early 2015, Americans United was joined by FFRF, the American Civil Liberties Union and the ACLU’s Florida chapter in writing to Brevard County on behalf of Williamson, Fuller and Chase Hansel, an atheist and president of the Space Coast Freethought Association, to request that the commissioners (who included newly elected members) give the non-theists an opportunity to offer an invocation. Not only were they denied, but commissioners later that year formalized a policy of allowing only monotheistic invocations.
After the policy was adopted and it became clear that the county was going to continue to discriminate against non-theists, AU and allies filed the lawsuit. The plaintiffs in the case include Williamson and CFFC; Gordon; Hansel and the Space Coast Freethought Association; and the Humanist Community of the Space Coast and its president Keith Becher.
Commissioners seemingly just assumed that the intent of the non-theists was to denigrate Christianity and other monotheistic religions. In reality, the non-theists had no intention of speaking ill of other faiths, nor were they seeking to stop others from giving monotheistic prayers. Rather, they simply wanted the chance to occasionally offer words of encouragement to their government officials and solemnize the meetings in a way that was inclusive to people of all faiths.
“People are often surprised by what they hear, and they like it,” Williamson previously told Church & State about the non-theistic invocations offered elsewhere in Florida. “All of the invocations conducted in central Florida thus far have been radically inclusive of everyone in attendance, celebrated the diversity of the community and acknowledged that together we can face the challenges that come our way. Humanistic values are shared by nearly everyone in attendance – whether they admit it or not.” (See “Atheists Excluded: Americans United And Allies Sue To Bring Real Inclusion To A Florida County’s Invocation Policy,” Sept. 2015 Church & State.)
In testimony provided to the court, Brevard Commissioners indicated they would not only object to invocations offered by non-theists, but also would prohibit (or struggle to permit) invocations by Muslims, Hindus, believers in polytheistic faiths, Wiccans and followers of Native American religions. Some commissioners went so far as to assert that their invocations were intended for the county’s Christian community only.
“This overwhelming, undisputed record [of] evidence clearly demonstrates that the County’s invocation practice runs afoul of the principles set forth in Marsh, Town of Greece, and Pelphrey,” the court wrote, referring to three federal court cases dealing with legislative prayer. (The first two were heard by the U.S. Supreme Court.)
The court continued: “The County’s assertion that a pre-meeting, solemnizing invocation necessarily requires that a ‘higher power’ be invoked is an overly narrow view of an invocation. …The Supreme Court noted in Town of Greece that ‘[a]s practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.’ These purposes and effects may have bases in monotheistic religions, but they are not necessarily dependent on ‘religion.’”
Williamson v. Brevard County is one of several legislative-prayer cases Americans United has been involved in since the U.S. Supreme Court’s Town of Greece v. Galloway decision in 2014 that allowed a New York town to open its meetings with prayers that were almost exclusively Christian. In response, AU, which litigated the Greece case, launched its Operation Inclusion campaign to ensure that local governments do not exploit that decision to discriminate against non-Christians, force citizens to participate in prayers or disparage citizens of other faiths.
One of the excerpts above from the Florida U.S. District Court’s opinion includes a quotation from a recent positive ruling in Lund v. Rowan County. In July, the 4th U.S. Circuit Court of Appeals struck down a North Carolina county’s practice of opening its meetings with exclusively Christian prayers given by commissioners themselves. The 4th Circuit found Rowan County’s practice to be unconstitutional, noting: “The [First Amendment] does not permit a seat of government to wrap itself in a single faith.”
First Liberty Institute, the Religious Right legal group representing Rowan County, said it will likely appeal the decision to the U.S. Supreme Court. Given that the 6th U.S. Circuit Court of Appeals in September came to a different conclusion in a Michigan case, Bormuth v. County of Jackson, ruling in favor of commissioners’ practice of offering exclusively Christian prayers themselves, the split decision by the Circuit Courts increases the likelihood that legislative prayer issues will eventually return to the U.S. Supreme Court (AU filed friend-of-the-court briefs in both the Lund and Bormuth cases, and AU Legal Director Richard B. Katskee participated in oral arguments in support of Peter Bormuth).
The issue in the Brevard case – whether non-theists may be excluded from the invocation opportunity – is different from the issues in the Michigan and North Carolina cases, however, so Supreme Court review of those cases may not affect the Brevard case.
The court’s decision in Williamson also referenced another similar legislative prayer case brought by Americans United. AU was joined by American Atheists in 2016 in filing Fields v. Speaker of the Pennsylvania House of Representatives, a case challenging the Pennsylvania House’s refusal to allow non-theists to offer secular invocations. A U.S. District Court in Pennsylvania in April allowed the case to proceed, noting: “When a legislature opens its door to guest chaplains and other prayer givers, it may not purposefully discriminate among them on the basis of religion. The complaint articulates a plausible violation of this tenet.”
Barry W. Lynn, AU’s then-executive director, summed up the inclusivity required of legislative prayers when the Fields case was filed: “When governmental bodies open their meetings with invocations, no viewpoints should be excluded. That includes people who do not believe in God. No one should be made to feel like a second-class citizen by their government.”