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.