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Williamson v. Brevard County

United States Court of Appeals, Eleventh Circuit

July 8, 2019

DAVID WILLIAMSON, CHASE HANSEL, KEITH BECHER, RONALD GORDON, JEFFERY KOEBERL, CENTRAL FLORIDA FREETHOUGHT COMMUNITY, SPACE COAST FREETHOUGHT ASSOCIATION, HUMANIST COMMUNITY OF THE SPACE COAST, Plaintiffs - Counter Defendants - Appellees,
v.
BREVARD COUNTY, Defendant - Counter Claimant - Appellant.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:15-cv-01098-JA-DCI

          Before MARCUS, GRANT and HULL, Circuit Judges.

          MARCUS, CIRCUIT JUDGE

         Like many local governments, the Brevard County Board of County Commissioners opens its meetings with a religious invocation. These opening prayers are the subject of this litigation. A group of Secular Humanists and atheists challenge them as violating the Establishment Clause, arguing that the County has wrongfully barred them from offering invocations of their own.

         Legislative prayers occupy a unique position in the framework of Establishment Clause jurisprudence, primarily because, as the Supreme Court put it, an "unambiguous and unbroken history of more than 200 years" leaves "no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society." Marsh v. Chambers, 463 U.S. 783, 792 (1983). The invocation of Divine guidance in a public body charged with making laws is not a "step toward establishment [of religion]; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country." Id. Even though the government is generally prohibited from entangling itself in religious judgments or promoting religious belief, our courts have repeatedly upheld prayer at the opening of government meetings because of this long national tradition. Even sectarian prayer, presented in the language of a particular sect and even addressed to a particular deity, has been upheld as consonant with the Establishment Clause. Every step of the way, though, the courts have made clear that there are limits. Thus, the opportunity for prayer at the start of a legislative session may not be "exploited to proselytize or advance any one, or to disparage any other, faith or belief." Id. at 794-95. In this Circuit, we determine whether the opportunity has been exploited by applying a three-factor test that considers the identity of the invocation speakers, the process by which they are selected, and the nature of the prayers they deliver. Atheists of Fla., Inc. v. City of Lakeland, 713 F.3d 577, 591 (11th Cir. 2013).

         In this case, Brevard County has selected invocation speakers in a way that favors certain monotheistic religions and categorically excludes from consideration other religions solely based on their belief systems. Brevard County's process of selecting invocation speakers thus runs afoul of the Establishment Clause. As it stands, members of the Brevard County Board of Commissioners have plenary authority, on a rotating basis, to invite whomever they want to deliver invocations, with no consistent standards or expectation of inclusiveness. From their testimony, it is abundantly clear that most if not all of the Commissioners exercise their discretion in a way that discriminates among religions based on their beliefs, favoring some but not all monotheistic and familiar religious sects over those faiths that fall outside the "mainstream." Moreover, some religions are scrutinized by the Commissioners more closely, and others are even categorically excluded from consideration. Secular humanists are far from the only group viewed with disfavor. Thus, for example, some of the Commissioners and former Commissioners have testified unambiguously that they would not allow deists, Wiccans, Rastafarians, or, for that matter, polytheists to deliver prayers, and that they would have to think long and hard before inviting a Hindu, a Sikh, or a follower of a Native American religion. Nothing could be clearer from this record than that more than a few of the Commissioners rejected speakers based squarely on the nature of the religious beliefs they held.

         The Resolution that the Commission passed in response to the plaintiffs' requests to offer invocations only confirms our understanding that Brevard County's process of selecting invocation speakers is unconstitutional. As the Resolution notes, "individual Board members have predominantly selected clerics from monotheistic religions and denominations -- including Christian, Jewish and Muslim -- to present the invocation." But it does not stop there. The Resolution adds that the Board "in recognition of the traditional positive role faith-based monotheistic religions have historically played in the community," typically offers the cleric an opportunity to share upcoming events or other information about their religious group before the invocation.

         The discriminatory procedure for selecting invocation speakers followed in Brevard County is unconstitutional and it must be rejected. As a result, we have no occasion to reach further constitutional questions, including whether atheists and secular humanists must be allowed to deliver non-theistic invocations. Brevard County's current legislative prayer practices violate the command of the First Amendment. We need go no further today than to say this: in selecting invocation speakers, the Commissioners may not categorically exclude from consideration speakers from a religion simply because they do not like the nature of its beliefs.

         I.

         Brevard County is a political subdivision of Florida. Its legislative and governing body is the Brevard County Board of County Commissioners ("the Board"). The Board has five members ("the Commissioners"), each elected from a different single-member district. Its meetings are open to the public, carried live on cable television, and streamed online. They typically begin each session with a religious invocation. Other than the opening invocations, agenda items at Board meetings are secular in nature ("with extremely rare exceptions," we are told).

         Invocation speakers are invited for the specific purpose of making an opening prayer; they are typically volunteer clerics invited by staff members of the Commissioners. The five Commissioners take turns inviting the speakers. The work of contacting and scheduling speakers is generally done by County staff, using County phones or email services and the staff are paid by the County. Sometimes they have trouble finding someone to give the invocation so they fall back on holding a moment of silence instead. Commissioners and their staff do not review drafts of the invocations before they are given. At meetings, the invocation is usually the second item on the Board's printed agenda, following the "Call to Order." Typically the Commissioner who has invited the speaker will make an introduction, and the Board will ask the audience to stand "for a prayer and the Pledge of Allegiance."

         All of the invocations given before the Brevard County Board from January 1, 2010 through March 15, 2016 had at least some theistic content. That is, they all expressed a "belief in the existence of a god or gods." Webster's Third New International Dictionary 2370 (2002) ("theism"). More than that, they all contained specifically monotheistic content, meaning that they were in line with "the doctrine or belief that there is but one God." Id. at 1464 ("monotheism"). During this roughly six-year period, invocations preceded 195 Board meetings. All but seven of them were given by Christians or contained Christian content, including five by Catholic clerics and one each by Latter-Day Saints and Eastern Orthodox speakers. Of the seven non-Christian invocations, six were given by Jewish Rabbis, and one was a "generally monotheistic" invocation given by an Officer from the City of Melbourne in Brevard County. Often, but not always, invocations are given by clerics who are leaders of their religious congregations. Invocations have also been given by police officers, congressional staffers, a state judge, the Commissioners themselves, their staff, and a lay leader of the Church of Latter-Day Saints.

         The plaintiffs in this case are five individuals and three organizations. All five individual plaintiffs -- David Williamson, Chase Hansel, Keith Becher, Ronald Gordon, and Jeffery Koeberl -- identify as atheists and four of them also identify as Secular Humanists; all of them live in Brevard County, except for one who lives in Seminole County. According to the American Humanism Association, "Humanism is a progressive philosophy of life that, without theism and other supernatural beliefs, affirms our ability and responsibility to lead ethical lives of personal fulfillment that aspire to the greater good of humanity." Amended Stipulation of Facts Regarding Cross-Motions for Summary Judgment ("ASOF"), Doc. 83 at ¶ 86. Three of the Secular Humanist plaintiffs have been ordained as humanist clergy by the Humanist Society. The parties agree that the plaintiffs' beliefs "are strongly held and very important to them, having a place in their lives equal to the significance that theistic beliefs have in the lives of Christians, Jews, and adherents of other monotheistic faiths." Id. at ¶ 91. They also agree that "[a]ll the individual plaintiffs view their atheistic or Humanist beliefs as a 'religion' as defined under the law" and for Establishment Clause purposes. Id. at ¶ 92.

         In 2014, plaintiff David Williamson sent the Board two letters on letterhead from the Central Florida Freethought Community ("CFFC") -- one in May, and one in July. The first explained that the CFFC was "a local educational organization of more than two hundred members" and that "[o]ne of the organization's objectives is to educate the public on the need for equal treatment of non-believers and the value of Humanism; a world view which relies on reason and science as the best decision-making tools humankind has at its disposal." Doc. 55-6 at 66. The letter cited recent Supreme Court precedent requiring, in Williamson's view, that "a government's prayer practice must be 'nondiscriminatory' and it must make reasonable efforts to include invocations from all members of the community, regardless of their faith," and cited cases in which humanism had been treated as a religion under the First Amendment. Id. "Therefore," Williamson wrote, "we respectfully request the opportunity to offer invocations at your meetings." Id. (emphasis in original). The second letter noted that the Board had failed to respond to the first one, and repeated the same arguments at greater length, concluding with a "demand that Brevard County permit a member of [the Central Florida Freethought Community] to deliver an invocation." See id. at 69-71.

         In August of 2014, the Board responded explaining the purpose and tradition of invocations before Board meetings and telling the CFFC and Williamson that their proposal would not fit within the County Commission's tradition. The response read, in part, this way:

The invocation portion of the agenda is an opening prayer presented by members of our faith community. The prayer is delivered during the ceremonial portion of the County's meeting and typically invokes guidance for the County Commission from the highest spiritual authority, a higher authority which a substantial body of Brevard constituents believe to exist. The invocation is also meant to lend gravity to the occasion, to reflect values long part of the Country's heritage and to acknowledge the place religion holds in the lives of many private citizens in Brevard County.
Your website leads us to understand your organization and its members do not share those beliefs or values which, of course, is your choice under the laws of the United States. . . .
You or your Brevard members have the opportunity to speak for three minutes on any subject involving County business during the Public Comment portion of our meeting. . . . As a practical matter, there are no restrictions on what is said during those three minutes. . . . During that segment, members of your organization are free to speak their views and beliefs, or even a closing supplication.

Doc. 55-6 at 86-87.

         Over the course of the next year, various humanists, atheists, and outside groups with interests in the issue communicated with the Board. Plaintiff Ronald Gordon exchanged emails with Commissioner Trudie Infantini informing her that he was an atheist and offering to give an invocation. Reverend Ann Fuller, a humanist community minister associated with the Unitarian Universalist Church of Brevard, likewise offered to give an invocation. The Anti-Defamation League sent a letter to the Board expressing concern with its policies; the Board responded with a letter rejecting the suggestion that it ought to allow a humanist invocation: "[Y]our suggestion to allow atheists to provide the invocation would, in fact, show hostility toward the faith-based community . . . ." Americans United for Separation of Church and State ("AU") sent two letters, in January and May 2015, cosigned in each instance by the Freedom From Religion Foundation ("FFRF"), the ACLU, and the ACLU of Florida.

         The Board responded by adopting a resolution, Resolution 2015-101, on July 7, 2015: "A Resolution of the Brevard County Board of County Commissioners . . . Adopting A Formal Policy Relating to Traditional Ceremonial Pre-Meeting Prayer" ("the Resolution"). Doc. 55-7; see also ASOF ¶ 131. The Resolution began by noting the requests the Board had received and by observing that the Board had not adopted a formal policy relating to pre-meeting prayer. The Board chose to codify a policy that was "not hostile to faith-based religions and [did] not endorse secular humanism or non-belief over traditional faith-based religions comprised of constituents who believe in God." Doc. 55-7 at 3.

         The bulk of the Resolution's text comes in its "findings" section, which first recounts the County's tradition of pre-meeting invocations and provides some demographic data, but then proceeds to scrutinize the websites of the FFRF, AU, and CFFC. The Resolution highlights so-called "Godless quotes" posted on the organizations' sites, the organizations' stated goals concerning the separation of church and state, and, for CFFC, its "strategic[]" attempts at "offend[ing] faith-based religions in open forums in order to pressure the local government into closing the forum or censoring the content and exposing itself to liability." Id. at 3-10. The Resolution offers that allowing the humanists and atheists to speak only during the public comment period "reflects a longstanding practice of the Board to provide a limited public forum under the Public Comment section," which is not subject to censorship. Id. at 11.

         The Resolution presented a series of "conclusions" based on its findings, including that: "supplanting traditional ceremonial pre-meeting prayer . . . with an 'invocation' by atheists, agnostics or other persons represented by or associated with FFRF and [AU] could be viewed as County hostility toward monotheistic religions" because "displacing representatives of the minority faith-based monotheistic community . . . could be viewed as . . . Board endorsement of Secular Humanist and Atheist principles." Id. at 11-12. This was the case, the Board said, because of "the overwhelmingly secular nature of the Board's business meeting following the invocation" and because of "evidence suggesting that the requesting organizations are engaged in nothing more than a carefully orchestrated plan to promote or advance principles of Secular Humanism through the displacement or elimination of ceremonial deism traditionally provided by monotheistic clerics giving pre-meeting prayer." Id. at 12.

         Finally, the Resolution adopted an amendment governing opening invocations:

Secular invocations and supplications from any organization whose precepts, tenets or principles espouse or promote reason, science, environmental factors, nature or ethics as guiding forces, ideologies, and philosophies that should be observed in the secular business or secular decision making process involving Brevard County employees, elected officials, or decision makers including the Board of County Commissioners, fall within the current policies pertaining to Public Comment and must be placed on the Public Comment section of the secular business agenda. Pre-meeting invocations shall continue to be delivered by persons from the faith-based community in perpetuation of the Board's tradition for over forty years.

Id. at 12-13. Thus, as stipulated by the parties, the Resolution "adopted a formal policy that allows the traditional faith-based invocation prior to the beginning of the Board's secular business agenda and subsequent 'secular invocations' during the Public Comment section of that secular agenda." ASOF ¶ 133 (quotations omitted).

         This lawsuit was filed in the Middle District of Florida the same day the Board passed Resolution 2015-101, and the complaint was amended the following month to add details about the Resolution itself. The Amended Complaint raised six claims, alleging violations of the First Amendment's Establishment, Free Speech, and Free Exercise Clauses (Counts I, II, and III); the Fourteenth Amendment's Equal Protection Clause (Count IV); and the Equal Protection and Establishment Clauses of the Florida Constitution (Count V and VI). The Amended Complaint sought declaratory and injunctive relief, along with damages, fees, and costs. After extensive discovery, both sides moved for summary judgment. On September 30, 2017, the district court entered an order granting summary judgment to the plaintiffs on almost every issue -- technically granting in part and denying in part both motions, but awarding a clear victory to the plaintiffs.

         The district court's opinion began with the Establishment Clause. For starters, it found for the plaintiffs on the theory that the County had engaged in purposeful religious discrimination. The court concluded that the Establishment Clause requires members of all sects to be invited to offer invocations. The Brevard County Board, however, unlawfully limited the opportunity to pray "based on the beliefs of the would-be prayer giver." The trial court ruled similarly that the prayer regime authorized by ...


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