Written by Don Byrd

Brevard County (FL) officials were ordered to stop their practice of restricting invocation speakers at County board meetings only to those who profess a belief in God. A federal judge ruled late last week that the denial of requests by atheists to offer opening remarks at the government meetings is unconstitutional in light of their allowing citizens who believe in a higher power to participate in that way.

The U.S. Supreme Court upheld a legislative prayer practice in 2014 (Town of Greece v. Galloway), but the judge evaluating the Brevard County policies found significant differences between the cases. Particularly important was the fact that in Town of Greece, “the town made it clear that it would permit any interested residents, including nonbelievers, to provide an invocation,” whereas in Brevard County an explicit policy barred nontheists from giving an invocation. Such religious discrimination, the judge ruled, violates the Establishment Clause of the U.S. Constitution.

Here is an excerpt from the ruling:

What happens in Brevard County is a far cry from what happens in the town of Greece. Brevard County does not allow everyone to give an invocation. Instead, it limits the prayer opportunity to those it “deems capable” of doing so-based on the beliefs of the would-be prayer giver. And after Plaintiffs requested to give an invocation at a Board meeting, the County responded not with an attitude of inclusion but with an express statement and policy of exclusion.

[E]vidence clearly demonstrates that the County’s invocation practice runs afoul of the principles set forth in Marsh, Town of Greece, and Pelphrey. It reveals “impermissible motive” in the selection of invocation givers, and reflects a “policy of []discrimination,” as well as “purposeful discrimination” and “categorical[] exclusion” of certain potential invocation givers…

The judge declined to also find the practice of asking attendees at the county board meetings to stand for the invocation unconstitutionally coercive.

A handful of other legislative prayer cases could be headed to the U.S. Supreme Court soon, as appeals courts have differed somewhat in their attempts to apply Town of Greece in a variety of government meeting settings. Earlier this year, the 4th Circuit struck down a legislative prayer practice in Rowan County, NC that involved commissioners themselves giving the invocations, while the 6th Circuit upheld a somewhat similar practice in Jackson County, MI.