Simpson v. Chesterfield County Bd. of Sup'Rs

• Decision Date: 14 April 2005
• Docket Number: No. 04-1045.,No. 04-1141.,04-1045.,04-1141.
• Citation: 404 F.3d 276
• Parties: Cynthia SIMPSON, Plaintiff-Appellee, v. CHESTERFIELD COUNTY BOARD OF SUPERVISORS, Defendant-Appellant. National Legal Foundation, Amicus Supporting Appellant. Cynthia Simpson, Plaintiff-Appellant, v. Chesterfield County Board Of Supervisors, Defendant-Appellee. National Legal Foundation, Amicus Supporting Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

404 F.3d 276

Cynthia SIMPSON, Plaintiff-Appellee, v. CHESTERFIELD COUNTY BOARD OF SUPERVISORS, Defendant-Appellant.

National Legal Foundation, Amicus Supporting Appellant.

Cynthia Simpson, Plaintiff-Appellant, v. Chesterfield County Board Of Supervisors, Defendant-Appellee.

National Legal Foundation, Amicus Supporting Appellee.

No. 04-1045.

No. 04-1141.

United States Court of Appeals, Fourth Circuit.

Argued: February 3, 2005.

Decided: April 14, 2005.

COPYRIGHT MATERIAL OMITTED

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, Washington, D.C., for Cynthia Simpson. Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia, for Amicus Supporting Chesterfield County Board of Supervisors.

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.

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, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), we believe it fits within the Supreme Court's 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 representatives. The Board of Supervisors — like the United States Congress and many state and local legislative bodies — has adopted a policy under which its public meetings include a non-sectarian invocation. It instituted this practice in 1984, immediately after the Supreme Court upheld legislative invocations under the First Amendment's Establishment Clause. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (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 Chesterfield County. The Board's clerk maintains a record of such congregations, 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 facilitate planning. Those who reply are scheduled to give the invocation on a first-come, first-serve basis.

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 congregations, 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 recognized 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 letter 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 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 conducting the rites and worship for her group. Simpson identified herself 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 Attorney, 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, meanwhile, 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 having 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 reconsider 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 Amendment, 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, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (finding "denominational preference" to violate the Establishment Clause), as well as Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (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, 103 S.Ct. 3330. 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, 103 S.Ct. 3330. The Court's failure to apply this well-known precedent suggests that Lemon...