By Jacob David Glenn
In early July 2019, the U.S. Court of Appeals for the Eleventh Circuit determined the practice of invocational prayer that traditionally preceded the Brevard County (Florida) Board of County Commissioners meetings “had run afoul of the Establishment Clause.” Several factors led the appeals court to its ruling, but the most clear-cut was the fact that “many members of the board exercised [their] plenary discretion in plainly unconstitutional ways.”
The Brevard County Board of County Commissioners
Located just east of Orlando, Fla., Brevard County is governed by the Brevard County Board of County Commissioners (the “board”). The board is comprised of five commissioners, each elected by single-member districts. The meetings are open to the public, broadcast via TV and live-stream and their content is secular in nature (aside from “extremely rare” occasions).
Giving rise to Williamson v. Brevard County was a controversy surrounding the board’s practice of beginning its sessions with a religious invocation — specifically, the speaker selection process. From January 2010 through March 2016, all of the invocations contained monotheistic content. During that period, all but seven of the 195 sessions began with an invocation from speakers falling under the greater Christian umbrella (and one Mormon “lay leader”).
On behalf of the Central Florida Freethought Community (CFFC), plaintiff David Williamson sent the board two letters in 2014, requesting that secular humanists be invited to deliver an invocation. The board responded with a letter declining CFFC’s request, explaining that “their proposal would not fit within the county commission’s tradition.” The letter elucidated how the custom “invokes guidance … [from] a higher authority which a substantial body of Brevard constituents believe to exist.” After examining CFFC’s website, the board determined CFFC does not share the “beliefs or values” for which the board created the ceremonial invocation practice.
Similar groups sent comparable requests to the board over the next year, leading the board to adopt resolution 2015-101 in July 2015. In response to the various “‘godless quotes’ posted on the [request-sending] organizations’ sites,” the resolution stipulated:
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 40 years.
The legislative effect of this stipulation was that the board gave itself license to determine what is or is not “faith-based” and discriminate accordingly. The language of the resolution obliged the Board to discern which beliefs and groups are substantive religions and which are mere sub-religious “philosophies.” Proceeding from those determinations, the board would then exclude some groups and beliefs from participation. In this way, the resolution actually insisted upon religious discrimination. That the resolution allocated time for the other religions to speak during the public comments section at the end of the sessions seems to have been an effort to adhere to non-discriminatory standards, but that inadvertently highlighted the problem.
The Impact of Marsh v. Chambers
The U.S. Supreme Court dealt with a similar case in Marsh v. Chambers (1983). This case set significant precedent for tackling controversies associated with prayer during government procedures. Chief Justice Warren Burger framed the issue in Marsh as “whether the Nebraska Legislature’s practice of opening each legislative day with a prayer by a chaplain paid by the state violates the Establishment Clause of the First Amendment.” There, the legislative sessions began with a “prayer offered by a chaplain who [was] chosen biennially by the executive board of the Legislative Council and paid out of public funds.” In Marsh, the chaplain in question, the Rev. Robert E. Palmer, was a Presbyterian minister who served for more than 15 years.  During that time, the Nebraska Legislature paid Rev. Palmer a salary of approximately $320 per month while in session.
The court in Marsh considered it significant that “the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom” since the founding of the country. However, the court balanced that consideration with an interest in ensuring that “[a] vested or protected right in violation of the Constitution” would not be preserved solely for the reason of “long use.”
In spite of the fact that one minister of a singular Christian denomination delivered prayers for the sessions for more than a decade, the court ruled that the facts of the case did not point to an impermissible advancement of a particular religious viewpoint. Rather, Rev. Palmer was apparently hired to serve contiguous sessions because “his performance and personal qualities were acceptable to the body appointing him.” In the eyes of the majority opinion in Marsh, this was not an unconstitutional exploitation of the invocational prayer practice for the purpose of advancing a specific religious agenda.
The Important Difference
The difference between Williamson and Marsh is that the Brevard County commissioners explicitly used authority to discriminate against religious views they found unfavorable. What is more, the Eleventh Circuit needed neither exegete nor psychoanalyze in order to discern violative action. The text of Resolution 2015-101 literally listed particular philosophical and religious beliefs and persuasions they meant to exclude from participation. Testimony of the commissioners revealed that they — acting in the capacity of their plenary power — would subject particular religious faiths to “closer scrutiny” and they revealed that other religions would be “flatly banned from giving an invocation.”  Additionally, some commissioners defined the invocational portion of their sessions as “being meant for only certain types of religions.”
Accordingly, the Eleventh Circuit ruled the Brevard County Board of County Commissioners’ invocation speaker selection practice unconstitutional. Contrast that with Marsh, where the U.S. Supreme Court held that a singular chaplain repeatedly selected was an indirect consequence of a practice that was not facially discriminatory. The case in Brevard County is clearly distinguishable in that the practice did facially discriminate on the basis of beliefs and religious affiliation — both statutorily and practically. The Eleventh Circuit concludes: “The commissioners have favored some religions over others and barred those they did not approve of from being considered. This plainly violates the principle of denominational neutrality found at the heart of the Establishment Clause.”
 Williamson v. Brevard Cty., No. 17-15769, 2019 U.S. App. LEXIS 20154, at *35 (11th Cir. Fla. July 8, 2019).
 Id. at *40.
 Id. at *6.
 Id. at *7.
 Id. at *8.
 Id. at *9-10.
 Id. at 10.
 Id. at *11.
 Id. at *14-15.
 Id. at *13-14.
 Marsh v. Chambers, 463 U.S. 783, 784 (1983).
 Id. at 784-85.
 Id. at 786.
 Id. at 791.
 Id. at 793-94.
 Id. at 793.
 Id. at 794-95.
 Williamson, 2019 U.S. App. LEXIS 20154, at *44-45.
 Id. at *44.
 Id. at *52.