This is a guest post by Ashley Terrazas, Smith Moore Leatherwood summer associate and rising third-year law student.

When is legislative prayer allowed in public meetings? Does it make a difference if the prayer is led by a legislator? When does a legislative prayer practice go from a solemn tradition to unconstitutional religious coercion?

A few weeks ago, the Fourth Circuit addressed these questions and more in its en banc decision in Lund v. Rowan County. By a vote of 10 to 5, the court held that the prayer practice of the Rowan County Board of Commissioners was repugnant to the First Amendment’s Establishment Clause.

Like many state and local legislative bodies around the country, the Rowan County Board of Commissioners had a tradition of beginning its meetings with prayer. Board members typically led the predominantly Christian prayers themselves. The members gave invocations on a rotating basis, and offered their prayers before reciting the Pledge of Allegiance. Facing the audience, they would usually invite all those present to pray with them, and the prayers almost always included Christian doctrinal references.

How legislator-led prayer like that in Rowan County fits into the Establishment Clause has been hotly debated in courtrooms (and legislative chambers) across the country. Thinkers and jurists generally agree, however, that a clear Establishment Clause standard for legislative prayer is difficult to distill.

In Lund, the Fourth Circuit reiterated what the Supreme Court has already articulated: that the constitutionality of legislative prayer is a “fact-sensitive” inquiry and that no one aspect of any given legislative prayer practice makes it unconstitutional. Rather, legislative prayer practices are to be evaluated as a whole, from the perspective of a “reasonable observer,” to determine if they constitute an impermissible state sponsorship of a particular religion. But there is a practical problem with such a subjective standard: because legislative prayer practices can vary so widely, it is hard for legislative bodies to know in advance whether their own unique prayer practices violate the Establishment Clause.

If Rowan County had invited Christian clergy or other Christians from the community to lead Christian prayers, would the legislative prayer practice be constitutional? Maybe.

If Rowan County were a more religiously diverse county that elected Board members of a variety of faiths to lead the invocations at its Board meetings, would the legislative prayer practice be constitutional? Maybe.

If the Board members had a policy or practice of delivering prayers that were less “sectarian” (i.e., that promoted Christian doctrine to a lesser degree), would the legislative prayer practice be constitutional? Maybe.

If the Board members never invited the audience members to pray with them, would the legislative prayer practice be constitutional? Maybe.

If the Rowan County Board of Commissioners only prayed before the legislative portions of their meetings rather than quasi-judicial portions, would the legislative prayer practice be constitutional? Maybe.

In other words, if a county wanted to continue with legislative prayer but did not want to mimic a practice that has already been blessed by the courts, what practices could it adopt? It is hard to discern from Lund what exactly Rowan County could have changed to make its legislative prayer practice constitutional. The court implied that the most constitutionally offensive aspect of the Board of Commissioners’ prayer practice was the fact that only Board members were allowed to lead the meeting invocations. However, the court declined to offer a more precise test of constitutionality.

For the time being, the Rowan County Board has modified its prayer practice to fit more closely to a practice already approved by the Supreme Court. The Board now invites a volunteer chaplain to give the opening prayer while facing the Board members, and the chaplain does not ask the audience to join in. Unless or until the Supreme Court reviews this decision, other legislators in the Fourth Circuit should likewise consider adjusting their public prayer practices to comply with the Lund opinion.

Rowan County has not yet petitioned the Supreme Court to review the case. A similar case, Bormuth v. County of Jackson, will soon be heard by the Sixth Circuit sitting en banc. Many are speculating that the Sixth Circuit will reach a different conclusion than the Fourth Circuit did in Lund, creating a circuit split on the constitutionality of legislator-led prayer ripe for Supreme Court review.

–Ashley Honeycutt Terrazas