Brevard policy on invocations at commission meetings is unconstitutional

Federal appeals court rules in case

The Brevard County Commission will have to decide what its next step will be after the 11th U.S. Circuit of Appeals upheld a lower-court ruling, in finding that the commission's policy on choosing the people who offer invocations at its meetings is discriminatory. (Photo: TIM SHORTT/ FLORIDA TODAY)

BREVARD COUNTY, Fla. – A federal appeals court on Monday upheld a lower-court ruling that the Brevard County Commission illegally excluded representatives of atheist and other "nontheist" groups from giving invocations at the start of commission meetings.

Brevard County officials will be considering their next course of action in the case, which dates back to 2015, News 6 partner Florida Today reported.

The Atlanta-based 11th U.S. Circuit Court of Appeals on Monday unanimously ruled that the Brevard County Commission policy of using religious beliefs to determine who can offer invocations at public meetings is unconstitutional, discriminatory and a violation of religious freedom.

The ruling came in the case Williamson vs. Brevard County, which was brought by the Freedom from Religion Foundation, Americans United for Separation of Church and State, the American Civil Liberties Union and the ACLU of Florida on behalf of several nontheists whom county commissioners had barred from offering invocations. 

"The discriminatory procedure for selecting invocation speakers followed in Brevard County is unconstitutional, and it must be rejected," U.S. Circuit Judge Stanley Marcus wrote in the opinion. "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."

Marcus wrote that “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” in the First Amendment of the U.S. Constitution. 

In its 45-page opinion, the three-judge panel emphasized that government bodies can open their meetings with prayers.

But it said the Brevard County Commission policy improperly discriminated against certain groups.

Opening prayers are common at government meetings throughout Florida, from the Florida House and Senate to county commissions and city councils.

Because of rulings in this case, the Brevard County Commission has not had a prayer or invocation at the start of its meetings since November 2017. Instead, the County Commission has had a moment of silence at the beginning of its meetings.

Brevard County Communications Director Don Walker said the county attorney's office is weighing its options, and will present them to the County Commission for consideration, perhaps as early as the commission's meeting on Tuesday night.

Among the options are an additional appeal of the ruling. The County Commission also could decide to continue its current policy of having a moment of silence in lieu of a prayer or invocation; or could decide to open up the invocation to representatives of nontheist groups.

In a statement released Monday, Freedom from Religion Foundation Co-President Annie Laurie Gaylor said her organization is "delighted the appeals court has asserted that such blatant discrimination against nontheists cannot stand. Governmental bodies that open their meetings with invocations must not turn believers into insiders, and nonbelievers into outsiders, by excluding dissenting points of view."

Representatives of other litigating organizations expressed similar sentiments.

Americans United for Separation of Church and State Associate Legal Director Alex Luchenitser, who is lead attorney in the case, said: "Brevard County commissioners were using religion as the basis for discrimination by allowing only people of preferred faiths to offer invocations. Religious minorities and nonbelievers are equal members of society, and they must be treated equally by their elected officials. The court’s decision today made clear that no one should be excluded from civic affairs because of their beliefs about God."

Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, said that "there should never be a religious litmus test for participation in local government meetings. The Brevard County commissioners have been playing favorites with faith, and we’re pleased that, once again, the courts have told them that enough is enough."

The case was filed in 2015 to challenge the County Commission's policy of excluding nontheists from delivering invocations at board meetings.

The U.S. District Court for the Middle District of Florida in September 2017 agreed with the plaintiffs that the commissioners’ practice of excluding nontheists violated the U.S. Constitution.

Monday’s ruling said invocations were offered at 195 Brevard County Commission meetings from Jan. 1, 2010, through March 15, 2016, with all but seven given by Christians or containing Christian content. Six were given by Jewish rabbis, and one was described as "generally monotheistic."

The ruling focused on the process for selecting people to give the invocations, rather than details of the prayers.

"To be clear, the constitutional problem is not that the commission lacked a formal, written policy or that the selection of speakers was left to the discretion of individual commissioners," the ruling said. "The issue lies in how the commissioners exercised their discretion in practice. Brevard County’s haphazard selection process categorically excludes certain faiths — some monotheistic and apparently all polytheistic ones —based on their belief systems. Most commissioners do not appear to have employed belief-neutral criteria in selecting which invocation-givers to invite."

The ruling indicated that "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.' "  

The court barred the county from continuing the current speaker selection practices,  but did not order that the plaintiffs in the case be allowed to offer invocations.

The plaintiffs in this case include the Freedom from Religion Foundation chapter Central Florida Freethought Community and its director, David Williamson; the Space Coast Freethought Association and its president, Chase Hansel; the Humanist Community of the Space Coast and its president, Keith Becher; and Brevard County resident Ronald Gordon.