Can a Virginia county board open meetings with Christian prayers that name Jesus Christ?

Plain-English summary

In December 2011, Attorney General Kenneth Cuccinelli answered Delegates Danny Marshall and Donald Merricks, who had asked whether opening invocations at Pittsylvania County Board of Supervisors meetings, "consistently Christian in nature" and referring to "Jesus Christ," violated the Establishment Clause. The ACLU had told the Board they did. The AG gave a careful "it depends" answer and steered the Board toward caution.

The starting point was Marsh v. Chambers, 463 U.S. 783 (1983), which upheld Nebraska's practice of paying a chaplain to open legislative sessions with prayer, and warned courts not to "parse the content of a particular prayer" unless the prayer opportunity was being "exploited to proselytize or advance any one, or to disparage any other, faith or belief." That language gave room for legislative prayer, including Judeo-Christian prayer, in principle.

The Fourth Circuit, which covers Virginia, had taken a stricter line in Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004), striking down a policy that required invocations naming Jesus Christ, and most recently in Joyner v. Forsyth County, 653 F.3d 341 (4th Cir. 2011), where a divided panel found a North Carolina county's facially neutral invocation policy unconstitutional because in practice the invocations were overwhelmingly sectarian and Christian. The Joyner majority gave two safe-harbor approaches: (1) ask ministers to use nonsectarian prayers (occasional sectarian references would be tolerated), or (2) cast the invitee net widely enough that "leaders of all faiths" actually appeared, so the overall mix did not promote any single faith.

The dissent in Joyner had argued the majority strayed from Marsh and Simpson, but the AG concluded that until the Supreme Court (or the Fourth Circuit en banc) corrected the majority's reading, Virginia localities should treat Joyner as binding and conform their invocation practices to it. The opinion stopped short of saying Joyner was right; it just said it was the law in the circuit.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Legislative prayer has been part of American practice since the First Congress, which adopted a policy of paid chaplains opening sessions with prayer days before sending the First Amendment to the states. Marsh relied heavily on that history to uphold legislative invocations against an Establishment Clause challenge. The opinion noted that the Eleventh Circuit had recently upheld legislative prayers led by rotating volunteers even though they contained clearly sectarian content.

The opinion drew on the Fourth Circuit's caselaw on legislative prayer:

• Wynne v. Town of Great Falls (2004): policy requiring invocations to name Jesus Christ was unconstitutional.
• Simpson v. Chesterfield County Board of Supervisors (2005): cited as precedent the Joyner majority may have been misapplying.
• Joyner v. Forsyth County (2011): a county's neutral invocation policy was unconstitutional as applied because in practice the prayers were overwhelmingly sectarian and identifiably Christian.

Common questions

Q: Were prayers that named Jesus Christ flatly unconstitutional in Virginia in 2011?
A: No. The AG's answer turned on context. Marsh allowed legislative prayer, and even sectarian references could be tolerated if they were "the occasional sectarian reference" within a broader, faith-diverse practice. The problem in Joyner and Wynne was a pattern that consistently promoted one faith.

Q: What was the safest practice for a Virginia local board after this opinion?
A: The opinion endorsed two Joyner safe harbors: (1) request that invocation speakers use nonsectarian prayer, accepting that the occasional sectarian reference would not invalidate the practice, or (2) maintain a genuinely diverse invitee list so that leaders of multiple faiths actually offered prayers across the year.

Q: Why did the AG defer to a case he seemed to disagree with?
A: Because Joyner was, at the time, binding precedent in the Fourth Circuit. The AG noted the strong dissent and suggested the majority opinion may have been misreading Marsh and Simpson, but recognized that, absent reversal, localities risked liability if they ignored it.

Q: Was Marsh v. Chambers still good law?
A: Yes, and the AG cited it heavily. Marsh upheld the tradition of legislative prayer and warned courts not to "embark on a sensitive evaluation or to parse the content of a particular prayer." The disagreement between Marsh and the Joyner majority was at the heart of the dissent in Joyner.

Q: Did this opinion settle the question for Pittsylvania County?
A: No. The opinion acknowledged it could not determine whether any specific prayer would violate the Constitution without the facts, and explicitly said its purpose was to provide "general guidance." It urged the Board to take Joyner seriously and adjust practice accordingly.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-105-Merricks-Marshall.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
December 9, 2011
Virginia Relay Services
800-828-1120
7-1-1

Kenneth T. Cuccinelli, II
Attorney General

The Honorable Danny W. Marshall, III
Post Office Box 439
Danville, Virginia 24543

The Honorable Donald W. Merricks
Post Office Box K
Chatham, Virginia 24543

Dear Delegates Marshall and Merricks:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire regarding the constitutional limits on public prayer at meetings of the Pittsylvania County Board of Supervisors. Specifically, you ask whether opening invocations at the Pittsylvania Board of Supervisors meetings that refer to Jesus Christ constitute a violation of the United States Constitution.

Response

It is my opinion that whether any particular prayer containing the words "Jesus Christ" would violate the United States Constitution turns on contextual facts not contained in your letter. Nonetheless, I provide general guidance on the subject.

Background

You indicate that your inquiry is prompted by a letter written by the American Civil Liberties Union. The letter alleges that, because the "opening invocations at the Pittsylvania Board of Supervisors meetings are consistently Christian in nature; that is, they explicitly refer to Jesus Christ[,]" such conduct by the Board constitutes a violation of the Establishment Clause of the United States Constitution.

Applicable Law and Discussion

Prayers at sessions of legislative bodies are deeply woven into the historical fabric of this country. The same session of the First Congress that passed the Bill of Rights adopted a policy of electing chaplains to open its sessions with a prayer. A statute providing for the payment of these chaplains was enacted into law on September 22, 1789. Within days of that enactment, the First Amendment passed through Congress and was sent to the States. Ever since then, the practice of legislative invocations has been considered valid, as the United States Supreme Court recognized in Marsh v. Chambers.

As the ACLU notes in its letter, the Court in Marsh cautioned that the practice of legislative prayer that it was upholding occurred in a context where it was not being used improperly to proselytize or advance or disparage a faith or belief. But the Court also said that courts should not closely review the content of prayer.

The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.

To the extent that the Supreme Court commented on the content of the prayers at issue, it was to note that the plaintiff complained "that the prayers are in the Judeo-Christian tradition," a fact that did not trouble the Court at all. Moreover, the United States Court of Appeals for the Eleventh Circuit recently upheld legislative prayers led by rotating volunteers even though they contained clearly sectarian content.

The Fourth Circuit, in whose jurisdiction Virginia lies, has repeatedly reaffirmed that legislative prayers are constitutional. Nonetheless, when the court has found that such invocations advanced a particular religion, it has held policies governing legislative prayers unconstitutional as applied. For example, in Wynne v. Town of Great Falls, the Fourth Circuit found the policy in question unconstitutional because it required the invocation of the name Jesus Christ. Further, in Joyner v. Forsyth County, a two-judge majority recently found the policy of a North Carolina county unconstitutional because it resulted in practice in an overwhelming number of sectarian prayers.

Even so, the majority opinion in Joyner notes that "[t]he bar for" a locality in permitting legislative invocations "is hardly a high one." The majority opinion approves of two approaches. First, a locality may request ministers to use nonsectarian prayers. The majority assures localities that if some sectarian references nonetheless are made, that courts are not "in the business of policing prayers for the occasional sectarian reference." Second, a locality may cast its net widely enough so that "leaders of all faiths . . . come forth." In that circumstance, the use of "ordinarily . . . brief sectarian terms, such as references to 'Jesus,' 'Allah,' 'God of Abraham, Isaac and Jacob,' 'Mohammed,' and 'Heavenly Father'" will not be unconstitutional because "the prayers, taken as a whole [do] not advance any particular faith." Ultimately, the majority found that precedent "require[s] legislative prayers to embrace a non-sectarian ideal."

As the dissent points out, however, the majority may be misapplying the precedent of Marsh and Simpson, thereby rendering an inconsistent analysis. As a result, the majority opinion, while acknowledging that references to specific sectarian terms is generally permissible, requires legislative bodies to continuously review the content of offered prayers to ensure they are not overwhelmingly identifiable as Christian. According to the dissent, the majority overemphasizes the voluntary individual invocations that result from the county's policy over the policy itself, which is the only government action before the Court and which the majority concedes is neutral. Further, as the dissent notes, because the majority offers no standard or formula for determining at what point the practice of voluntary sectarian prayer renders the neutral policy unconstitutional, courts will be required to be "in the practice of policing prayers" in opposition to Marsh. The dissent suggests, that in effect, to follow the majority, the only means to ensure no constitutional violation would be to eliminate legislative prayer all together, a result in direct contradiction to the traditions of this nation and one, as much precedent has demonstrated, not required by the Establishment Clause.

Nonetheless, despite the sharp criticism of the majority by the dissent, unless that opinion is subsequently, authoritatively limited, along the lines stated in the dissent, it would be imprudent for a Virginia locality or officers to act other than in accordance with it. In giving this opinion, I do not suggest that the Establishment Clause requires nonsectarian prayer at legislative meetings in the manner and to the extent required by the Joyner majority opinion; however, that opinion is currently binding in the Fourth Circuit.

Conclusion

Accordingly, while the determination of whether any particular prayer containing the words "Jesus Christ" would violate the United States Constitution turns on contextual facts not contained in your letter, it is my opinion that governmental bodies and officers should take heed of recent cases decided in the Fourth Circuit.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General